IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD TUESDAY, THE EIGHTH DAY OF MARCH, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 882 OF 2001 BETWEEN: Bulusu Kalikeswara Rao. …APPELLANT AND D.C. Mehta. …RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 882 OF 2001 JUDGMENT: The defendant in O.S.No. 538 of 1993 on the file of Principal Senior Civil Judge, Visakhapatnam, is the appellant herein. 2. The suit was filed for recovery of Rs.1,54,680/- being the principal and interest due on a promissory note, dated 05-09-1990 executed for a sum of Rs.90,000/- by the defendant in favour of the plaintiff. 3. The allegations in the plaint go to show that the plaintiff was running a transport business and the defendant was borrowing money and on 05-09-1990 he borrowed a sum of Rs.12,000/- and towards the total amount payable, he executed a promissory note for Rs.90,000/- payable with interest at 24% per annum. The defendant did not make a payment, but on 18-10-1991 issued a cheque for Rs.82,000/- and when it was presented, it was dishonoured and a legal notice was given and the defendant in reply contended that he has only borrowed a sum of Rs.45,000/- and is not liable to pay the amount. 4. According to the defendant, he borrowed Rs.45,000/- in the month of February or March, 1990 and at that time, plaintiff obtained blank printed promissory note and subsequently, he repaid a sum of Rs.5,000/- on 02-09-1990 and thereafter, the entire debt. The suit is therefore, not maintainable. On 05-08-1990 the defendant took a sum of Rs.10,000/- and repaid it later and he is nothing to do with the transaction. Therefore, the suit is liable to be dismissed. 5. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the suit promissory note is not fully supported by consideration? 2) Whether the discharge pleaded by the defendant is true? 3) Whether the suit is barred by time? 4) To what relief? 6. On behalf of the plaintiff, PW.1 was examined and marked Exs.A-1 to A-7. On behalf of the defendant, DW.1 was examined and marked Exs.B-1 to B-3. 7. After considering the evidence on record, the learned Principal Senior Civil Judge, Visakhapatnam, decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the defendant is not liable to pay the suit amount? 2) Whether the judgment and decree passed by the learned Principal Senior Civil Judge, Visakhapatnam, is legal and sustainable? 9. POINTS: Since the defendant has denied the borrowing under the promissory note Ex.A-2, naturally it is for the plaintiff to show that the money was paid by him and received by the defendant. According to the case of the plaintiff, on 05-08-1990 the defendant has borrowed a sum of Rs.12,000/- and for the amount already borrowed by him and the amount borrowed on the date the promissory note, Ex.A-2 was executed by the defendant. The defendant does not deny about the borrowing of Rs.12,000/- on 05-08-1990. According to the case of the defendant, he has borrowed a sum of Rs.45,000/- in month of February or March, 1990 and thereafter paid Rs.5,000/- on 02-09-1990, and repaid the entire amount on 20-09-1990. Evidently, the plea of the defendant about the payment of Rs.40,000/- and the date of its payment was not clearly mentioned in the written statement. It was only pleaded that on 02-09-1990 Rs.5,000/- was paid and subsequently, the balance amount of Rs.40,000/- was paid. If really the defendant has paid these amounts, he would have obtained the receipts. His claim is that he has executed blank promissory note as security for repayment. Therefore, naturally if the amount was discharged, he should have asked for return of said document. The defendant has also not asked for the issue of any receipt. Further- more, when a sum of Rs.45,000/- was borrowed, as to how the interest was paid and calculated is not disclosed. In fact, in the entire evidence, the defendant does not deny the signature on the promissory note Ex.A-2 and its execution. If really the defendant has no financial dealing and the amount was already discharged, there is no reason for him to issue a cheque to the plaintiff, which is the subject matter of the criminal case. It might be that the defendant was acquitted in the criminal Court by misapplication of the law. When once the execution of the promissory note was there, the existence of the debt need not be proved and therefore, the acquittal therein will not be final and at any rate, the judgment in that case will not deprive the plaintiff to enforce the liability. The defendant admits to have issued the cheque to the plaintiff. From whole of the evidence of the defendant is in the ambit of borrowing from the plaintiff. When the defendant is admits to have signed on the blank promissory note, it authorises the plaintiff to fill the particulars in view of Section 20 of the Negotiable Instruments Act, and the defendant cannot contend to the contrary. If really the defendant has not given the cheque towards the discharge of the promissory note debt, there is no reason for the plaintiff to fabricate the documents. Evidently, the defendant is no other than the then employee of the Sri Vijayalaxmi Transport, Suryabagh, Visakhapatnam, has got dealings with the plaintiff earlier and there is no reason for the plaintiff to fabricate the document for any unlawful gain. The theory of the defendant having borrowed Rs.45,000/- and discharged the debt appears to be improbable. 10. The learned counsel for the appellant tried to contend that the description of the plaintiff is not correct and the suit was not properly filed. I do not find any strength in this contention since the plaintiff was shown as proprietor of the Vardhamana Road Lines and it is a proprietary concern and therefore, there is no infirmity in filing of the suit. The learned Principal Senior Civil Judge has rightly asserted the evidence and came to the right conclusion about the truthfulness of the transaction and the plea of the defendant is not true and probable and there are no grounds to interfere with the judgment of the lower Court since so far as it relates to the suit transaction. But, however, the plaintiff seems to have claimed interest at 24% per annum on the principal amount and the lower court has also granted interest at 12% per annum till the date of realisation from the date of suit. Evidently, it is not a commercial transaction and the borrowing by the defendant is said to be for personal purposes and the grant of such higher rate of interest is not proper without any special reasons. Therefore, the decree of the lower Court has to be modified and accordingly, the suit of the plaintiff is decreed for a sum of Rs.90,000/- with interest at 12% per annum from 05-09-1990 till the date of decree and with subsequent interest at 6% per annum till the date of realisation. Accordingly, points are answered. 11. In the result, the appeal is partly allowed and the suit of the plaintiff is decreed for a sum of Rs.90,000/- with interest at 12% per annum from 05-09-1990 till the date of decree and with subsequent interest at 6% per annum till the date of realisation, with proportionate costs in the lower court. Each party shall bear their own costs in this appeal. ________________________ N.R.L.NAGESWARA RAO, J Date: 08-03-2011. INL