THE HON’BLE SRI JUSTICE G.CHANDRAIAH A.S.NO.1688 OF 2003 JUDGMENT Heard both the counsel. 2. Aggrieved by the judgment and decree dated 7.4.2003 passed by the court of Principal Senior Civil Judge, Kakinada in O.S.No.35/2001 in partly decree the suit for recovery of an amount of Rs.1,86,265/- along with interest, the plaintiff in the suit filed the present appeal. 3. For the sake of convenience the parties will be referred to as arrayed in the plaint. 4. The plaint averments are that the plaintiff and the defendant are the brothers. The defendant requested the plaintiff to arrange an amount of Rs.1,86,263/- for payment of decretal amount in O.S.No.101/1990 on the file of I Additional Senior Civil Judge, Kakinada to avoid the execution of sale deed. Accordingly, the plaintiff paid an amount of Rs.1,11,263/- by way of demand draft dated 5.7.1999 and Rs.75,000/- by way of cash and they entered into a kararnama agreement on 7.7.1999 and the defendant agreed to pay the amount with interest at the rate of 2 per cent per month, which comes to Rs.3,900/- and odd and that the defendant agreed to pay Rs.4,000/- per month towards interest. The defendant also agreed to pay the principal amount of Rs.1,00,000/- in four or five months and the balance at the same rate of interest, which is to be performed by 15th of every month. The defendant paid Rs.4,000/- each on 18.9.1999, 9.9.1999, 7.11.1999, 9.12.1999 by way of demand drafts and further in spite of several letters, he failed to pay the balance. Therefore, the plaintiff got issued a registered legal notice dated 6.11.2000 and the defendant issued reply dated 20.11.2000 denying the execution of Kararname and receipt of the amount and asked to send the photostat copy of the said agreement by sending demand draft of Rs.25/-, for which the plaintiff got issued rejoinder notice stating that the defendant has got duplicate and hence asking to send copy of the kararurnama, is mala fide and the plaintiff did not send the same. The defendant did not issue any reply. Hence, the suit. 5. The defendant filed written statement and admitted the relationship between the parties and the filing of a suit in O.S.No.101/1990 by one M/s Kalyani Finance Corporation for specific performance, which ended in a compromise. While denying the execution of Karrnama, stated that the plaintiff approached the court with unclean hands and for illegal gain. The plaintiff mentioned the date of kararnama in the legal notice as 7.7.2000, but he mentioned the date of the said kararnama in the plaint as 7.7.1999 and in the plaint, the plaintiff is silent about the kararnama agreement dated 7.7.2000. So also the notices got issued by the plaintiff, are silent in respect of the alleged kararnama agreement dated 7.7.1999. The plaintiff failed to furnish the copy of the alleged kararnama agreement dated 7.7.2000 and returned the DD sent by defendant towards the cost of the copy. It is further stated that he is the younger brother of the plaintiff and the plaintiff was ready to help this defendant, when he needed some financial help. He requested the plaintiff for a loan of Rs.1,00,000/- with an understanding that this defendant could repay the amount as when he has and there was no agreement with regard to payment of interest as the transaction was in between brothers. Subsequent to the above understanding, the plaintiff sent a demand draft from Hyderabad for Rs.1,11,263/-. The plaintiff collected the sum of Rs.11,263/- from the defendant and thus the defendant borrowed only an amount of Rs.1,00,000/- and that he did not receive Rs.75,000/- by way of cash from the plaintiff, as alleged in the plaint. As per the understanding between the parties, in order to repay the said loan amount of Rs.1,00,000/-, he had sent four demand drafts for Rs.4,000/- each towards four monthly installments, making a total amount of Rs.16,000/- towards part payment of the loan, which he borrowed from the plaintiff. As he incurred expenses for performance of his daughter’s marriage, he could not repay the balance amount of Rs.84,000/- on the demand made by the plaintiff and sought for some time. With these averments inter alia and while denying the execution of kararnama dated 7.7.1999 and stating that he borrowed only an amount of Rs.1,00,000/- and repaid Rs.16,000/- and that he is due only an amount of Rs.84,000/-, he sought to dismiss the suit. 6. Based on the above averments, the trial court framed the following issues for trial: 1. Whether the plaintiff gave Rs.1,86,263/- for which the defendant executed a kararname on 7.7.1999? 2. Whether the kararname dated 7.7.1999 is true and correct or fabricated? 3. Whether the defendant had borrowed Rs.1,00,000/- and had never received Rs.75,000/-? 4. Whether the plaintiff is entitled for recovery of the suit claim? 5. To what relief? 7. In support of the case of the plaintiff, he got examined himself as P.W.1 and got marked Exs.A-1 to A-5. On behalf of the defendant, he got examined himself as D.W. and no documents were marked on his behalf. 8. Considering the evidence on record, the court below held that the plaintiff has not given Rs.1,86,263/- and that the defendant has not executed kararuname dated 7.7.1999 and hence the kararunama is not true and corfrect and it is a fabricated document and that the defendant had borrowed Rs.1,00,000/- and that he never received Rs.75,000/- by way of cash from the plaintiff and, therefore, the plaintiff is not entitled to claim the entire suit claim of Rs.2,41,893-54, except Rs.84,000/- referred to above. Accordingly the court below partly decreed the suit for Rs.84,000/- and dismissed the rest of the suit claim. 9. Aggrieved by the judgment and decree of the court below in partly decreeing the suit and rejecting the rest of the claim, the plaintiff filed the present appeal. 10. The learned counsel for the appellant submitted that in order to avoid attachment in the suit in O.S.No.101/1990 on the file of I Additional Senior Civil Judge’s Court, Kakinada, in which the defendant was to pay an amount of Rs.1,86,263/-, the plaintiff has given the said amount and out of the said amount, he has given an amount of Rs.1,11,263/- by way of demand draft dated 5.7.1999, which has been admitted by the defendant and the remaining amount of Rs.75,000/- was given in cash and the defendant executed a Kararnana agreement on 7.7.1999 for the entire amount of Rs.1,86,263/- agreeing to pay the same with interest at 2 per cent per month, which comes to about Rs.3,900/- and that he agreed to pay Rs.4,000/- per month and that the defendant also agreed to pay Rs.1,00,000/- in four or five months and the balance, at the same rate of interest. Accordingly the defendant paid Rs.4,000/- for four months by way of demand drafts amounting to Rs.16,000/- towards interest, as agreed, but thereafter, he failed to pay any amount and though legal notice was sent, he replied with false allegations that he did not execute the kararnama. He stated that taking advantage of the typographical mistake in the legal notice with regard to the date of the agreement, he sought to send the said agreement dated 7.7.2000, which in fact is not in existence and only the agreement dated 7.7.1999 is in existence. He contended that the court below failed to appreciate the material evidence on record and erroneously rejected the entire claim of the plaintiff. He contended that Ex.A-1 karranama was got typed by the defendant in Telugu at Kakinada and he purchased the stamp paper and further the defendant had clearly admitted his signature on Ex.A-1 and that in spite of this admission, the court below erroneously held that Ex.A-1 is not proved. He contended that admission of signature on Ex.A-1 by the plaintiff is the best evidence and it is binding on him. Referring to the evidence of the defendant, he pointed out that the defendant admitted that the four demand drafts for Rs.4,000/- each are sent towards the interest of the loan amount. But the court failed to take into consideration the admission of the defendant with regard to payment of interest. Relying on the judgments reported in SUKHDEV PERSHAD @ L.R.DURGA PERSHAD vs. B.KISHANLAL[1] and CHALLA VENKATA SUBBAYYA vs. UNION BANK OF INDIA[2] he contended that the amounts paid by the defendants shall be first appropriated towards interest and then to principle. He further stated that as per the admission of the defendant, the plaintiff has given demand draft for Rs.1,11,263/-, but his case is that he returned Rs.11,263/-. There is no material on record to show that he returned back Rs.11,263/-. Oblivious of this material evidence on record, the court below erroneously held that Ex.A- 1 is not proved and that the plaintiff has given only Rs.1,00,000/-. With these contentions, he sought to set aside the judgment and decree of the court below and to decree the suit as prayed for. 11. On the other hand, the leaned counsel appearing for the respondent/defendant supporting the impugned judgment submitted that Ex.A-1 is a fabricated agreement and not supported by consideration. He stated that mere admission of the signature on Ex.A-1 is not sufficient, and that the plaintiff has to prove the execution of Ex.A-1. He stated that signatures were taken on blank papers and the contents were filled subsequently to suit the convenience of the plaintiff. When the defendant is denying the execution of Ex.A-1, the burden is on the plaintiff to prove the same by examining the attesters. He stated that the attesters of the document were not examined and as the plaintiff failed to prove Ex.A-1, the court below rightly rejected Ex.A-1. Relying on the judgment of the High Court of Allahabad in BIRBAL SINGH v. HARPHOOL KHAN[3] he contended that the initial burden lies on the plaintiff to prove the execution of the promissory note and when the burden is discharged, it is then that the Court shall raise a presumption in favour of the plaintiff for holding that the promissory note was for consideration and it will be for the defendant to rebut that presumption. He further contended that execution of a document consists of signing of a document written out, read over and understood and does not consist of merely signing a blank paper. With regard to Ex.A-5, which is letter said to have been written by the daughter of the defendant to the wife of the plaintiff, he stated that since the daughter Nalini was not examined, the said document cannot be relied upon. In support of this contention, he relied on the judgment of the Apex Court VINOD CHATURVEDI v. STATE OF M.P.[4] He stated that Ex.A-1 amounts to bond and as it is not stamped, it cannot be received in the evidence and in support of this contention, he relied on the judgments of this court in P.SRINIVASA BABU v. M/S AMR CONSULTANTS LIMITED[5]. He stated that there is no arrangement with regard to payment of interest. He sent four demand drafts for Rs.4,000/- each and due to financial crises, he could not repay the balance of Rs.84,000/- and hence the plaintiff is entitled to only an amount of Rs.84,000/- and the court below rightly considering these aspects, decreed the suit for the said amount and the same does not warrant any interference. With these submissions, he sought to dismiss the appeal. 12. In view of the above rival contentions and the material available on record, the following points would arise for my consideration: 1. Whether the plaintiff proved the Ex.A-1 Karanama? 2. Whether the plaintiff is entitled for the recovery of the suit amount? 13. In order to consider the above issues, it is necessary to look into the pleadings of the respective parties and the evidence available on record. 14. There is no dispute that the plaintiff and the defendant are brothers and that the defendant is in need of money and as the plaintiff is the elder brother and is in better financial position, the defendant approached the plaintiff for the financial help. Here, the case of the plaintiff is that the defendant requested an amount of Rs.1,86,263/- for payment of decree amount in O.S.No.101/1990 on the file of I Additional Senior Civil Judge, Kakinada to avert danger of execution of the sale deed of the house of the defendant. Therefore, the plaintiff paid an amount of Rs.1,11,263/- by way of demand draft on 5.7.1999 and the remaining amount of Rs.75,000/- by way of cash, thus totaling to Rs.1,86,263/- and they entered into a karanama agreement dated 7.7.1999 and that the defendant agreed to pay the same with interest at 2 per cent per month, which comes to Rs.3,900/- and odd and that he agreed to pay Rs.4,000/-per month and further he also agreed to pay the principal amount of Rs.1,00,000/- in four or five months and the balance amount at the same rate of interest, which is to performed by 15th of every month. In accordance with the agreed terms, the defendant paid Rs.4,000/- for four months by way of demand drafts on 18.9.1999, 9.9.1999, 7.11.1999 and 9.12.1999 and thereafter in spite of several demands, he failed to pay the amount. Therefore, the plaintiff got issued legal notice dated 6.11.2000 demanding the defendant to pay the amount, for which the defendant replied on 20.11.2000 denying the execution of kararnuma and asking the plaintiff to send a copy. To which the plaintiff issued rejoined stating that the defendant is having duplicate and that asking a copy is mala fidy. 15. On the other hand, the case of the defendant is that he never executed a kararnama and he admitted receipt of only Rs.1,00,000/-. His case is that the plaintiff sent demand draft for Rs.1,11,263/- after receipt of Rs.11,263/- only and that he never borrowed the remaining amount of Rs.75,000/-. His further case is that as the transaction is between brothers, there is no arrangement for payment of interest and that he only borrowed Rs.1,00,000/- and he repaid Rs.16,000/- by way of four demand drafts of Rs.4,000/- each and that he is only liable to pay Rs.84,000/-. His further case is that he never executed Ex.A-1 kararnama dated 7.7.2000 as mentioned in the legal notice dated 6.11.2000 and that when he requested the plaintiff to send the alleged kararnuma dated 7.7.2000, in the reply notice, by send demand draft of Rs.25/-, the plaintiff failed to send the alleged agreement and therefore, his case is that the alleged kararnama dated 7.7.1999 is fabricated on a blank stamped paper containing his signatures, which was obtained by the plaintiff at the time of advancing Rs.1,00,000/-. Therefore, he sought to dismiss the suit. 16. From the above averments, the defendant had admitted the receipt of only Rs.1,00,000/-. The case of the plaintiff is that he paid Rs.1,11,263/- by way of demand draft dated 5.7.1999. In the reply notice Ex.A-2 dated 20.11.2000 and in the written statement it is stated that the demand draft for Rs.1,11,263/- was sent by the plaintiff after receiving a sum of Rs.11,263/-. In the evidence, the defendant who was examined as D.W.1 stated in his cross- examination that D.D. was enchased by him and by keeping Rs.1,00,000/- with him, paid Rs.11,487/- to P.W.1; that he has no idea whether an amount of Rs.224/- towards bank commission is also included in Rs.11,487/-. From these two statements there is discrepancy with regard to payment of Rs.11,263/-. The defendant had admitted that he received the demand draft for Rs.1,11,263/-. Though he stated that out of the said amount, he retained only Rs.1,00,000/- and paid back Rs.11,263/- there is no proof in support of his case. When he is admitting the receipt of the amount, burden is on him prove that he returned back Rs.11,263/-. He failed to lead any evidence. In his cross-examination, he categorically admitted that there is no record of proof with him that he returned back Rs.11,487/- to P.W.1. In these circumstances, it is to be categorically held that the defendant received Rs.1,11,263/- as pleaded by the plaintiff. 17. The next issue is with regard to the execution of Ex.A-1 kararnama dated 7.7.1999. The case of the plaintiff is that he paid an amount of Rs.1,11,263/- by way of demand draft and remaining amount of Rs.75,000/- by way of cash, totaling to Rs.1,86,263/-, which is required to meet the E.P. amount in O.S.No.101/1990 on the file of I Additional Senior Civl Judge, Kakinada, which is filed against the defendant by one Kalyanai Finance Corporation for specific performance. 18. The case of the defendant is that in the legal notice the Ex.A-1 is shown as dated 7.7.2000 and in the plaint it is stated as 7.7.1999 an that when he requested to send the alleged kararnama, in reply notice under Ex.A-3 the same was not sent stating that he is having duplicate copy and even in the rejoinder or in the plaint it is not stated that it is a typographic mistake and hence the alleged kararnama Ex.A-1 is forged and fabricated to make illegal gain. 19. In order to consider the above averment of the defendant it is necessary to look into the contents of Ex.A-2 legal notice dated 6.11.2000 issued by the plaintiff. The said legal notice to the extent relevant is extracted as under: “1. That you are the younger brother of my client and approached him for a loan to tide over your financial difficulty in averting court sale of your residential house and taking a sympathetic view, my client promised to help you, came all the way to your place and paid EP amounts by way of demand draft on Corporation Bank bearing no.992451 dated 5.7.99, for Rs.1,11,263/- (Rupees one Lakh Eleven Thousand two sixty three only) and cash of Rs.75,000/- (Rupees seventy five thousand only) in all a total sum of Rs.1,86,263/0 (Rupees one lakh eighty six thousand two hundred and sixty three only) was paid to you. 2. That you entered into a agreement with my client on 7.7.2000 agreeing to pay Rs.4,000/- (Rupees four thousand only) as interest payable on or before 15th day of every month till a payment of Rs.1,00,000/- (rupees one lakh only) is paid towards principal amount and later an interest at the rate of 2% per month for the balance of Rs.86,263/- (rupees eighty six thousand two hundred sixty three only) 3. That you had sent by way of demand drafts the interest amount of Rs.4,000/- (Rupees four thusand only) for a period of four months only. There after you have not sent any amounts either towards interest or principal. As agreed upon, you will have to pay interest at the rate of Rs.4,000/- (Rupees four thousand only) per month for the subsequent period of twelve months upto 7-11-2000 and continue to pay at the said rate till you pay the entire principal amount as per the agreement.” 20. From the above legal notice Ex.A-2, the case of the plaintiff is that he has given amount an of Rs.1,11,263/- on 5.7.1999 by way of demand draft, and the balance amount of Rs.75,000/- by way of cash and entered into an agreement with the defendant on 7.7.2000 agreeing to pay Rs.4,000/- as interest payable on or before 15th day of every month till a payment of Rs.1,00,000/-. At paragraph no.3 it is stated that the defendant sent demand drafts towards interest at the rate of Rs.4,000/- per month for four months only and thereafter failed to pay either interest or principle and as agreed upon, the defendant has to pay Rs.4,000/- per month for the subsequent period of twelve months up to 7.11.2000 and continue to pay at the said rate till the entire principle amount is paid. It is to be conspicuously noticed that the plaintiff stated that the defendant paid interest at the rate of Rs.4,000/- by way of demand drafts for months only after the execution of Ex.A-1 agreement. In Ex.A-2 legal notice it is categorically stated that as agreed upon the defendant has to pay Rs.4,000/- per month for the subsequent period of twelve months up to 7.11.2000 and thereafter shall continue to pay till the entire amount is discharged. If the date of the agreement is taken as 7.7.2000, after payment of four months interest at the rate of Rs.4,000/- per month by way of demand drafts on 17.8.1999, 6.9.1999, 2.11.1999 and 9.12.1999, the period of twelve months comes to 7.11.2001. But in the legal notice the subsequent period of twelve months is shown as 7.11.2000. If the date of execution is taken as 7.7.1999 and the subsequent payment for four months and thereafter the twelve months is added, it comes to 7.11.2000. Further the defendant had already admitted receipt of payment of Rs.1,11,263/- by way of demand draft on 5.7.1999. These circumstances would clearly show that the date mentioned at paragraph no.2 in the legal notice Ex.A-2, is clearly a typographical mistake. The trial court has failed to appreciate this aspect of the matter. 21. Now coming to the aspect whether the plaintiff has proved execution of Ex.A-1, it is necessary to examine the pleadings and the evidence on record. The case of the plaintiff is that he advanced an amount of Rs.1,11,263/- way of demand draft and cash of Rs.75,000/- totaling to Rs.1,86,263/- and on 7.7.1999 entered into Kararnama agreement. On the other hand, the defendant denied the execution of Ex.A-1 kararnama and stated in the written statement at paragraph no.10 that after receipt of notice in the above suit and on perusing the suit document dated 7.7.1999, he firmly believes that the plaintiff had fabricated the alleged kararnama agreement dated 7.7.1999 on the blank stamped papers containing his signatures, which the plaintiff obtained at the time of advancing Rs.1,00,000/- to this defendant and that he was under great pressure for want of money and had to follow the dictates of the plaintiff in those circumstances. Now on perusing the alleged agreement, this defendant suspects that the plaintiff might have fabricated and forged and pressed into service the stamped papers containing the signatures of this defendant. He further stated that he is not aware of the contents or the presence of the witnesses and that they were done behind his back and for this reason, the plaintiff failed to supply a copy of the document when called for. From this statement of the defendant in the written statement it is clear that on the date of payment of Rs.1,00,000/- by the plaintiff, he was forced to sign on a blank stamped paper. But from a perusal of Ex.A-3 reply notice sent by him, he had not stated this fact of obtaining his signature forcibly on stamped paper. He developed this allegation in the written statement. In his cross-examination also he stated that he signed, since the plaintiff demanded and pressurized him and that unless he sign in empty stamp papers he (plaintiff) will not pay Rs.1,00,000/- by way of demand drafts, therefore, he signed on empty stamp papers as per the dictation of P.W.1. Even other wise, since he has taken the plea that the signature was taken on blank stamped paper forcibly, the burden is on him prove this averment. The Apex Court in BISHNUDEO NARAIN v. SEOGENI RAI AND JAGERNATH[6] held as under: “ It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can, only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion.” 22. In the present case, the defendant except stating that his signature was taken