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IN THE COURT OF XI ADDITIONAL DISTRICT AND SESSIONS JUDGE
(F.T.C), AT L.B.NAGAR, R.R.DISTRICT
Present: Smt.P.Annie Rose Christian
XI Additional District Judge, (F.T.C), At L.B.Nagar, R.R.District.
Dated this the 4 th day of December, 2019
A.S.No. 231 of 2014
Between:
Omprakash Marda, S/o.Late Jamnalaji Marda, Aged about 68 years, Occ: Business, R/o.16-11-511/d/2581, Shalivahana Nagar,
Moosarambagh, Hyderabad. ...Appellant
A n d
1. C.Indra Devi, W/o. C.L.Prabhakar, Aged about 62 years, Occ : Housewife.
2. C.Srinivas, W/o. C.L.Prabhakar, Aged about 40 years, Occ : Business.
Both are R/o.1-8-114, Road No.1, Vidyutnagar Colony, Dilsukhnagar,
Hyderabad -500060. ...Respondents
APPEAL AGAINST THE JUDGEMENT AND DECREE DATED 18 th DAY OF
FEBRUARY, 2014 PASSED IN O.S.NO.288/2012 BY THE
II ADDITIONAL JUNIOR CIVIL JUDGE, RANGA REDDY DISTRICT AT
L.B.NAGAR.
O.S.NO. 288 OF 2012
Between:
Omprakash Marda, S/o.Late Jamnalaji Marda, Aged about 63 years, Occ: Business, R/o.16-11-511/d/2581, Shalivahana Nagar,
Moosarambagh, Hyderabad. ...Plaintiff
A n d
2
1. C.Indra Devi, W/o. C.L.Prabhakar, Aged about 60 years, Occ : Housewife.
2. C.Srinivas, W/o. C.L.Prabhakar, Aged about 38 years, Occ : Business.
Both are R/o.1-8-114, Road No.1, Vidyutnagar Colony, Dilsukhnagar,
Hyderabad -500060. ...Defendants
This appeal coming before me on 05.09.2019 for final hearing in the presence of Sri K.Venkateshwarlu, advocate for the Appellant, and Sri M.Krishna Rao advocate for Respondent,upon perusal of the material papers on record and having stood over for consideration till this day, this court delivered the following:
JUDGMENT
1)This is an appeal preferred by plaintiff in O.S. No.288/2012 on the file of II
Additional Junior Civil Judge, Ranga Reddy District at L.B.Nagar, challenging the
Judgment and decree dated.18.02.2014. For the purpose of convenience the parties are, hereinafter, refered to the appellant as plaintiff and respondent as defendant.
2)The suit is for recovery of sum of Rs.75,000/- with interest and costs against the defendants. The case of the plaintiff is that husband of the first defendant and father of second defendant Sri. C.L.Prabhakar approached the plaintiff on 19.11.2009 with a request to lend a sum of Rs.31,000/- as a hand loan to meet his medical expenses.
At the request of Sri.C.L.Prabhakar, the plaintiff has lent an amount of Rs.31,000/- on 19.11.2009. After receiving the said amount Sri.C.L.Prabhakar executed a promissory note and receipt in favour of plaintiff for Rs.31,000/- together with interest at the rate of 3% percent per month i.e., compounded on monthly basis in case of default.
3)The plaintiff further submitted that Sri.C.L.Prabhakar failed to repay the said amount inspite of plaintiffs repeated demands. On 12.10.2010 plaintiff got issued a legal notice to Sri.C.L.Prabhakar demanding him to pay the due amount, but even after 3 receipt of legal notice Sri.C.L.Prabhakar failed to pay any amount. Plaintiff further contends that he came to know that the original borrower/Sri.C.L.Prabhakar died on 08.03.2012 leaving behind defendants as legal heirs and successors to his estate.
4) Later plaintiff got issued notice on 07.05.2012 demanding the defendants for the payment of due amount under pronote, dt.19.11.2009 executed by Sri.C.L.Prabhakar.
The defendants refused to receive the notice. Hence the plaintiff prayed the Hon’ble
Court to pass a decree in favour of the plaintiff against the defendants for a sum of
Rs.75,000/- (principal amount of Rs.31,000/- + interest amount of Rs.44,000/-) from the date of the suit to the date of payment and costs of the suit.
5)The Defendants filed written statement and denied the contents of the plaint. The defendants further submitted that Sri.C.L.Prabhakar was hail and healthy and he was not suffering from any serious ailment to obtain loan from plaintiff. Sri.C.L.Prabhakar was never in need of money as he was financially well. The alleged notice dated.07.05.2012 was never received by the defendants nor to their knowledge they never refused any such notice as alleged by the plaintiff.
6)Plaintiff lend money to Sri.C.L.Prabhakar to meet his personal needs, but not to meet any family obligations, and as such no personal liability can be fastened against defendants. Defendants further submitted that Sri.C.L.Prabhakar never disclosed about the alleged loan transaction between himself and plaintiff. Sri.C.L.Prabhakar did not leave any assets in favour of the defendants. The entire contents of the plaint are false, concocted and created for the obvious reasons. Hence prayed to dismiss the suit.
7)Basing on the above said pleadings the following issues were settled for trial :
1. Whether the plaintiff got cause of action to file the suit against these defendants ?
2. Whether the plaintiff is entitled for recovery of money against these defendants ?
3. To what relief ?
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8)During the trial plaintiff himself got examined as PW-1 and Ex.A1 to A7 were marked. On behalf of the defendants, first defendant got herself examined as DW1 and no documents were marked. Considering the material on the record. The learned
II Addtitional Junior Civil Judge, R.R.District at L.B.Nagar dismissed the suit on the following grounds :
(i) The plaintiff failed to establish that the amount was lent to
Sri.C.L.Prabhakar to meet necessities of the family, but in-fact the amount was lent for medical expenses of Sri.C.L.Prabhakar, which was only a personal necessity but not a family necessity.
(ii) There was no transaction among the plaintiff and the defendants directly and the plaintiff failed to establish, the cause of action for filing the suit against the defendants and that the defendants are not liable for the suit claim.
9) The grounds on which the said judgment is challenged by the plaintiff are :
(I) The court ought to have held that the respondents who are the legal heirs of the borrower i.e., Late Sri.C.L.Prabhakar, who succeed the estate of the Sri.C.L.Prabhakar are liable to pay the suit claim of the appellant.
(ii) The court ought to have decreed the suit of the appellant in view of the submissions made by DW-1 in her cross examination about the acquaintance of Late Sri.C.L.Prabhakar with the appellant and that Sri.C.L.Prabhakar was suffering with diabetes for past thirty years. She further stated that her husband and appellant carried business.
(iii) The finding of the court below that there is no direct transaction between the appellant and the respondents and the appellant failed to establish that he has got any cause of action for filing the suit against the respondent is not correct.
(iv) The finding given by the lower court that the amount lent to Sri.C.L.Prabhakar was not for any necessities of family, but in-fact it was lent to meet his medical expenses, which would be only a personal necessity and not a family necessity, is erroneous and against the pleadings and evidence of the parties.
(v) The finding of the court below that appellant failed to take steps to institute a suit during the life time of Sri.C.L.Prabhakar is irrelevant and 5 court below ignored that the suit was filed within a period of the limitation, explaining the reason to file suit by the respondents.
(vi) The court below erroneously presumed that the appellant is a money lender, and the transaction between the parties is hit by Money Lenders Act. Claiming of interest of three percent is not an offence nor dis-entitle appellant to recover the amount from the borrower in one or two transactions and the appellant cannot be treated as money lender.
(vii) The court below failed to note the admissions made by the first Respondent/DW-1 that she was aware of Legal Notice/Ex.A6 and said that she informed the same to her counsel.
(viii) The court below ought to have considered the admissions made by DW-1 during her cross examination contrary to her pleadings in written statement and her chief examination.
(ix) The court below ought to have considered the inconsistency in the pleadings and the evidence of the respondents while adjudicating the matter.
10)Heard both sides.
11)POINTS FOR DETERMINATION :
( i) Whether the plaintiff proved that the deceased/Sri.C.L.Prabhakar executed
the pronote, dated.19.11.2009 or not ?
(ii) Whether the plaintiff is entitled to get a decree basing on the promissory
note executed by the deceased/Sri.C.L.Prabhakar against the defendants
personally or not ?
12)Point No.1 : - Whether the plaintiff proved that the deceased/Sri.C.L.Prabhakar executed the pronote, dated.19.11.2009 or not ?
13)The findings of the lower Court on Issue No.1 is that the plaintiff failed to establish that the amount was lent to Sri.C.L.Prabhakar to meet necessities of family, but in-fact the amount was lent for medical expenses of the said Sri.C.L.Prabhakar which would only to be a personal necessity and not a family necessity. There is no transaction between the plaintiff and the defendant directly. The plaintiff has failed to establish that he has got any cause of action for filing this suit against the defendants 6 and that the defendants are not liable for the suit claim.
14)The finding of the lower Court on the Issue No.2 is that the plaintiff has no cause of action for filing this suit against the defendants and that the plaintiff is not entitled for recovery of money against the defendants, hence dismissed the suit.
15) On behalf of the plaintiff, plaintiff himself got examined as PW-1 and Exs.A1 to A7 were marked. The perusal of Ex.A1/Promissory Note, Dt.19.11.2009 shows that it has been executed in favour of the plaintiff by Sri.C.L.Prabhakar for a sum of
Rs.31,000/-. As seen from the recitals made in Ex.A2/Receipt, dt.19.11.2009 it goes to show that Sri.C.L.Prabhakar received cash of Rs.31,000/-.
16) First defendant was examined as DW-1 and reiterated the contents of the written statement, and in cross examination by the learned plaintiff counsel, she deposed that Late.Sri.C.L.Prabhakar was suffering with diabetes since thirty years. First defendant/DW-1 admitted that Registered Post letters addressed to herself and her son were returned with an endorsement of refusal, and she informed their counsel about the said fact. But the written statement averments disclose that alleged notice, dated.07.05.2012 was never received by the defendant nor to their knowledge, they never refused any such notice as alleged by the plaintiff. She deposed that she do not know anything about the alleged transaction. She also deposed that she was aware that her husband and the plaintiff had acquaintance from eight years as they combinedly carried the plots business for some time. Hence the evidence of first defendant/DW-1 was contrary to the pleadings.
17) As discussed above expect the oral evidence, first defendant/DW-1 did not offer any acceptable evidence to prove that a false and speculative claim has been made by the plaintiff as contended by the defendants. On the other hand the defendants have not taken any specific plea in their pleadings or evidence that signature found on Ex.A1 is 7 not the signature of Sri.C.L.Prabhakar. First defendant/DW-1 denied the alleged transaction under Ex.A1/Promissory Note and thus the defendants failed to adduce rebuttal evidence.
18)The ordinary rule is that burden is upon the individual making affirmative allegations. Initially the burden of proving Ex.A1/Promissory Note, dated.19.11.2009 is on the plaintiff and the plaintiff got himself examined as PW-1 and produced Exs.A1 to
Ex.A7 in support of his version. In cross examination PW-1 deposed that he paid the amount to debtor in cash at his residence in presence of his wife and son. So he has discharged his initial burden.
19) Once the initial burden is discharged then the onus of dislodging it, is on the defendants. If the defendants dispels it, then again, the duty of the plaintiff to trash it down arises. That is why it is said that onus is ambulatory in nature. It is like a shifting stand and will swing like a pendulum. The subtle difference between burden of proof and onus of proof is that burden of proof never shifts but onus of proof shifts. Such a shifting of onus is a continuous process in evaluation of the evidence.
20) As a matter of fact Section-118 of Negotiable Instruments Act lays down certain presumption to be attached to Negotiable Instrument until contrary is established.
Before this presumption can be drawn, the execution of Pronote ought to be admitted or
proved. There is no presumption about the execution of a Negotiable Instrument if the execution of a pronote is denied by other side, the party resting its claim on such instrument is to prove its execution in the manner known to law.
21)Once the execution of the pronote is admitted, the presumption under Section-118 of Negotiable Instrument Act arises. But the presumption is rebuttable one either by means of circumstantial evidence or by presumption of fact drawn as per Section-114 of
Indian Evidence Act.
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22) As soon as the execution is established or proved, Section-118 of Negotiable
Instrument Act imposes a duty on the Court to raise a presumption that instrument was made for consideration. As discussed above the plaintiff proved his case by producing
Ex.A1/Promissory Note to show that deceased Sri.C.L.Prabhakar has executed promissory note, dt.19.11.2009. The defendants failed to rebut the evidence of the plaintiff by acceptable evidence.
23) On the other hand it is the contention of the defendants is that there was no cause of action for the suit. The cause of action is a set of facts sufficient to justify a right sue to obtain money, property or the enforcement of a right against another party.
In that sense a cause of action implies right to sue. For maintaining a suit, there must be a cause of action for the plaintiff. The fact of corroboration of the facts that give a person the right to seek judicial redressal or relief against the other is the cause of action.
24) The cause of action is a bundle of essential facts which the plaintiff has to prove in order to sustain his action, this connotes both, the right to sue and cause of action are the same and the cause of action is synonyms with the right to sue. Any claim that is made in the suit flows from the cause of action, and the claims made must be with respect to the cause of action from whence they arise. For the purpose of determining whether the plaint discloses a cause of action or not, the averments of plaint should be taken into consideration as a whole.
25)The contention of the plaintiff is that he has lent an amount of Rs.31,000/- to
Sri.C.L.Prabhakar on 19.11.2009 and after receiving the consideration the said
Sri.C.L.Prabhakar has executed Ex.A1/Promissory Note, dt.19.11.2009 in his favour to repay the said amount with an interest at the rate of three percent per month i.e., compounded on monthly basis in case of default and Ex.A2 is the receipt given by 9
Sri.C.L.Prabhakar that he received consideration of Rs.31,000/- in cash from Plaintiff on 19.11.2009 and Ex.A3 is the notice issued to Sri.C.L.Prabhakar by the Plaintiff on 12.10.2010 and Ex.A5 is the unserved registered cover of notice, Ex.A6 is the office copy of the legal notice dt.07.05.2012 issued to the defendants and Ex.A7 are the two unserved registered covers addressed to defendants. Hence all these facts disclose the cause of action of the suit. Hence the conclusion of the learned II Additional Junior
Civil Judge, that the plaintiff has no cause of action to file the suit is not correct.
26) Hence in the light of the above discussion the evidence of PW-1 in the instant case is cogent and convincing one to the effect that he has lent an amount of Rs.31,000/- to Sri.C.L.Prabhakar at his house and that Sri.C.L.Prabhakar who is husband of first defendant/DW-1 and father of second defendant has executed Ex.A1 and Ex.A2 after receiving the consideration.
27) Therefore, this court holds that Ex.A1/Promissory Note, Dated.19.11.2009 has been executed by Sri.C.L.Prabhakar who is the husband of first defendant/DW-1 and father of second defendant in favour of plaintiff for an amount of Rs.31,000/- and that
Sri.C.L.Prabhakar has received the said consideration under Ex.A1 and issued
Ex.A2/Receipt. Hence this point is answered in affirmative.
28)Point No.2 :- Whether the plaintiff is entitled to get a decree basing on the promissory note executed by the deceased/Sri.C.L.Prabhakar against the defendants personally or not ?
29) As elaborately discussed in Point No.1, the case of the plaintiff is that an amount of Rs.31,000/- was lent by him to Sri.C.L.Prabhakar to meet his medical expenses. The plaintiff further contends that original borrower Sri.C.L.Prabhakar died on 08.03.2012 leaving behind the defendants as his legal heirs and successors to his estate. Therefore the defendants are liable to pay the amount due under promissory note 10 to the plaintiff. But the prayer of the plaintiff in the plaint is to pass a judgment and decree in favour of the plaintiff and against the defendants for a sum of Rs.75,000/- together with interest on a sum of Rs.31,000/- @ 3% per month from the date of the suit till the date of payment and the costs of the suit.
30) The plaint is silent about the details of the assets possessed by the deceased/Sri.C.L.Prabhakar and inherited by the legal heirs from the deceased/
Sri.C.L.Prabhakar. It is the settled law that legal heirs are only liable to pay the debts of the deceased to the extent of the estate inherited by them from the deceased. Legal heirs are not personally liable to pay the debts of the deceased, hence the personal properties of the legal heirs cannot be proceeded against as legal heirs have no personal liability.
31) In view of the above said legal position defendants are not personally liable to pay the suit claim as the amount was borrowed by the deceased/Sri.C.L.Prabhakar to meet his medical expenses and not for the family necessities. As such the plaintiff is not entitled to get a decree against the defendants personally or against their personal property basing on the promissory note executed by the deceased/Sri.C.L.Prabhakar.
At the most, the Defendants No.1 and 2 would be liable to pay the suit amount only to the extent of the estate of the deceased/Sri.C.L.Prabhakar which has come to their hands. Therefore, the Defendants No.1 and 2 are liable to pay the suit amount only to the extent of the estate of the deceased Sri.C.L.Prabhakar which has come to their hands. Hence the point is answered accordingly.
In the result, Appeal is allowed with costs throughout. The decree and judgment, dated. 18.02.2014 passed in O.S.No.288/2012 by the learned II Additional Junior Civil
Judge, at L.B.Nagar, R.R.District is set aside and the suit is decreed in favour of the
plaintiff against the estate of the deceased/Sri.C.L.Prabhakar fell to the hands of 11
Defendants No.1 and 2 for a sum of Rs.75,000/- together with interest on the sum of
Rs.31,000/- @ 6% per annum from the date of filing the suit till the date of realization.
Defendants No.1 and 2 are not personally liable to pay the suit claim.
Dictated to personal Assistant transcribed by her, corrected and pronounced by me in the open court on
this the 4 th day of December, 2019.
XI Additional District and Sessions Judge (F.T.C),
At L.B.Nagar, Ranga Reddy District.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR APPELLANT FOR RESPONDENTS
-Nil--Nil-
EXHIBITS MARKED
FOR APPELLANT FOR RESPONDENTS
-Nil--Nil-
XI Additional District and Sessions Judge (F.T.C), At L.B.Nagar, Ranga Reddy District.