HONOURABLE SRI JUSTICE R.KANTHA RAO + SECOND APPEAL No.43 OF 2004 % Dated 2-2-2011 Between: # Jakka Lachaiah. …Appellant. And: $ G.Kalavathy. … Respondent. ! Counsel for the appellant: Sri S.Lakshma Reddy. ^ Counsel for respondent: Sri V.Ravinder Rao. < GIST: >HEAD NOTE: ? Cases referred: HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.43 OF 2004 Dated 2-2-2011 Between: Jakka Lachaiah. …Appellant. And: G.Kalavathy. …Respondent. HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.43 OF 2004 JUDGMENT: This Second Appeal is filed challenging the decree and judgment passed by the 9th Additional Chief Judge, City Civil Court, (Fast Track Court) Hyderabad in A.S.No.255 of 2002 reversing the decree and judgment passed by the 9th Junior Civil Judge, City Civil Court, Hyderabad in O.S.No.4308 of 1999. I have heard both the learned counsel. For the sake of convenience, the parties will be referred to as plaintiff and defendant. The plaintiff filed the suit for recovery of an amount of Rs.65,750/- alleging that at the request of the defendant, she advanced an amount of Rs.50,000/- to him and acknowledging the borrowing of the amount, the defendant executed a receipt on a stamped paper agreeing to repay the same with interest at 18% p.a. Subsequently, when the amount was not paid in spite of demands made by the plaintiff, she got issued a legal notice dated 14-5-1999 demanding the repayment of the amount together with interest. Having received the same, the defendant got issued a reply dated 6-6-1989 interalia admitting his signature on the said receipt and contending that the signature was obtained under coercion. In his written statement, the defendant having admitted that he has acquaintance with the plaintiff and her husband, contended that they purchased shares in Priyadarshini Consultancy Company Limited and when the Company went into losses, the husband of the plaintiff coerced the defendant to put his signatures on stamp papers and forced to pay the amount invested to the tune of Rs.10,000/-. The defendant states that by making use of the signatures on the stamp paper, the husband of the plaintiff fabricated the receipt and got filed the present suit to have unlawful gain. Basing on the rival contentions, the learned trial Court framed the following issues and additional issue. Issues: i] Whether the plaintiff is entitled to claim the suit amount from the defendant as prayed for? ii} Whether the suit claim is barred by limitation? ii) To what relief? Additional issue: i) Whether the plaintiff is professional money lender? To establish the respective contentions, the plaintiff herself was examined as P.W.1 and got marked Exs.A.1 to A.3 and examined her husband as P.W.2. The defendant himself was examined as D.W.1 and did not mark any documents. Learned trial Court did not consider Ex.A.1 as promissory note since it does not contain the recital that the defendant undertook to repay the amount together with interest on demand. The learned trial Court having considered that the admission made by the defendant about the signature on Ex.A.1 receipt held that the presumption available to the defendant under Section 118 of the Negotiable Instruments Act is not available to him since Ex.A.1 is not a promissory note or any other negotiable instrument. The trial Court took the view that in spite of admission of the defendant about his signature on Ex.A.1, the entire burden lies on the plaintiff to prove the execution of Ex.A.1 as well as passing of consideration thereunder and ultimately, the trial Court dismissed the suit on the ground that the plaintiff failed to prove both the execution of Ex.A.1 as well as passing of consideration. Learned first appellate Court having accepted the finding of the trial Court that the instrument Ex.A.1 is not a promissory note, reversed the finding of the trial Court regarding dismissal of suit on the ground that since the defendant admitted his signature on Ex.A.1 receipt and specifically contended that it was obtained by coercion and he received no consideration under the said document, burden lies on him to prove that it was obtained by coercion and no consideration was passed and consequently on failure to prove the said fact by the defendant, the 1st appellate Court decreed the suit filed by the plaintiff. Aggrieved of the same, the defendant filed the present Second Appeal. The substantial question of law raised in the grounds of appeal by the defendant is that the first appellate Court wrongly placed the burden on the defendant even though Ex.A.1 is not a promissory note, decreed the suit and the said finding is liable to be set side since it is contrary to law. Even though the presumption under Section 118 of the Negotiable Instruments Act is not applicable in the present case, since Ex.A.1 is not a promissory note, in view of the categorical admission of the defendant about his signing on Ex.A.1 the burden under general law lies on him to prove that he put his signature under coercion of the plaintiff’s husband and in fact no consideration was passed. Learned counsel appearing for the plaintiff also submitted that the entire receipt is in the hand writing of the defendant and therefore, it is deemed that he admitted the execution of the document. Learned counsel for the plaintiff invited my attention to Section 102 of the Evidence Act and Illustration ‘b’ of the said Section. Section 102 of the Evidence Act reads as follows: “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” Illustration ‘b’ of Section 102 of the Evidence Act reads as follows: “A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B” The burden of proof in the present case has to be decided in accordance with Section 102 of the Evidence Act which had been actually done by the learned 1st appellate Court. Therefore, the defendant who admitted the execution of Ex.A.1 receipt but contended that it was obtained under coercion of the husband of the plaintiff and he did not receive any consideration, has to prove that the suit document was obtained under coercion. Except examining himself as D.W.1, the defendant did not adduce any evidence and consequently, there is no evidence to place reliance regarding the plea of coercion took by the defendant in his written statement. The first appellate Court therefore, rightly held that the defendant failed to prove his case and the suit is liable to be decreed and accordingly decreed the suit. There is no error of law in relation to the burden of proof committed by the first appellate Court and in fact, no substantial question of law is involved for consideration in this Second Appeal. For the foregoing reasons, this Second Appeal fails and the same is dismissed. There shall be no order as to costs. __________________________ Justice R.KANTHA RAO Dated 2-2-2011. Note: L.R. copy to be marked. BO Dvs HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.43 OF 2004 Dated 2-2-2011