HON’BLE SRI JUSTICE B. CHANDRA KUMAR S.A.No.680 of 2009 Date: 11-08-2010 Between: Nune Venkatnarayana …………. Appellant and Kadaru Narsimha Reddy ……… Respondent HON’BLE SRI JUSTICE B. CHANDRA KUMAR S.A.No.680 of 2009 JUDGMENT: This Appeal has been filed against the judgment and decree dated 01-04-2009 in A.S. No 31 of 2006 passed by the II Additional District Judge, Nalgonda at Suryapet, confirming the judgment and decree dated 23-03-2006 passed in O.S.No.9 of 2003 passed by the Senior Civil Judge, Suryapet. The parties hereinafter will be referred to as they are arrayed in the suit for the sake of convenience. 2. The plaintiff filed the suit contending, inter alia, that himself and the first defendant are known to each other and that on 15-12- 2000 the first defendant obtained a loan of Rs.2,00,000/- from him for his necessities and the second defendant stood as guarantor for the said loan transaction. The first defendant had executed a promissory note and a receipt in favour of the plaintiff agreeing to repay the loan amount with interest at 24% p.a. The further case of the plaintiff is that in spite of making several demands, the first defendant failed to repay the loan amount and as such he got issued a legal notice to the defendants and then filed the suit claiming the amount of Rs.3,00,000/- from them. 3. The first defendant filed a written statement admitting that he had taken loan of Rs.2,00,000/- from the plaintiff on 15-12-2000 and executed promissory note and receipt in favour of the plaintiff. However, the first defendant denied that the second defendant stood as guarantor and signed in the said promissory note. The specific case of the first defendant is that though he intended to purchase a house adjacent to his house, due to some reason the price was not settled and sale transaction failed and as such on the very next day i.e., on 16-12-2000 he approached the plaintiff and requested to take back the amount of Rs.2,00,000/- lent by the plaintiff to him and by that time, the plaintiff was about to leave his house to go to Nalgonda, where he was working as Principal of Junior College and therefore the plaintiff requested him to deposit the amount in the account of the plaintiff in the State Bank of India, Suryapet branch and handed over him the bank passbook. The further case of the first defendant is that accordingly he went to the State Bank of India, Suryapet branch and deposited Rs.2,00,000/- in the account of the plaintiff, vide Account No.P5-887 on 16-12-2000 and the said amount was credited to the account of the plaintiff and then he handed over the passbook to the plaintiff after his arrival from Nalgonda. The further case of the first defendant is that though subsequently he requested the plaintiff to return the promissory note executed by him, the plaintiff on one pretext or the other did not return the same. His further case is that thereafter the plaintiff went abroad and even after his return from abroad, the plaintiff did not return the promissory note to him. It is also his case that he did not receive any legal notice issued from the plaintiff. 4. The second defendant did not contest the matter and consequently he was set ex parte. 5. The plaintiff filed rejoinder mainly contending that the amount deposited in his account by the first defendant on 16-12-2000 is not pertaining to the loan transaction dated 15-12-2000 and that the deposit was made into his account under a different circumstance and that the first defendant is trying to tag the counterfoil obtained by him to this transaction. His main contention is that the wife of the second defendant by name Smt. V. Lakshmamma and the second defendant are owners of some landed property located on National Highway No.9, Bye-pass Road of Suryapet and that the said V. Lakshmamma and the second defendant and one D.V. Janardhan Reddy joined as partners and entered into a joint venture agreement to construct a multi storied apartment in the site of V. Lakshmamma and that the first defendant worked in the said construction activity along with the second defendant and D.V. Janardhan Reddy and apart from rendering his services, the first defendant himself was a sleeping partner in the said construction activity. The first defendant represented to the plaintiff that he wanted to deposit the amount in cash, which he borrowed from the plaintiff towards his investment in the said business transaction and therefore on 15-12-2000 the first defendant availed the loan amount in cash. His further case is that on 16-12-2000 defendants 1 and 2 came to the plaintiff and they wanted the plaintiff to take back the cash and in lieu of that, the first defendant requested to issue same amount by way of cheque in the name of the second defendant, because he is the account holder of their business. Accordingly, the plaintiff asked the first defendant to deposit the said amount into his SB account and he issued cheque No.395999 in the name of the second defendant and handed over the same to the first defendant. Thus, the first defendant availed Rs.2,00,000/- of the suit loan amount from the plaintiff. It is also the case of the plaintiff that defendants 1 and 2 and D.V. Janardhan Reddy are his good friends and in the above circumstances, the plaintiff gave consent to modify the mode of availment and to deposit Rs.2,00,000/- into his bank account at SBI, Suryapet by the fist defendant and to issue a cheque in the name of the second defendant as required by the first defendant. It is also the case of the plaintiff that the fist defendant submitted the cheque issued by the plaintiff into the bank account of the second defendant maintained at Suryapet. 6. The trial Court framed the following issues: 1. Whether the D-1 repaid the loan amount of Rs.2,00,000/- by way of deposit into the account No.P5887 State Bank of India, Suryapet on 16-12-2000? 2. Whether the D-2 stood as guarantor for the due repayment of loan amount by D-1? 3. To what relief the plaintiff is entitled? 7. On appreciation of oral and documentary evidence adduced by both parties, the trial Court decreed the suit and when the first defendant preferred an appeal, the appeal was dismissed. Challenging the same, the first defendant preferred the present second appeal. 8. Smt. D. Vathsalendra, the learned counsel for the appellant-first defendant, submitted that the Courts below failed to appreciate that the defendants repaid the amount on 16-12-2000 itself. It is also her case that the cheque issued by the plaintiff on 16-12-2000 in the name of the second defendant-V. Shekar Reddy has been deposited into his bank account and that the said amount was deposited in Dharani Constructions by the plaintiff and that he has also received interest on the said deposit and that these facts were not taken into consideration by the Courts below. 9. The substantial question of law that arises for consideration is whether the Courts below failed to appreciate the evidence in proper perspective resulting in manifest injustice to the appellant-first defendant? 10. It is the settled law that the plaintiff should stand or fall on the basis of his own pleadings and the evidence adduced by him. It is not in dispute that on 15-12-2000 the plaintiff advanced a loan of Rs.2,00,000/- to the first defendant and the first defendant has executed a promissory note in Ex.A-1. The specific case of the first defendant is that he had taken the loan amount from the plaintiff for the purpose of purchasing some property and that due to some reason, the sale price was not settled and therefore, the sale transaction could not materialize and in the above circumstances, on the very next day i.e., 16-12-2000 he approached the plaintiff and requested him to take back the amount. But, at that time, as the plaintiff was leaving his house to go to Nalgonda, where he was working as Principal in Junior College, he requested the first defendant to deposit the said amount into his bank account and also handed over the passbook to the first defendant. Thus the specific case of the first defendant is that he deposited Rs.2,00,000/- into the bank account of the plaintiff and counterfoil, showing the deposit of the amount into the account of the plaintiff i.e., Account No.P5 867 in SBI, Suryapet Branch on 16-12-2000, was marked as Ex.B-1. The further case of the first defendant is that subsequently when he approached the plaintiff and requested to return the pronote, the plaintiff was postponing the same, for some reason or other. 11. The plaintiff in his additional written statement had taken a specific plea that on 16-12-2000 defendants 1 and 2 jointly approached him and requested him to take back the cash and further requested to issue a cheque in favour of the second defendant and that then he asked the first defendant to deposit the amount into his SB account and issued cheque No.395999 in the name of the second defendant and handed over the same to the first defendant. Thus the specific case of the plaintiff in his pleadings is that when defendants 1 and 2 approached him and requested him to take back the cash, he asked them to deposit the said cash into his bank account and on their request, he issued a cheque in favour of the first defendant. But, when the plaintiff was cross-examined, he admitted that he had SB account with SBI, Suryapet Branch vide Account No.887, but his specific case is that the first defendant never deposited Rs.2,00,000/- in the said account. However, when the plaintiff was further cross-examined, he admitted that there was a deposit of Rs.2,00,000/- in his account on 16-12-2000 and that he has not verified who deposited the said amount. Therefore, the whole theory put forwarded by the plaintiff in his rejoinder has been given a go bye by the plaintiff himself. He has also admitted that there was no other transaction between himself and D-1 except the transaction that took place on 15-12-2000. Thus it is clear that the first defendant deposited an amount of Rs.2,00,000/- into the account of the plaintiff. 12. Moreover admittedly the plaintiff and the defendants are well known to one another and they were close friends. Admittedly the cheque was issued in favour of the second defendant. Admittedly the first defendant worked as work coordinator under the second defendant. On behalf of the plaintiff, PW-4 has been examined. PW-4 previously worked in Dharani complex at suryapet and he used to look after the said partnership business. According to him the first defendant was also looking after the construction work. Ex.X-2 are the photostat copies of the account sheets relating to Dharani complex, which shows that on 25-12-2000 an amount of Rs.2,00,000/- was credited on behalf of the plaintiff and the said entry was made by PW-4 and this amount was received from the first defendant. He admitted that entry at page No.36 of Ex.X-2 shows that an amount of Rs.8,000/- was paid to the plaintiff towards interest and similarly on 12-05-2001 an amount of Rs.10,000/- was paid to the plaintiff towards interest on 10-01-2001. According to him the plaintiff gave the loan to the firm and the interest was paid in respect of the said loan amount. 13. PW-3 is an attestor of Ex.A-1. Since the execution of Ex.A-1 is admitted, there is no need to discuss the evidence of PW-3. 14. The evidence of PW-2 shows that he was working as Branch Manager of Sudha Bank, Suryapet Branch. According to him, the cheque bearing No.395999, dated 16-12-2000 was credited into the bank of the second defendant vide account No.38 by the first defendant as per the cheque deposit slip Ex.X-1. There cannot be any doubt that the first defendant has deposited the cheque issued by the plaintiff into the bank account of the second defendant. It has to be seen that the plaintiff in the cross- examination had stated that he is no way concerned with Dharani constructions. However as discussed above, PW-4 himself deposed that the interest on the loan amount given by the plaintiff was paid to him. 15. The contention of the plaintiff that the first defendant deposited the amounts in the commercial complex and the same is referred in the account sheet is not proved by any satisfactory evidence. Thus it appears that the amount of Rs.2,00,000/- deposited by the first defendant through the cheque issued by the plaintiff vide cheque No.395999 in the name of the second defendant cannot be treated as the amount deposited by the first defendant and rather it has to be treated as the amount deposited by the plaintiff himself in the firm Dharani Constructions and the subsequent events of receiving interest on the said deposit by the plaintiff, as per the evidence of PW-4, shows that it is a different transaction not connected with the suit transaction. In view of the same, it is clear that both the Courts below have failed to appreciate the evidence in proper perspective and there is misreading of the evidence and therefore, the judgments of the courts below are liable to be set aside. 16. In view of the above discussion, the Second Appeal is allowed throughout costs. The Judgments of the courts below are set aside. The entire amount deposited by the first defendant, if any, shall be returned to him unconditionally. ___________________ B. CHANDRA KUMAR, J Date: 11-08-2010 NSR/YCR