THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A. NO. 191 OF 1999 JUDGMENT: The defendants in O.S.No.166 of 1990 on the file of the III Senior Civil Judge, City Civil Court, Secunderabad are the appellants herein. The suit was one filed for recovery of Rs.1,46,625/- being the principal and interest due on a promissory note dated 20.06.1989 for Rs.1,23,000/-. The allegations in the plaint go to show that the parties are related and on 16.01.1985 the defendants borrowed a sum of Rs.1,00,000/- and executed a promissory note. After repeated demands, amounts of Rs.6,500/- and Rs.1,000/- were paid on 03.07.1986 and 08.07.1986 respectively, which was endorsed on the promissory note. The balance amount of Rs.92,500/- was not paid and a notice was given but a reply was given by the defendants. The defendants executed the promissory note on 20.06.1989 for the amount due. In spite of repeated demands and legal notice, the amount was not paid and hence, the suit. The defendants filed a written statement contending that the plaintiff agreed to sell a portion of the property and received the entire consideration and the defendants have been staying in the first floor portion. The defendants admitted to have received Rs.1,00,000/- from the plaintiff on 16.01.1985 and also paid Rs.6,500/- and Rs.1,000/- on 03.07.1986 and 08.07.1986 respectively. The defendants claimed that immediately after the legal notice they approached the plaintiff and paid the balance amount in three installments on 10.07.1989, 25.07.1989 and 25.08.1989 and the receipts were issued by the plaintiff. But the promissory note was not returned and the defendants did not insist. The promissory note dated 20.06.1989 for Rs.1,23,000/- was fabricated. The plaintiff is not entitled to claim the interest. Therefore, the suit is liable to be dismissed. On the basis of the above pleadings, the following issues have been framed for trial: 1. Whether the part payments pleaded by the defendants dated 10.07.1989, 25.07.1989 and 25.08.1989 by the defendants are true, valid and binding on the plaintiff? 2. Whether the pronote of 20.06.1989 is not supported by consideration and a forged one? 3. Whether the plaintiff is entitled for the suit amount as prayed for? 4. To what relief? On behalf of the plaintiffs, P.Ws.1 to 3 were examined and marked Exs.A-1 to A-11. On behalf of the defendants, D.W.1 was examined and marked Exs.B-1 to B-4. After considering the evidence on record, the learned Senior Civil Judge, City Civil Court, Secunderabad decreed the suit of the plaintiff and aggrieved by the said judgment and decree dated 27.07.1999, the present appeal is filed. The points that arise for consideration are: 1. Whether the promissory note dated 20.06.1989 is true? 2. Whether the defendants are not liable to pay any interest? 3. Whether the judgment and decree passed by the learned Senior Civil Judge, City Civil Court, Secunderabad is legal and sustainable? POINTS: The learned counsel for the appellants strongly contends that the evidence of P.Ws.1 to 3 does not establish the execution of the promissory note or passing of the consideration. It was further pleaded by him that the evidence of P.Ws.2 and 3 did not speak about the executant signing in their presence and, therefore, the suit transaction is not proved. The defendants do not deny the fact that they that borrowed on 16.01.1985 a sum of Rs.1,00,000/- and executed the promissory note Ex.A-7 and also made payments of Rs.6,500/- and Rs.1,000/- on 03.07.1986 and 08.07.1986 respectively under Ex.A-11 but they denied the execution of Ex.A-6 promissory note and on the other hand, pleads that the amount was repaid under Exs.B-1 to B-3 receipts. The contention of the learned counsel for the appellants is evidently, no cash consideration was paid under Exs.A-7 and A-6 promissory notes refers to payment of any interest and if such is the case the possibility of execution of the promissory note Ex.A-7 calculating the interest from the original date of Ex.A-6 cannot be believed. Even assuming to be the evidence of P.Ws.2 and 3 is to be discarded, it is a case of oath against and the Court has to consider the probabilities of the defence set up by the defendant. The fact that Ex.A-6 promissory note was going to be barred by 21.06.1989 is not in dispute. It is also not in dispute that a telegraphic notice was issued on 08.06.1989 calling upon the defendants to pay the said amount. This telegraphic notice was evidently for the reason that the suit promissory note is going to be time barred and, therefore, they were called upon to pay the money. In fact, the allegations in the written statement clearly go to show that after the receipt of the telegraphic notice, the defendants have gone to the plaintiff and paid the balance amounts. This theory of the defendants is a rather unsustainable when promissory note is going to be barred by 21.06.1989, there shall be an acknowledgment or payment before that date. The payments pleaded by the defendants under Exs.B-1 to B-3 are long after the promissory note Ex.A-6 dated 20.06.1989. If that promissory note was not executed, there was no liability for the defendants to make payments under Exs.B-1 to B-3 since the claim under the promissory note Ex.A-6 was barred by time. Therefore, no prudent and reasonable person would have kept quiet without obtaining any document in writing to prove the subsistence of the liability. Therefore, it is quite clear and probable that Ex.A-7 promissory note must have been executed by the defendants only after the issue of the telegraphic notice. It is to be mentioned that after the telegraphic notice, the defendants have not given any reply denying their liability. It is also difficult to believe that as if not the defendants executed the promissory note Ex.A-6, he would have allowed the promissory note to be time barred without filing any suit at that time. Therefore, I hold that Ex.A-6 promissory note was executed by the defendants on 20.06.1989 towards the discharge of the earlier liability under the promissory note dated 16.01.1985. The contention of the learned counsel for the appellants that there was no endorsement on Ex.A-7 about the cancellation of the debt, does not hold good since in Ex.A-6 itself the consideration was mentioned as the debt due under Ex.A-7 promissory note. When the suit document Ex.A-6 itself refers to the discharge of the earlier liability, the mere non-return of the Ex.A-7 after Ex.A-6 is also of no consequence. Therefore, none of the contentions being raised by the defendants can be accepted. So far as the payments under Exs.B-1 to B-3 are concerned, evidently, it is not the plea of the defendants that the amounts were paid after the execution of the promissory note Ex.A-6 towards the discharge of the debt. They were also not filed at the earliest point of time in the Court. Therefore, the Court in case of this nature has to take into consideration only the preponderance of probabilities based on the circumstances. The plea of the defendants does not appear to be true and particularly so after the receipt of the telegraphic notice, which is admitted the only possibility is either the defendants executing the promissory note or discharging the debt. Since the debt was not discharged by them, it is only a case of execution of promissory note Ex.A-6, which is probable. The inclusion of the interest in Ex.A-6 may be for the reason that the defendants have not discharged the earlier debt, which was lent without interest. Therefore, it has to be held that the suit promissory note Ex.A-6 is true and executed by the defendants. But, however, as rightly contended by the learned counsel for the defendants, there is no agreement to pay interest in Ex.A-7 and even under the telegraphic notice only a sum of Rs.92,500/- was claimed and consequently the suit promissory note Ex.A-6 shall be deemed to have been supported only to that extent. Ex.A-6 also does not stipulate any interest but in spite of the demand, the amount was not paid and, therefore, the defendants are liable to pay the amount with interest at 12% per annum from the date of the suit and the decree of the lower Court in granting interest from the date of Ex.A-7 cannot be sustained. Accordingly, the points are answered. Therefore, the appeal is allowed and the decree of the lower Court is modified decreeing the suit of the plaintiff for a sum of Rs.92,500/- (Rupees ninety two thousand five hundred only) with interest at 12% per annum from the date of the suit till the date of decree and with subsequent interest at 6% per annum from the date of decree till the date of realization. Each party to bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J 15-09-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A. NO. 191 OF 1999 Date: 15-09-2011 MR