Ramakrishnaiah vs P. Prakash Rao

This appeal is directed against the judgment and decree dated 24.03.2021 in A.S.No.9 of 2011 on the file of the learned I Additional District Judge, Mahabubnagar, allowing the appeal filed by the appellant-defendant against the judgment and decree dated 01.12.2010 passed in O.S.No.48 of 2009 on the file of the I Additional Senior Civil Judge, Mahabubnagar. The appellant herein raised the following substantial questions of law.

a) Whether a suit for recovery of money from the defendant basing on the promissory note together with interest and costs.

b) Whether a suit for recovery of money can be decreed where the limitation for filing the same is expired on the ground that the document has not specified the time for completing the transaction.

c) Whether the suit for recovery of money can be decreed where the plaintiff fails to prove the contents of the agreement.

The suit O.S.No.48 of 2009 was filed by Ch.Ramakrishnaiah-plaintiff for recovery of Rs.3.45,000/- from the defendant-P.Prakash Rao basing on the promissory note with interest @ 18% per annum from the date of suit till the date of decree. The case of the plaintiff in nutshell is that he is well acquainted with the defendant, out of which the defendant approached him on 31.05.2007 for a hand loan of Rs.2,50,000/- to meet his legal family necessities. At his request the plaintiff paid a sum of Rs.2,50,000/- to the defendant on the same day under a promissory note executed by the defendant at Badepally to repay the same with interest @ 2% per month. The plaintiff demanded the defendant to repay the amount several times and when the defendant failed to repay the same he orally demanded the defendant on 20.11.2007 and got issued a legal notice on 05.12.2007 on which the defendant requested the plaintiff on 20.12.2007 to give one more year for repayment. Again the defendant did not pay the amount even after the lapse of one year i.e., 25.12.2008 and as such he filed the suit seeking recovery of the amount along with interest @ 18% per annum from the date of suit till the date of realisation.

In the written statement filed by the defendant he denied all the material allegations and further stated that plaintiff created the cause of action with a forged document only to harass him and that he never made any oral request and never obtained any loan from him. He also stated that the plaintiff is running financial business under the name and style of M/s.Bhagyasree Chit Fund, Jadcherla, Mahabubnagar. The defendant became a chit member in the year 2003 for Rs.1,00,000/- with chit series number BSL-B4 Ticket No.23 and he was paying Rs.4,000/- per month regularly and after completing the chit the plaintiff failed to pay the chit amount till today. He would further state that he also became member of another chit conducted by the plaintiff for a sum of Rs.50,000/-with chit series number BSC-B6 Ticket No.1 and he was paying Rs.2,000/- per month and that after completing the chit the plaintiff has not paid the chit amount to him. Later, the defendant came to know that the plaintiff closed the chit fund business without his knowledge and thereafter he came to know that the plaintiff is conducting Zero (0) chit business. Defendant would further state that when the plaintiff is conducting the money lending business he obtained loan of Rs.50,000/- in the name of his son by hypothecating the tractor and trailer and executed hire purchase agreement in favour of the plaintiff. Though he paid the entire loan amount, the plaintiff did not return the original RC alleging that he is in due of Rs.50,000/-. As the plaintiff refused to return the original RC, he got issued a legal notice dated 10.11.2005 and filed a complaint before the District Consumer Forum, Mahabubnagar, in C.C.No.38 of 2006. Therein, the defendant filed I.A.No.135 of 2006 seeking to produce the alleged promissory note and other necessary documents. As the plaintiff failed to summon those records in spite of the order of the Forum, it passed orders in favour of the defendant. The defendant would further state that he never executed the suit document and it was created by the plaintiff with forged signature, and therefore, the suit is liable to be dismissed.

The plaintiff himself examined as P.W.1 and the attestor was examined as P.W.2 and marked Ex.A1 to A4 on his behalf. The defendant himself examined as D.W.1 and marked Ex.B1 and B2 on his behalf. After considering the entire oral and documentary evidence adduced by both the parties, the trial Court decreed the suit in favour of the plaintiff for Rs.3,45,000/- with costs. Aggrieved by the said judgment and decree the defendant preferred an appeal and the appellate Court set aside the judgment and decree of the trial Court by allowing the appeal. Aggrieved by the judgment and decree of the appellate Court, the plaintiff in the suit preferred this Second Appeal.

For the sake of convenience, the parties hereinafter are referred to as arrayed in the suit.

Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.

The trial Court in its judgment observed that it is a settled law that the burden of proof lies on the plaintiff. The plaintiff examined the attestor and the trial Court did not find any reason to disbelieve the testimony of P.W.2 and it also raised presumption under Section 118 of the Negotiable Instruments Act, 1881 and further held that Exs.B1 and B2 filed by the defendant are no way concerned with the suit transaction. As per the plaintiff’s version defendant brought the scribe to draft the pronote and as such it is not possible to examine the scribe as a witness and that the plaintiff proved his case and accordingly decreed the suit.

The appellate Court disbelieved the version of P.W.2 on the ground that suit promissory note does not contain the name and particulars of the attestors. Though P.W.2 claims to be an attestor of the suit promissory note, it cannot be relied upon when the very execution of the promissory note is denied by the defendant. The appellate Court also observed that I.A.No.299 of 2012 was filed by the defendant seeking to send Ex.A1 to the FSL, but it was dismissed. Aggrieved by the same the defendant filed C.R.P.No.3404 of 2013 and the same was dismissed on 02.08.2013 and restored to file on 27.09.2013 and interim stay was granted on 24.10.2013. In view of the decision of the Supreme Court in ASIAN RESURFACING OF ROAD AGENCY V/s. CENTRAL BUREAU OF INVESTIGATION 2018 (16) SCC 340 holding to the effect that after lapse of six months period from the date of the interim order, the stay deemed to have vacated as there are no orders to extend the stay. The appellate Court further observed that the signature of the attestor in Ex.A1 is not tallying at least on material characteristics. Though P.W.2 stated that the plaintiff is doing finance business, he could not say the name of auto finance business and thus there is some force in the argument of the learned counsel for the defendant that P.W.2 is a planted witness. The appellate Court also observed that the interest @ 2% per month is exorbitant and excessive. Though promissory note is not a compulsorily attestable document, when the very execution of it is denied, duty caste upon the plaintiff to prove the promissory note. The appellate Court further held that the Consumer Forum case filed by the son of the defendant was disposed off on 18.01.2007. According to the plaintiff, he lend Rs.2,50,000/- to the appellant herein on 31.05.2007 i.e., within four months after disposal of Consumer Forum case and it is contrary to the common course of human conduct. No prudent person would lend money to a person with whom he had strained relations. It was also observed that the plaintiff gave loan of Rs.50,000/- to the son of the defendant only on hypothecation of a tractor and a trailer, and therefore it cannot be believed that the plaintiff gave a hand loan of Rs.2,50,000/- without any security. It was also observed that it was not elicited from D.W.1 whether relations between him and his son were strained, therefore it can be presumed that the defendant and his son were on good terms hence no prudent person would dare to enter into a transaction within a short period when an allegation was made against him by the son of the person who approached him for loan. As such there is truth in the contention of the defendant that the suit promissory note is created subsequent to the disposal of the consumer case filed by the son of the defendant only with an intention to trouble him and accordingly allowed the appeal by setting aside the judgment of the trial Court.

P.W.1 in his cross-examination deposed that he was doing business in the name of M/s. Bhagyasree Auto Finance. He was doing the said business on hypothecation of the vehicles from 2001 onwards. He did chit fund business up to 2003. He was running chit fund business in the name of M/s. Bhagyasree Chit Fund. Both Bhagyasree Chit Fund and Bhagyasree Auto Finance were under one registration. But he did not run the chit business after 2003 and that he is an income-tax assessee and paying income-tax from 1980. Prior to 2001 he did kirana business in the name of M/s.Chepatti Ramakrishnaiah General Stores. He also admitted that he did chit business without registration i.e., Zero (0) chits registration. He admitted that the defendant was a member of chit business in the chit worth Rs.1,00,000/- and he is also a member in another chit worth Rs.50,000/- and the chits ran up to 2006. Defendant made total payment towards the said two chits. He also admitted that the son of the defendant obtained a loan of Rs.50,000/- from him and C.C.No.38 of 2006 filed by the son of the defendant for not giving clearance certificate and he returned the said certificate only after passing of the orders by the Consumer Forum. He would further depose that when the defendant was questioned regarding the scribe of the promissory note, he deposed that ‘defendant brought it already written’. He further deposed that plaintiff got issued a legal notice in which he demanded for repayment of Rs.2,50,000/- in first part but in the last part the amount was typed as Rs.50,000/- and the plaintiff explained it as typographical error.

Learned counsel for the defendant in his written arguments would mainly contend that P.W.1 in the cross-examination clearly replied that Ex.A1 was already written and brought by the defendant, but P.W.2-attestor stated that promissory note was executed at the house of the plaintiff. P.W.2 stated that, he along with another person Mr.Raghavender acted as attestors. From the perusal of the promissory note it is noticed that only the signatures of attestors are available on promissory note but their names and other details were not mentioned anywhere. In the cross-examination he stated that the second attestor was Mr.Raghu, but do not know the father’s name of Raghu and his house location. He also stated that plaintiff was doing finance business but he do not know the details of it. It was suggested to him that plaintiff started new business in the name of Bhagysree Auto Finance and P.W.2 was working as an employee and as such he was deposing falsely at the instance of the plaintiff but he denied the same.

D.W.1 mainly contend that he never executed any promissory note and his signature was forged and as such he filed I.A.No.135 of 2006 only to ascertain the age of the ink of the signatures on the said promissory note and the said writings. As there is lot of variation between and writing and signature of the suit document, he specifically denied his signature on the suit promissory note. I.A.No.495 of 2010 for determination of age of the ink in the signature and he has not sought for comparison of the signature.

The plaintiff filed suit for recovery of the amount basing on the promissory note executed in his favour by the defendant and whereas the defendant denied his signature on it and contended that it is a forged document. No doubt, there were financial transactions between the plaintiff and the defendant from the past 10 years. Plaintiff was running chit business and the defendant was a subscriber of two chits and his son also obtained had loan of Rs.50,000/- on hypothecation. Defendant stated that he paid the entire instalments. The plaintiff also admitted with regard to payment of chit instalments by the defendant in both the chits. It is for the plaintiff to establish his case when he relied upon a document. Though he filed promissory note alleged to have been executed by the defendant and also examined P.W.2, the names of the attestors were not mentioned in the promissory note and thus, it cannot be said that P.W.2 was an attestor to the suit promissory. The appellate Court clearly observed that when the very execution of the document was disputed, it is for the plaintiff to prove his case as the evidence of P.W.2 is not reliable. Plaintiff failed to establish his case. The other circumstance is that plaintiff lend an amount of Rs.50,000/- on hypothecation of a tractor and he cannot lend Rs.2,50,000/- without any security is also considered by the appellate Court and moreover the appellate Court mainly observed that there was strained relations between the son of the defendant and plaintiff and a case was filed by the son of the defendant before the Forum against the plaintiff and it was decided in favour of the son of the defendant on 18.01.2007. When there were strained relations between the plaintiff and the defendant how can the plaintiff lend an amount of Rs.2,50,000/- within four months after disposal of the Consumer Case and it is contrary to the conduct of a prudent man. The appellate Court also observed that the signature of P.W.2 on his deposition and on Ex.A1 promissory note were not tallying on material characteristics. Though defendant took the plea of forgery, he has not sought for the comparison of the signature on Ex.A1 with the admitted signatures but he filed I.A. to ascertain the age of the ink in the writings on promissory note and on the signature and hence it was dismissed by the trial Court. Though C.R.P. was preferred, the result of the same is not mentioned anywhere.

Considering the oral and documentary evidence on record, I do not find any reason to interfere with the judgment of the appellate Court and it is a well reasoned order. Therefore, the appeal is dismissed confirming the order of the first appellate Court.

Pending miscellaneous petitions, if any, shall also stand dismissed in the light of this final judgment.