IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE
WEST GODAVARI: AT ELURU.
Present: Sunitha Gandham,
Principal District Judge,
WEST GODAVARI: AT ELURU.
Friday on this the 8th day of November, 2019
O.S.No.40/2015
Between:
Vemuri Seshagiri Rao …Plaintiff.
And
1. Vegunta Krishna Mohan.
2. Vegunta Madan Mohan.
…Defendants.
This suit has come on 20.09.2019 before me for hearing in the presence of Sri Ch.Venkaiah, learned Advocate for plaintiff and of Sri M.Lakshman
Kumar, learned Advocate for defendants; upon perusing the material on record 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 suit is filed by the plaintiff under Section 26 and Order 7 Rules 1 to 6 of Code of Civil Procedure against the defendant, seeking recovery of
Rs.35,16,592/-, on the foot of two promissory notes with future interest at the rate of 24% per annum compoundable on yearly rests and for costs.
2. Facts set out in the plaint, are in brief, are as follows:
On 11.01.2012 and 03.05.2012, defendants borrowed Rs.9,00,000/-,
Rs.10,00,000/- respectively from the plaintiff, to invest the same in their joint
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PDJ Court, Eluru family tobacco business, agreed to repay the same with interest at Rs.24% per annum, and defendant No.1 scribed the promissory notes and both the defendants executed promissory notes in favour of the plaintiff, in the presence of attestor Sri K.Srinivasa Rao. Despite several demands, defendants failed to repay the amount covered under Exs.A.1 and A.2 promissory notes and postponed the same on some pretext or the other. Finally, on 07.01.2015, plaintiff has got issued legal notice to the defendants demanding to repay the amount due under the promissory notes and they failed to repay the same.
Hence, the suit.
3. Defendant No.1 resisted the plaint by filing written statement and by stating that they have no acquaintance with the plaintiff, they are not leading joint family, they neither borrowed any amount nor executed the alleged promissory notes, defendant No.1 has not scribed promissory notes, they borrowed amounts from one late Vegunta Radha Krishna and at that time, he obtained their signatures on several blank promissory notes and cheques, towards security, and though they discharged the said debts, he failed to return the blank signed promissory notes and cheques on the ground of misplacement and after his death, his son Vegunta Prasad babu fabricated the promissory notes and got filed several suits through this plaintiff and others. It is further pleaded that they have no acquaintance with the plaintiff and the attestor, and the plaintiff has no financial capacity, to lend Rs.19,00,000/-, and only to get wrongful gain, this suit was filed, and with other formal denials prayed to dismiss the plaint.
4. Defendant No.2 filed adoption memo by adopting the contents of written statement filed by the defendant No.1.
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5. Taking into consideration of the afore mentioned pleadings, learned predecessor of this Court had framed the following issues for trial:
1. Whether the suit promissory notes dated 11.01.2012 and 03.05.2012 are true, valid and binding on the defendant ?
2. Whether the plaintiff is entitled for suit claim with
subsequent interest from the defendants?
3. To what relief?
6. (a). To prove their respective contentions, plaintiff examined himself as
P.W.1 and he got examined P.W.2, and filed Exs.A.1 to A.3 documents.
(b). As against the evidence of plaintiff, defendant Nos.1 and 2 examined themselves as D.Ws.1 and 2, and Scientific Expert is examined as C.W.1 and his report is marked as Ex.C.1.
7. Heard both the sides.
8.ISSUE No.1:
(a).The facts leading to the present case on hand and pleadings of both the sides are already stated supra. In this suit for recovery of money, the legal burden as well as initial onus of proof are on the plaintiff.
(b). During trial, plaintiff and both the defendants filed chief examination affidavits in lieu of their chief examinations, by restating the facts mentioned in the plaint and written statement, and plaintiff relied upon the evidence of PW2 coupled with Exs.A.1 and A.2 promissory notes and Ex.A.3 office copy of legal notice, and both the parties relied upon the evidence of Scientific Expert/C.W.1 coupled with Ex.C.1 report.
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(c). As per the version of the plaintiff, on 11.01.2012 and 03.05.2012, defendants borrowed Rs.9,00,000/- and Rs.10,00,000/- respectively from him, to invest the same in their joint family tobacco business, agreed to repay the same with interest at Rs.24% per annum, and defendant No.1 scribed the promissory notes and both the defendants executed Exs.A.1 and A2 promissory notes in his favour, in the presence of attestor/K.Srinivasa Rao and despite several demands, they failed to pay the amount covered under Exs.A.1 and A.2 promissory notes and finally, he has got issued Ex.A.3 legal notice to the defendants demanding to repay the amount due under Exs.A.1 and A.2 and they failed to repay the amount.
(d).Firstly:
(i). As per the version of the defendants, defendant No.1 has not scribed
Exs.A.1 and A.2 and they neither borrowed any amount nor executed Exs.A.1 and A.2 promissory notes and they have no acquaintance with the plaintiff, and plaintiff stated that on 11.01.2012 and 03.05.2012, defendants borrowed
Rs.9,00,000/- and Rs.10,00,000/- respectively, to invest the same in their tobacco business and executed Exs.A.1 and A.2 promissory notes, in the presence of attestor/Kolli Srinivasa Rao and agreed to repay the same with interest at 24% p.a. compoundable on yearly rests, and to substantiate his version, he relied upon the evidence of P.W.2.
(ii). And, P.W.2 stated on the same lines of evidence of P.W.1 regarding execution of Exs.A.1 and A.2 and passing of consideration and he further stated that K.Srinivasara Rao is his cousin and he has been suffering from ill health and not in a position to come to Court, to give evidence and he can identify signature of his cousin.
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(iii). The learned counsel for the plaintiff argued that the plaintiff able to establish his case by adducing oral as well as documentary evidence, as such, Section 118(a) of
Negotiable Instruments Act comes to the aid of plaintiff and the defendants failed to show significant probabilities to rebut the presumption.
Section 118(a) of the Act reads as follows:
Section 118. Presumptions as to negotiable instruments – Until the contrary is proved, the following presumptions shall be made:
(a). Of consideration – that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
(iv). It is settled law that presumption drawn under a statute has only an evidentiary value and presumptions are raised in terms of the Evidence Act and presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another.
(v). It is also well settled law that for the purpose of rebutting the initial evidential burden, the defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. Once such convincing rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the plaintiff who has also the legal burden. Thereafter, the presumption under section 118 does not again come to the plaintiff‟s rescue.
Once both parties have adduced evidence, the court has to consider the same and the burden of proof loses all its importance.
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(vi). And, to repel the presumption under Section 118 (a) of Negotiable
Instruments Act and to disprove the case of plaintiff, defendants relied upon their direct evidence coupled with documents on either side, and from the material brought out in the cross examination of P.Ws.1 and 2, and also from the material brought out in the evidence of C.W.1/Scientific Expert coupled with
Ex.C.1.
(vii). Plaintiff didn‟t place any material before this Court, showing ill health of the attestor and simply examined P.W.2. Added to it, plaintiff must follow procedure to get identified signature of the attestor on Exs.A.1 and A.2. Further, plaintiff not even showed Exs.A.1 and A.2, to P.W.2, when he entered into witness box. In the cross examination, P.W.2 categorically admitted that he has no personal knowledge about the transaction covered under Exs.A.1 and A.2. So, evidence of P.W.2 would not help to the case of plaintiff. Admittedly, promissory note is not compulsory attestable document and the Court can rely upon the evidence of plaintiff, to come to conclusion regarding transaction covered under
Exs.A.1 and A.2.
(viii). And, in the cross examination, P.W.1 stated that the defendants are neither their relatives nor friends, but he know them and he never sold tobacco to the defendants. He further stated that others also lent amounts to the defendants and filed suits, he has not enquired about the details of properties and didn‟t seek for security, attestor/K.Srinivasa Rao had no prior acquaintance with the defendants, he doesn‟t remember about colour of pens used by the atestors, defendants subscribed their signatures at two places ie., on the revenue stamp and underneath the revenue stamp, defendants and attestor signed with their own pens, defendant No.1 signed in the column of scribe in
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Telugu and also mentioned as „almakam gudipadu‟. The learned counsel for the defendants tried to elicit material in favour of the defendants, to disbelieve the case of plaintiff. However, these admissions do not come under the purview of significant probabilities, to disbelieve the transaction covered under Exs.A.1 and
A.2. Added to it, P.W.1 correctly stated about signatures of both the defendants, attestors and other allied aspects.
(ix). Further, in the cross examination, D.W.1 stated that he has three brothers i.e., Chandra Mohan, Arun Mohan, Madan Mohan, they are doing tobacco business under the name and style of M/s Vegunta Surya Prakasha Rao and company, and having admitted that his paternal uncle Sri
Dasaradharamayya and Sri V.V.N.Prasad and co-brothers, he pleaded ignorance that V.V.N.Prasad is son of the said Prakasha Rao and denied the suggestion that his paternal uncle and V.V.N.Prasad did joint tobacco business. D.W.1 further stated that he is doing business for the last 10 years, their parents have movable and immovable properties at Bhogapuram and having denied the suggestion that they are leading joint family, he stated that there is no registered partition deed to show division of their properties, the said Vegunta Radha Krishna is their well wisher, he filed petition, in all suits, to send the disputed documents, to the
Scientific Expert, to compare handwritings on the disputed promissory notes, he is business man and graduate, and they subscribed signatures in good faith, he borrowed amounts from one Kommana Prakasha Rao of Vatluru and his son filed suit and denied execution of Exs.A.1 and A.2 promissory note,and in the cross examination, D.W.2 also stated on the same lines of evidence of D.W.1, except the statement regarding partition deed and D.W.2 stated that a registered partition deed was executed showing division of their family properties, and other ryots also filed suits against them, seeking recovery of money.
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(x). On overall scrutinization of cross examination of D.Ws.1 and 2, they are doing tobacco business under the name and style of Vegunta Surya Prakasha
Rao and company and they have been purchasing tobacco from ryots and some ryots also filed suits, seeking recovery of amounts, and even as per the evidence of P.W.1 coupled with Exs.A.1 and A.2, defendant borrowed amounts to invest the same, in his tobacco business.
(xi). In Bharat Barrel and Drum Manufacturing Company Vs. Amin
Chand Payrelal 1 . The Hon‟ble Apex Courtheld as follows:
“Section 118 of the Act deals with the presumptions as to negotiable instruments. One of such presumptions is "that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. This presumption is based upon a principle and is not a mere technical provision. The principle incorporated being, inferring of a presumption of consideration in the case of a negotiable instrument.”
(xii). G.Vasu Vs. Syed Yaseen Sifuddin Quadri 2
In this case, it is held that, “In a suit on a promissory note, the case of the defendant as to the circumstances under which the promissory note was executed is not accepted, it is option to the defendant to prove that the case set up by the plaintiff on the basis of the recitals in the promissory note, or the case set up in suit notice or in the plaint is not true and rebut the presumption under section 118, by showing preponderance of probabilities in his favour and against the plaintiff. He need not lead evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by any consideration whatsoever. The words „until the contrary is proved‟ in section 118 do not mean that the defendant must necessarily show that the document is not supported by any form of consideration, but the defendant has the option to ask 1 Supreme Court of India Judgment dated 18.02.1999 2 AIR 1987AP 139 (DB)
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PDJ Court, Eluru the court to consider the non-existence of consideration so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that consideration did not exist. Though the evidential burden is initially placed on the defendant by virtue of section 118, it can be rebutted by the defendant by showing a preponderance of probabilities that such consideration as stated in the pronote, or in the suit notice or in the plaint does not exist and once the presumption is so rebutted, the said presumption „disappears‟.”
(xiii). As per the material brought on record, plaintiff discharged his initial burden as well as onus of proof regarding execution of Exs.A.1 and A.2 and passing of consideration, as such, presumption comes to the aid of the plaintiff.
And, on the aspects relating to preponderance of probability, defendants failed to bring on record such facts and such circumstances to conclude either the consideration did not exist or that its non existence was so probable that a prudent man would, under the circumstances of the case, as upon the plea that the consideration did not exist, and it is settled law that mere denial would not fulfill the requirement of rebuttal as envisaged under Section 118 of the
Negotiable Instruments Act.
(e).Secondly:
(i). As per the version of the defendants, they have no acquaintance with the plaintiff and they borrowed amounts from one late Vegunta Radha Krishna and at that time, he obtained their signatures on several blank promissory notes and cheques, towards security, and though they discharged the said debts, the said Radha Krishna failed to return the blank signed promissory notes and cheques on the ground of misplacement and after his death, his son Vegunta
Prasad babu fabricated the promissory notes and got filed several suits through this plaintiff and others.
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(ii). But, it is not even suggested to P.W.1 that he borrowed amounts from the said Vegunta Radha Krishna and at that time, he obtained his signatures on several blank promissory notes and cheques, towards security, and though he discharged the said debts, the said Radha Krishna failed to return the blank signed promissory notes and cheques on the ground of misplacement, and it is merely suggested that plaintiff, Prasad Babu and plaintiff in other suits have teamed up together and filed several cases against the defendant and his brothers and fabricated blank promissory notes and cheques and filed several suits against the defendant and his brothers.
(iii). Further, in the cross examination, D.W.1 stated that the said Vegunta
Radha Krishna is well wisher of their family, he know his son Prasad Babu, he has taken common defence in all the suits filed by several persons contending that the promissory notes were fabricated by using the blank signed promissory notes, he is business man and graduate, he subscribed his signatures on blank promissory notes and cheques in good faith, he did not issue legal notice either to the said Radha Krishna or to his son, to return the blank signed promissory notes and cheques.
(iv). And, in the cross examination, D.W.2 also stated that he know
Vegunta Radha Krishna who is a financier, their defence is same in all the suits and he categorically admitted that no prudent man would subscribe signatures on blank papers. As seen from the defence taken by the defendants in this aspect is very vague and they have not stated minimum details of the alleged transactions which were said to have been taken place between them and the said Radha Krishna, and they have not even stated the dates of the said transactions. Since defendants are denying the transactions covered under
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Exs.A.1 and A.2 promissory notes, by taking the defence of fabrication, it is incumbent on their part, to show significant probabilities, to substantiate their contention. But, except taking mere contention that the said Radha Krishna obtained signed blank promissory notes and cheques from him, they have not showed single probability. Added to it, having stated that they discharged the debts due to the said Radha Krishna, defendants categorically admitted that they have not taken any steps to get back the blank signed promissory notes, and their explanation is that the said Radha Krishna informed to them that the said blank signed promissory notes and cheques were misplaced and they believed the words of Radha Krishna. No prudent man would kept quite without taking any steps, to get back the blank signed papers. Added to it, defendants are not illiterates and they are graduates and are doing business.
(f).Thirdly:
(i). Adding circumstance probablizing the case of the plaintiff is that the defendant having denied the version of plaintiff, filed a petition in
I.A.No.1317/2018, to send Exs.A.1 and A.2 promissory notes, to compare the disputed handwritings which are available on Exs.A.1 and A.2 with admitted handwritings and the petition was allowed vide order dt.09.07.2018 and since the defendants failed to produce his contemporaneous admitted handwritings, his handwritings were obtained in the open court and sent to the Forensic
Science Laboratory for comparison of the disputed handwritings with the standard handwritings, and the Scientific Officer C.W.1 submitted Ex.C.1 report along with reasons and opinion of the Scientific Officer is, “The person who
wrote the red enclosed signatures with writings marked S1 to S10 also
wrote the red enclosed signatures with writings marked Q1 and Q2.”
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(ii). Since the Scientific Expert‟s report went against the defendant, he filed a petition seeking examination of the Scientific Expert and it was allowed and he was examined as C.W.1 and through him, his report along with reasons was marked as Ex.C.1. C.W.1 stated that he has required qualifications and he underwent training, to examine documents and he examined more than 10,000 documents and gave evidence in more than 1000 cases, and as per the requisition of this Court, he examined Exs.A.1 and A.2 promissory note, in all angles of handwriting identification, detection of forgery with sophisticated instruments such as magnifiers, stereo microscope and video spectral comparator. He further stated that as per his scientific investigation, the questioned signatures with the writings are similar nature and also similar with standard writings and signatures and he has given opinion under Ex.C.1 as „the person who wrote the red enclosed signatures with writings marked S.1 to S.10 (V.Krishna Mohan) also wrote the red enclosed signatures and writings marked
Q1 and Q2.‟ So, as per the evidence of C.W.1, he examined the disputed handwritings, in all angles and by using all techniques.
(iii). And, in the cross examination, C.W.1 admitted that Ex.C.1 doesn‟t disclose about his training, experience and that he has examined more than 10,000 documents and also given evidence in more than 1000 cases. However, non mentioning about the same in Ex.C.1 is not a ground to come to conclusion that he is not scientific expert and has no experience. This Court addressed letter to the Director, Government Handwriting Expert, Forensic Science Laboratory,
Hyderabad and he entrusted the work to C.W.1, to examine the documents and to submit report. There is no reason to disbelieve that C.W.1 is not scientific expert and that he has no experience. C.W.1 further stated that this Court has not directed to give opinion regarding signature on Exs.A.1 and A.2. Admittedly,
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PDJ Court, Eluru defendant has not denied his signatures on Exs.A.1 and A.2 and he denied his handwritings only and this Court also requested to examine handwritings only.
However, C.W.1 examined total disputed and specimen signatures and handwritings, and though he has admitted that he laid much stress on the signature portion, he has categorically stated that he examined the text of the handwritings. He has further stated that he has not mentioned in Ex.C.1 report that the amounts of Rs.9,00,000/- and Rs.10,00,000/- and dates i.e., 11.01.2012 and 03.05.2012 and interest of Rs.2/- on Exs.A.1 and A.2 are similar with that of the figures mentioned in S.1 to S.10 and he denied the suggestion that those are not similar to that of the specimen numericals and other portion and when the learned counsel for the defendant tried to elicit that he has not examined the questioned and specimen handwritings by following procedure, he answered in the negative.
(iv). To show probabilities in their favour, they have taken the plea of fabrication of Exs.A.1 and A.2, and since Ex.C.1 report went against them, they tried to elicit material in their favour, by contradicting Ex.C.1 report in the evidence of C.W.1. But, they could not elicit probabilities in their favour, to dislodge the testimony of C.W.1.
In Kati Maheswar Rao Vs. Uppati Lalitha and Others 3,it is held
(v).
that,opinion of expert is only a guiding factor and it is for the court below to examine the entire evidence on record including the evidence of the Hand
Writing Expert, and to give a just conclusion, and in a recent judgment of Honble
APEX Court in Chennadi Jalapathi Reddy Vs. Baddam Pratapareddy(dead) 3 2018(2) ALT 594
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PDJ Court, Eluru through LRs and another 4 , it is held that, it is the duty of the Court to approach opinion evidence cautiously while determining its reliability and that the
Court may seek independent corroboration of such evidence as a general rule of prudence.
(vi). And, inMatta Sriram Murthy Vs. Arepalli Sriram Murthy 5 ,it is held that before exercising powers under section 73 of Indian Evidence Act, to form an opinion by comparing the Hand Writing or signatures of the party, it would be always probable for the Court to take assistance of Hand Writings Expert before any better position to form an appropriate opinion, and in Lalith Popli Vs.
Canara Bank and others 6, it is held that it is worthy of observation that
Section 45 and Section 73 of the Evidence Act are complimentary to each other and irrespective of an opinion of the handwriting expert the Court can compare the admitted writing with the disputed writing and come on its own conclusion and such exercise of comparison is permissible under Section 73 of the Evidence
Act.
(vii). So, this court has power to compare signatures and hand writings under Section 73 of the Evidence Act. When this Court compared handwritings of the defendant which are available on Exs.A.1 and A.2 with the specimen signatures which were obtained by this Court to send to the Scientific Expert, this
Court also came to conclusion that Exs.A.1 and A.2 contains handwritings of the defendant. Assuming for the sake of arguments, there is no Scientific Expert‟s report also, plaintiff adduced convincing evidence to prove the transactions covered under Exs.A.1 and A.2, and the fact remains that the defendant could not deny his signatures on Exs.A.1 and A.2 but attempted to suggest that their 4 Civil Appeal Nos.7818-7819 of 2009 dt.27.8.2019 5 2015(3) ALT 266 6 2003 SC 209
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PDJ Court, Eluru signatures were available on the blank promissory notes with the said Radha
Krishna. This suggestion is too remote and too uncertain to be accepted and no cogent reason is available to defendants signing on blank promissory note.
(g).Fourthly:
(i). The learned counsel for the defendants argued that the plaintiff has no financial capacity to lend Rs.19,00,000/- and he failed to adduce supportive documentary evidence. In the cross examination, PW1 stated that he is doing cultivation, has pink ration card, he is not income tax assessee, used to avail small amounts of loans from State Bank of India, Akkireddigudem for the last 9 years, to meet agricultural expenses and still the loans were in existence, he has 20 acres of land, he has not filed any document to show the same, he has been doing cultivation by raising green banana, he has not filed any document to show that he had Rs.19,00,000/-, as on the dates of Exs.A.1 and A.2 and though defendants did not pay interest for the debts covered in O.S.No.178/2014, he lent amounts under Exs.A.1 and A.2. The learned counsel for the defendants argued that the plaintiff is in the habit of availing loans, to meet agricultural expenses as such, he has no financial capacity to lend Rs.19,00,000/-.
Admittedly, plaintiff has not filed single piece of document showing his financial capacity. However, it is not a ground to disbelieve the version of plaintiff, and in a recent Judgment in Rohitbhai J Patel Vs. The State of Gujarat 7 , Hon‟ble APEX
Court held at para No.19 as follows:
“19………….The observations of the trial court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kacheha notes, or that the witness of the complaint was more in know of 7
Crl.A.No.508 of 2019 dt.15.3.2019
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PDJ Court, Eluru facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the Negotiable Instruments Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not.”
This principle squarely applies to the present case at hand.
(ii). Added to it, in the cross examination, D.W.1 categorically admitted that he doesn‟t know that whether plaintiff herein and the plaintiff in other suits have sufficient financial capacity or not and he voluntarily added that after enquiry, he came to know that they have no financial capacity to lend amounts to him, and he again admitted that he has not mentioned the names of people with whom he enquired about the financial capacity of the plaintiff, in his written statements. D.W.2 stated that he doesn‟t know the contents of his chief examination affidavit regarding the provisions of income tax Act. So, the contention of the learned counsel for the defendants regarding financial status of the plaintiff cannot be taken into consideration.
(iii). Admittedly, 17 other cases are also pending against the defendants and their brothers, separately, seeking recovery of amounts and they are also posted for judgment. Further added to it, it is highly improbable to believe the contention of the defendants that son of the said Vegunta Radha Krishna has pressed into service all the 18 suits including this suit through this plaintiff and
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PDJ Court, Eluru others, and statement of D.W.1 do not make out any case in their favour and it is difficult to accept that by merely putting the suggestion about the alleged transactions between him and the said Radha Krishna, the defendants have been able to discharge their burden of bringing on record such material which could tilt the preponderance of probabilities in their favour.
(h).Fifthly:
(i). The learned counsel for the defendants further argued that the defendants are agriculturists as such, they are entitled to get benefit under the provisions of AP(Andhra Area) Agriculturists Relief Act, 1938. It is the version of the plaintiff that the defendants are business persons as such, they do not come under the purview of agriculturists. Defendants have not produced any document, to show that they are solely depended on the agricultural income, by doing cultivation. Further, in the cross examination, D.W.1 has categorically admitted that they are doing tobacco business under the name and style of M/s
Prakasha Rao and company and they are purchasing tobacco from ryots. Further added to it, in Ex.A.1, it is clearly mentioned that they borrowed amount, to meet joint family tobacco business expenses.
In A.Narasimha Rao Vs. G.Lakshmanna 8 , our Hon‟ble High Court
(ii).
has held that, “The main provision of Section 3(ii) of AP(Andhra Area) Agriculturist Relief Act 1968 postulates the submission of saleable interest in the land on the date of the origin of the debt as well as the date of filling of the suit and on the other hand the proviso(A) to section 3(ii) and explanation to section 13 envisage that the person satisfying the definition of agriculturist under the main section should not be subjected to income tax” 8 1983 APLJ HC 1
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As per the material brought on record with the aid of the principle, this court came to conclusion that the defendants cannot claim benefit to reduce the interest.
(i).Sixthly:As per the version of plaintiff, defendants being kartha and member of joint family, borrowed amounts, to invest the same in his joint family business, as such, other members of their joint family are also liable to pay amount. As rightly contended by the learned counsel for the defendants, there is no semblance of evidence, to show that the defendants have been leading joint family. Admittedly, in Exs.A.1 and A.2 it is mentioned that the defendants borrowed amounts, to invest the same in their joint family business. In the evidence of D.W.1 also, it came on record that they have been doing tobacco business under the name and style of M/s Prakasha Rao and company. However, it is not safe to come to conclusion that the defendants N.1 being kartha borrowed amount under Exs.A.1 and A.2, and joint family business is totally different from joint family. Added to it, plaintiff has not even arrayed other members of their family as defendants.
(j).Lastly:
All the factors on a cumulative consideration suggest that the version of the plaintiff is more probable and is nearer to the truth. Further, the self serving statements of the defendant do not inspire the confidence and the same appears to be far from the truth, and on an application of standard preponderance of probabilities, it is without a doubt clear that the plaintiff had sufficiently discharged the legal burden which is upon the plaintiff and the case of the plaintiff is trust worthy. In the light of the evidence adduced on behalf of the plaintiff, defence of the defendant pales into insignificance. So, it can safely
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PDJ Court, Eluru be held that the plaintiff had sufficiently established that the suit promissory notes are true, valid and binding on the defendant. Hence, this issue is accordingly answered in favour of the plaintiff and against the defendant.
9.ISSUE No.2:
In view of finding in issue No.1, plaintiff is entitled for suit amount from the defendants, and hence, this issue is answered affirmatively in favour of the plaintiff and against the defendants.
10.ISSUE No.3:
IN THE RESULT, and in view of the findings of this court in issue Nos.1 and 2, the suit is decreed with costs in favour of the plaintiff and against the defendants for a sum of Rs.35,16,592/- (Rupees Thirty Five lakh Sixteen thousand Five hundred and Ninety Two only) with interest at 12% p.a. from the date of suit till the date of decree, and thereafter future interest at 6% per annum from the date of decree till the date of payment or realization on
Rs.19,00,000/-.
Dictated to the Stenographer directly on computer, corrected and
pronounced by me in open court, this the 8th day of November, 2019.
Sd/-Sunitha Gandham
PRINCIPAL DISTRICT JUDGE,
WEST GODAVARI
ELURU.
APENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF FOR DEFENDANTS
P.W.1 Vemuri Seshagiri Rao D.W.1 Vegunta Krishna Mohan
O.S.No.40/2015 20
PDJ Court, Eluru
P.W.2 Kolli Durga Prasad D.W.2 Vegunta Madan Mohan
By Court
C.W.1 N.Krishna Prasad
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A-1/ 11.01.2012 : Original Promissory notes executed by defendants in favour of plaintiff.
Ex.A-2/ 03.05.2012 : Original Promissory notes executed by defendants in favour of plaintiff.
Ex.A-3/07.01.2015 : Office copy of legal notice got issued by plaintiff to defendants .
FOR DEFENDANTS:
--NIL—
THROUGH C.W.1:
Ex.C-1/08.10.2018 : Expert opinion
Sd/-Sunitha Gandham
PRINCIPAL DISTRICT JUDGE
WEST GODAVARI
ELURU.