THE HONOURABLE SRI JUSTICE A.GOPAL REDDY SA No.830/2009 Dt.15-10-2009 1. Bolloju Mallayya and others. ..Appellants V. Kolli Rajeswaramma ..Respondent THE HONOURABLE SRI JUSTICE A.GOPAL REDDY SA No.830/2009 ORAL JUDGMENT The defendants who are unsuccessful in challenging the judgment and decree passed by the I Additional Senior Civil Judge, Kakinada dt. 21-10-2002 made in OS No.99/1995 before the VII Additional District Judge (FTC), East Godavari District at Kakinada filed this second appeal challenging the judgment and decree passed in AS No.16/2004 dt. 21-1-2009. For the sake of convenience, the parties will be referred to as arrayed in the suit. The plaintiff filed the suit against the defendants, numbering two. During the pendency of the appeal before the lower appellate court, the defendant No.2 (who is appellant No.2 in AS No.16/2004) died and the legal representatives of D-2 were added as per orders in IA No.410/2006 dt. 19-6-2006 as appellants 2 to 6. The plaintiff filed the suit against D-1 and D-2 stating that D- 1 and D-2 are the husband and wife and they are carrying business in real estate. They approached the plaintiff and borrowed Rs.25,000/- from her on 20-1-1995 promising to repay the same with interest at 24% per annum and executed a pronote. On the same day in the afternoon, they borrowed another amount of Rs.25000/- from her with interest at 24% per annum and executed the pronote. On failure to pay the amount, the plaintiff got issued a legal notice on 15-5-1995, which was received by the defendants on 17-5-1995 but they failed to discharge the amount covered under pronotes. Hence, the above suit is filed for recovery of Rs.54500/- with subsequent interest and costs. The defendants though filed a written statement denying the material averments of the pleadings pleaded that their son Siva Shanker was dealing in business in shares and securities in the name and style of “Tejaswi Consultancy”, to which the husband of the plaintiff was a client and has transacted purchasing of shares and securities from 1992 to till the closure of the said consultancy. Ultimately, their son Siva Shanker sustained loss in the business and indebted to the plaintiff’s husband to a tune of Rs.33000/-. On the pressures exerted by the plaintiff’s husband, the defendants executed two pronotes for a sum of Rs.25,000/- each covered under Exs.A-1 and A-2. The pronotes are devoid of consideration and they are not liable to pay the amount as claimed by the plaintiff. On the above pleadings, the trial court framed the following issues for trial: 1. Whether the suit promissory notes are not supported by consideration? 2. To what relief? The husband of the plaintiff and attestor of Ex.A-1 and 2 were examined as P.Ws.1 and 2 respectively. Exs.A-1 to A-7 were marked on behalf of the plaintiff. D-1 himself examined as D.W.1 and no exhibits were marked on behalf of the defendants. The trial court, on consideration of the oral and documentary evidence adduced by the parties, decreed the suit of the plaintiff. Against which, the defendants filed AS No.16/2004. The lower appellate court on re-appreciation of the evidence dismissed the appeal. Against which, the defendants filed the present appeal. The defendants in their written statement specifically pleaded that the plaintiff has no capacity to lend huge amount of Rs.50,000/- on a single day. But D.W.1 admitted that the plaintiff’s husband purchased shares from their son when he carried on business in shares and securities in the years 1992 to 1995. Therefore, the contention of the defendants that the plaintiff has no capacity to lend the amount is not sustainable. Though the defendants filed Exs.B-1 to B-17 which are the receipts for the purchase of shares from Siva Shanker, they have not chosen to produce the account books nor examined their son Siva Sanker, as he is the best person to speak about Exs.B-1 to B-17. When the first defendant who worked as Superintendent in District Marketing Committee and retired in the year 1995, it cannot be believable the contention of the defendants that due to the pressures made by the plaintiff’s husband, they executed the suit pronotes covered under Exs.A-1 and A-2. Apart from the same, the attestor of Exs A-1 and 2 was examined as P.W.2, who categorically deposed that the defendants received Rs.25,000/- each under Exs.A-1 and A-2 and executed on 20-1-1995 at different times. Though defendants stated that D-1 himself has scribed the body of the pronote except the signatures of the attestors, they failed to let in any convincing evidence. The trial court rightly drawn presumption under Sec. 118 of the Negotiable Instruments Act,1882 and decreed the suit, which has been confirmed by the lower appellate court. Both the courts concurrently held that the defendants have borrowed the amounts covered under Exs.A-1 and A-2 from the plaintiff and the plaintiff is entitled to recover the same The findings recorded by the courts below are based on appreciation of evidence and cogent reasons were assigned for coming to such conclusion, which do not suffer from any manifest illegality. Therefore, I do not find any question of law, much less substantial question of law arises for consideration in the second appeal. The Second Appeal fails and is accordingly dismissed. No costs. ______________ A.GOPAL REDDY,J Dt.15-10-2009 kmr