Karamalaputti Krishnamurthy Chetty vs K. Subbaiah Chetty (Died) and Others

P.S. Narayana, J.—This appeal is filed as against the judgment and decree made in O.S. No. 131/84 on the file of the Principal Subordinate Judge, Chittoor, dated 6.6.1987. The unsuccessful defendant in the suit is the appellant. The respondent-plaintiff who had instituted the suit in O.S. No. 131/84 on the file of Principal Subordinate Judge, Chittoor died pending the appeal and respondent Nos. 2 to 4 were brought on record as legal representatives of the deceased first respondent by an order, dated 23.9.1998, made in C.M.P. No. 18457 of 1998 For the purpose of convenience, the parties will be referred to as plaintiff and defendant. The deceased plaintiff had instituted a suit for recovery of Rs. 56,894.25 being the principal and interest due under two different promissory notes transferred in favour of the said plaintiff. It was pleaded in the plaint that the defendant executed a promissory note on 27.9.1978 for Rs. 10,500/- for consideration in favour of one Varalakshmamma, the transferor of the plaintiff, promising to repay the same with interest at 24% per annum. It was also pleaded that on 12.9.1981, the defendant paid Rs. 100/- towards interest and endorsed the same on the promissory note. It was also further pleaded that the defendant also borrowed a sum of Rs. 17,000/- from one Narayanachetti, who is none other than the son-in-law of the plaintiff for consideration and executed a promissory note on 27.9.1978 promising to repay the same with interest at 24% per annum and on 12.9.1981 the defendant paid Rs. 50/- towards interest and also made a payment endorsements thereon. It was also pleaded that the above said two promissory notes were transferred in favour of the plaintiff by an endorsement of transfer dated 7.3.1984 and 5.6.1983 by Varalakshmamma and Narayanachetti respectively. It was further pleaded that in spite of several demands made by the plaintiff and issue of notice dated 22.3.1984, the defendant did not pay the amount due under the aforesaid promissory notes and further had issued a reply notice dated 11.4.1984 with all false and untenable allegations and the plaintiff had suitably issued a rejoinder to the same.

The appellant-defendant had filed a written statement pleading that he had not received any amount from Varalakshmamma and that he had got money dealings only with the plaintiff and on 27.9.1978 he had borrowed Rs. 10,500/- from the plaintiff and executed the promissory note in favour of the mother of the plaintiff as per his direction and the endorsement of payment of Rs. 100/- is correct, but the amount was paid to the plaintiff and not to the mother of the plaintiff. It was also pleaded that the defendant executed a promissory note on 27.9.1978 in favour of one Narayanaswamichetti, but the amount was paid by the plaintiff. It was also further pleaded that the endorsement of payment of Rs. 50/- is true, but the amount was paid to the plaintiff. It was also further stated that the plaintiff paid Rs. 27,500, but had taken two promissory notes in favour of Varalakshmamma and Narayanachetti and the endorsement of transfer were not admitted. It was also further pleaded by the defendant that he paid Rs. 10,965/- in instalments towards the above debts to the plaintiff and had obtained receipts. It was also further stated that the plaintiff, his sons and his agents passed the receipts in the name of the firm, Padmavati Textiles. Il was specifically pleaded that the defendant has no dealings at all with the cloth shop of the plaintiff and all these receipts relate to only the promissory note debts and the plaintiff had not disclosed these payments in his notice. It was also further pleaded that the interest is usurious and the defendant is an agriculturist entitled to the benefits of the Act 4 of 1939. The Court below on the strength of the respective pleadings had framed the following issues :

Whether the defendant on 27.9.1978 did not borrow Rs. 10,500/- from the mother of plaintiff and execute the 1st suit promissory note?

Whether the defendant on 27.9.1978 did not borrow Rs. 17,000/- from the son-in-law of plaintiff and execute the 2nd promissory note?

Whether the defendant did not pay Rs. 100/- on 12.9.1981 to the mother of plaintiff and endorse the same on the suit 1st promissory note?

Whether the defendant on 27.9.1980 did not pay Rs. 50/- to the son-in-law of the plaintiff and endorse the same on 2nd suit promissory note?

Whether the transfer of the two (2) promissory notes in favour of the plaintiff is true?

Whether the defendant is an agriculturist entitled to the benefits of Andhra Pradesh Act 4 of 1938?

Whether the interest charged is usurious and unenforceable?

To what relief, the plaintiff is entitled?

An additional issue was also framed, which is to the following effect:

"Whether the discharge of Rs. 10,965/- pleaded by the defendant is true, and binding on the plaintiff?"

The Court below after recording the evidence of P.Ws. 1 and 2 and also D.W. 1, and also Exs. A.1 to A. 10 and also Exs. B. 1 to B. 32 had arrived at a conclusion after answering all the issues that the plaintiff is entitled to the relief and had decreed the suit as prayed for and aggrieved by the same, the present appeal was preferred by the defendant in the suit. In the present appeal, the following points arise for consideration :

Whether, in the facts and circumstances of the case, the judgment and decree of the Court below are liable to be interfered with?

Whether the discharge of Rs. 10,965/- pleaded by the defendant is valid and binding on the plaintiff?

To what relief?

Point Nos. 1 and 2 : For the purpose of convenience, point Nos. 1 and 2 can be dealt together. While dealing with these points, Mr. P. Muralikrishna Prasad, the learned Counsel representing the appellant-defendant has strenuously contended that the Court below had not appreciated the facts and circumstances of the case in proper perspective and the judgment and decree of the Court below are not sustainable at all. The learned Counsel had strenuously contended that the Court below should have appreciated that Varalakshmamma and Narayanachetti are only the name lenders or the nominees of the plaintiff and the learned Counsel also had drawn my attention to the crucial aspect of non-examination of the plaintiff and the aspect of non-discharging of the burden of proof as per law. The learned Counsel also had disputed the payment endorsements and had contended that, in fact, in the absence of those endorsements, the claims are barred by limitation. Further, the learned Counsel had strenuously contended that as far as the admitted receipts are concerned, the discharge pleaded by the appellant-defendant had been amply established and in the facts and circumstances of the case, even negativing the plea of partial discharge is totally unsustainable. The learned Counsel also had drawn my attention to an order made in I.A. No. 292/85 directing the plaintiff to produce the account books in this regard and had contended that adverse inference should have been drawn in such a case and the Court below should have atleast believe the discharge pleaded by the appellant-defendant. However, Mr. Harinath Gupta, the learned Counsel representing the respondents had supported the judgment and decree of the Court below by drawing my attention to paragraph Nos. 6 to 12 where issue Nos. 1 to 4 had been dealt with in detail and paragraph No. 13 where issue No. 5 had been dealt with and paragraph No. 14 where issue Nos. 6 and 7 had been dealt with and paragraph No. 15 where the additional issue also had been dealt with in detail.

The facts are not in dispute and the pleadings, which had been already dealt with need not be again repealed. As far as evidence is concerned, P. W. 1 -G Narayanachetty had deposed that the plaintiff is his father-in-law who is also his sister''s husband and he had spoken to all the details relating to Ex. A1 promissory note executed by the defendant in favour of P.W. 1 , Ex. A2-promissory note executed by the defendant in favour of Varalakshmamma and he had also spoken to the fact that the defendant himself wrote both the promissory notes and executed those promissory notes and Exs. A3 and A4 are the payment endorsements of Rs. 50/- in Ex. A1 and Rs. 100/- in Ex. A2 respectively. The transfer endorsement, dated 5.6.1983, was marked as Ex. A5 and it was also deposed that the plaintiff was afflicted with paralysis and he was unable to move and give evidence and his mother Varalakshmamma was also mentally upset. Apart from the evidence of P.W. 1, P.W. 2 the attestor of Ex. A5 and the scribe of Ex. A6 transfer endorsements had been examined, who had supported P.W. 1 in all material aspects. Apart from Ex. A1 to A6, Ex. A7, Ex. A8 and Ex. A9 the notices and the reply notice and also Ex. A10 copy of caveat had been marked on behalf of the plaintiff. As against this evidence of P.W. I and P.W. 2, the defendant had examined himself as D.W. 1. It is pertinent to note that the execution of the promissory notes is not in dispute and also the payment endorsements also are not in dispute. The stand taken by D.W. 1 is that though certain amounts are paid and receipts had been passed, the amounts had not been given due credit to by the plaintiff. D.W. 1 had spoken about the issuance of the notice, reply notice and also the re-joinder. Ex. B2 is the challans for the demand draft for Rs. 1,000/- paid to the plaintiff on 15.3.1983, Exs. B3 to B27 are the receipts passed by the plaintiff for various amounts paid by him. Ex. B28 is the certified copy of the deposition of Subbaiah Chetti in O.S. No. 98/80, Exs. B29 to B32 are the cist receipts showing payment of cist to the land. However, D.W. 1 in the evidence itself had admitted that he is prepared to pay the balance amount deducting the amount, which had already paid. In cross-examination, he admitted that he is owner of Vasavi Rice Mill and that he is doing business besides owning lands and he also admitted that all the receipts, Exs. B3 to B27, are not passed by P.W. 2 and only three of the receipts, Exs. B3 to B5, are passed by the plaintiff and others are not passed by him and the receipts Exs. B3 to B27 mentioned that the amounts were paid towards Padmavathi Textiles. It is pertinent to note that P.W. 1 who was examined as a witness, is a person having knowledge about the suit transaction and hence, the Court below had arrived at a correct conclusion that, in facts and circumstances of the case, the non examination of the other witnesses may not in any way affect the case of the plaintiff, especially in the light of the fact that the transactions as such are not in dispute. Apart from this aspect of the matter, the interest was claimed at 18% per annum and it was specifically held that inasmuch as D.W. 1 himself had admitted that he is a businessman, it cannot be said that such charging of interest can be said to be either usurious or excessive. Coming to the aspect of the plea of the defendant that several payments had been made and the receipts passed under Exs. B3 to B27, a finding had been recorded that those payments were in relation to the cloth business of Padmavathi Textiles and not paid towards the amount borrowed under two promissory notes. This finding recorded by the Court below is a finding of fact on appreciation of evidence and the Court below had recorded clear and convincing reasons at paragraph Nos. 15 and 16 of the judgment. No doubt, a serious attempt was made by the Counsel for the appellant to show that theory of existence of a textile business and having certain transactions, in the facts and circumstances of the case, cannot be believed at all. No doubt, the learned Counsel had drawn my attention to several of the probabilities in this regard. But, however, the crucial aspect to be appreciated is that when the promissory notes are in existence and even transfer endorsements had been made on the promissory notes, it is curious that separate receipts are pressed into service pleading partial discharge. It is needless to mention that the burden is on the defendant and no doubt, it was seriously urged by the Counsel appearing for the appellant-defendant that the burden, in fact, had been discharged and the Court below had totally erred in not granting the relief atleast up to that extent. Here itself it may be mentioned that the learned Counsel appearing for the appellant had strenuously contended on the aspect of drawing adverse interference in the facts and circumstances of the case. It appears from the record that the appellant as defendant filed LA. No. 292/85 for production of records by the plaintiff and those records were not produced into Court and hence, it was seriously contended that adverse inference may have to be drawn in the facts and circumstances of the case. In Khushalbhai Mahijibhai Patel Vs. A Firm of Mohmadhussain Rahimbux, , it was no doubt held that non-production of best evidence, adverse inference can be drawn u/s 114 of the Indian Evidence Act: In Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, , it was held that where all relevant documents admitted to have been in existence not placed before the Court by party concerned, adverse inference has to be drawn against such party u/s 114 of the Evidence Act, 1872. There cannot be any quarrel as far as this proposition of law is concerned. But, however, a finding had been recorded that as per the docket orders in I.A. No. 292/85, dated 25.8.1986, the said I.A. was allowed and the books were produced by the plaintiff and P.W. 1 was also examined on the same day. But, however, the books were not marked by either side and hence, they were taken away by the plaintiff. In such circumstances also it is to be seen whether the concept of adverse inference as advanced by the learned Counsel appearing for the appellant-defendant can be pressed into service. As already stated supra, the main question of controversy between the parties ultimately had boiled down to the aspect of partial discharge. The burden relating to partial discharge where the execution of promissory notes is not in dispute is always on the party who raises such a plea i.e., the defendant in the suit. Though, as required by the party, the books were produced before the Court, an opportunity was in fact given to the appellant-defendant either to confront P.W. 1 in relation to any of the entries in account books for the purpose of establishing his partial discharge. For the reasons best known, though in obedience of the orders of Court, in fact, the plaintiff had produced the books, the opportunity was not availed by the appellant-defendant in this regard. Hence, the Court below had arrived at the correct conclusion that in such circumstances, the question of drawing adverse inference u/s 114 of the Indian Evidence Act, 1872 does not arise at all. I am inclined to accept with this finding recorded by the Court of first instance. In view of the foregoing discussion, I am of the considered opinion that as far as point Nos. 1 and 2 are concerned, the Court below had discussed in detail all the aspects in paragraph Nos. 6 to 18 and had recorded proper findings which do not warrant interference and hence, I am not inclined to disturb these findings recorded by the Court of first instance on appreciation of the evidence of P.W. 1 and P.W. 2 and D.W. 1, Exs. A1 to A10 and also Exs. B1 to B32 and hence, accordingly, point Nos. 1 and 2 are answered against the appellant-defendant.

Point No. 3 : From the facts and circumstances of the case, it is clear that the appellant-defendant also had not seriously disputed the transaction and was much concerned with the partial discharge or the part payments made by him, which had been given due credit to by the plaintiff according to him. Hence, in the facts and circumstances of the case, the appeal is devoid of merits and, accordingly, the same is dismissed. But, however, without costs.