IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE EIGHTH DAY OF MARCH TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No.1111 of 2009 Between: M/s. Tulasi Textiles & 5 others .. Appellants AND M/s. M.G. Brothers Finance Limited .. Respondent The Court made the following: HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No.1111 of 2009 JUDGMENT: The Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’), is directed against the judgment and decree, dated 25.08.2009, in A.S.No.41 of 2007, on the file of II Additional District Judge, Kurnool at Adoni, whereunder and whereby, the judgment and decree, dated 12.03.2007, in O.S.No.130 of 1999, on the file of the Principal Junior Civil Judge, Adoni, was confirmed. 2. The appellants herein are defendants and the respondent herein is the plaintiff in O.S.No.130 of 1999. 3. For better appreciation of facts, the parties hereinafter are referred to as they are arrayed in the trial Court. 4. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The plaintiff, a limited company doing Chit Fund business at Adoni, filed the suit alleging that the first defendant was a member of the Chit bearing Group No. ST 8 GAD with Chit Group Token No.10 as per Chit Agreement, that the value of the Chit was Rs.2,00,000/- and the duration of the Chit was 25 months commencing from November 1994, that monthly subscription was Rs.8,000/-, that the first defendant, the sole Proprietary concern, was declared as successful bidder in the auction held on 01.07.1995 having agreed to forego Rs.70,000/-, that after execution of Agreement of Guarantee by Defendant Nos.2 to 6 by undertaking the future liability of Rs.1,28,000/- executed the on Demand promissory note by Defendant Nos.1 to 6 as per the provisions of the A.P. Chit Funds Act, 1971, the amount was released to the first defendant by way of a Cheque bearing No.316169, dated 17.01.1996, for Rs.94,698/- after deducting Rs.35,302/- as arrears of installments amount, from August 1995 to January 1996 besides Rs.110/- towards costs of stamps etc., that the first defendant committed default in payment of installments for eight months, i.e., from April, 1996 to November, 1996, that the first defendant paid Rs.10,000/- in cash on 20.11.1996 and he defaulted to pay the balance amount of Rs.54,000/-, that a cheque for Rs.8,000/- was issued by the first defendant on 16.12.1996, but it was dishonoured and a criminal case was filed in that regard under Section 138 of the Negotiable Instruments Act, 1881, that in spite of statutory notice to the defendants, they did not choose to repay the amount due under the above Chit, that the plaintiff is also entitled to file suit on accounts to recover suit amount as per account extract, and that, therefore, the suit is filed to recover a sum of Rs.74,916.85 Ps., which includes Rs.54,000/- towards arrears of installment amount, Rs.17,116.85 Ps. towards interest from 01.04.1996 to 12.10.1998, and Rs.3,000/- towards lawyer’s fees relating to the criminal case, with future interest at 12% per annum. 5. Defendant Nos.1 and 3 filed their Written Statement which was adopted by Defendant Nos.2, 4 to 6 generally denying all the averments made in the plaint and stating that this Court has no jurisdiction to entertain the suit in respect of Chit transaction and specifically stated that the defendants did not execute the suit pronote and Defendant Nos.2 to 6 did not execute any guarantee agreement, and those documents do not bear any date. The prize amount was paid by a cheque, but receipt of cheque was not denied. It is also stated that the delay of seven months in payment of prized money cannot be believed. Hence, they prayed for dismissal of the suit. 6. Basing on the above pleadings, the following issues were framed for trial. “1. Whether this court has got jurisdiction to entertain the suit? 2. Whether the plaintiff company is a registered company and the General Manager is competent to file the suit? 3. Whether the suit pronote is supported by consideration? 4. Whether Defendant Nos.2 to 6 executed the guarantee deed? 5. Whether the suit pronote is barred by limitation? 6. Whether the plaintiff is entitled for the suit claim as prayed for? 7. To what relief?” 7. To substantiate the case of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-29 were marked. On behalf of the defendants, no oral evidence was adduced except marking Ex.X-1-copy of account extract. 8. Accepting the evidence of P.W.1 coupled with the other evidence, the trial Court decreed the suit. Challenging the same, the appeal was filed. The findings of the trial Court has been confirmed. Challenging the same, the present second appeal is filed. 9. Now the point for determination is whether there is any substantial question of law so as to admit the appeal? 10. Learned counsel for the appellants/Defendants contended that P.W.1 was not authorized to file a suit on behalf of the company against a member of the Chit transaction, i.e., the first defendant and that the Chit Agreement, Ex.A-29, is not admissible in evidence as the document requires attestation of two witnesses as per Section 5 of the A.P. Chit Funds Act, 1971 and that Ex.A-29-Chit Agreement does not contain the date of execution and signature of D.W.1 and Ex.A-3-Pronote is blank in respect of the date and interest column; that in the absence of examination of any witness as required under Section 68 of the Indian Evidence Act, 1871, no reliance can be placed on Ex.A-29 and that therefore, he prays to set aside the impugned order 10. The case of the plaintiff is that the first defendant is the subscriber of the chit transaction and he was declared as a highest bidder on 01.07.1995 for the bid amount of Rs.1,30,000/- and the same was paid to the first defendant and Defendant Nos.2 to 6 stood as guarantors and the first defendant committed default in payment after sixth installment i.e., from August, 1995 to January, 1996, and, therefore, the suit is filed. 11. With regard to the first contention that P.W.1 is not authorized to file the suit, P.W.1 who is the General Manager of the plaintiff’s company was examined. He speaks that under Ex.A-1-Original Authorization letter, dated 07.05.1997, given by the plaintiff’s company which is a registered one, he is entitled to file the suit. Though an objection was taken for marking this document, the trial Court found that the said objection was not tenable. Except suggesting to P.W.1 that he was not duly authorized by the registered company to prosecute the suit, nothing has been elicited to discredit the testimony of P.W.1 in so far as his authorization of filing of the suit is concerned. Further, in so far as the attestation of Ex.A-29-Chit Agreement is concerned, it is a fact that under Section 5 of the A.P. Chit Funds Act, 1971, the Chit Agreement should be attested by atleast two witnesses. 12. On the other hand, the first defendant admitted in the pleading that he became a successful bidder, but the only contention is that there was a delay of seven months in paying the amount of Rs.94,698/-. In view of the fact that if a document is compulsorily attestable, one of the attesting witness has to be called as a witness. Unless he is called as a witness, the document cannot be received as evidence in view of bar under Section 68 of the Indian Evidence Act, 1860. Even assuming for a moment that Ex.A-29-Chit Agreement is not admissible in evidence, still in view of the admission made by the first defendant that he received the amount of Rs.94,698/- and he failed to pay further installments towards Ex.A-29-Chit Agreement, the first defendant is bound to pay the installments, but he failed to pay the installments in pursuance thereof, and it is not in dispute that cheque bearing No.316169, dated 17.01.1996, for Rs.94,698/- was paid to the first defendant. As seen from the evidence of P.W.2 who is the Manager of Karnataka Bank and as per the recitals in Ex.X-1-Account Extract, the first defendant received the amount. The defendants in their written statement categorically admitted about payment of Rs.94,698/- to first defendant from the plaintiff’s chit fund company. Therefore, the finding of the trial Court cannot be shown to be perverse or contrary to law. 13. With regard to the original of Ex.A-3-Pronote is concerned, it does not contain the date on which it was executed. The document was marked through P.W.1. Except suggesting that the first defendant has not signed in Ex.A-3- Pronote, there is no explanation given by the defendants that Ex.A-3 was not executed by them. Mere hurling of suggestion to a witness does not amount to evidence. If the defendants want to deny the evidence of P.W.1 and Ex.A-3-Promissory Note, the defendants ought to have come to the witness box and state as to under what circumstances, Ex.A-3-Pronote was executed by them. Such evidence is lacking. The evidence of plaintiff remained unchallenged. Admittedly, when P.W.1 received the prize amount through a cheque, he has to discharge the said amount by way of installments at the rate of Rs.8,000/-. As seen from the documents, he has not paid the installments from April, 1996 to November, 1996. Therefore, the trial Court, after considering the evidence on record, rightly decreed the suit which has been confirmed by the Appellate Court. None of the finding is shown to be perverse or contrary to law. The findings are based on the proper appreciation of evidence on record. Hence, in the absence of any substantial question of law, admission of this Second Appeal does not arise. 14. In the result, the Second Appeal is dismissed at the stage of admission confirming the judgment, dated 25.08.2009, in A.S.No.41 of 2007, on the file of II Additional District Judge, Kurnool at Adoni. There shall be no order as to costs. ______________ K.C.BHANU, J Date: 8th March, 2011 KL HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No.1111 of 2009 Date: 8th March, 2011 KL