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IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE :: ELURU
Present:- Sri R.V.V.S. Murali Krishna
Principal Senior Civil Judge
Monday, the 23th day of July, 2018
O.S.No.132 /2016
Between :
Maddula Sudarshana Rao. .. Plaintiff
and
1. Visaka Satyavathi.
2. Visaka Venkata Durgarao.
3. Visaka Raghava.
4. Visaka Someswara Rao.
5. Doddi Simhachalam.
6. Kalisetty Mani. .. Defendants.
This suit coming on 19-7-2018 for final hearing before me in the presence of Sri G.Krishna Prasad Rao, Advocate for the Plaintiff and of
Sri B.R.K.Chowdary, Advocate for the defendants 1 and 2; and the defendants 3 to 6 are set exparte and having stood over the matter for consideration to this day, this Court delivered the following:
J U D G M E N T
The suit filed by the plaintiff for recovery of suit claim amount of Rs.6,48,000/- basing on the promissory note.
2. The brief averments of the plaint are, the 1st defendant is the wife and the defendants 2 to 6 are children of late Visaka
Suryanarayana. Visaka Suryanarayana during his life time along with defendants 1 and 2 on 9-9-2013 borrowed a sum of Rs.4,00,000/- from the plaintiff to meet their family expenses and to discharge sundry debts, agreeing to repay the same with interest at the rate of 24% per annum and executed demand promissory note in favour of the plaintiff.
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Thereafter in spite of repeated demands the said Visaka
Suryanarayana deposited original partition deed pertaining to his immovable property towards security and thereafter died intestate leaving behind the defendants 1 to 6 as his legal heirs. After the death of the deceased Visaka Suryanarayana, the plaintiff demanded the defendants, but they are not responded, and the plaintiff issued legal notice dated 18-9-2015 demanding the defendants to repay the debt.
The defendants 1, 2 and 6 received the notice. The defendants got issued reply notice dated 1-10-2015 with false allegations, for which the plaintiff issued rejoinder dated 22-1-2016 with true set of facts. The defendants also got issued rejoinder notice on 29-3-2016 with false allegations. Hence the plaintiff is constrained to file the suit.
3. After receipt of the suit summons, the defendants 3 to 6 are set exparte and the defendants 1 and 2 filed written statement denying the material allegations. The brief averments of the written statement are, deceased Visaka Suryanarayana borrowed only
Rs.1,50,000/- from one Gedela Sitaramayya Naidu of Tadepalligudem on 15-8-2012 and delivered unfilled printed promissory note along with partition deed as security for discharge of the said amount and also untilled stamp paper signed by the defendants 1 and 2 and deceased
Visaka Suryanarayana. During the life time of Visaka Suryanarayana, he discharged the said debt of Rs.1,50,000/-. Even after discharge of the entire debt the said Gedela Sitaramayya Naidu has not returned the blank promissory note signed by the defendants 1 and 2 and late
Visaka Suryanarayana, so also not returned the partition deed. Taking advantage of the possession of the empty unfilled promissory note the said Gedela Sitaramayya Naidu in collusion with the plaintiff scribe and 3 attestors got fabricated the suit promissory notes in the name of the plaintiff. The plaintiff suppressed all the above facts and filed this false suit for wrongful gain. The said promissory note is not supported by consideration. The plaintiff has no capacity to lend such huge amount and prays to dismiss the suit with costs.
4. In view of the rival contentions of both the parties, the following issues are settled for trial:
1) Whether the suit promissory note dated 9-9-2013 is true, valid and duly executed by the deceased
V.Suryanarayana and D-1 and D-2 and whether it is not supported by consideration?
2) Whether the plaintiff is entitled to suit claim as prayed for?
3) To what relief?
5. In support of the plaintiff’s case, the plaintiff himself testified as P.W.1 and got marked Exs.A-1 to A-6 and got examined the attestor of the suit pronote as P.W.2 and closed his evidence. After closure of the plaintiff’s evidence, the 2nd defendant himself testified as
D.W.1 and closed his evidence. Heard arguments.
6. ISSUE NO.1: The plaintiff argued that during the life time of Visaka Suryanarayana, he himself along with defendants 1 and 2 borrowed a sum of Rs.4,00,000/- from the plaintiff, agreeing to repay the same with subsequent interest and executed demand promissory note and thereafter in spite of repeated demands the said Visaka
Suryanarayana deposited the partition deed in respect of his immovable property and thereafter failed to repay the pronote debt and died intestate leaving the defendants 1 to 6 as his legal heirs. The plaintiff requested the defendants to repay the debt, but in vain and the plaintiff issued legal notice dated 18-9-2015 demanding the repayment.
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The defendants issued reply with false averments, the plaintiff issued rejoinder notice and the defendants also issued reply rejoinder with false allegations. Defendants 1 and 2 are personally liable and the estate of the deceased Visaka Suryanarayana which is in the hands of the defendants 3 to 6, is also liable for realization of the suit amount.
7. Whereas the defendants contending that defendants 1 and 2 and Visaka Suryanarayana not executed any promissory note in favour of the plaintiff and the suit promissory note is not supported by consideration. The deceased Visaka Suryanarayana borrowed a sum of Rs.1,50,000/- from Gedela Sitaramayya Naidu who is friend to the plaintiff. By that time Visaka Suryanarayana, D-1 and D-2 gave one signed pronote and partition deed towards security. After receipt of legal notice from the said Gedela Sitaramayya Naidu, Visaka
Suryanarayana discharged the same, Gedela Sitaramayya Naidu not returned the pronote and partition deed and thereafter the said Gedela
Sitaramayya Naidu fabricated the same in collusion with the plaintiff, attestors and scribe, and the suit promissory note is not supported by consideration and in support of their contentions, they relied upon the decision reported in M.S.Narayana Menon @ Mani Vs State of
Kerala & Another, Crl.Appeal No.1012/1999 of Supreme Court of
India and also relied upon the decision reported in K.Ashok Kumar
Goud Vs Sree Ramulu and another, 2017 (1) ALT (Crl.) 320 (A.P).
8. Since the plaintiff averred and contending that on receipt of consideration Visaka Suryanarayana along with defendants 1 and 2 executed a suit promissory note in favour of the plaintiff, and thereafter they failed to repay the same, the initial burden lies on the plaintiff to prove those facts. In order to discharge his initial burden, the plaintiff 5 himself testified as P.W.1 and got examined the attestor of the suit promissory note as P.W.2. Both the P.Ws.1 and 2 with the same voice deposed that on 9-9-2013 Visaka Suryanarayana along with defendants 1 and 2 borrowed a sum of Rs.4,00,000/- from the plaintiff to meet his family necessities, agreeing to repay the same with subsequent interest at the rate of 24% per annum and executed demand promissory note. The said promissory note was attested by
P.W.2, Gedela Srinivasa Rao and scribed by U.Trimurthulu. The plaintiff further deposed that soon after the execution of Ex.A-1 promissory note, in spite of repeated demands Visaka Suryanarayana deposited Ex.A-2 partition deed with the plaintiff and thereafter failed to repay the same. The plaintiff issued Ex.A-3 legal notice demanding the repayment. The defendants issued Ex.A-4 reply notice with false allegations and again the plaintiff issued Ex.A-5 rejoinder notice, for which the defendants issued Ex.A-6 reply rejoinder notice.
9. The defendants vehemently contending that the suit promissory note is not supported by consideration and it came into existence in the circumstances pleaded in the written statement i.e., the deceased Visaka Suryanarayana borrowed Rs.1,50,000/- from
Gedela Sitaramayya Naidu and gave signed promissory note along with the signatures of defendants 1 and 2 and the same was fabricated into Ex.A-1. But now coming to the cross examination of D.W.1, he denied the signature on Ex.A-1.
10. It is the case of the defendants that Visaka Suryanarayana borrowed Rs.1,50,000/- from Gedela Sitaramayya Naidu. By that time he gave one signed blank pronote and one partition deed to the said
Gedela Sitaramayya Naidu and thereafter he discharged the said debt.
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The said Gedela Sitaramayya Naidu colluded with the plaintiff and created Ex.A-1 promissory note. But he himself deposed in his evidence that the signature on Ex.A-1 promissory note not belongs to him. Therefore in view of the evidence of D.W.1, it is established that
Ex.A-1 is no way concerned with the alleged promissory note said to have been given by Visaka Suryanarayana to Gedela Sitaramayya
Naidu.
11. The oral evidence of P.Ws.1 and 2 is corroborated with each other and their evidence clearly reveals that on receipt of consideration Visaka Suryanarayana executed Ex.A-1 along with defendants 1 and 2. Though the defendants pleaded that Visaka
Suryanarayana gave one signed pronote to one Gedela Sitaramayya
Naidu when he borrowed Rs.1,50,000/- and thereafter he discharged the same. The evidence of D.W.1 washed out the defence as he himself deposed that the signature on Ex.A-1 promissory note is not belongs to him. Therefore it is safely concluded that Ex.A-1 is no way concerned with the alleged signed pronote said to have been given by the Visaka Suryanarayana to one Gedela Sitaramayya Naidu.
12. Except the self serving evidence of D.W.1, there is no other evidence on record that the deceased Visaka Suryanarayana borrowed Rs.1,50,000/- from one Gedela Sitaramayya Naidu and gave blank signed pronote and partition deed. The defendants not issued any legal notice to the said Gedela Sitaramayya Naidu demanding for return of the signed pronote or partition deed. Though the defendants pleaded that the said Gedela Sitaramayya Naidu gave legal notice to
Visaka Suryanarayana demanding the repayment of Rs.1,50,000/-, the said notice was also not brought on record.
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13. As discussed in earlier paragraphs the oral evidence of
P.Ws.1 and 2 clinchingly reveals that on receipt of consideration,
Visaka Suryanarayana and defendants 1 and 2 executed Ex.A-1 promissory note. The defendants made an attempt to impeach the cross examination of P.Ws.1 and 2 and it was elicited in the cross examination of P.W.1 that Rs.4,00,000/- was saved out of his business earnings. He is getting monthly income of Rs.25,000/- to Rs.30,000/-.
The deceased Visaka Suryanarayana requested the amount since three months prior to Ex.A-1 promissory note. The said Visaka
Suryanarayana put his signature along with defendants 1 and 2 (D-1 affixed her thumb mark). Ex.A-1 transaction took place at the house of the plaintiff between 5-30 p.m., and 6-00 p.m. He does not know
Gedela Sitaramayya Naidu of Tadepalligudem. He denied that Gedela
Sitaramayya Naidu got filed this suit through the plaintiff by fabricating blank signed pronote available with him. P.W.2 and Gedela Srinivas are the attestors. He have savings bank account in Andhra Bank and
Central Bank of Gundugolanu. He can file relevant statements if required. He denied that he is liable for criminal prosecution for fabrication of empty pronote available in the custody of Sitaramayya
Naidu and he has no capacity to lend the huge amount. It was further elicited one person of Bhimadole scribed the pronote, and he took finance to purchase the vehicle. The attestors Gedela Srinivas is not the relative of Gedela Sitaramayya Naidu. The 1st attestor is working in his office. So also it was elicited in the cross examination of P.W.2 that he is a muta worker. He used to return back from his work by 8-00 p.m., in the night. On 9-9-2013 he has not attended to his work. He denied that no transaction took place as deposed by him. The Visaka 8
Suryanarayana brought the pronote form. He further denied that the scribe is stranger to defendants 1 and 2. The plaintiff not informed his source of consideration. The said amount was given to
Suryanarayana, defendants 1 and 2 in the denomination of four bundles of Rs.1,000/- notes. He denied that Suryanarayana was bed ridden as on the date of Ex.A-1.
14. Except the suggestions that the suit pronote is fabricated based on the blank pronote in the custody of the Gedela Sitaramayya
Naidu, which was denied by P.W.2, nothing was elicited from P.Ws.1 and 2. On perusal of evidence of P.Ws.1 and 2 nothing was elicited probablizing the defence. Admittedly the defendants not adduced any positive evidence to prove that Visaka Suryanarayana borrowed
Rs.1,50,000/- from Gedela Sitaramayya Naidu and gave signed blank pronote to him and thereafter he discharged the said loan and the said
Gedela Sitaramayya Naidu retained the blank pronote and partition deed and thereafter fabricated the said pronote with the help of plaintiff.
The defendants also not placed any evidence with regard to the relationship between the plaintiff and Gedela Sitaramayya Naidu and further it is pertinent to note that D.W.1 himself denied his signature on the suit pronote. As discussed in earlier paragraphs in view of the said evidence the defence taken by the defendants that Visaka
Suryanarayana gave signed pronote to Gedela Sitaramayya Naidu and the same was fabricated into Ex.A-1, has no credence. Since D.W.1 himself denied his signature on Ex.A-1, the question of giving it to
Gedela Sitaramayya Naidu when it was blank, is absolutely not acceptable.
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15. The defendants further took a plea that the plaintiff has no capacity to lend such amount. In view of the evidence of P.W.2 it is evident that plaintiff gave consideration to the defendants 1 and 2 in his presence. P.W.1 also deposed that he is maintaining vans and his monthly income is around Rs.25,000/-. As discussed in earlier paragraphs the evidence of P.Ws.1 and 2 clearly reveals that the plaintiff paid the consideration at his house and on receipt of consideration Visaka Suryanarayana, defendants 1 and 2 signed on
Ex.A-1 promissory note. The said evidence was not rebutted by way of cross examination.
16. The defendants contending that Visaka Suryanarayana, defendants 1 and 2 borrowed Rs.1,50,000/- from Gedela Sitaramayya
Naidu. By that time Visaka Suryanarayana gave blank signed pronote and partition deed. He discharged the same after receipt of the legal notice from Gedela Sitaramayya Naidu. The advocate who issued the said notice and the present notice Ex.A-3 are one and the same. It clearly reveals the collusive transaction of Gedela Sitaramayya Naidu and the plaintiff. The defendants also pleaded the same in their reply notice Ex.A-4, for which the plaintiff issued Ex.A-5 rejoinder by denying the said fact and explain that both the transactions are different. Again the defendants issued Ex.A-6 reply rejoinder notice by reiterating the averments in Ex.A-4 reply notice. However it is the case of the defendants that in view of the blank promissory note given by Visaka
Suryanarayana, defendants 1 and 2 to one Gedela Sitaramayya Naidu, taking advantage of the death of Visaka Suryanarayana, the said
Gedela Sitaramayya Naidu fabricated the blank pronote into Ex.A-1, but as discussed in the earlier paragraphs during the cross 10 examination D.W.1 categorically denied Ex.A-1 which was said to be signed by him and gave it. Therefore the defendants are estopped to raise contention that they gave signed pronote to Gedela Sitaramayya
Naidu and the said pronote is fabricated into Ex.A-1 suit promissory note.
17. The defendants relied upon the decision in,
M.S.Narayana Menon @ Mani Vs State of Kerala & Another,
Crl.Appeal No.1012/1999 dt.04-07-2006
Wherein Their Lordship observed that “once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies.
In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where 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) in his favour. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt”. By relying upon the said judgment the defendants argued that they took specific plea that basing on the blank signed promissory note given to the said
Gedela Sitaramayya Naidu, the plaintiff fabricated Ex.A-1 promissory note taking advantage of the death of Visaka Suryanarayana.
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18. The case facts in the judgment cited supra are not identical to the present case facts and circumstances. In the present case though the defendants pleaded in the written statement that they gave signed pronote to Gedela Sitaramayya Naidu and the same was fabricated into Ex.A-1 promissory note, but D.W.1 in his evidence denied his signature in Ex.A-1. Therefore it is clear that the alleged pronote given to Gedela Sitaramayya Naidu and Ex.A-1 promissory note are not one and the same, as pleaded in the Ex.A-4 reply notice.
19. The defendants further relied upon the decision reported in,
K.Ashok Kumar Goud Vs Sree Ramulu and another,
2017 (1) ALT (Crl.) 320 (A.P).
Wherein it was held “Non-production of any bank statements coupled with non-mention of this amount in the Income Tax returns makes the claim of the complainant as doubtful”.
The case facts in the judgment cited supra are that the defence of the accused is that the complainant is doing real estate business along with Ramulu and that he sold the house to the said
Ramulu and for mutation of the property, he issued blank stamp paper and Exs.P-2 and P-3 cheques. The accused may not lead any direct evidence. The complainant, to prove his case, mainly relied on agreement of sale. To prove the same, except the self serving statement, no witness either oral or documentary has been lead by the complainant. Further to prove that he advanced Rs.45,00,000/-, the complainant failed to establish his source, as no bank statements were filed. Though the complainant filed the income tax returns of the relevant period, the amount of Rs.45,00,000/- is not reflected in the said returns. In view of the inconsistent versions of P.W.1 in non- 12 mentioning of the loan in the income tax returns of P.W.1, the non- production of any bank statement, the non-filing of any books or statements of accounts and the absence of any oral or documentary corroboration for the claims of P.W.1 about availability of such a huge sum assumes significance, more so, in the face of total denial of any acquaintance between them by the accused. The total variance between the contents of Ex.P-5 and the evidence before the criminal
Court makes the claims more doubtful and the existence of any legally enforceable debt or liability itself becomes suspect and finally held the circumstances probablises the defence of the accused that the cheques were issued not for legally enforceable debt or liability.
Considering these circumstances, the Court below has rightly held that the cheques were issued by the accused for another transaction and the complainant misused the same and filed the case”.
20. The facts in the judgment cited supra are not identical to the present case facts and circumstances. In the present case D.W.1 specifically denied his signature on Ex.A-1 promissory note. Though he pleaded that they gave signed pronote to one Gedela Sitaramayya
Naidu and the same was fabricated into Ex.A-1 promissory note, he himself denied his signature on Ex.A-1. Therefore it cannot be said that the pronote said to have given to Gedela Sitaramayya Naidu and
Ex.A-1 promissory note are one and the same and further more it is not the case of the defendants that the plaintiff is an income tax assessee, he has not shown the said transaction in returns. The oral evidence of
P.W.1 is corroborated with the evidence of P.W.2, who is attestor of
Ex.A-1 promissory note regarding the passing of consideration.
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21. On over all consideration of the oral and documentary evidence analysed and discussed in earlier paragraphs, in view of the evidence of P.W.1 coupled with Exs.A-1 to A-6 which corroborated by the evidence of P.W.2, the plaintiff convincingly proved that on 9-9- 2013 Visaka Suryanarayana, defendants 1 and 2 borrowed a sum of
Rs.4,00,000/- and Visaka Suryanarayana, defendants 1 and 2 executed Ex.A-1 promissory note and the same is true, valid and supported by consideration. Accordingly this Issue is answered.
22. ISSUE NO.2:
Whether the plaintiff is entitled to suit claim as prayed
for?
In view of the findings in Issue No.1, the plaintiff convincingly proved that Ex.A-1 suit pronote is true, valid and supported by consideration, it is not the case of the defendants that they discharged the suit debt. Therefore being a creditor the plaintiff is entitled to recover the suit claim from the defendants 1, 2 and out of the estate of the deceased Visaka Suryanarayana which is in the hands of defendants 1 to 6. Accordingly this Issue is answered.
23. ISSUE NO.3: To what relief?
In view of the findings in Issues 1 and 2, the plaintiff is entitled to recover the suit claim from the defendants 1, 2 personally and out of the estate of deceased Visaka Suryanarayanawhich is in the hands of the defendants 1 to 6 with costs.
24. In the result, the suit is decreed against the defendants 1 and 2 personally and against the estate of deceased Visaka
Suryanarayana which is in the hands of the defendants 1 to 6, for a sum of Rs.6,48,000/- with costs and with subsequent interest at 12% 14 per annum from the date of the suit till the date of decree and thereafter at 6% per annum from the date of the decree till the date of realization, on the principal amount of Rs.4,00,000/-.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in open Court, this the 23 rd day of July, 2018.
PRINCIPAL SENIOR CIVIL JUDGE,
E L U R U.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF : FOR DEFENDANTS :
P.W.1 M.Sudarshana Rao. D.W.1 : V.Venkata Durga Rao @ Durga Rao. P.W.2 Mathe Prasad.
DOCUMENTS MARKED
FOR PLAINTIFF :
Ex.A-1 -- Original Pronote dt.9-9-2013 executed by the defendants 1 and 2 and one V.Suryanarayana in favour of plaintiff.
Ex.A-2 -- Original regd., partition deed of V.Suryanarayana dt.28-4-2004.
Ex.A-3 -- Office copy of regd., legal notice dt.18-9-2015 got issued by the plaintiff to the defendants.
Ex.A-4 -- Reply notice from defendants 1 to 6.
Ex.A-5 -- Office copy of rejoinder notice dt.22-1-2016 got issued by the plaintiff to the counsel of the defendants.
Ex.A-6 -- Rejoinder notice dt.29-3-2016 got issued by the defendants Counsel to the Counsel of the plaintiff. FOR DEFENDANTS: NIL.
P.S.C.J., ELR.