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AS 100/2019
IN THE COURT OF THE ADDITIONAL CIVIL JUDGE (SENIOR DIVISION),
SRIKAKULAM
Present: Smt.M.Anuradha,
Additional Civil Judge (Senior Division),Srikakulam
Tuesday, this the 2 nd day of April, 2024
APPEAL SUIT 100/2019
BETWEEN:
Nimmala Suryanarayana, S/o Simmayya, aged about 38 years, Mansion, R/o Door No.5-22, BC-A Colony, Dharmavaram Village, Etcherla Mandal, Srikakulam District. … Appellant/Defendant AND: Jella Suribabu, S/o Appayya, aged about 48 years, Business, BC-A Colony, Dharmavaram Village, Etcherla Mandal, Srikakulam District.
...Respondent/Plaintiff
ON APPEAL FROM THE DECREE AND JUDGMENT DATED 06.09.2018 ON
THE FILE OF PRINCIPAL JUNIOR CIVIL JUDGE COURT, SRIKAKULAM
MADE IN OS NO.308/2016 BETWEEN: Jella Suribabu, S/o Appayya, aged about 48 years, Business, BC-A Colony, Dharmavaram Village, Etcherla Mandal, Srikakulam District.
....Plaintiff
AND: Nimmala Suryanarayana, S/o Simmayya, aged about 38 years, Mansion, R/o Door No.5-22, BC-A Colony, Dharmavaram Village, Etcherla Mandal, Srikakulam District.
...Defendant
This Appeal suit is coming on 02.04.2024 before me for final hearing in the presence of Sri P.V.Ramana Dayal, Advocate for the Appellant/Defendant andSri P.V.Ramana Rao and Sri.N.B.Sekhar,Advocate for the Respondent/Plaintiff and after closing of the arguments on both sides and the matter having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1.This is an appeal filed by the Appellant/Defendant praying the court to set aside the decree and Judgment of Learned Principal Junior Civil Judge,
Srikakulam passed in O.S 308/2016 dt.06.09.2018 and to dismiss the said suit 2
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which was decreed for recovery of money infavour of the Respondent/Plaintiff by allowing this appeal with costs.
2.The grounds of appeal are as follows:-
i)that the Judgment of the trial court, dt. 06.09.2018 is quite contrary to law, weight of evidence and probabilities of the case.
ii)that the trial court failed to consider that the plaintiff created the suit promissory note dt:14/09/2015 with the forged signature and the suit promissory note is a forged, created and concocted one and not supported with any consideration, that the plaintiff filed the suit against the defendant only to counter blast the criminal cases filed by the defendant against the plaintiff and more over the plaintiff is due to the Defendant to an amount of Rs.8,00,000/- towards wages and etc., iii)that in the trial court failed to consider that the plaintiff filed the suit only to harass the defendant and to cause wrongful loss to the defendant and to have wrongful gain, that the attester and the scribe are the hence men of the plaintiff.
iv)that the trial court failed to consider that there are much variations between the signatures of the defendant and the signatures disclosed over the suit promissory note I.e, Ex.A.1 and the said fact can be easily identified with a naked eye.
v)that the trial court failed to consider the suit promissory note i.e., Ex.A.1 is not supported with any consideration and it is created, concocted and forged for the purpose of filing the suit as an after thought.
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vi)that the trial court failed to consider that the defendant is a daily wage labour and as such he could not adjust such a huge amount of a time towards hand writing expert charges, that accordingly the trial court has not given sufficient time to send the Ex.A.1 to hand writing expert.
vii)that the trial court failed to consider that the Defendant is a permanent resident of Dharmavaram Village since his ancestors, that previously he worked as a Mansion(Construction work) under the contractor /plaintiff in the L&T
Company, PBEL City( LERSEN & TOUBRO LIMITED, ECC DIVISION, ICICI
Bank Project, Gachibowl, Hyderabad.
viii)that the trial court failed to consider that in the month of January, 2006 the plaintiff and Jalla Laxmanarao offered the defendant to work under L& T
Company as Mansion for Rs.400/- per day towards daily wage on which the plaintiff agreed and joined as a daily wage labour ( Mansion) in the month of
February, 2006, that since then the defendant worked for 5 years i.e., February, 2006 to March, 2011.
ix)that the trial court failed to consider that the defendant and the other people
Dharmavaram village about 40 numbers were taken from Srikakulam to
Hyderabad for the above said work by the plaintiff and Jalla Laxmana rao to the
L & T company, Hyderabad.
x)that the trial court failed to consider that the plaintiff and Jalla Laxmana Rao used to collect the wages of the defendant and the other workers from the L&T company on behalf of the defendant, that the plaintiff and Jalla Laxmanarao did not pay the same to the defendant and other workers and they withhold the daily 4
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wages to an amount of Rs.8,00,000/-( Rupees eight lakhs only) belongs to the defendant.
xi)that the trial court failed to consider the plaintiff and the Jalla Laxmanrao used to pay the defendant and the other workers only an amount of Rs.160/- per day, that the plaintiff and Jalla Laxmanarao did not pay the amount of Rs.400/- per day as agreed, that the plaintiff and Jalla Laxmanarao cheated the defendant and the other workers induced and made them to believe that the balance amount is secured with the plaintiff and the Jalla Laxmanarao and the same will be given afterwards.
xii)that the trial court failed to consider that during the period of 2006 to 2011, the defendant and the other workers asked the plaintiff and Jallu Laxmanarao several times for the due amount under daily wages pending to be paid to the defendant and the other workers by the plaintiff and Jallu Laxmanarao, that the plaintiff and Jallu Laxmanarao postponed the same by one reason or other. The defendant and the other workers never forced the plaintiff and Jallu Laxmanarao as they are the permanent residents of Dharmavaram Village and they got good faith on them.
xiii) that the trial court failed to consider that the year, 2011 the defendant and the other workers demanded the plaintiff and Laxmanarao for the pending amount, that the plaintiff asked the defendant and the other workers to wait for another one year to settle the due amount, that the defendant and the other workers resigned from the said work and returned back to their native place
Dharmavaram Village.
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xiv)that the trial court failed to consider in the month of July, 2016, the complainant alone approached the plaintiff and demanded to pay the due amount pending under daily wages for the years 2006 to 2011, that the plaintiff and Jallu Laxmanarao not turned up to pay the same, that the defendant placed the matter before the village elders on which the village elders tried to compromise the matter and warned the plaintiff to pay the due amount to the defendant but invain, that the defendant made a complaint to the Etcherla Police station, that the said police not took any action.
xv)that the trial court failed to consider the fact that the plaintiff by anticipating that the defendant would take steps in the court of law by filing a criminal case against the plaintiff and Jallu Laxmanarao under sections 415,416,418,420,425,352,323,506(1) R/w 34 of IPC and to threaten the defendant with dire consequences, filed the above suit against the defendant by creating forged, concocted and fabricated promissory note.
xvi) that the trial court failed to consider that the defendant got issued a
Registered Legal Notice to the plaintiff and Jallu Laxmanarao demanding them to pay the due amount under daily wages pending to be paid to the defendant, that neither the plaintiff nor the Jallu Laxmanarao gave only reply to the defendant, that the defendant gave a police report against the plaintiff and Jallu
Laxmanarao to the SHO, Etcherla P.S. dt:21.09.2016 and also the defendant gave a report to the District Superintendent of Police , dt:28.11.2016 and the same is pending.
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xvii)that the trial court failed to consider that the defendant never borrowed any amount from the plaintiff at any time and it is nothing but a rank forged document created for the purpose of filing of the suit, that the plaintiff never issued a legal notice to the defendant, that the trial court failed to consider that the evidence of P.W.1 clearly established the version of the defendant is correct, that the evidence of P.W.2 and P.W.3 clearly established that the suit promissory note is created and forged one and the amount claimed under the alleged pronote is forged and it is not supported by any consideration and that the plaintiff filed the suit with all the false and frivolous allegations by suppressing the material facts.
3.Thereby the Appellant prays the court to consider the grounds of the appeal and to set aside the decree and Judgment dt. 06.09.2018 in OS 308/2016 passed by the trial court in favour of the Respondent/Plaintiff. Hence this appeal.
4.After receiving the notice in this Appeal, Respondent/Plaintiff made his appearance and contested the appeal.
5.Inspite of granting number of adjournments both the counsels for appellant and for the respondent not chosen to advance their arguments.
Hence, Arguments for Appellant and for respondents are treated as heard to proceed further to adjudicate the appeal suit on merits:
6.For easy understanding and convenience, the parties will be referred herein after as they are arrayed in the main suit.
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7.The case of the Plaintiff is as follows:
It is averred by the Plaintiff that the Defendant borrowed an amount of Rs.2,00,000/-(Rupees Two Lakhs only) from the Plaintiff on 14.09.2015 for the purpose of family expenses and to discharge his sundry debts, that on receipt of cash consideration Defendant has executed demand promissory note infavour of the Plaintiff on the even date agreeing to repay the same with interest @ Rs.24 % per annum to the Plaintiff or at his order before the attestors and scribe. Thereafter Plaintiff pleads that inspite of his repeated demands, defendant not paid the amount due under the said promissory note. Thereby
Plaintiff filed the suit for recovery of Rs.2,49,466/-(Rupees two lakhs forty nine thousand four hundred and sixty six only) with subsequent interest and costs against the Defendant.
8.On the other hand, the case of the Defendant as per the written statement reads as follows:-
a)Defendant has denied all material averments made by the Plaintiff in the plaint. Defendant pleads that in the month of January,2006, plaintiff and one Jalla Laxmanarao, offered the defendant to work in L & T company as a mason on payment of Rs.400/- per day towards daily wages, that the Defendant agreed and joined as a daily wage labourer in the month of February, 2006 and since then the defendant worked for 5 years i.e, February, 2006 to March, 2011.
Defendant pleads that he along with other 40 members residents of
Dharmavaram village went from Srikakulam to Hyderabad to work in L & T company, Hyderabad on the assurance given by the Plaintiff and one Jalla 8
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Laxamanarao. Defendant pleads that plaintiff and one Jalla Laxmanarao used to collect the wages of the defendant and the other workers from the L & T company on their behalf, that the plaintiff and Jalla Laxmanarao not paid agreed wages to the defendant and to other workers, that they withhold the daily wages to an amount of Rs.8,00,000/-(Rupees eight lakhs only) belong to the defendant.
b)The defendant further pleads that the plaintiff and Jalla
Laxmanarao used to pay the defendant and the other workers only an amount of
Rs.160/- per day, that the plaintiff and Jalla Laxmanarao did not pay the amount of Rs.400/- per day as agreed. It is averred that the plaintiff and Jalla
Laxmanarao cheated the defendant and the other workers induced and made believe them, that the balance amount is secured with the plaintiff and the Jalla
Laxmanarao and the same will be given afterwards. Defendant pleads that during the period of 2006 to 2011, the defendant and the other workers asked the plaintiff and Jalla Laxmanarao several times for the due amount under daily wages pending to be paid to the defendant and to the other workers by the plaintiff and Jalla Laxmanarao, that the plaintiff and Jalla Laxmanarao postponed the same by one reason or other. Defendant pleads that he never forced the plaintiff and Jalla Laxmanarao as they are the permanent residents of
Dharmavaram village and he got good faith on them. Defendant pleads that in the year, 2011 the defendant and other workers demanded the plaintiff and
Laxmanarao for the pending amount, that the plaintiff asked the defendant and the other workers to wait for another one year to settle the due amount.
Defendant pleads that he along with the other workers resigned from the said 9
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work and returned to their native place Dharmavaram village, that since the year, 2011, the defendant and the other workers collectively demanded the plaintiff and Jalla Laxmanarao several times for the due amount but they never turn up to pay the same to the defendant and they used to postpone the same on one reason or other. The defendant further pleads that in the month of July, 2016 he alone approached the plaintiff and demanded him to pay the due amount pending under daily wages for the years 2006 to 2011, that the plaintiff and Jalla Laxmanarao not turned up to pay the same, that the defendant placed the matter before the village elders, that the village elders tried to compromise the matter and warned the plaintiff to pay the due amount to the defendant but invain, that the defendant made a complaint to the Etcherla Police Station but they did not initiate any action.
c)Defendant further pleads that the plaintiff anticipating that the defendant would take steps in the court of law by filing a criminal case against the plaintiff, threatened him with dire consequences and filed the present suit against him by creating forged, concocted and fabricated promissory note.
Defendant pleads that he is taking separate steps in the Court of Law against the plaintiff for the offences and Jalla Laxmanarao under sections 418,420,425,352,323,506(1) R/w 34 of IPC. Defendant pleads that he got issued legal notice to the plaintiff and to Jalla Laxmanarao demanding them to pay the due amount under daily wages pending amounts paid to the defendant, that neither the plaintiff nor the Jalla Laxmanarao gave any reply to the said 10
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notice. Defendant further pleads that he never borrowed any amount from the plaintiff and hence prayed the court to dismiss the suit.
9.On perusal of the pleadings of both parties, the trial court has framed the following issues for trial.
1.Whether the suit promissory note is true, valid and binding on the
Defendant?
2. Whether the plaintiff is entitled to recover suit amount as prayed ?
3. To what relief?
10.To establish the suit claim, the Plaintiff is examined as PW.1 and got marked Ex A.1. Plaintiff also examined the 1st attester and the scribe of Ex
A.1/Promissory note as PW.2 and PW.3 respectively.
11.After hearing the arguments of both counsels and after evaluating the oral and documentary evidence placed on record, the trial court has come to the conclusion that the Plaintiff is able to establish his claim in the suit and believed the evidence placed on the record by the Plaintiff and passed decree and judgment infavour of the Plaintiff for recovery of suit claim.
12.Aggrieved by the said decree and Judgment passed by the learned
Principal Junior Civil Judge, Srikakulam dt.06.09.2018 the appellant/Defendant
preferred the present appeal.
13.Now the points for consideration are:
1. Whether the decree and Judgment passed by the Principal Junior Civil
Judge, Srikakulam in OS No.308/2016 dt.06.09.2018 is proper and in
accordance with law, if not, whether it requires any interference by this
court ?
2. To what relief?
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14. POINT NO.1:
The Plaintiff has filed the suit for recovery of money basing on promissory note. To prove suit claim, Plaintiff is examined as Pw.1. Pw.1 deposed that Defendant borrowed an amount of Rs.2,00,000/-(Rupees two lakhs only) from him on 14.09.2015 for the purpose of family expenses and to discharge of his sundry debts and executed Ex A.1/Original suit promissory note in his favour and agreed to pay interest @ 24% per annum, that subsequently,
Defendant failed to repay the debt inspite of his repeated demands.
15.In support of his evidence, Plaintiff also examined 1st attestor of Ex
A.1/suit promissory note namely D.Srinivasarao as PW.2 and Scribe of Ex.A1 by name G.Ramakrishnareddy as PW.3. PWs.2 and P.W.3 corroborated the evidence of PW.1 in respect of execution of Ex.A1/ Promissory note by the defendant in favour of the plaintiff by receiving consideration of Rs.2,00,000/- (Rupees two Lakhs only).
16.P.W.1 to PW.3 were examined in Cross by the learned defendant counsel P.W.1. Nothing elicited to discredit the evidence of P.W.1 to PW.3 .
P.W.2, one of the attestor, consistently testified that the transaction under Ex.A.1 took place in his presence and also deposed about the passing of consideration of Rs.2,00,000/-(Rupees two lakhs only) from P.W.1 to defendant. Thus from the evidence of P.W.1 to 3 and from the document under Ex.A.1 plaintiff initially proved that the defendant executed the suit promissory note in his favour.
17.In the Judgment in Kundan Lal Rallaram Vs The Custodian,
Evacuee Property Bombay reported in AIR 1961 SC page No.1316 their 12
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lordships held that as soon as the execution of the promissory note is proved, the rule of presumption laid down in section 118 of the Negotiable Instrument
Act(herein referred as NI Act for brevity) helps him to shift the burden to the other side. The relevant part of Section 118 of NI Act reads: “Until the contrary is proved, the following presumptions shall be made:(a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, inforsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
18.In the Judgment in Bharat Barrel and Drum Manufacturing Vs
Amin Chand Payrelal reported in AIR 1999 SC 1008 their lordships held that once execution of the promissory note is proved, the presumption under
Section 118(a) under NI Act would arise that it is supported by consideration and the Defendant can prove the non-existence of consideration by raising a probable defence.
19. In the present case on heard, defendant took the defence that
Ex.A.1 is created by the plaintiff as he demanded for payment of the wage arrears. In proof his defence and to rebut the presumption under Section 118 (a) of NI Act. Defendant is examined as D.W.1. The evidence of D.W.1 is that in the month of February, 2006 on the request of P.W.1 and one Jalla Laxmanarao defendant worked as Mason for daily wages of Rs.400/-(Four hundred only), that PW.1 and above said Laxmanarao collected wages of the Defendant and other 40 workers from L & T company, that they withhold the daily wages to an amount of Rs.8,00,000/-(Rupees eight lakhs only) due to the defendant. D.W.1 13
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further testified that plaintiff paid only 160/-(Rupees one hundred and sixty only) per day to him towards wages instead of the agreed wages of Rs.400/-(Rupees four hundred only) per day and thereby plaintiff and the above said Jallu
Laxmanarao not only cheated the defendant but cheated the other 40 workers, for which defendant demanded the plaintiff to pay the wage dues, but plaintiff put deaf ear. D.W.1 testified that he gave complaint before the SHO of Etcherla
Police Station but police not took any action and thereby he is taking steps to private complaint against plaintiff and above said Jallu Laxmanarao for the offences under Sections 415,41,6,418,420,425,352,323,506(1) r/w 34 of IPC.
20.Dw.1 testified he got issued Legal notice to the plaintiff and to the above said Laxmanarao demanding them to pay the wage dues. In proof his testimony of issuance of notice to plaintiff, D.W.1 filed office copy of Legal notice dt.08.09.2016 and the same is marked as Ex.B.1. The trial court has not referred the Ex B.1 in its Judgment. PW.1 admitted receipt of Ex.B.1/Legal notice got issued by the defendant. Admittedly P.w.1 not issued any reply notice to the defendant. However, mere non issuance of reply notice is not sufficient to draw any adverse inference against the plaintiff.
21. In the Judgment in Firm Sohan Lal Kishan Lal Vs Firm Talwaria
Brothers reported in 1984 WLN UC 212, their Lordships further held: “ non reply to the notice is not a primary evidence within the meaning of Section 24 of
Indian Evidence Act. However indirect evidence which does not by itself to prove the fact in issue but so associated with fact in issue that can reasonably help in reaching a logical conclusion”.
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22.In the present case on hand, the plea of defendant is that since he gave complaint before Etcherla Police out of grudge plaintiff foisted the false suit against him. D.W.1 admittedly not filed copy of any such complaint lodged
before Etcherla Police against the plaintiff. Admittedly D.W.1 and plaintiff belong
to same village. In his cross examination P.W.1 denied the suggestion that he worked in L & T company. Defendant in proof his plea not filed any document to show that he worked under the plaintiff in L & T Company and plaintiff not paid agreed wages to him. Except his self serving of testimony, D.W.1, not chosen to examine any other workers worked with him in L & T Company during the relevant period .
23.Defendant further pleads that Ex.A.1 is forged document. In this regard defendant filed application under section 45 of Indian Evidence Act in
IA 225/2017 before the trial court and the same was allowed on 19.04.2018 on
condition to obtain demand draft in favour of FSL, Hyderabad for Rs.5,000/- (Rupees five thousand only) on or before 26.04.2018 and directed the defendant to deposit for Rs.15,000/-(Rupees fifteen thousand only) in the trial court towards charges for the expert evidence. However on 26.04.2018 the said petition was dismissed by the trial court as the defendant failed to comply the conditional order. Thus, though filed petition, defendant failed to take further steps to forward Ex.A.1 for comparison of his disputed signatures with that of his admitted signatures by the Handwriting Expert.
24.Defendant not placed any evidence in respect of his employment under the plaintiff or under one Jallu Laxmanarao at any point of time. Mere 15
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denial of his signature on Ex.A.1 is not sufficient to rebut the presumption under section 118(a) of NI Act.
25.In the Judgment in Bharat Barrel case, cited supra, their lordships held: “bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting of onus of proving to the Plaintiff. To disprove the presumption, the Defendant has to bring on record such facts and circumstances upon consideration on which the court may either believe that the consideration did not exist or its non-existence was so probable with a prudent man would under the said circumstances to the case, shall act upon the plea that it did not exist……..”. Their lordships further held that if the Defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the Plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) of NI Act in his favour.
26.In the present case on hand, defendant failed to rebut the presumption drawn in favour of the plaintiff in respect of Ex.A.1 transaction under section 118 of NI Act. On the other hand, the evidence of Pws. 1 to 3 is consistent in respect of execution and passing of consideration under Ex.A1 in their presence. Thus defendant failed to rebut the presumption U/s 118 (a) of N.I
Act. Thereby presumption in respect of Ex A.1 U/s 118 (a) of N.I Act in favour of plaintiff holds good.
27.Considering the material placed before the trial court and findings of the trial court and the additional observations and findings given by this court, 16
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this courts holds that the trial court has rightly appreciated the evidence of both actual and legal aspects and decided the issues correctly and passed well reasoned judgment. Therefore it is held that the trial court has rightly passed decree and judgment in OS 308/2016, dt. 06.09.2018 by granting decree and judgment for recovery of money in favour of the plaintiff and there are no sufficient and tenable grounds to interfere with the said decree and judgment.
Accordingly point No.1 is answered.
28. POINT NO.2:
In view of the findings given on point no.1, this court holds that the present appeal is devoid of merits and liable to be dismissed.
In the result, the Appeal is dismissed without costs by
confirming the decree and judgment passed by the learned Prl. Junior
Civil Judge’s court, Srikakulam in OS 308/2016 dt:06.09.2018.
Dictated directly on bench by the Typist, corrected and pronounced
by me in open Court, on this the 2 nd day of April, 2024.
Addl.Civil Judge (Senior Division), Srikakulam.
APPENDIX OF EVIDENCE
Witnesses Examined and documents marked
APPELLANT: RESPONDENT:
None/Nil.
Addl.Civil Judge (Senior Division), Srikakulam.
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IN THE COURT OF THE ADDITIONAL CIVIL JUDGE (SENIOR DIVISION),
SRIKAKULAM
Present: Smt.M.Anuradha,
Additional Civil Judge (Senior Division),Srikakulam
Tuesday, this the 26 th day of March, 2024
APPEAL SUIT 112/2019
BETWEEN:
Adapa Appala Naidu, S/o Late Swami Naidu, aged about 40 years, Business, R/at D.No.1-9A, Velpurai Village, Ranastalam Mandal, Srikakulam District.
… Appellant/Defendant
AND:
Adapa Srinu, S/o Venkatappadu, aged about 30 years, Cultivation, R/at D.No.1-24, Velpurai Village, Ranastalam Mandal, Srikakulam District.
...Respondent/Plaintiff
ON APPEAL FROM THE DECREE AND JUDGMENT DATED 04.01.2018 ON
THE FILE OF PRINCIPAL JUNIOR CIVIL JUDGE COURT, SRIKAKULAM
MADE IN OS NO.228/2016
BETWEEN:
Adapa Srinu, S/o Venkatappadu, aged about 30 years, Cultivation, R/at D.No.1-24, Velpurai Village, Ranastalam Mandal, Srikakulam District.
....Plaintiff
AND:
Adapa Appala Naidu, S/o Late Swami Naidu, aged about 40 years, Business, R/at D.No.1-9A, Velpurai Village, Ranastalam Mandal, Srikakulam District.
...Defendant
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This Appeal suit is coming on 26.03.2024 before me for final hearing in the presence of Sri Ch.Satyarao, Advocate for the Appellant/Defendant and Sri P.V.Ramana Rao and Sri.S.Appalanaidu,Advocates for the Respondent/Plaintiff and after closing of the arguments on both sides and the matter having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1.This is an appeal filed by the Appellant/Defendant praying the court to set aside the decree and Judgment of Learned Principal Junior Civil Judge,
Srikakulam passed in O.S 228/2016 dt.04.01.2018 and to dismiss the said suit which was decreed for recovery of money infavour of the Respondent/Plaintiff by allowing this appeal with costs.
2.The grounds of appeal are as follows:-
i)that the Judgment of the trial court, dt. 04.01.2018 is quite contrary to law, weight of evidence and probabilities of the case.
ii)that the lower court ought to have seen that there is no cash consideration from the respondent to appellant covered under Ex.A1 promissory note, iii)that the appellant being defendant in the trial court rightly presented the true facts before the Hon’ble court but the trial court did not believe the version of the appellant, iv)that the trial court did not give opportunity to adduce additional evidence to prove the said chit transaction person but simply closed the evidence did not give sufficient opportunity to re-open the matter.
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v)that the trial court rightly framed the issued by miserably failed to appreciation with regarding 1st main core issue in favour of the appellant, vi)that the suit is simply pronounced on the presumptions of Negotiable
Instrument Act, but not on facts or else to give sufficient opportunity to adduce rebuttal evidence on behalf of the appellant, vii)that the entire judgment of the trial court is basing on presumptions and surmise but did not allow the appellant to adduce his rebuttal evidence as per section 118 of N.I Act to prove his contention by examining the chit transaction petition in respect to that of his pleadings, viii)Hence the appellant filed this appeal for remand the same to trial court to enable him to prove his case by adducing his rebuttable evidence also to mark the chit transaction book let, ix)that the lower could not appreciate the several important aspects and contention raised by the appellant and decided the matter in a casual, routine and hasty manner without giving any opportunity to let in rebuttal evidence on behalf of the appellant.
3.Thereby the Appellant prays the court to consider the grounds of the appeal and to set aside the decree and Judgment dt. 04.01.2018 in OS 228/2016 passed by the trial court infavour of the Respondent/Plaintiff. Hence this appeal.
4.After receiving the notice in this Appeal, Respondent/Plaintiff made his appearance and contested the appeal.
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5.Inspite of granting number of adjournments both the counsels for appellant and for the respondent not chosen to advance their arguments.
Hence, Arguments for Appellant and for respondents are treated as heard to proceed further to adjudicate the appeal suit on merits:
6.For easy understanding and convenience, the parties will be referred herein after as they are arrayed in the main suit.
7.The case of the Plaintiff is as follows:
It is averred by the Plaintff that the Defendant borrowed an amount of Rs.20,000/-(Rupees twenty thousand only) from the Plaintiff on 31.07.2013 for discharging his sundry debts, that on receipt of cash consideration
Defendant has executed demand promissory note infavour of the Plaintiff on the even date by agreeing to repay the same with interest @ Rs.24 % per annum to the Plaintiff or at his order before the attestors and scribe. Thereafter Plaintiff pleads that inspite of his repeated demands, defendant not paid the amount due under the said promissory note, for which plaintiff got issued legal notice to the Defendant on 13.06.2016 calling upon the Defendant to pay debt due under the suit promissory note, that the Defendant received the said legal notice and issued reply notice, dt. 29.06.2016 with false allegations. Thereby Plaintiff filed the suit for recovery of Rs.34,267/-(Rupees thirty four thousand two hundred 21
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and sixty seven only) with subsequent interest and costs against the
Defendant.
8.On the other hand, the case of the Defendant as per the written statement reads as follows:-
Defendant has denied all material averments made by the Plaintiff in the plaint. Defendant pleads that he happened to be chit member run by one private person in Velpurai village, and in that connection defendant gave blank promissory note for the chits transaction, that after closure of the chit payments, though he demanded the above said private person who run chit transaction, the said present person not to handed over the same to the defendant.
Defendant pleads that taking advantage on evidence between himself and the plaintiff, plaintiff secured the said promissory note from the said private person in
Velpuria village and foisted this false suit. Defendant pleads that the suit promissory note is not supported by consideration . There by defendant prays to dismissed the suit.
9.On perusal of the pleadings of both parties, the trial court has framed the following issues for trial.
1.Whether the suit promissory note is true, valid and binding on the
Defendant?
2. Whether the plaintiff is entitled to recover suit amount as prayed ?
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3. To what relief?
10.To establish the suit claim, the Plaintiff is examined as PW.1 and got marked Ex A.1 to Ex A.3. The Plaintiff also examined the 1st attester and the scribe of Ex A.1/Promissory note as PW.2 and PW.3 respectively. On the other hand, the Defendant got examined himself as DW.1, but no documentary evidence was adduced on behalf of the the Defendant.
11.After hearing the arguments of both counsels and after evaluating the oral and documentary evidence placed on record, the trial court has come to the conclusion that the Plaintiff is able to establish his claim in the suit and believed the evidence placed on the record by the Plaintiff and passed decree and judgment infavour of the Plaintiff for recovery of suit claim.
12.Aggrieved by the said decree and Judgment passed by the learned
Principal Junior Civil Judge, Srikakulam dt.04.01.2018 the appellant/Defendant
preferred the present appeal.
13.Now the points for consideration are:
1. Whether the decree and Judgment passed by the Principal Junior Civil
Judge, Srikakulam in OS No.228/2016 dt.04.01.2018 is proper and in
accordance with law, if not, whether it requires any interference by this
court ?
2. To what relief?
14. POINT NO.1:
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The Plaintiff has filed the suit for recovery of money basing on promissory note. To prove suit claim, Plaintiff is examined as Pw.1. Pw.1 deposed that Defendant borrowed an amount of Rs.20,000/-(Rupees twenty thousand only) from him on 31.07.2013 for the purpose of discharge of his sundry debts and executed Ex A.1/Original suit promissory note in his favour and agreed to pay interest @ 24% per annum, that subsequently, Defendant failed to repay the debt inspite of his repeated demands. The evidence of PW.1 is that he got issued Ex A.2/Legal notice dt.13.06.2016 to the Defendant and inturn defendant got issued Ex.A3/ Reply notice dt.29.06.2016 with false averments.
15.In support of his evidence, Plaintiff also examined 1st attestor of Ex
A.1/suit promissory note namely B. Satyanarayana as PW.2 and Scribe of Ex.A1 by name B.Raminaidu as PW.3. PWs.2 and P.W.3 corroborated the evidence of
PW.1 in respect of execution of Ex.A1/ Promissory note by the defendant in favour of the plaintiff by receiving consideration of Rs.20,000/- (Rupees twenty thousand only).
16.On the other hand, Defendant is examined as DW.1. Dw.1 testified that Ex.A1 is blank signed document issued to one private person for chit transaction, that due to the existing enimity between himself and the plaintiff, the present suit is foisted by the plaintiff.
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17.This a case where Dw.1 admits his signature on Ex.A1/Promissory note. Further more PW.2 and P.W.3 corroborated the evidence of PW.1 in respect of date, consideration and presence of defendant and place of execution of Ex.A1. PW.1 to P.W.3 at one voice testified that the transaction under Ex.A1 took place in the house of PW.3 and also deposed that defendant received consideration under Ex.A1. Since the defendant admits his signature on Ex.A1 and consider to oral evidence of PW.1 to P.W.3, which iscorroboration with the document as evidence under Ex.A1, Plaintiff has initially proved execution of
Ex.A1 by the defendant.
18.In the Judgment in Bharat Barrel and Drum Manufacturing Vs Amin
Chand Payrelal reported in AIR 1999 SC 1008 their lordships held that once execution of the promissory note is admitted or proved, the presumption under
Section 118(a) under Negotiable Instrument Act would arise that it is supported by consideration and the Defendant can prove the non-existence of consideration by raising a probable defence.
19. In the present case on heard, defendant took the defence that he gave blank signed promissory note to one private person conducting chit transactions in Velpuri Village. However, defendant not filed any document in proof of any such chit transactions participated by him in Velpurai village. Further more defendant not even furnished the name of the said private person to whom he gave blank signed promissory note in chit transaction. The evidence on record disclose that defendant is no other than the junior paternal uncle of PW.1. D.W.1 25
AS 100/2019
to testified that he filed suit in OS 249/2016 against the father, uncles of PW.1.
DW.1 admits that plaintiff is not a party to the suit in OS 249/2016. Even otherwise defendant not took any plea in respect of his filing of the suit in OS 249/2016 against father of the plaintiff and his family members for grant of permanent injunction in respect of plaint schedule property. For the first time defendant in his evidence as DW.1 testified about his filing of suit in OS 249/2016. In the absence of pleadings in respect of filing of suit, the evidence adduced by DW.1 is not admissible. Even otherwise, mere pending suit in OS 249/2016 between defendant and father of plaintiff and their family members is itself not sufficient to believe defendants plea of enmity to foist this false suit.
20. As discussed supra, defendant not even furnished the name of the person with whom he kept his blank signed promissory note. Defendant not even examined any witnesses in proof of his defence. One of the grounds of Appeal raised by the appellant is the trial court has not given sufficient opportunity to the defendant to lead further evidence. In this regard perused the docket proceedings of the trial court, it discloses that on 07.10.2017 the suit for adjourned to 13.12.2017 and 19.12.2017 by giving opportunity to the defendant to lead further evidence. It was on 19.12.2017 as the defendant neither adduced further evidence nor paid conditional costs ordered on 19.12.2017, his evidence was closed. Thus the trial court has given sufficient opportunity to the defendant but the defendant fail to lead evidence. On the other hand the evidence of Pws.
1 to 3 is consistent in respect of passing of consideration under Ex.A1 in their presence. Thus defendant failed to rebut the presumption U/s 118 (a) of N.I Act.
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Thereby presumption in respect of consideration U/s 118 (a) of N.I Act in favour of plaintiff.
21. Considering the material placed before the and finding of the trial court and the additional observation and findings given by this court, this courts holds that the trial court has rightly appreciated the evidence of both actual and legal aspects and decided the issues correctly and passed well reasoned judgment.
Therefore this is considered due that the trial court has rightly passed decree and judgment in OS 228/2016, dt. 04.01.2018 by granting decree and judgment for recovery of money in favour of the plaintiff and there are no sufficient and tenable grounds to interfere with the said decree and judgment. Accordingly point No.1 is answered.
22. POINT NO.2:
In view of the findings given on point no.1, this court holds that the present appeal is devoid of merits and liable to be dismissed.
In the result, the Appeal is dismissed without costs by
confirming the decree and judgment passed by the learned Prl. Junior
Civil Judge’s court, Srikakulam in OS 228/2016.
Dictated directly on bench by the Typist, corrected and pronounced by me
in open Court, on this the 26th day of March, 2024.
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Addl.Civil Judge (Senior Division), Srikakulam.
APPENDIX OF EVIDENCE
Witnesses Examined and documents marked
APPELLANT: RESPONDENT:
None/Nil.
Addl.Civil Judge (Senior Division),
Srikakulam.
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AS 100/2019
Date of presentation: 30.11.2018 Date of filing:22.06.2019
IN THE COURT OF THE ADDITIONAL CIVIL JUDGE(SENIOR DIVISION),
SRIKAKULAM
Present: Smt.M.Anuradha,
Additional Civil Judge(Senior Division),Srikakulam
Tuesday, this the 2 nd day of April, 2024
APPEAL SUIT 100/2019
BETWEEN:
Nimmala Suryanarayana, S/o Simmayya, aged about 38 years, Mansion, R/o Door No.5-22, BC-A Colony, Dharmavaram Village, Etcherla Mandal, Srikakulam District. … Appellant/Defendant AND: Jella Suribabu, S/o Appayya, aged about 48 years, Business, BC-A Colony, Dharmavaram Village, Etcherla Mandal, Srikakulam District.
...Respondent/Plaintiff
ON APPEAL FROM THE DECREE AND JUDGMENT DATED 06.09.2018 ON
THE FILE OF PRINCIPAL JUNIOR CIVIL JUDGE COURT, SRIKAKULAM
MADE IN OS NO.308/2016
BETWEEN:
Jella Suribabu, S/o Appayya, aged about 48 years, Business, BC-A Colony, Dharmavaram Village, Etcherla Mandal, Srikakulam District.
....Plaintiff
AND: Nimmala Suryanarayana, S/o Simmayya, aged about 38 years, Mansion, R/o Door No.5-22, BC-A Colony, Dharmavaram Village, Etcherla Mandal, Srikakulam District.
...Defendant
This is an appeal filed by the Appellant/Defendant praying the court to set aside the decree and Judgment of Learned Principal Junior Civil Judge, Srikakulam passed in O.S 308/2016 dt.06.09.2018 and to dismiss the said suit which was decreed for recovery of money infavour of the Respondent/Plaintiff by allowing this appeal with costs.
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Value of the suit for the purpose of Court fee and jurisdiction is Rs.2,96,133/- (Rupees Two lakhs ninety six thousand one hundred and thirty three only) and court fee of Rs.5426/- is paid under Section 49 R/w 20 of A.P.C.F. and S.V. Act, 1956.
This Appeal suit is coming on 02.04.2024 before me for final hearing in the presence of Sri P.V.Ramana Dayal, Advocate for the Appellant/Defendant andSri P.V.Ramana Rao and Sri.N.B.Sekhar,Advocate for the Respondent/Plaintiff and the matter having stood over for consideration till this day and this Court doth order and decree as follows:-
D E C R E E
i) that the Appeal be and the same is hereby dismissed; and ii)that by confirming the decree and Judgment passed by the learned Prl.Junior Civil Judge court, Srikakulam in OS No.308/2016 dt.06.09.2018;
and
iii) that each party to bear their own costs.
Given under my hand and the seal of the Court, this the 02 nd day of
April, 2024
Addl.Civil Judge(Senior Division), ` Srikakulam.
MEMORANDUM OF COSTS
For Appellant: For Respondent:
No costs memo filed on either side
Decree is drafted properly.
Senior Superintendent Addl.Civil Judge(Senior Division), Srikakulam.