HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO A.S. No.2491 of 1999 Date: October 14, 2011 Between: Addada Koteswara Rao … Appellant/ Plaintiff And 1. Thota Subba Rao & 3 others … Respondents/ Defendants * * * HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO A.S. No.2491 of 1999 JUDGMENT: The plaintiff in O.S. No.567 of 1994 on the file of II Additional Senior Civil Judge, Vijayawada, is the appellant herein. The suit was filed for recovery of a sum of Rs.1,33,564/- said to be due on a promissory note dated 01.12.1991 executed by D-1, D-2 and one B. Venugopal Rao for a sum of Rs.70,000/- payable with interest at 24% per annum. D-3 and D-4 are said to be the legal representatives of the said Venugopal Rao. 2. Defendants 1 and 2 filed written statement contending that the plaintiff is not known to them. The first defendant was a member of chit conducted by one Nageswara Rao under the name and style “Sirivarsha Chit Fund Company” and he obtained signatures of the first defendant on some blank promissory notes. Due to disputes arose between the said Nageswara Rao and the first defendant, the said Nageswara Rao might have fabricated the suit promissory note. D-3 and D-4 also denied the knowledge of the execution of the promissory note by Venu Gopal Rao and borrowing the money. Subsequently, D- 3 and D-4 were not proceeded with, as the matter is said to have been settled. 3. After framing of necessary issues, the General Power of Attorney Holder of the plaintiff was examined as P.W.1 and marked Exs.A-1 to A-8 and on behalf of the defendants, the first defendant was examined as D.W.1 and no documents were marked on their side. 4. Considering the evidence on record, the lower Court had dismissed the suit holding that the plaintiff was not examined and no reason was given thereof and the evidence of the GPA Holder, P.W.1, cannot be taken into consideration. Aggrieved by the said judgment, the present appeal is filed. 5. The point that arises for consideration is whether the suit promissory note is true and enforceable? 6. The learned counsel for the appellant contends that though the defendants have denied about the borrowing of money and pleaded connection with Nageswara Rao, who was conducting chit transaction, no material was placed before the Court to prove the same. It was also his contention that the first defendant as D.W.1 had admitted his signature on Ex.A-2 and therefore according to him it is for the defendants to explain as to under what circumstances his signatures were made on Ex.A-2. According to him, non-examination of the plaintiff is not therefore material and the lower court has erred in dismissing the suit. 7. Defendants 1 and 2 though served, did not appear. It is to be noted that the defendants have taken a specific plea that they did not borrow the money and did not execute the promissory note. Therefore, it is for the plaintiff to depose about the payment of the consideration. Though the signature on Ex.A-2 is admitted by D.W.1, it may be circumstance in favour of the plaintiff to show that the promissory note was executed, provided if his evidence discloses passing of consideration, the evidence of P.W.1, who is a General Power of Attorney Holder, does not show his presence at the time of the transaction. Therefore, in view of the circumstances, it cannot be said that the evidence of plaintiff was felt not necessary for the reason the signature was admitted by D.W.1. 8. In view of the above circumstances and in view of the fact that the defendants have taken a specific plea of some transactions of chit with Nageswara Rao which they made and admitted the signatures on Ex.A-2, if an opportunity is given to the plaintiff to examine the plaintiff and the attestors of the promissory note if any to prove the transaction, the dismissal of the suit ignoring the evidence of D.W.1 causes injustice. 9. Therefore in the above circumstances, the judgment and decree in O.S. No.567 of 1994 passed by II Additional Senior Civil Judge, Vijayawada, is set aside and the matter is remanded for fresh disposal after giving opportunity to both the parties to adduce further evidence. The plaintiff shall take notice to defendants 1 and 2 in the lower Court afresh and also to the counsel who represented them earlier. The point is answered accordingly. 10. In the result, the appeal is allowed and the matter is remanded to II Additional Senior Civil Judge, Vijayawada, directing to dispose of the case within three months. No costs. ____________________________ N.R.L. NAGESWARA RAO, J Date: October 14, 2011. BSB