THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU S.A No.70 of 2002 Date:21.01.2011 Between: K.Sreenivasulu. ……….. Appellant/Respondent/1st defendant. And Naryanaswamy Reddy and another. ……. Respondent/respondent/2nd defendant. THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU S.A No.70 of 2002 ORDER: The 1st defendant is the appellant in this second appeal. For the sake of convenience, the parties are referred to in this judgment as per their array in the trial Court. The plaintiff/1st respondent filed the suit on the basis of Ex.A2 promissory note dated 31.10.1994 executed by the 1st defendant/appellant in favour of the 2nd defendant/2nd respondent. The 2nd defendant transferred Ex.A2-pronote in favour of the plaintiff as per Ex.A1-endorsement dated 25.9.1996 for consideration. After issuing Ex.A3-notice, which was received by the 1st defendant as per Ex.A4-Postal Acknowledgement, the plaintiff filed the suit in the lower Court for recovery of amount due under Ex.A2-pronote. Ex.A2-pronote was executed for Rs.25,000/- by the 1st defendant agreeing to repay the said sum with interest at 12% per annum. The 2nd defendant remained exparte in the trial Court. The 1st defendant contested the suit on the ground that Ex.A2-pronote is not supported by consideration and that Ex.A2-pronote was obtained by the 2nd defendant with a promise to see that a contumacious tenant of the 1st defendant is evicted from the portion in his occupation. During trial before the Principal Junior Civil Judge, Anantapur in O.S.No.617 of 1996 both the parties have let in oral and documentary evidence. During trial the 1st defendant filed Ex.B1 an undertaking said to have been executed by the 2nd defendant on the same date of Ex.A2 to the effect that in case he failed to get tenant of the 1st defendant evicted from the tenanted premises, he would return Ex.A2- pronote. Accepting the pleas of the 1st defendant, the trial Court dismissed the suit without costs. Thereupon, the plaintiff approached the Additional Senior Civil Judge’s Court, Anantapur by way of appeal in A.S.No.2 of 2000. The lower Appellate Court reversed the findings of the trial Court and decreed the suit with costs. In this second appeal, it is contended by the appellant’s counsel that the findings of the appellate Court are erroneous and that the lower appellate Court should not have reversed the decree of the trial Court. There is no dispute about the 1st defendant executing Ex.A2-pronote in favour of the 2nd defendant. There is no dispute that after receiving Ex.A3-notice as per Ex.A4-postal acknowledgement, the 1st defendant did not give reply to the notice disputing consideration under Ex.A2-pronote. It was the first opportunity for the 1st defendant to put up his plea of lack of consideration under the suit pronote. But he failed to put forward the said plea at the earliest point of time. He defaulted himself in not disputing truth of contents of Ex.A2-pronote at that point of time. In support of the plaintiff’s case, one of the attestors in Ex.A2-pronote was examined to speak passing of consideration of Rs.25,000/- under Ex.A2. Further, Ex.B1-undertaking said to have been executed by the 2nd defendant was not pleaded by the 1st defendant during the first opportunity by giving a reply notice. Even though Ex.B1 was pleaded in the written statement of the 1st defendant, it was not filed along with the written statement. There are no attestors in Ex.B1. If Ex.B1 was a contemporaneous document to Ex.A2-pronote, than P.W.2 would not have failed to sign in Ex.B1 as attestor while signing in Ex.A2 as attestor. No steps were taken by the 1st defendant in the trial Court to confront Ex.B1 to the 2nd defendant either by examining the 2nd defendant as his witness or by taking steps to summon him as court witness. In any event, for Ex.B1, the plaintiff is not a party. The alleged defect in Ex.A2-pronote by way of Ex.B1-undertaking is not an apparent defect which is binding on the plaintiff who is a holder in due course of the suit pronote for consideration. Thus, in any event, Ex.B1 is not binding on the plaintiff and it cannot non-suit the plaintiff. The entire exercise made by the lower appellate Court is based on appreciation of evidence. I do not find any question of law much less substantial question of law in this second appeal. In the result, the Second Appeal is dismissed with costs. ____________________________________ JUSTICE SAMUDRALA GOVINDARAJULU Date:21.01.2011 mrb