1 VII ASCJC/VSP
IN THE COURT OF THE VII ADDITIONAL SENIOR CIVIL
JUDGE:: VISAKHAPATNAM
Present : R.SANYASI NAIDU, VII Addl. Senior Civil Judge, Visakhapatnam
Tuesday, the 12th day of April, 2022
O.S.NO.654/2008
Between:
Salapu Ramunaidu S/o. Late S.Appala Naidu, Hindu, aged 30 years, residing at D.No.9-8-25/7, Sivajipalem, Visakhapatnam. …. Plaintiff And:
Sri Madupada Chiranjeevi Ganesh, S/o. Late Atchmi Naidu, Hindu, aged about 24 years, Occupation: Employee in Andhra University, residing at D.No.9-62- 19/1, Vidyanagar Colony, Old CBI, Visakhapatnam.
…. defendant
This suit is coming before me on 14.02.2022 for hearing in the presence of Sri V.K.Viswanath and Sri K.Sunil Reddy, Advocates for the plaintiffs and of Sri P.Ramji, Advocate for the defendant and upon hearing and considering the material on record, the same having stood over till this day for consideration, this Court delivered the following:
J U D G M E N T
This suit was filed by the plaintiff against the defendant for recovery of the suit amount of Rs.1,37,650/-(Rupees One Lakh thirty seven thousand six hundred and fifty only) with subsequent interest and costs.
2. The brief facts of the plaint are:
2 VII ASCJC/VSP that the defendant is the relative of the plaintiff and the defendant approached the plaintiff on 10.05.2006 and requested him to advance the loan amount and accordingly, the plaintiff advanced the loan amount of Rs.1,00,000/- on 10.05.2006 and the defendant executed a demand promissory note, in favour of the plaintiff agreeing to repay the same with interest @ 18% p.a., subsequently despite repeated demands, the defendants failed to repay the loan amount with accrued interest there on and on that the plaintiff filed this suit.
3.The defendant filed his written statement by denying the plaint averments and submitted that the plaintiff is a private employee and his monthly salary is Rs.3,000/- and he also purchased a house at P.M.Palem with the death benefits of his father who worked in Dock labour board and as such, the question of lending amount by the plaintiff to the defendant never arise, since the plaintiff has no capacity to lend the amount.
The defendant further submits that the plaintiff filed the above suit with false and frivolous allegations only to harass the defendant and to grab the money, to cause wrongful loss to the defendant. The plaintiff suppressed the real facts that the defendant and the plaintiff are close relatives and on 10.05.2005, this defendant along with his mother Sai Laxmi and his brother
Vasudev who is studying Engineer and his sister Smt. T.Siva Naga
Laxmi jointly approached the plaintiff and borrowed an amount of
Rs.50,000/- and at that time, the plaintiff obtained the signature of 3 VII ASCJC/VSP this defendant and his mother, brother and sister on four separate blank pronotes towards the security and in view of the relationship, this defendant trusted the plaintiff and signed on the blank pronote. The plaintiff has collected the interest on the said loan amount @ Rs.5/- per month per hundred. Except that time, the defendant did not borrow any amount from the plaintiff either jointly or personally.
The defendant further submits that the defendant, his brother and his mother along with their sister cleared the debt of
Rs.50,000/- to the plaintiff, but the plaintiff failed to return the promissory notes and stated that the said promissory notes were mixed up with other papers in his house and he will return the same as and when traced out and due to the relationship of the defendant, they are also not insisted the plaintiff to return the promissory notes.
The defendant further submits that he never borrowed the loan amount of Rs.1,00,000/- from the plaintiff on 10.05.2006. The defendant further submits that the plaintiff herein filed two separate suits against the mother of the defendant and the sister of this defendant in OS. 653/2008 and in OS. 1046/2008 (Os 116/2010) respectively.
The defendant further submits that the alleged promissory notes of this suit and in OS.653/2006 and OS.1046/2008 are all
dated 10.05.2006 and moreover the scribe and attestors of all the
promissory notes are also one and the same and as such, it clearly 4 VII ASCJC/VSP shows that plaintiff, scribe and attestors colluded together and invented the promissory notes with a view to grab the money unlawfully and no legal notice was got issued by the plaintiff prior to filing of the suit and the plaintiff has to explain why he obtained the signatures of this defendant, his mother, his brother and sister on the same day on four blank pronotes and the blank pronotes obtained from the brother of this defendant namely Vasudev, is in the custody of the plaintiff.
The defendant further submits that he do not know the scribe and attestors and he never saw them and no consideration was passed under the suit promissory note and on the date of transaction i.e. on 10.05.2006. The plaintiff also obtained the signature of this defendant on Rs.100/- worth Non-judicial stamp papers and on two white papers and also obtained the signature of this defendant, his mother and sister and this suit is barred by limitation and the suit promissory note was materially altered in the date column of promissory note i.e. year as ‘6’ instead of ‘5’ and pray the Hon’ble Court to dismiss the suit with costs.
The defendant got amended written statement as per the orders in I.A. 960/2011, dt. 30.07.2015 with regard to the date ‘10.05.2005’ in the place of ‘10.05.2007’.
The defendant also filed neat copy of the written statement.
The plaintiff filed the rejoinder by denying the contents of the
additional written statement.
5 VII ASCJC/VSP
4. Based on the pleadings of both parties to the suit, this Court framed the following issues for trial:
1. Whether the suit pronote is true, valid and binding on the defendant?
2. Whether the suit pronote is came into existence in the circumstances alleged in the written statement without any consideration?
3. Whether the plaintiff has no financial capacity to lend he suit amount?
4. Whether the defendant made payment as alleged in the written statement?
5. To what relief?
5.To prove the case of the plaintiff, he examined as pw-1 and got marked Exs.A.1 to A.3. The plaintiff also got examined Pw2 who is one of the attestor of Ex.A.1 promissory note and Pw3 is the Senior Assistant of A.U.Staff Co-operative Society and got marked Exs.X.1 to X.3.
The defendant himself as Dw1 and marked Ex.B.1. The defendant got examined DW2.
6. Heard the oral arguments of the learned counsel for the plaintiff.
The learned counsel for the defendant filed memorandum of written arguments.
7.The learned counsel for the plaintiff submitted that the defendant borrowed the loan amount of Rs.1,00,000/- from the plaintiff on 10.05.2006 and executed Ex.A.1 promissory note by promising to repay the same with interest @ 18% p.a., to clear his sundry debts and to meet the family expenses and on despite 6 VII ASCJC/VSP demands, the defendant failed to repay the loan amount with interest and on that filed this suit for recovery of the suit amount with subsequent interest and costs and he further submitted that to prove the financial capacity of the plaintiff, he got examined
Pw3 and marked Exs.X.2 and X.3, FDR Receipts that the death benefits of the father of the plaintiff deposited as Fixed deposit in
A.U.Staff Co-operative Society, Visakhapatnam in the year 2000 and subsequently, the plaintiff received the maturity amount and out of the said matured amount and from the savings of the plaintiff and as well as with the amount received towards compensation for the death of his father, advanced the loan amount to the defendant.
The learned counsel for the plaintiff further submitted that
Pw2 who is the one of the attestor of Ex.A.1 promissory note categorically deposed that in his presence, the loan transaction under Ex.A.1 took place on 10.05.2006 and the defendant executed Ex.A.1 in favour of Pw1 after receipt of the cash consideration under it and the evidence of Pw2 corroborated the evidence of Pw1 and the contents of Ex.A.1 with regard to the passing of consideration, execution of Ex.A.1 and Ex.A.2, Ex.A.3 also proved the receipt of retirement benefits of the father of the plaintiff and by considering the evidence of Pws.1 to 3, the suit may be decreed in favour of the plaintiff and against the defendant.
The learned counsel for the plaintiff further submitted that as 7 VII ASCJC/VSP per the pleadings of the defendant, on 10.05.2007, this defendant along with his mother, brother and sister jointly approached the plaintiff and borrowed an amount of Rs.50,000/- and subsequently, it was repaid and the plaintiff obtained the four separate blank promissory notes from the defendant, his mother, his brother and his sister on the date of the said loan transaction and by fabricating the same in collusion with the attestors and scribe, filed this suit. But the pleadings of the defendant itself proved the case of the plaintiff and the defendant changed his version from time to time and got amended the written statement as per the orders in I.A 960/2011 dt. 30.07.2015, in the written statement, para No. 7 and 9 i.e. date from 10.5.2007 to 10.05.2005.
He further submitted that without prayer in the amendment petition in IA. 960/2011, the defendant added a new para that on the date of transaction i.e. 10.05.2005, the plaintiff obtained the signature of this defendant on one hundred rupees Non-judicial stamp paper and on two white papers and also obtained the signature of the mother, brother and sister of the defendant and another plea that without prayer in the amendment petition that
Ex.A.1 was materially altered i.e. Year as ‘6’ instead of ‘5’ and as such, this suit is barred by limitation.
8.He further submitted that the defendant as Dw1 categorically stated in his chief-examination affidavit itself in Para
No.12 that on the date of transaction i.e. on10.05.2005, the plaintiff obtained his signature on hundred rupees stamp paper. In 8 VII ASCJC/VSP contrary to it, in Para No.13 of his chief examination affidavit stated that the suit transaction was took place on 10.01.2005 and by the date of filing of the above suit, the suit promissory note was barred by limitation and as such, there is no specific stand by the defendant in his case, on which date himself along with his mother, brother and sister, borrowed the alleged loan amount of
Rs.50,000/- from the plaintiff and as well as obtained the blank promissory note from them with their signatures by the plaintiff.
He further submitted that during the course of cross- examination of Dw1, he created a new story and stated that his mother borrowed an amount of Rs.50,000/- from the plaintiff on 10.01.2005 and the date mentioned in his chief examination affidavit in para No. 2 and 12 as 10.05.2005 is a typographical mistake, and as such, the defendant changed his version from time to time, according to his wish and pray the Hon’ble Court to decree the suit with subsequent interest and costs.
8.On the other hand, the learned counsel for the defendant submitted in his written memorandum of arguments that the plaintiff has to prove the execution of Ex.A.1, passing of consideration under it and as well as his financial capacity to advance the loan amount and then only the Hon’ble Court draw the presumption under section 118 (a) of Negotiable Instruments
Act which is a rebuttable one and for which, the learned counsel for the defendant relied upon the judgments of the Hon’ble Apex 9 VII ASCJC/VSP
Court 1). K.Prakasa, petitioner vs. P.K.Sundaresan, respondent, reported in 2007(7) Supreme 500.
(2). Krishna Janardhan butt, petitioner vs. Dattatraya G.Hedge, respondent reported in 2008(12) Supreme Page 306.
(3). John K.Abraham vs. Cymen’C Abraham and another reported in 2014(2) SCC at page No. 236 (4). K.Subramani Apellant vs. K.Damodar Naidu, respondent, reported in 2015(1) SCC at Page 99.
(5). Basalingappa Appellant vs. Mudi Basappa, Respondent, reported in 2019(5) SCC 418.
And submitted that in all the above Judgments, the Hon’ble Apex
Court of India held that the plaintiff shall prove that the defendant executed the suit promissory note and duly supported by consideration and then only a presumption under section 118 (a) of Negotiable Instruments Act can be drawn against the defendant and then only the burden shifts to the shoulders of the defendant to rebut those presumptions and when the plaintiff failed to prove the existence of legally enforceable debt and passing of consideration, The suit of the plaintiff should fail.
The learned counsel for the defendant further submitted that there are lot of discrepancies in the evidence of Pws.1 and 2 with regard to the execution of the Ex.A.1 and passing of consideration and the plaintiff is a petty employee and he is receiving monthly salary of Rs.3,000/- and has no capacity to lend the huge amount 10 VII ASCJC/VSP of Rs.3,60,000/- in total in all these suits i.e. Rs.1,00,000/- to this defendant, Rs.2,00,000/- to the defendant in OS. 653/2008 and
Rs.60,000/- to one Naga Lakshmi who is the sister of this defendant and the defendant in OS. 116/2010.
The learned counsel for the defendant further submitted that with the retirement benefits of the father of the plaintiff, he purchased a house at P.M.Palem, Visakhapatnam and there is no such amount with the plaintiff to advance the same to the defendant and the defendants in the other suits who are family members of this defendant on the date of the alleged transaction in all these suits, because as per the case of the plaintiff, the loan transaction in this suit and the loan transaction in other two suits were took place on 10.05.2006 and the contents of the documents of the promissory notes in all the suits to the respective defendants in the respective suits are not read over and explained and the plaintiff failed to obtain his accounts statement to prove his financial capacity and withdrawal of the amount from his bank account before the loan transaction under Ex.A.1 promissory note though this defendant served notice under Order XII Rule 8 of CPC and as such, an adverse inference can be drawn against the plaintiff and pray the Hon’ble Court to dismiss the suit with costs and the defence of the defendant also proved through Ex.B.1.
10.Issue No.4: Whether the defendant made payment as alleged in the written statement?
As per Dw1 on 10.05.2005 himself along with his mother, 11 VII ASCJC/VSP brother and sister jointly approached the plaintiff and borrowed an amount of Rs.50,000/- from him and at that time, the plaintiff obtained the signatures of the defendant, his mother, his sister and his brother on four separate blank promissory notes towards security by mentioning the date, month and year by the scribe in the columns of the date on all the pronotes and the remaining columns are kept blank and the plaintiff collected the interest on the said amount @ Rs.5/- per month per hundred and the defendant, his mother , brother and sister cleared the said debt to the plaintiff, but the plaintiff did not return the said blank promissory notes.
11.On the other hand, during the course of cross-examination
Dw1, stated that the alleged loan transaction of Rs.50,000/- was took place on 10.01.2005, but not as per the pleadings of Dw1 in his written statement and in his chief-examination affidavit. Dw1 further categorically stated in his cross-examination that the alleged date 10.05.2005 can be mentioned by him in his chief- examination affidavit Para No.2 and 12, is a typographical mistake.
He also further stated that the date 10.05.2005 which was mentioned in his written statement also a typographical mistake and the entire loan transaction was took place on 10.01.2005.
Therefore, initially, the defendant pleaded in his initial written statement that he along with his mother, brother and sister borrowed an amount of Rs.50,000/- from the plaintiff on 10.05.2007 and subsequently, the said date was got amended and 12 VII ASCJC/VSP filed amended written statement by contending that the alleged loan transaction of Rs.50,000/- was took place on 10.05.2005 and during his evidence, he invented another date as 10.01.2005 for the alleged loan transaction of Rs.50,000/- with Pw1 by himself, his mother, his brother and his sister.
12.The defendant is nowhere stated in his written statement or in his evidence when he along with his mother, brother and sister cleared the alleged debt of Rs.50,000/- to the plaintiff and in whose presence, they repaid it and also there is no evidence whether any legal notice got issued by the defendant and his family members to Pw1 for return of those blank promissory notes obtained by Pw1 from them towards security, after clearing the said loan amount.
13.Dw1 also got marked Ex.B.1 which is a torned and incomplete document during his chief examination. As per the recitals of the Ex.B.1, the transaction under it was took place on 10.01.2005. It can be said that due to the Ex.B.1, the defendant may change his stand and version from 10.05.2005 to 10.01.2005 it cannot be allowed.
14.On perusal of Ex.B.1 reveals that it is a torn and incomplete document and there is no value and weight in the eye of law to any torne and incomplete document, because, there is no scribe to it. At the scribe column on Ex.B.1, is kept blank. Therefore, in view of the above reasons, the defendant failed to prove that he made payment as alleged in his written statement. Accordingly, this 13 VII ASCJC/VSP issue is answered against the defendant.
15.Issue No.2: Whether the suit promissory note came into existence in the circumstances alleged in the written statement without any consideration ?.
As per the Pw1, he advanced the loan amount to the defendant on 10.05.2006 in the presence of Pw2 and another attestor and scribe of Ex.A.1 and on receipt of the cash consideration, the defendant executed Ex.A.1 in favour of Pw1 by agreeing to repay the same with interest @ 18% p.a..
According to Dw1, on 10.05.2005, he along with his mother, brother and sister borrowed an amount of Rs.50,000/- and at that time, the plaintiff obtained his signature, signature of his mother, sister and brother on four separate blank promissory notes towards security by mentioning the date, month and year by the scribe and the date column of all four promissory notes and the remaining columns are left blank and with the help and in collusion with the scribe and attestors brought into existence of
Ex.A.1 promissory note with the help of the said blank promissory note obtained by the plaintiff from the defendant at the time of loan transaction of Rs.50,000/- on 10.05.2005. There is no evidence from the defendant whether there are any elders, mediators or the attestors if any were present at the time the alleged loan transaction of Rs.50,000/- on 10.05.2005 or 10.01.2005. But as per the pleadings and the evidence of Dw1, the 14 VII ASCJC/VSP scribe mentioned the date, month and year in the date column of the promissory note which were obtained from him, his mother, his sister and brother by the plaintiff.
Therefore, the scribe was present who filled the date column of the promissory notes on the alleged date. But DW1 failed to state the name of the said scribe who filled the date column on his promissory note, promissory notes of his mother, sister or brother.
16.On the other hand, the evidence of Dw1 itself contra to the pleadings of the defendant, because in one way in his written statement and the chief-examination affidavit , Dw1 pleaded and stated that the alleged loan transaction of Rs.50,000/- and obtained the blank promissory note with his signature by mentioning the date, month and year on the date column was took place on 10.05.2005. During the course of cross-examination, by marking the Ex.B.1 categorically stated that the alleged loan transaction of Rs.50,000/- and obtaining the blank promissory notes with his signature and with the signature of his mother, brother and sister and in blank state by mentioning the date, month and year in the date column of promissory notes on 10.01.2005.
Therefore, there is no specific stand from the defendant that whether the alleged loan transaction as alleged by him was took place on 10.01.2005 or 10.05.2005. Except the oral testimony of
Dw1, there is no other evidence from the defendant to say that
Ex.A.1 promissory note came into existence as alleged in his 15 VII ASCJC/VSP written statement without consideration, because, Pws.1 and 2 are categorically, consistently deposed that on receipt of cash consideration of Rs.1,00,000/-, the defendant executed Ex.A1 in favour of PW1, in the presence of attestors and scribe of Ex.A.1.
Ex.B.1 was brought by the defendant from his custody into this court which is a torned one and some of the parts in 2nd page of it were missed. As per the Ex.B.1, there is a transaction by PW1 with one M.Sai Lakshmi who is the mother of this defendant which was executed by the said Sai Lakshmi as Hamipatram.
Conspicuously, the amount mentioned on Ex.B.1 was missed and torn and as such, this Court cannot consider Ex.B.1 document.
Therefore, in view of the above reasons, this Court safely concluded that the alleged circumstances pleaded in the written statement by the defendant to brought into existence of the suit promissory note were not proved by the defendant through any evidence . Accordingly, this issue is answered against the defendant and in favour of the plaintiff.
17. Issues No.1 and 3:
Whether the suit pronote is true, valid and binding on the defendant & whether the plaintiff has no financial capacity to lend the suit amount?
As per Pw1, he advanced the loan amount of Rs.1,00,000/- to the defendant on 10.05.2006, in the presence of Pw2 and another attestor of Ex.A.1 and the scribe of Ex.A.1 and on receipt of the same, the defendant executed Ex.A.1 in favour of the 16 VII ASCJC/VSP plaintiff agreeing to repay the same with interest @ 18% p.a. P.W.2 who is one of the attestor of Ex.A.1 testified that the entire loan transaction under Ex.A.1 was took place in his presence and in the presence of another attestor V.Sai Siva Kumar and the scribe
P.V.S.Anjaneya Murthy scribed the Ex.A.1 promissory note and the defendant after receipt of cash consideration executed Ex.A.1
Promissory note, in favour of the plaintiff.
As per the cross-examination of Pw1, the loan transaction under Ex.A.1 took place in his house in between 7.00pm and 9.00pm on 10.05.2006 and at the time of loan transaction, the defendant in the suit, his mother, sister and brother, both the attestors and the scribe along with the plaintiff were present and all the loan transactions and execution of the respective promissory notes by the respective defendants in all the suits were took place on the same day, at the same time in the presence of some witnesses and the same scribe filled the blanks of the three pronotes.
18.The learned counsel for the defendant contended that there is no financial capacity to the plaintiff to advance the amount of
Rs.3,60,000/- in total in all the suits to the defendant, his mother and sister and there are lot of discrepancies in the evidence of
Pws.1 and 2. As per the cross-examination of Pw1, he gave the loan amount to the defendant and he counted it. Whereas, according to Pw2, the loan amount was given to the defendant and it was distributed among the defendant, his mother and his sister 17 VII ASCJC/VSP and also according to Pw2, the brother of the defendant Vasudev was also present at the time of loan transaction. But Pw1 did not state anything about the presence of the brother of the defendant.
But the specific case of the defendant that himself, his mother, brother and sister jointly approached the plaintiff and borrowed the loan amount. There is a close relationship in between the defendant and plaintiff and due to the said acquaintance, brother of the defendant may present along with his brother, mother and sister. But Pw2 categorically stated that Pw1 gave the loan amount to the defendant.
19.According to the cross-examination of Pw1, he does not know the family member of the defendant executed the promissory note at first instance, because the plaintiff advanced the loan amount to this defendant to the mother of the defendant in OS.653/2008 and also advanced the loan amount to the sister of the defendant in OS.116/2010. But Pw2 stated that the sister of the defendant who is the defendant in OS.116/2010 firstly executed the promissory note. With regard to the minor discrepancies i.e. who executed and which pronote at the first instance i.e. the order of execution by the persons by the respective pronotes is negligible, because the suit transaction of the year 2006 and Pws.1 and 2 are deposed their evidence in the year 2017 and 2019 respectively.
20.The Court only tested the veracity of the witnesses, but not the intelligence and the memory of the witnesses. Admittedly, Pw2 18 VII ASCJC/VSP and his friend Siva Krishna attested the Ex.A.1 in this suit and the suit promissory notes in OS.653/2008 and OS.116/2010 as attestors and the scribe also scribed all the above pronotes on the same day at the same time and place.
The loan transaction in all suits are different transactions by the different persons, though those are took place at the same time, place in the presence of same persons. There is no prohibition under law to attest the same attestors and the same scribe of the promissory notes.
21.Pw2 admitted that he cannot remember the name of the scribe of the Ex.A.1 Promissory note, for which, the learned counsel for the defendant argued that without remembering the name of the scribe of Ex.A.1. how the learned counsel for the plaintiff mentioned the name of the scribe in chief-examination affidavit of Pw2. Nodoubt, every human being may refresh his memory to long lapse of time. In the present suit also, the loan transaction under Ex.A.1 was took place in the year 2006 and PW2 deposed evidence in this suit in the year 2019 and as such, there is a gap of 13 years and due to the said long gap, no prudent man will expect and test the memory of recollect the name of the persons who filled the blanks of the promissory note in his presence.
22.It is not the case of both parties to the suit that the scribe of
Ex.A.1 is the close friend to Pw2. Because to refreshing the memory, the learned counsel for the plaintiff may read over the 19 VII ASCJC/VSP contents of Ex.A.1 promissory note and informed the name of the scribe of Ex.A.1 to Pw.2.
23.It is evident from the evidence of Pws.1 and 2 that on the instructions of the defendant in this suit and the defendant in other two suits, the scribe filled the blanks of the respective promissory note with respective particulars.
24.The learned counsel for the defendant further invented a new theory that Ex.A.1 promissory note was materially altered the year of execution which was noted in Telugu language from the year 2005 was altered as 2006. On perusal of Ex.A.1 promissory note, it reveals that the total date column of Ex.A.1 scribed by the scribe in Telugu language as “10th day, May month, 2006 year”.
25.On perusal of Ex.A.1 to the human naked eye reveal that there is no alteration of the year. If really there is an alteration of year which was scribed in Telugu language ఐదు (5) into ఆరు (6). It is very impossible to any professional forger and as such, the contention of the defendant’s counsel is not believable.
26.According to Pw2, there is a discussion was going on between the plaintiff and the defendant and his family members with regard to a site property towards security purpose, but no documents were executed in that context and no Xerox copies of the documents furnished by the defendant. But the learned counsel for the defendant submitted that in that context, the mother of the defendant executed Ex.B.1 towards security for the loan amount borrowed by her along with the defendant and her 20 VII ASCJC/VSP daughter from the plaintiff on 10.05.2005. Ex.B.1 is dated 10.01.2005, but not 10.05.2005 as contended by the defendant in the written statement. The amount was also not revealed in Ex.B.1 and there is no scribe to Ex.B.1.
27.To prove the Ex.B.1, the defendant got examined Dw2 who is the stamp vendor and she categorically stated in her chief- examination itself that she cannot say whether she sold Ex.B.1 stamp or not as it is in torn condition and she also stated that writings on it scribed as Salapu Ramunaidu s/o. Appalanaidu not belongs to her and she also do not remember her licence number and all her registers are handed over to the concerned authorities.
Therefore, the evidence of Dw2 is no way helpful to the defendant.
28.The learned counsel for the defendant further contended that the contents of Ex.A.1 pronote were not read over to the defendant. According to Pw2, the contents of Ex.A.1 are read over by the scribe. Whereas Pw1 stated that the defendant himself go through the contents of Ex.A.1. There is a possibility to gone through the contents of Ex.A.1 document by the defendant, because he is an educated person but not an illiterate one. Every human being shall know the contents of the document which are going to execute by him and without knowing the contents of it, if he executed it, he has to bear it.
29.To prove the financial sources and capacity of the plaintiff, he got marked Exs.A.2 and A.3. According to Exs.A.2 and A.3, the plaintiff’s father received Provident fund amount of Rs.53,853/- in 21 VII ASCJC/VSP the year 1995 and also Rs.1,00,000/- as gratuity from the Dock labour Board in the year 1995.
According to Pw1, they deposited the said amount in AU Co- operative society limited, Waltair as FDRs in the year 2000 and to prove it, the plaintiff got examined Pw3 and got Exs.X.2 and X.3 marked. Exs.X.2 and X.3ae the FDRs registered extract of AU
Society with FDR Nos. on the name of the plaintiff.
As per Exs.X.1 and X.2, the plaintiff deposited the amount of
Rs.58,700/- each in the year 2002 and subsequently those amounts were matured and received and out of these amounts and from the retirement benefits of the father of the plaintiff, advanced the loan amount to this defendant under Ex.A.1 as well as to the mother and sister of the defendant under separate promissory notes.
Admittedly, the plaintiff is doing some work and earned some amount, he is an educated person and conducting tuitions. With some amount, the plaintiff purchased a house at Madhurawada and subsequently, advanced the remaining amount, out of the retirement benefits of his father and the fixed deposit amount to the defendant and the family members of the defendant.
30.It is also evident from the evidence of Pw1 that due to the death of his father in road accident, he also received compensation amount. Though the plaintiff failed to furnish his
Bank account statement for the concerned year to show his withdrawal of amount from bank account on receipt of notice 22 VII ASCJC/VSP under order 12 Rule 8 from the defendant, the plaintiff filed a memo stating that due to introduction of computerisation in the banks, the bank authorities unable to issue account copy and for which he had no objection if the defendant want to file a petition to cause production of the bank statement of the plaintiff from the concerned bank. But, there is no explanation from the defendant who prevented him to file a petition for cause production of the bank account statement of the plaintiff from the concerned bank.
The plaintiff took every step to prove his financial capacity by examine the Pw3 and marking Exs.A.2, A.3, X.2 and X.3.
31.On the other hand, the defendant changed his version from time to time as discussed in earlier paragraphs and during his evidence Dw1 totally changed his case and version from 10.05.2005 to 10.01.2005, which is not believable at all.
32.All the citations relied upon by the learned counsel for the defendant are binding on this Court. But the plaintiff in the suit proved that he advanced the loan amount to Dw1 in the presence of Pw1 and another attestor and scribe and on receipt of the cash consideration, DW1 executed Ex.A.1 and the evidence of Pw2 also corroborated the evidence of Pw1 on all aspects with regard to the passing of consideration and execution of Ex.A.1 and their evidence is consistent, corroborating and cogent with each other and as such, the plaintiff proved his case with preponderance of all probabilities and the other hand, the defendant failed to prove his case with cogent evidence.
23 VII ASCJC/VSP
33.When the plaintiff filed Exs.A.1 to A.3 and Exs.X.1 to X.3 and examined Pws.2 and 3 to corroborate his evidence and deposed about the contents of the documents, the defendant has to disprove it by adducing rebuttable evidence. But the defendant failed to do so. Therefore, the presumption under section 118(a) of
Negotiable Instruments Act will operate against the defendant and in favour of the plaintiff. Hence, this Court presumed that Ex.A.1 was executed by the defendant on receipt of cash consideration from the plaintiff in the presence of attestors and scribe and it is true, valid and binding on the defendant. Accordingly, this Issue
Nos. 1 and 3 are answered affirmatively in favour of the plaintiff.
34.Issue No.5:To what relief?
In view of the finding to Issue No.1 to 4, the plaintiff is entitled for recovery of the suit amount against the defendant for a sum of Rs.1,37,650/-(Rupees One Lakh thirty seven thousand six hundred and fifty only) with subsequent interest @ 12% per annum from the date of the filing of the suit till the date of decree; and with further interest @ 6% per annum from the date of decree till the date of realization on the principal amount of Rs.1,00,000/- (Rupees One Lakh only).
Dictated to Stenographer, transcribed by her, corrected and pronounced by me on the
day of 12th April,2022.
VII Additional Senior Civil Judge Visakhapatnam 24 VII ASCJC/VSP
APPENDIX OF EVIDENCE
Witness examined for
For plaintiffs:
Pw1: Salapu Ramunaidu (plaintiff) Pw2: B.J.Ravi Kumar Pw3: Rekha Venkata Ramana
For the defendant:
Dw1:Madhupada Chiranjeevi Dw2: Smt. Chintada Jansi
Documents marked for
For plaintiffs:
Ex.A.1: Promissory Note dated.10.05.2006 Ex.A.2: Certified copy of statement of Provident Fund, dt. 11.02.1995 of Plaintiff’s father. Ex.A.3: Certified copy of statement of gratuity dt. 23.02.1995 belongs to fther of the plaintiff.
X series
Ex.X-1 : Authorization letter dated 22-7-2019 Ex.X-2 : True copy FD register Ex.X-3 : True copy FD register
For the defendant:
Ex.B.1: Hundred rupees non-judicial stamp paper (in torned condition) with two other torned papeers annexed to it(total 3 papers)
VII ASCJ/VSP 25 VII ASCJC/VSP