V. Srinivasa Rao

1

IN THE COURT OF THE SENIOR CIVIL JUDGE :: GURAZALA

Present:- Sri.V.Srinivasa Rao,

Senior Civil Judge, Gurazala,

Friday this the 9th day of June, 2021

Original Suit No.90/2016

Between:

Yelchuri Srinivasa Rao, S/o.Ramulu, 38 years, Business, R/o.D.No.1-457, R/o.Macherla Town and Mandal, Guntur District.

...Plaintif

And

Shaik Subhani, S/o.Masthan, 50 years, R/o.D.No.14-2-809, Macherla Town and Mandal, Guntur District.

...Defendant

This suit is coming on 16.02.2021 before me for hearing in the presence of Sri D.CH.Sarath Babu, Advocate for Plaintif; Sri

J.Nageswara Rao, Advocate for Defendant and upon hearing and considering the material on record, having sto over for consideration till this day, this Court delivered the following:

J U D G M E N T

The suit is filed by the plaintif against defendant for recovery of an amount basing on the pronote alleged to be executed by the defendant in favour of the plaintif for subsequent interest and costs.

2.The case of the plaintiff as per the plaint in brief are as follows:

2

The Plaintif advanced a loan of Rs.4,00,000/- to the Defendant on 10.04.2014, for which the said defendant executed the suit promissory pronote in his favour on that even date. Subsequently, since the amount was not paid, the plaintif got issued legal notice to the Defendant, but no reply and no amount.

Hence, the suit.

3. On receipt of summons, the defendant filed Written

Statement, inter alia, contended that the defendant never borrowed the suit pronote amount and the suit pronote is forged and fabricated one.

4.The defendant further contended that the plaintif used to run chits, in which the defendant is one of the subscriber and the plaintif issued passbook for the payment of the chits for Rs.3,00,000/- of 20 installments, in which the defendant paid 14 installments (each installment of Rs.15,000/-), but subsequently he could not continue and requested the plaintif to pay the said amount. On request of the defendant, the plaintif finally agreed to pay the actual amount without any commission, for which the defendant refused and that disputes arose in between the plaintif and defendant. In view of the said disputes, the plaintif forged, fabricated the suit pronote and filed the suit with the help of attestors and scribe to harass the defendant.

5.Further, on receipt of summons, the defendant came to know about the pronote and he intended to file criminal complaint 3 against the plaintif, attestor and scribe as the suit pronote is forged and fabricated one, but the plaintif filed the suit with false allegations and that sought for dismissal of the suit.

6.Considering the above pleadings, the following issues are settled for trial:-

1. Whether the suit promissory note is true, valid, genuine and supported by consideration ?

2. Whether the plaintif is entitled for recover of the suit pronote amount from the defendant?

3. To what relief?

7.Plaintif in support of his case, examined PW.1 and marked

Exs.A1 to A3. PW.1 is Yelchuri Srinivasa Rao is plaintif. Ex.A1 is pronote for Rs.4,00,000/- dated 10.04.2014, Ex.A2 O/c.Legal Notice dt.26.02.2016 and Ex.A3 is Un served returned postal cover with postal acknowledgement. On behalf of defendant DW.1 is examined and no document is marked. DW.1 is Shaik Subhani.

8.Heard.

9.PW.1 and DW.1 filed their chief affidavits reiterating the contents of plaint averments and written statement contentions, as such, they are needless to reproduce, but few lines of evidence is referred hereunder.

PW.1 elicited in his chief-examination that the defendant borrowed Rs.4,00,000/- on 10.04.2014 under Ex.A1, attested by Darla 4

Srinivasa Chari and the same is scribed by one Vemula Satyanarayana, thereafter the defendant did not discharge and that the plaintif got issued original of Ex.A2 legal notice, but it was returned as not claimed.

DW.1 elicited in his chief examination that the defendant not borrowed any amount under Ex.A1, that he was subscriber in the chit for

Rs.3,00,000/- for 20 installments each of Rs.15,000/-, in which he paid 14 installments, subsequently, he could not continue as such disputes arose in between himself and the plaintif and that the plaintif forged and fabricated Ex.A1 with the help of attestor and scribe.

10.PW.1 elicited in his cross-examination that one Vemula

Satyanaryana is scribe, Darla Srinivasa Chari and Dasari Peraiah are attestors attestors of Ex.A1, who are his friends. DW.1 elicited in his cross-examination that he knew the plaintif and attestor of Ex.A1 by

Dasari Peraiah and the contents of his written statement, that the signature in Ex.A1 belongs to him that he is aged about 54 years, working in a lorry transport office, that he knew the plaintif for 7 to 8 years, that he made his signature in chief examination, but the signature in Ex.A1 not belong to him, that he did not file any document to show that the plaintif is running chits business, that he would send Ex.A1 pronote to the hand writing expert to compare the signature in Ex.A1 is forged and fabricated one.

11.DW.1 denied in his cross-examination that on 10.04.2019 he borrowed Rs.4,00,000/- and executed Ex.A1 in favour of the plaintif in 5 the presence of attestor and scribe, that the plaintif never issued any book with his initials to show that he was running chits, in which he was a subscriber, but to evade the same he is deposing false.

ISSUES 1 and 2:

12.The issues 1 and 2 are inter-related and that for better understanding and brevity they are discussed under one head.

This is a suit for recovery of amount under a promissory note, in which plaintif has to establish that the defendant borrowed an amount from the plaintif and executed pronote in his favour, thereafter, he did not discharge, whereas the defendant has to establish that he did not borrow any amount, and the said pronote is forged, fabricated and not supported by consideration.

13.The plaintif’s version is that the defendant borrowed amount in the presence of attestor and scribe, thereafter the defendant did not discharge, whereas the contention of the defendant is that he never borrowed any amount under Ex.A1, in view of the chit disputes, the plaintif forged and fabricated Ex.A1.

14.It can be seen from the record, the plaintif to substantiate his contention examined himself as PW.1, whereas the defendant examined himself as DW.1. The facts and evidence in the record reveals some undisputed facts are that, the plaintif and defendant have acquaintance with each other. The defendant is working in a lorry 6 transport office. The defendant referred in the written statement that the plaintif was a chit manager, as such, non-acquaintance in between the plaintif and defendant does not arose.

15.A perusal of Ex.A1, the plaintif is lender, one Sk.Subhani is defendant, scribe is one V.Satyanarayana, the attestors are Darla

Srinivasa Chari and Dasari Peraiah for borrowing Rs.4,00,000/- on 10.04.2014 for family expenses. PW.1 testified that the defendant borrowed Rs.4,00,000/- on 10.04.2014 in the presence of one Darla

Srinivasachari and Dasari Peraiah scribed by one V.Satyanarayana, subsequently, he did not discharge and that he got issued original of

Ex.A2, thereafter the same was returned under Ex.A3. PW.1 denied in his cross-examination that the defendant did not borrow the said amount, the defendant was one of the subscriber in the chit run by the plaintif, after payment of few installments, he could not continue the same and that he developed grudge, forged and fabricated Ex.A1 with the help of the said Darla Srinivasachari, Dasari Peraiah and

V.Satyanarayana.

16.The plaintif filed suit based on Ex.A1, which is not required to be attested document, in which PW.1 categorically deposed that he has immovable properties worth Rs.20,00,000/- and he is also doing cloths business. Further, he filed suits in Gurazala and Macherla courts, but he could not remember for how much amount he filed suits. The contention of the defendant is not that the plaintif has no capacity to 7 lend the amount, but his contention is that Ex.A1 is forged and fabricated one.

17.At this stage, it is pertinent to refer about the pronote and presumptions. The instrument in question is Ex.A1 Pronote as defined under sec.4 of Negotiable Instruments Act. The said Act contains Special

Rules of Evidence. Sec.118 of the said Act says that once the execution of the negotiable instruments is proved, that it has been executed for consideration has to be presumed, some more presumptions thereon are as to date, time, name etc. Similar presumption is found in section of 139 of the same Act and has also been incorporated in Sec.114 (a) of the Indian Evidence Act. These presumptions are “legal presumptions” as they are created through legal provisions i.e., ‘Shall presume’ and ‘May presume.’

18.The suit pronote is an Ex.A1, which is not required to be attested and the plaintif apart from his oral testimony of PW.1 not produced any other oral evidence expect Exs.A1 to A3 documentary evidence. The Ex.A1 bears the date, signature and amount, as such the plaintif to show that he got sent original of Ex.A2 to the defendant, got marked Ex.A2 and the same was returned as Ex.A3.

To prove the execution of Pronote, the Hon’ble Apex Court dealt with some aspects, hence this court inclined to refer the decision of their lordships in Bharat Barrel Drum Manufacturing Company vs Amin Chand Pyarelal (1999) 3 SCC35on the said aspects:

In order to raise the said legal presumption

under sec.118 of the Negotiable instruments

8

Act, in his favour, the plaintiff has to let in

evidence to prove the due execution of the

promissory note, when once, he has established

the said presumption, it shifts on the adverse

party. Then the Defendants, can displace it by

raising a probable defense, by showing passing

of consideration is improbable or doubtful or

illegal and further, the Defendants should bring

on record the circumstances and factual aspects

that would make a prudent man to disbelieve

the existence of consideration for the

promissory note, and he need not let in direct

evidence. When, once the Defendant so

establishes the absence of consideration, the

onus shift to the Plaintiff, thereafter, it is for

him to prove execution of the promissory note.

A perusal of the record, the defendant is resident of Macherla, with

D.No.14-2-809-80, whereas in Ex.A3 returned postal cover with acknowledgment reference, the address as shown in the said Exs.A2 and

A3. In Ex.A3, there is endorsement of the Post Man that the said Ex.A3 as ‘not claimed’. The plaintif to show that he lent amount to the defendant got marked Ex.A1, which contains the signature of the executant for Rs.4,00,000/- apart from Ex.A1, to show that the plaintif informed the defendant demanding to discharge Ex.A1 pronote, got marked Ex.A2 and to show that it was not claimed got marked Ex.A3, which goes to show that the plaintif made his endeavor in demanding to discharge Ex.A1 pronote, said to have been executed by the defendant. Accordingly, the plaintif discharged his initial burden rests on him. However, the legal presumption as laid down in Sec.118 (a) of NI

Act is in favour of the plaintif.

9

19.The defendant in the written statement categorically contended that the plaintif did chits business, in which the defendant was one of the subscribers. The defendant apart from his oral testimony, to substantiate his contention that the plaintif is running chits business, not produced any oral or documentary evidence. Further, the defendant to show that Ex.A1 is forged and fabricated by the defendant, even not send Ex.A1 to the hand writing expert for comparison with his admitted signatures and also did not give report to the police by initiating criminal case against the plaintif as his contention that Ex.A1 was forged by the plaintif with the help of the said attestor and scribe.

20.Prior to filing of the suit, though the plaintif got sent original of Ex.A2 to the Defendant, but it was returned under Ex.A3 with an endorsement of ‘un claimed’. The plaintif with the oral testimonies of PWs.1 to 3, Exs.A1 to A3 proved by discharging his initial burden rests on him U/s.118(a) of NI Act and further discharged his onus U/s.101 of

Indian Evidence Act, thereafter the defendant not adduced rebuttal evidence to disprove the contention of execution of Ex.A1 and further failed to prove his contention that the plaintif forged and fabricated

Ex.A1 due to chits dispute.Hence, the plaintif with the said oral testimony of PW.1, Exs.A1 to A3, proved his case and the issues 1 and 2 are answered in favour of the plaintif.

10

ISSUE NO.3:

21.In the result, the suit is decreed against defendant for an amount of Rs.5,58,000/- with costs and subsequent interest at 12% p.a., from the date of filing of the suit till the date of decree and thereafter at 6% p.a., from the date of decree till the date of realization on

principal amount of Rs.4,00,000/-.

Dictated to Stenographer Grade-III, transcribed by him,

corrected and pronounced by me in the open court this the 9th day of

June, 2021.

SENIOR CIVIL JUDGE,

GURAZALA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:- For Defendant:-

PW.1: Yelchuri Srinivasa Rao DW.1: Shaik Subhani

DOCUMENTS MARKED

For Plaintiff:-

Ex.A1: Suit promissory note dt.10.04.2014 for Rs.4,00,000/- executed by the defendant in favour of plaintif

Ex.A2: O/c.Legal Notice dt.26.02.2016 with postal receipt

Ex.A3: Returned unserved postal cover with acknowledgment Card

For Defendant : NIL

SENIOR CIVIL JUDGE,

GURAZALA.

IN THE COURT OF THE SENIOR CIVIL JUDGE :: GURAZALA

Present:- Sri.V.Srinivasa Rao,

Senior Civil Judge, Gurazala.

Friday this the 16th day of July, 2021

Original Suit No.7/2018

Between:

Yarramreddy Chandra Reddy, S/o.Suryanarayana Reddy, 59 years, R/o.D.No.1-658, Brahmanapalli PO, Piduguralla Mandal, Guntur District.

...Plaintif

And

Mokkarala Saidulu, S/o.Nagaiah, 40 years, R/o.D.No.8-342, behind Brahmamgari Temple, Piduguralla PO and Mandal, Guntur District.

...Defendant

This suit is coming on 06.01.2021 before me for hearing in the presence of Sri D.A.Chandrasekhara Rao, Advocate for Plaintif; Sri

K.Rama Krishna, Advocate for Defendant and upon hearing and considering the material on record, having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

The suit is filed by the plaintif against defendant for recovery of an amount basing on the pronote alleged to be executed by the defendant in favour of the plaintif for subsequent interest and costs.

2

2.The case of the plaintiff as per the plaint in brief are as follows:

The Plaintif advanced a loan of Rs.4,00,000/- to the Defendant on 15.02.2015, for which the said defendant executed the suit promissory pronote in his favour on that even date. Subsequently, even to the repeated demands and on issuance of legal notice, the defendant not paid any amount.

Hence, the suit.

3.On receipt of summons, the defendant filed Written

Statement, inter alia, contended that the defendant never borrowed the suit pronote amount and the suit pronote is forged and fabricated one.

4.The defendant further contended that there were disputes in between the plaintif and the defendant, that the plaintif is a money lender, as such to harass the defendant, the plaintif forged and fabricated the suit pronote with the help of attestors, scribe and filed the suit to get wrongful gain and that sought for dismissal of the suit.

5.Considering the above pleadings, the following issues are settled for trial:-

1. Whether the suit pronote is true, valid, genuine and supported by consideration?

2. Whether the plaintif entitled for recovery of the suit pronote amount from the defendant?

3. To what relief?

3

6.Plaintif in support of his case, examined PWs.1 and 2 and got marked Exs.A1 to A5. PW.1 is Yarramreddy Chandra Reddy is plaintif, PW.2 is Nelaturi Lakshmi Katakshmi is scribe. Ex.A1 is pronote for Rs.4,00,000/- dated 15.02.2015, Ex.A2 O/c.Legal Notice dt.7.12.2017 with postal receipt and Ex.A3 is Postal Acknowledgment Card and Ex.A4 is CC of Sale Deed dt.31.01.2014 vide Doc.No.363/2014 of SRO,

Piduguralla and Ex.A5 CC of Petition Deed dt.16.08.2017 vide

Doc.No.3783/2007 of SRI, Piduguralla. On behalf of defendant DW.1 is examined and no document is marked. DW.1 is Mokkarala Saidulu.

7.Heard.

8.PWs.1, 2, and DW.1 filed their chief affidavits reiterating the contents of plaint averments and written statement contentions, as such, they are needless to reproduce, but few lines of evidence is referred hereunder.

PWs.1 and 2 elicited in their chief-examination that on 15.02.2015 the defendant borrowed Rs.4,00,000/- for his family expenses and executed Ex.A1 pronote in the presence of one Saida and scribed by

PW.2. PW.1 further oral testimony is that after borrowing the said amount he got issued original of Ex.A2 legal notice, though the defendant received the same by making his signature in Ex.A3 acknowledgment card, but he did not discharge. DW.1 elicited in his chief examination that the defendant never borrowed any amount, but 4 due to disputes in between the plaintif and the defendant, he forged and fabricated Ex.A1.

9. PW.1 elicited in his cross-examination that the defendant is working in a Barber Shop in Piduguralla, the scribe of Ex.A1 is PW.2.

PW.2 elicited in his cross-examination that she knew the plaintif for the last 6 to 7 years. The defendant is doing real estate business and commission merchant, but previously the defendant worked in a Barber shop, that the defendant executed Ex.A1 in Brahmanapalli village at about 11.30 AM, that the defendant used to make his signature and he did not know the previous transactions in between the plaintif and the defendant.

10.PW.1 denied in his cross-examination that in Ex.A1, the year was corrected, that he filed 10 to 15 suits in Gurazala or Piduguralla, that he is doing money lending business, but the defendant never borrowed any amount from him and he did not execute Ex.A1 in his favour but at the instance of PW.2 and another attestor he fabricated Ex.A1. PW.2 denied in her cross-examination that there is a correction to the year from ‘1015’ to ‘2015’ that the defendant did not execute Ex.A1 pronote, but he is deposing false at the instance of the plaintif.

ISSUES 1 and 2:

11.The issues 1 and 2 are inter-related and that they are discussed under one head for better understanding and brevity.

5

This is a suit for recovery of amount under a promissory note, in which plaintif has to establish that the defendant borrowed amount from the plaintif and executed pronote in favour of the plaintif, thereafter, he did not discharge, whereas the defendant has to establish that he did not borrow any amount under pronote, and the said pronote is fabricated and not supported by consideration.

12.The plaintif’s version is that the defendant borrowed amount and executed Ex.A1 in the presence of attestors and scribed by

PW.2, thereafter the defendant did not discharge, whereas the defendant contention is that he never executed Ex.A1 and it is forged and fabricated one.

13.At this stage, it is pertinent to refer about the pronote and presumptions. The instrument in question is Pronote as defined under

Sec.4 of Negotiable Instruments Act. The said Act contains Special Rules of Evidence. Sec.118 of the said Act says that once the execution of the negotiable instruments is proved, that it has been executed for consideration has to be presumed, some more presumptions thereon are as to date, time, name etc. Similar presumption is found in section of 139 of the same Act and has also been incorporated in Sec.114 (a) of the Indian Evidence Act. These presumptions are “legal presumptions” as they are created through legal provisions i.e., ‘Shall presume’ and ‘May presume.’

14.It can be seen from the record, to substantiate the contention of the plaintif examined PWs.1 and 2, got marked Exs.A1 to 6

A5, but though defendant filed chief examination and but he did not come for cross-examination. PWs.1 and 2 testified that the defendant borrowed Rs.4,00,000/- in the presence of one Saida. PW.1 further testified that after borrowing the said amount, the defendant did not discharge and that he got issued original of Ex.A2 and the same was served upon the defendant and he did not discharge. PWs.1 and 2 denied in their cross-examination that the defendant never borrowed amount under Ex.A1 and he did not discharge the said amount. On perusal of Ex.A1, as stated by PW.2 in his cross-examination that the year ‘1015’ was altered to ‘2015’, except the said correction there is no other material to show that the plaintif fabricated Ex.A1.

15.As could be seen from the record, though the defendant filed chief examination of DW.1, thereafter the defendant did not turn up for cross-examination and that his evidence is closed, as such the oral testimony available in this case in PWs.1 and 2. PWs.1 and 2 were cross- examined by the defendant counsel at length but not discredited their testimony in any manner. Further the defendant cross-examined PWs.1 and 2 and correction of year from ‘1015’ to ‘2015’. However the defendant counsel cross-examined PWs.1 and 2 on the lines of said cross-examination, but that is not the specific case of the defendant in written statement that the year was fabricated, however the year from 1015 to 2015 was altered, but it does not efect the root of the case of the plaintif since it is not efected by material alteration. At this juncture this court would like to refer the provisions U/s.87 of NI Act.

7

87. Effect of material alteration.—Any material

alteration of a negotiable instrument renders the

same void as against any one who is a party

thereto at the time of making such alteration and

does not consent thereto, unless it was made in

order to carry out the common intention of the

original parties; Alteration by indorsee.—And any

such alteration, if made by an indorsee, discharges

his indorser from all liability to him in respect of

the consideration thereof. The provisions of this

section are subject to those of sections 20, 49, 86

and 125.

As per the said provision, alteration which efects the year, month or amount it would be considered as material alteration. But in this case on hand, the defendant has specific plea that the year was materially altered, though ‘1’ is corrected into ‘2’, but it does not efect the year.

The defendant did not take the plea that he executed the pronote in 2010 and the same was altered as 2015.

To prove the execution of Pronote, the Hon’ble Apex Court dealt with some aspects, hence this court inclined to refer the decision of their lordship in Bharat Barrel Drum Manufacturing Company Vs Amin Chand Pyarelal (1999) 3 SCC35on the said aspects:

In order to raise the said legal presumption

under sec.118 of the Negotiable instruments

Act, in his favour, the plaintiff has to let in

evidence to prove the due execution of the

promissory note, when once, he has established

the said presumption, it shifts on the adverse

party. Then the Defendants, can displace it by

raising a probable defense, by showing passing

of consideration is improbable or doubtful or

illegal and further, the Defendants should bring

on record the circumstances and factual aspects

that would make a prudent man to disbelieve

the existence of consideration for the

promissory note, and he need not let in direct

evidence. When, once the Defendant so

establishes the absence of consideration, the

onus shift to the Plaintiff, thereafter, it is for

him to prove execution of the promissory note.

8

16.The plaintif to show that he lent Rs.4,00,000/- to the defendant and he executed Ex.A1 examined PW.2 apart from oral testimony of PW.1 and also got marked Exs.A1 to A5. The defendant though cross-examined PWs.1 and 2 at length not elicited anything to disprove the contents of the plaintif that Ex.A1 is fabricated with the help of PW.2 and two attestors. The defendant after the plaintif adduced his oral and documentary evidence, though cross-examined himself as DW.1, but to prove and substantiate his contention that the signature in Ex.A1 was belongs to him and, but the plaintif with the help of attestors and scribe fabricated, but there is no evidence from the defendant.

17.U/s.101 and 102 of Indian Evidence Act, denotes the burden of proof. For perusal, the provisions U/s.101 and 102 of the Act are referred hereunder:

101. Burden of proof :--Whoever desires any

Court to give judgment as to any legal right or lia-

bility dependent on the existence of facts which

he asserts, must prove that those facts exist.

When a person is bound to prove the existence of

any fact, it is said that the burden of proof lies on

that person.

102. On whom burden of proof lies :-- The burden

of proof in a suit or proceeding lies on that

person who would fail if no evidence at all were

given on either side.

9

As per Sec.101 of Indian Evidence Act, the burden of proof lies on the person who asserts the court to give judgment has to establish and as per Sec.102 of the Act, when the person who would fail to adduce evidence has to sufer. In this case, the plaintif to substantiate his contention examined PWs.1 and 2 and got marked Exs.A1 to A3 and discharged his burden rests on him U/s.118-a of NI Act, Sections 101 and 102 of Indian Evidence Act.

18. The decisions of their lordships in Bharath Barrel case is fit to the case on hand as the defendant failed to adduce rebuttal evidence on his behalf even he examined DW.1 on his behalf. Hence, the plaintif with the said oral testimonies of PWs.1 and 2, Exs.A1 to A5, proved his case and the issues 1 and 2 are answered in favour of the plaintif.

ISSUE NO.3:

19.In the result, the suit is decreed against the defendant for an amount of Rs.6,07,200/- with costs and subsequent interest at 12% p.a., from the date of filing of the suit till the date of decree and thereafter at 6% p.a., from the date of decree till the date of realization on principal amount of Rs.4,00,000/-.

Dictated to Stenographer Grade-III, transcribed by him,

corrected and pronounced by me in the open court this the 16th day of

July, 2021.

SENIOR CIVIL JUDGE,

GURAZALA.

10

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintif:-For Defendant:-

PW.1:Yarramreddy Chandra Reddy DW.1 Mokkarala Saidulu

PW.2: Nelaturi Lakshmi Katakshmi

DOCUMENTS MARKED

For Plaintif:-

Ex.A1: is pronote for Rs.4,00,000/- dated 15.02.2015

Ex.A2: O/c.Legal Notice dt.7.12.2017 with postal receipt

Ex.A3: Postal Acknowledgment Card

Ex.A4: CC of Sale Deed dt.31.01.2014 vide Doc.No.363/2014 of SRO, Piduguralla

Ex.A5: CC of Petition Deed dt.16.08.2007 vide Doc.No.3783/2007 of SRO, Piduguralla

For Defendant : NIL

SENIOR CIVIL JUDGE,

GURAZALA.

IN THE COURT OF THE SENIOR CIVIL JUDGE :: GURAZALA

Present:- SRI.V.SRINIVASA RAO,

Senior Civil Judge, Gurazala,

Friday this the 16th day of July 2021

ORIGINAL SUIT NO.213/2017

Between:

Kunduru Pulla Reddy, S/o.Mangi Reddy, 48 years, R/o.D.No.6-183, Near Buruju, 17th Ward, Macherla Post and Mandal, Guntur District.

...Plaintif

And

Bandaru Malleswari, W/o.Koteswara Rao, 40 years, R/o.D.No.15-1-183, Nehrunagar, 3rd Ward, Macherla Post and Mandal, Guntur District.

...Defendant

This suit is coming on 13.07.2021 before me for hearing and consideration in the presence of Sri K.China Koteswara Rao, Advocate for Plaintif; Sri D.Anantha Ramaiah, Advocate for Defendant, and upon hearing and considering the material on record, having stood over for consideration till this day, this Court delivered the following::

J U D G M E N T

This is a suit filed by the plaintif seeking for Preliminary

Decree on the strength of Mortgage deed dated 29.02.2012 executed by the defendant and for costs.

2.The case of the plaintif as per the plaint in brief are as follows:

The Plaintif advanced a loan of Rs.2,00,000/- to the Defendant on 29.02.2012, for which the said defendant executed a registered mortgage deed in SRO, Macherla mortgaging the schedule property in 2 favour of the plaintif on that even date. Subsequently, since the amount was not paid, the plaintif got issued legal notice to the

Defendant, but no reply and no amount.

Hence, the suit.

3.On receipt of summons, the defendant filed Written

Statement, inter alia, contended that the plaintif and husband of the defendant by name Koteswara Rao are close friends, that the said

Koteswara Rao obtained hand loan of Rs.50,000/- in 2012 by that time, the plaintif obtained the said mortgage in his favour for Rs.2,00,000/- without consideration and that the attestors, scribe are close associates of the plaintif, that the plaintif filed the suit with frivolous allegations and that sought for dismissal of the suit.

4.Considering the above pleadings, the following issues are settled for trial:-

1. Whether the plaintif is entitled for the amount as prayed for?

2. To what relief?

5.Plaintif in support of his case, examined PWs.1 to 3 and got marked Exs.A1 to A3. PW.1 is Kunduru Pulla Reddy is plaintif, PW.2 is

Mukka Koteswara Rao is attestor and evidence of PW.3 is eschewed.

Ex.A1 is unpossesary mortgage deed dt.29.02.2012 vide

Doc.No.607/2012 of SRO, Macherla, Ex.A2 is O/c.Legal Notice dt.25.09.2017 and Ex.A3 is Postal Acknowledgment Card. On behalf of 3 defendant DW.1 is examined, but no documents marked. DW.1 is

Bandaru Malleswari.

6.Heard.

7.PWs.1, 2 (evidence of PW.3 is eschewed) and DW.1 filed their chief affidavits reiterating the contents of plaint averments contentions, as such, they are needless to reproduce, but few lines of evidence is referred hereunder.

PWs.1 and 2 elicited in their chief-examination that the defendant borrowed Rs.2,00,000/- for her family expenses and executed Ex.A1 in favourof PW.1 at SRO, Macherla in the presence of PW.2, another attestor Sk.Lalbi and the same is scribed by one V.Srinivasa Rao. PW.1 further testimony is that after borrowing of the said amount under

Ex.A1, since the defendant did not discharge, the plaintif got issued original of Ex.A3 legal notice and the same was served on defendant, he did not discharge Ex.A1 mortgage debt. DW.1 elicited in his chief- examination that she never borrowed Rs.2,00,000/- but executed Ex.A1 for Rs.50,000/- as it was borrowed by her husband who is the close friend of the plaintif, that PW.1, another attestor and scribe are close associates of the plaintif and fabricated the said Ex.A1 to get wrongful gain.

8.PW.1 elicited in his cross-examination that the husband of the defendant is his friend, who used to borrow amount from him and he discharged the said debt, that he lent Rs.2,00,000/- on execution of

Ex.A1 with the denomination of Rs.2,000/- and Rs.500/- notes for her 4 family expenses in the presence of PW.2 and one Lalbi before SRO,

Macherla. PW.1 further elicited that he secured the said amount from agriculture, that he is resident of Macherla and the defendant secured the said attestors. PW.2 elicited in his cross-examination that he knew the plaintif for the last thirty years and that plaintif is resident of

Macherla.

9.DW.1 elicited in his cross-examination that she can make her signature, but she is not in the habit of making her signatures without knowing the contents of the document and also the documents which are not originally transacted, that she has no disputes with PW.2 and another attestor, but she has acquaintance with the plaintif, that there is no document to show that her husband borrowed Rs.50,000/- from the plaintif and in that transaction, she executed Ex.A1 in favour of the plaintif and in that Ex.A1, her daughter made her signature as she (DW.1) was not in the village.

10.PW.1 denied in his cross-examination that the husband of the defendant originally borrowed Rs.50,000/-, for which he obtained

Ex.A1 towards security without consideration and the defendant has no necessity to borrow amount from him. PW.2 denied in his cross- examination that the plaintif is doing money lending business, that he filed at about 20 suits, that in all the said suits, PW.1 is one of the attestors, that the defendant never borrowed amount from the plaintif, since he has acquaintance with the plaintif for the last 30 years and that he fabricated Ex.A1. DW.1 denied in his cross-examination that on 29.02.2012, she borrowed Rs.2,00,000/- from the plaintif and executed 5

Ex.A1, thereafter he did not discharge and that the plaintif got issued original of Ex.A2 and the same was received by her by making her signature in Ex.A3, that she did not know about the original of Ex.A2 and she is deposing false.

ISSUE No.1:-

11.This is a suit for recovery of amount under a mortgage deed, in which plaintif has to establish that the defendant borrowed an amount from the plaintif under mortgage deed, thereafter, she did not discharge, whereas the defendant has to establish that she did not borrow any amount under the said mortgage deed, it is fabricated, not supported by consideration and the attestors and scribe are the henchmen of the plaintif.

12.The plaintif’s version is that the defendant borrowed

Rs.2,00,000/-and executed Ex.A1 in the presence of PW.2 and another attestor Lalbi, scribed by one V.Srinivasa Rao for consideration, thereafter the defendant did not discharge the said amount, whereas the defendant contention is that she executed Ex.A1 for Rs.50,000/- only borrowed by her husband and that Ex.A1 is not supported by consideration.

13.It can be seen from the record, the plaintif to substantiate his contention examined PWs.1, 2 and got marked Exs.A1 to A3, whereas the defendant examined herself as DW.1. The plaintif and PW.2 categorically deposed that the defendant borrowed Rs.2,00,000/- and executed Ex.A1 in the presence of PW.2 and one Lalbi, scribed by one 6

V.Srinivasa Rao. PW.1 further deposed that the defendant after borrowing the said amount of Rs.2,00,000/- since not discharged the said debt, he got issued original of Ex.A2, though the defendant received, but the he did not discharge. PWs.1 and 2 denied that the defendant borrowed Rs.50,000/- and executed Ex.A1 without consideration towards security for Rs.50,000/- borrowed by the husband of the defendant.

It is to be observed from the record, the suit is based on Ex.A1 mortgage deed, as such the legal burden is heavily on the plaintif by way of provision U/s.68 of Indian Evidence Act and Sec.59 of Transfer of

Property Act. For reference, the said provisions are referred hereunder.

For perusal Sec.68 of Indian Evidence Act is extracted hereunder:

68. Proof of execution of document required by law to be attested :-- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence : Provided that it shall be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

For perusal Sec.59 of Transfer of Property Act is extracted hereunder:

59. Mortgage when to be by assurance :- Where the

principal money secured is one hundred rupees or

upwards, a mortgage other than a mortgage by deposit of title-deeds can be efected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.

7

Where the principal money secured is less than one hundred rupees, a mortgage may be efected either by registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.

As could be seen from the said provisions, Sec.59 of T.P. Act, the mortgage deed must be registered where the value of the property is more than Rs.100/-, subsequently by virtue of the provisions of Sec. 68 of Indian Evidence Act, the said mortgage deed must be attested by the attestors. As per the said Sec. 68 of Indian Evidence Act., the document which is compulsorily attestable document should be proved by examining at least one of the attesting witness.

14.It is to be seen from the record, the defendant in her cross- examination categorically deposed that there is no document to show that her husband borrowed Rs.50,000/- from the plaintif and in that transaction she executed Ex.A1 in favour of the plaintif and further she categorically admitted that she made her signature and Ex.A1 and also she had acquaintance with plaintif. When the defendant herself admitted her signature, the execution of Ex.A1, it is the bounden duty of the defendant to prove with oral and documentary evidence that under which circumstances she executed Ex.A1 in favour of the plaintif without consideration, but she herself deposed that there is no document to show that she executed Ex.A1 without consideration and executed the said Ex.A1 for Rs.50,000/- borrowed by her husband. DW.1 denied that she borrowed Rs.2,00,000/- and executed Ex.A1, but mere denial without any oral or documentary evidence will not give any weight to the oral testimony of the defendant. The defendant apart 8 from her oral testimony even she did not examine her husband as witness to substantiate her contention that he borrowed Rs.50,000/- for which she executed Ex.A1 for Rs.2,00,000/-.

15.It is to be noted from the record that the defendant executed Ex.A1 in favour of the plaintif in the presence of PW.2 and one Lalbi scribed by one V.Srinivasa Rao for Rs.2,00,000/- for family expenses at SRO, Macherla, to substantiate the same, the plaintif apart from his oral testimony also examined PW.2, who is the attestor of

Ex.A1. The plaintif in proving his contention examined PW.2 as attestor and sufficiently discharged his burden as required U/s.59 of T.P.

Act and Sec.68 of Indian Evidence Act and however the defendant admitted her signature in Ex.A1. The the plaintif, however got sent original of Ex.A2 for the discharge the debt of Rs.2,00,000/- and the same was received by the defendant by making signature in Ex.A3, but she did not give any reply. The defendant in her cross-examination admitted about receipt of original of Ex.A2, but there is no reply to the original of Ex.A2 or discharge of the said Rs.2,00,000/- to the plaintif is also proved with the documentary evidence under Exs.A1 and A3.

In the light of afore said discussion, the plaintif with the oral testimonies of PWs.1 and 2 , Exs.A1 to A3 established his case, as such the suit is deserved to be decreed.

ISSUE No.2 :- 9

16. In the result, the suit is preliminarily decreed with costs for suit amount of Rs.4,68,800/- with costs and subsequent interest at 12% per annum from the date of filing of the suit till the date of decree and thereafter at 6% per annum., from the date of decree till the date of realization. Time of redemption is six (6) months.

Dictated to Stenographer Grade-III, transcribed by him,

corrected and pronounced by me in the open court this the 16th day of

July2021.

SENIOR CIVIL JUDGE,

GURAZALA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT:

PW.1: Kunduru Pulla ReddyDW.1: Bandaru Malleswari PW.2: Mukka Koteswara Rao PW.3: eschewed

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A1: is unpossessary mortgage deed dt.29.02.2012 vide Doc.No.607/2012 of SRO, Macherla Ex.A2: O/c.Legal Notice dt.25.09.2017 Ex.A3: Postal Acknowledgment Card

FOR DEFENDANT: NIL

SENIOR CIVIL JUDGE,

GURAZALA.