2005(2) Bankmann 447
ANDHRA PRADESH HIGH COURT
L. Narasimha Reddy, J.
P. Venkatamma and
another — Petitioners
versus
Dontham Sulochana — Respondent
Second appeal No. 13 of 2001
Decided on 29.8.2005
`
Facts of the Case:
(A)The respondent herein filed a suit for recovery of certain amount against the appellant. The respondent pleaded that initially, she lent a sum of Rs. 1,95,000/- to the appellants and when the same was not paid, she moved the matter before the elders. A settlement is said to have been arrived at, whereunder the responent alleged to have given up Rs. 55,500/- from the principal as well as interest and agreed to receive Rs. 1,40,000/-. The respondent pleaded that the
appellants paid a sum of Rs. 50,000/- on that day and executed 3 pronotes for a sum of Rs. 30,000/- each. The appellants denied the allegation as to their borrowing of Rs. 1,95,000/- as well as subsequent transaction of payment of Rs. 50,000/- and execution of pronotes for Rs. 90,000/- The trial court took the view that the respondent failed to prove the execution of promotes, consequently dismissed the suit. However, on appeal the first appellate court decreed the suit in favour of respondent. Aggrieved by the said decree, defendant preferred present second appeal.
(B)The respondent specifically pleaded that she advanced a sum of Rs. 1,95,000/- within few months of sale of land by her. The plaint is however, silent as to the manner of payment. The respondent was not sure as to whether the amount was paid in lump-sum or in staggered manner or as to the number of pronotes executed. Not a single person associated in any manner with the lending of said amount of Rs. 1,95,000/- was examined much less any material was placed before the trial court. Exs. A1 to A3 cannot said to have been proved. The impugned decree of first appellate court is set-aside. The second appeal is allowed.
Result: Appeal allowed
L. Narasimha Reddy, J.—This second appeal is filed under Section 100 of CPC, 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 Sl. 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 of Rs. 1,40,00, 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. 55,000 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 relations between themselves and the respondent after the purchase of the land were in fact, strained so much so, they had to file OS 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 9.3.1995. The respondent carried the matter in appeal by filing AS No. 17 of 1995, in the court of Principal District Judge, Nalgonda. The appeal was allowed on 13.7.2000, 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. A1 to A3, 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 for 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 of the Negotiable Instruments Act (for short the Act) cannot 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. Vasu v. Syed Yaseen1, he submits that the evidence on record had virtually discharged the burden of the appellant
Login now and unlock free premium legal research
Login to SupremeToday AI and access free legal analysis, AI highlights, and smart tools.
Login
now!
India’s Legal research and Law Firm App, Download now!
Copyright © 2023 Vikas Info Solution Pvt Ltd. All Rights Reserved.