A decree and judgment passed ex-parte due to the defendant's failure to attend court and adduce evidence can be set aside and the case remanded for fresh trial, subject to the imposition of suitable terms and conditions.

JUDGMENT

U. Durga Prasad Rao, J. - Challenging the decree and judgment dated 18.09.2019 in O.S.No.182/2011 passed by learned IV Additional District Judge, Tirupathi decreeing the plaintiff's suit for a sum of Rs.42,96,648/- with interest @ 12% p.a. from the date of suit till the date of decree and thereafter @ 6% p.a. till realization on the principal amount of Rs.25,00,000/-, the defendant filed the instant appeal.

2. The factual matrix of the case in nutshell is thus:

(a) The plaintiff's case is that the plaintiff and defendant are relations and they are businessmen. For his business purpose, the defendant borrowed Rs.25,00,000/- from the plaintiff and executed suit promissory note on 01.09.2008 agreed to repay the amount with interest @24% p.a. However the defendant did not pay the pronote debt on one or other excuse. Hence the suit.

3. The defendant opposed the suit by filing written statement contending thus:

(a) The plaintiff and defendant are relatives and defendant is a businessman. The plaintiff used to work under the defendant as an employee and his only source of income was his employment and except that he had no other source of income. The plaintiff thus has no capacity to lend such a huge amount and the defendant had no necessity to borrow the amount from the plaintiff and in fact, he never borrowed any amount from the plaintiff and suit pronote is rank forgery. While the plaintiff was working under defendant, he swallowed amounts by committing misappropriation and hence the defendant lodged a report against the plaintiff before Hallyalla Police Station in Karnataka State and police registered the case in Crime No.178/2008 U/s 408, 420 IPC against the plaintiff. However after the intervention of their elders and well-wishers, the said report was withdrawn by the defendant. Thereafter he removed the plaintiff from the employment. The plaintiff bore grudge against the defendant and filed suit with fabricated pronote as he was familiar with the signature of the defendant. The scribe and attestors are relations of the plaintiff who assisted him in such fabrication. The defendant never executed any pronote and received consideration as alleged in the plaint. The defendant thus sought to dismiss the suit.

(b) During trial, plaintiff was examined as PW1 and the two attestors were examined as PW2 and PW3. Scribe S. Nagaraju Naidu said to be died on 19.05.2017. The suit pronote was marked as Ex.A1. On behalf of defendant, his chief affidavit was filed but he failed to turn up to the Court for cross-examination and so the trial Court eschewed his evidence from record. It appears the defendant filed I.A.No.478 of 2017 U/s 45 of Indian Evidence Act to refer the suit pronote to handwriting expert, however, since he did not prosecute the said petition, the same was dismissed for default.

(c) The trial Court, having regard to the evidence placed on record by the plaintiff held that the plaintiff could establish his case but the defendant failed to rebut the case of plaintiff and also the presumption U/s 118(a) of NI Act and accordingly decreed the suit in favour of the plaintiff. Hence the appeal.

4. The parties in this appeal are referred as they stood before the trial Court.

5. Heard argument of learned counsel for appellant Sri G.V.R Choudary and learned counsel for respondent Ms S. Pranathi.

6. Toeing the line of defence in his written statement, learned counsel for the appellant Sri G.V.R Choudary would argue that the plaintiff and defendant are close relatives and plaintiff while working under defendant embezzled funds and therefore the defendant filed report before Hallyalla Police Station in Karnataka State, basing on which, Crime No.178/2008 was registered against him and later at the intervention of elders and wellwishers, the defendant had withdrawn the complaint and removed him from the employment. In that backdrop, bearing grudge, the plaintiff who is well acquainted with the signature of the defendant, forged the suit prono