HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.287 of 1996 Dated 13.04. 2011 Between: G.Sarojamma. …Appellant. And: K.Rukminamma (died) and others. …Respondents. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.287 of 1996 JUDGMENT: This is plaintiff’s appeal. Suit filed by the plaintiff for recover of amount based on promotes Exs.A.1 and A.3 was decreed by the trial Court but reversed by the lower appellate Court. Hence this appeal. Facts in brief are that the original 1st defendant (1st respondent herein) is said to have borrowed a sum of Rs.10,000/- on 20.12.1985 from the plaintiff by executing Ex.A.1 pronote. On 15.12.1988, she is alleged to have made part payment of Rs.10/- and signed on an endorsement on Ex.A.1. The said endorsement is marked as Ex.A.2. Plaintiff further alleged that under Ex.A.3 pronote dated 10.2.1986, D.1 borrowed further amount of Rs.10,000/- and since the amount under Ex.A.1 as well as A.3 were not paid on demand, plaintiff filed O.S.No.68 of 1989 on 10.2.1989 for recovery of both the said amounts. In support of the plaintiff’s case, plaintiff examined himself as P.W.1 and examined P.Ws.2 and 3 who are attestors of Exs.A.1 to A.3. Defendant disputed the suit claim by alleging that no amounts were borrowed by her and the suit promotes were executed only towards security for chit transactions which the plaintiff was running. She specifically denied the execution of Ex.A.2 endorsement. She also alleged that she made various payments but they were not accounted for by the plaintiff. She also examined herself as D.W.1 and D.W.2 and D.W.3, husband of another subscriber. The said witnesses D.Ws.2 and 3 were examined by the defendant to establish that the plaintiff was running chit business and the defendant as well as other subscribers were contributing to the chits and thereby, the suit promotes came to be executed as security. The trial Court decreed the suit by accepting the evidence of P.Ws.1 to 3 and particularly the attestors P.Ws.2 and 3. The trial Court also found that the defendant failed to establish that the plaintiff was running a chit and consequently, on the basis of presumption available against a promissory note under Section 118 of the Negotiable Instruments Act, decreed the suit. The appellate Court has however, reversed the decree on the ground that P.W.3 is related to the plaintiff and his evidence was not trustworthy. The appellate Court also doubted and held that the plaintiff has failed to establish her source of income to show that she was in a position to pay Rs.10,000/- on two occasions to the defendant. The appellate Court felt that there was sufficient evidence as adduced by D.Ws.2 and 3 and held that the suit promotes were executed towards chit transactions and are not supported by consideration. It was also of the opinion that Ex.A.2 endorsement though scribed by one Rangaiah, he was not examined and the signature of D.1 appears to be different than signatures on Ex.A.1 and A.3 and consequently, it has allowed the appeal dismissing the suit. Hence, the Second Appeal. Sri P.Ganga Rami Reddy, learned counsel for the appellant has pointed out that evidence of attestors P.Ws.2 and 3 clearly supports the plaintiff’s claim and while the defendants admits the execution of Exs.A.1 and A.3, statutory presumption is available against the defendant and she having failed to rebut the same, the trial Court had rightly decreed the suit. The learned counsel further submits that the part payment under Ex.A.2 dated 15.12.1988 fully accords with the execution of further pronote by the defendant and there was any doubt with regard to execution of ExA.2, plaintiff could not have lent further amounts under Ex.A.3. He submits that all three documents are proved by P.Ws.1 to 3 and in the absence of any rebuttal evidence by the defendant, the presumption attached to all the three documents could not have been displaced by the appellate Court. This appeal was admitted on the substantial questions of law as stated in grounds 2 to 6 and for the purpose of this Second Appeal, grounds 4 and 6 which are substantial questions of law are as follows: Ground No.4: “Having held that the payments made by the 1st respondent towards chit have not been proved and the evidence adduced cannot be believed whether the lower appellate Court acted legally in saying that Exs.A.1 and A.3 were executed towards security of chit transaction.” Ground No.6: “Whether the lower appellate Court acted legally in saying that Ex.A.2 is forged and consequently Ex.A.1 is barred by limitation even though the evidence on record clearly shows that 1st respondent paid the amount and signed and the burden is on the 1st respondent to prove that Ex.A.2 is forged one.” The appeal was listed for hearing on 25.3.2011 and 11.4.2011. While nobody appeared for the parties on 25.3.2011, the learned counsel for the appellant argued the appeal on 11.4.2011. This matter was again posted to today as the respondents’ counsel was not available on 11.4.2011. Today also nobody appears for the respondents. During the course of hearing of this Second Appeal, the learned counsel for the appellant was asked to clarify as to whether the suit on the basis of Ex.A.3 would be within time in view of the fact that Ex.A.3 is dated 10.2.1986 and the suit is filed on 10.2.1989. On the face of it, it appeared to be barred by one day, though this point was not raised by the defendant in the written statement nor there is any issue. Learned counsel for the appellant therefore, relies upon Section 12 of the Limitation Act to contend that in computing the period of limitation for any suit or application, the day from which such period is to be reckoned, shall be excluded and thereby he contends that the period of limitation would start running from 11.2.1986 and thereby the suit filed on 10.2.1989 would be within time. Perhaps for this reason, the defendant did not raise any such plea before the Courts below in view of Section 12 (1) of the Limitation Act and therefore, the suit to the extent of Ex.A.3 is sustainable and within limitation. It is true that a presumption is attached under Section 118 of the Negotiable Instruments Act with regard to Exs.A.1 and A.3 both the pronotes as execution thereof is not in dispute. The defendant has not let any evidence sufficient to displace the said presumption. No such presumption however is attached to Ex.A.2 endorsement dated 15.12.1988. Plaintiff has let the evidence of P.Ws.1 to 3 which includes the attestors P.Ws.2 and 3 common to all the three documents. I have also compared the signatures of defendant on Exs.A.1, A.2 and A.3 particularly in view of the defendants’ case that Ex.A.2 was not executed by her. The signatures on Ex.A.2 is conspicuously different than the signature of defendant appearing on Exs.A.1 and A.3. The said circumstance coupled with the fact that a part payment of Rs.10/- only is said to be made that day as against Rs.10,000/- also creates a serious doubt about execution of Ex.A.2 by the defendant. It is not in dispute that but for Ex.A.2 endorsement dated 15.12.1988, a suit O.S.No.68 of 1989 filed on 10.2.1989, would be barred by limitation so far as Ex.A.1 pronote dated 20.12.1985 is concerned. The evidence on record adduced by plaintiff does not therefore, establish genuineness of Ex.A.2 and for the reasons above, I am not prepared to accept the contention of the learned counsel for the appellant that the claim under Ex.A.1 pronote gets revived by part payment under Ex.A.2. Thus, even if a presumption is raised with regard to Ex.A.1 pronote and if Ex.A.2 is excluded from consideration, as the signature of defendant differs from that on Exs.A.1 and A.3, the suit based on Ex.A.2 is clearly barred by time and therefore, I am unable to find any infirmity in the judgment of the lower appellate court so far as Exs.A.1 and A.2 are concerned and the suit in that respect was rightly dismissed by the lower appellate Court. To the extent of Ex.A.3, however, lower appellate Court is not justified in dismissing the suit as statutory presumption attached to Ex.A.3 remained unrebutted by defendant, the evidence of P.Ws.2 and 3 attestors which are common to all three documents fully justifies drawing of statutory presumption in favour of A.3. In the absence of rebuttal evidence by the defendant therefore, the suit to the extent of Ex.A.3 is well within time and there is no impediment for decreeing the suit to that extent. Accordingly, the substantial question of to the extent of A.3 are answered in favour of appellate and decree of the lower appellate Court to the extent of dismissing the plaintiff suit for the suit claim based on Ex.A.3 pronote shall stand set aside and the suit O.S.No.68 of 1989 shall stand decreed for Rs.10,000/- covered by Ex.A.3 with interest at 12% from the date of Ex.A.3 i.e., 10.2.1986 to date of suit i.e., 10.2.1989 and thereafter at the rate of 6%p.a., from the date of the suit, till the date of realization with proportionate costs. Accordingly, the appeal is allowed in part. No costs. _____________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 13.4. 2011 Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.287 of 1996 Dated 13.04. 2011