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2004 Supreme(AP) 55
Andhra Pradesh High Court
Judges : P.S.NARAYANA
Tummala Tirumala Rao - Appellant
Versus
Pemmasani Laxmaiah - Respondent
Decided On : 01-20-04
Headnote:
Code of Civil Procedure –Section 102 –Negotiable instruments Act 1881 –Sections 87, 97 (3), 118, 114 –Alteration, Negotiable Instrument–the learned counsel representing the appellant in a systematic way had taken this Court through the oral and documentary evidence available on record and had contended that the names of D. W. 2 to D. W. 7 had not been referred to in the written statement at all and in the absence of a specific pleading the evidence let in by the respondent/defendant in relation to these witnesses would be of no consequence –The counsel also had taken this Court meticulously through the oral evidence available on record and had contended that though specific stand was taken that Rs. 3600/- was paid to the son of P. W. 2, except the oral evidence of D. W. 8 in this regard and the interested testimony of D. W. 1, there is no other evidence and hence on the strength of such evidence recording a finding believing the party payment definitely is unsustainable –Held, From the nature of the suggestions and the evidence available on record, it is definitely doubtful whether this alternation would amount to material alternation within the meaning of Act – Even otherwise, it is not going to alter the situation in any way especially in the light of the over-whelming evidence available on record to show that Ex. A-1 is only a renewal transaction and for this limited extent, reliance placed by both the Courts below on ex. B-1 cannot be found fault in any way –Hence, in the light of the peculiar facts and circumstances, Court is of the considered opinion that on this ground the appellant/ plaintiff can (sic. cannot) succeed in the present Second Appeal – In the light of the foregoing discussion on the questions urged by both the Counsel representing the parties, Court is of the considered opinion that the Second Appeal is devoid of merit and accordingly the same shall stand dismissed –Appeal dismissed
( 1 ) THIS Second Appeal was admitted on 29-6-1993. The value of the Second Appeal for the purpose of Court fee and jurisdiction is Rs. 8404/ -.
( 2 ) TUMMALA Tirumalarao, appellant/ plaintiff filed O. S. No. 532/79 on the file of I additional Munsif Magistrate, Tenali for recovery of Rs. 6400/- against the respondent/defendant, Pemmasani laxmaiah. The suit was partly decreed by the Court of first instance on 16-1-1986 and aggrieved by the same, the plaintiff carried the matter by way of Appeal A. S. No. 7/86 on the file of Principal Subordinate Judge, tenali and the same was dismissed on 19-11-1992. The plaintiff being aggrieved by the said Judgment and decree had preferred the present Second Appeal.
( 3 ) THE respective pleadings of the parties are as hereunder.
( 4 ) THE appellant/plaintiff pleaded as follows: the defendant borrowed Rs. 5000/- from siddabattuni Veeraswamy and executed the suit pronote dated 22-7-1976 in his favour undertaking to pay the same either to him or his order at 12% interest on demand. The defendant did not pay. The original payee transferred the suit pronote for consideration at Tenali on 15-4-1979 to the plaintiff. The plaintiff got a telegraph notice issued to the defendant on 24-4-1979 but the same was returned unserved. As the defendant failed to pay the suit is laid for recovery of the suit amount.
( 5 ) THE respondent/defendant pleaded in paras 3 and 4 of the written statement as hereunder: it was pleaded that the defendant did not borrow any cash of Rs. 5000/- under suit pronote dated 22-7-1976 from plaintiff s transferor. The suit pronote came into being under the following circumstances. The defendant originally borrowed Rs. 40007-from plaintiff s transferor on 22-7-1970 at the rate of 24% per annum but executed pronote for Rs. 5000/- at the rate of 12% per annum at the instance of the original payee. It was the understanding between the parties at the time of paying, the amount calculated on rs. 4000/- at 24% per annum should be paid. After two years three months the defendant paid an amount of Rs. 3600/- in the presence of one P. Sivaiah and s. Nagabhushanam to the son of the original payee. On 22-7-1973 the amount due under pronote dated 22-7-1970 (on Rs. 4000/- at 24% per annum) was calculated and after giving credit to tho payment of Rs. 3600/-with interest for the balance of amount of rs. 2636/- the original payee required the defendant to execute the pronote for rs. 3000/- as cash borrowed at the rate of 12% p. a. and the defendant accordingly executed a pronote. The understanding between the parties was that Rs. 2636/- should be paid with 25% interest per annum at the time of payment. On 22-7-1976 the amount payable at 24% per annum on rs. 2636/ was calculated and the amount payable came to Rs. 4533-72. But at the instance of the original payee this defendant executed the suit pronote for Rs. 5000/ at 12% p. a. on the understanding that at the time of payment the amount calculated on rs. 4533-72 at 24% per annum should be paid. The defendant therefore submits that the interest for the suit pronote should be scaled down from 22-7-1970. The defendant submits that the endorsement of transfer dated 15-4-1979 for the consideration is merely a nominal one. In fact, no consideration is paid thereunder. The said endorsement is not bona fide. It is so made with a view to confer jurisdiction upon the court of Additional District Munsif, Tenali.
( 6 ) ORIGINALLY, the Court of first instance framed certain Issues and while deciding issue No. 3 only, the question of territorial jurisdiction was considered and a direction was given to return the plaint for presentation to the proper Court and aggrieved by the same, C. M. A. No. 26/92 was preferred on the file of Principal subordinate Judge, Tenali and the appellate court had allowed the Appeal and directed to entertain the suit and take the same on file to its original number and decide other issues also by giving opportunity
