2005(3) L.S. 195
IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH : : AT HYDERABAD
Present:
The Hon’ble Mr.Justice
L. Narasimha Reddy
P. Venkatamma & Anr., ..Appellants
Vs.
Dontham Sulochana ..Respondent
SA.No.13/01 Date:29-8-2005
Mr.M. Raja Malla Reddy, Advocate for the Appellants.
Mr.M.V. Durga Prasad, Advocate for the Respondents.
Appellants/defendants contend that presumption u/Sec.118 of N.I Act cannot be drawn in favour of respondent/plaintiff since she utterly failed to prove execution of promissory notes and that evidence on record virtually discharged burden of defendants in disabling Court from drawing presumption u/Sec.118 of Act in favour of plaintiff.
NATURE OF PRESUMPTION REFERRED TO U/SEC.118 OF ACT - In G. Vasu vs. Syed Yaseen (AIR 1987 AP page 139 (FB) ), Hon’ble High Court of A.P. had undertaken an extensive and scholarly discussion on “presumption” and held that expression “until contrary is proved” occurring in Sec.118 of Act, in context of absence of consideration for a negotiable instrument, would not only taken in its fold, proof by a defendant, but also fact, whether non existence of consideration is so probable, that a reasonable man would subscribe to that view under facts and circumstances of case - Difficulty for defendant to prove such a negative fact was also taken note of - Full Bench itself recognized handicap of a party to prove a negative.
In this case, defendants contend that relationship between them and plaintiff at relevant point of time, was so strained that they were constrained to file suit for injunction against plaintiff and that same came to be decreed - These facts would be sufficient to render lending of amount by plaintiff, improbable, and onus shifts to plaintiff, to prove otherwise - Net result is that defendants can be said to have proved “contrary” u/Sec.118 of Act and thereby Court would be disabled from drawing presumption provided for therein - Judgment and decree passed by lower appellate Court, set aside - Second Appeal, allowed.
This Second Appeal is filed under Section 100 of C.P.C., by the defendants in O.S.No.85 of 1993 on the file of the Subordinate Judge, Nalgonda. Respondent filed that suit for recovery of a sum of Rs.95,175/-, with interest.
2. Respondent pleaded that she sold an extent of Ac.6.38 guntas of land in Sy.No.357 of Nalgonda, to the 1st appellant for a consideration of Rs.1,40,000/- in March 1991. It was her case that few months thereafter, the appellants approached her for a loan of Rs.1,95,500/-, for developing a mango garden in the land purchased by them. Respondent is said to have lent that amount, after obtaining promissory notes, executed by the 1st appellant, with the 2nd appellant, figuring as surety.
3. It was stated that the 1st appellant did not repay the amount even after two years, and that the matter was taken to the elders, viz., Gutha Mohan Reddy, Azaz Ahmed Asgar, B. Saidulu and G.Raju. They are said to have brought about a settlement, according to which, the respondent should restrict her claim to Rs.1,40,000/-; the appellants shall pay a sum of Rs.50,000/- and execute promissory notes for the balance of Rs.90,000/-. Respondent pleaded that on the date of settlement, the appellants paid a sum of Rs.50,000/- and executed three separate promissory notes of Rs.30,000/- each. The suit was filed on the strength of these promissory notes.
4. In their written statement, the appellants pleaded that they have not borrowed any amount, whatever, from the respondent. They also denied the payment of Rs.50,000/- and execution of three promissory notes on 13-4-1993, for a sum of Rs.90,000/-. It was contended that the allegation, such as, the respondent had advanced Rs.1,95,500/- to them, and that she had agreed to forego Rs.55,500/- from the principal, not to speak of the interest, is totally unbelievable. They specifically denied the execution, attestation and hand-writing on the promissory notes. They further alleged that the respondent is involved in money lending business and running chits. They urged that the relationship between themselves and the respondent after the purchase of the land were in fact, strained, so much so, they had to file O.S.No.53 of 1993, against the respondent, for perpetual injunction. Reference was also made to certain complaints made by them to the Police.
5. The trial Court dismissed the suit, through its judgment dated 09-03-1995. The respondent carried the matter in appeal by filing A.S.No.17 of 1995. in the Court of Principal District Judge, Nalgonda. The appeal was allowed on 13-07-2000, and consequently, the suit was decreed as prayed for. Hence, this Second Appeal.
6. Sri M.Raja Malla Reddy, learned counsel for the appellants submits that the three promissory notes, marked as Exs.A-1 to A-3, were forged and at any rate, not supported by consideration. He contends that, while the recital in the promissory notes is to the effect that the amount referred to therein, was paid contemporaneously, the pleading and evidence of respondent was that the consideration is traceable to the previous transactions. He submits that no evidence, whatever, was adduced, to establish the prior transactions, and it is totally unbelievable that the respondent, who sold her land for Rs.1,40,000/-, has chosen to lend a sum of Rs.1,95,500/-, to them, that too without taking any security. He contends that the evidence adduced by the respondent, in relation to the alleged promissory notes for Rs.1,95,500/- is so inconsistent and untrustworthy, that it cannot be given any weightage, whatever. He further submits that the presumption under Section 118 or the Negotiable Instruments Act (for short “the Act’) can not at all be drawn, in favour of the respondent, because she utterly failed to prove the execution of the promissory notes. Placing reliance upon a judgment rendered by a Full Bench of this Court in G
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