THE HON’BLE SRI JUSTICE G.CHANDRAIAH S.A.NO.526 OF 2007 O R D E R Heard both the counsel. 2. Aggrieved by the judgment and decree dated 2.3.2007 passed by the court of District Judge, Krishna, at Machilipatnam in A.S.No.2/2002 in dismissing the appeal and thereby confirming the judgment and decree dated 10.9.2001 passed by the court of Senior Civil Judge, Avanigadda in O.S.No.187/1999, in decreeing the suit for recovery of money based on promissory note, the unsuccessful defendant before both the courts below, filed the present second appeal. 3. The parties shall be referred to as per their array in the original suit. 4. The case of the plaintiff is that the defendant borrowed an amount of Rs.28,000/- on 4.11.1996 and executed a promissory note promising to repay the principal with interest at the rate of 12 per cent per annum. Though the plaintiff made repeated demands and issued legal notice on 2.4.1997, the defendant failed to pay and gave a reply on 9.4.1997 denying the borrowing of the amount and the execution of promissory note. Hence, the suit. 5. The case of the defendant is that she never borrowed the amount and executed the promissory note and she also stated that the plaintiff has no capacity to lend such a huge amount of Rs.28,000/-. With these averments, the suit was sought to be dismissed. 6. Based on the above averments, the trial court framed the following issues for trial: 1. Whether the plaintiff is having capacity to lend the amount? 2. Whether the suit promissory note is true, valid and binding on the defendants? 3. To what relief? 7. In support of the case of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-3 were marked. On behalf of the defendant, she was examined as D.W.1 and no document was marked. 8. Appreciating the evidence, the trial court decreed the suit holding that the defendant executed the promissory note and received consideration of Rs.28,000/-. Aggrieved by the same, the defendant filed the first appeal and the lower appellate court also confirmed the judgment and decree of the trial court. Hence, the present second appeal. 9. This court admitted the second appeal to consider the following substantial question of law: The lower appellate court and the trial court ought to have seen that when the appellant relied on plea of incapacity of respondent in lending the amount, the burden of disproving of it might be shifted to the respondent to prove the same in accordance with the presumption of facts in Section 114 of Evidence Act and that the appellant did not admit the execution of Ex.A-1? 10. In order to consider the above substantial question of law, it is necessary to look into case of the respective parties and the evidence available on record. 11. As already noted above, the case of the plaintiff is that the defendant borrowed an amount of Rs.28,000/- and executed Ex.A-1 promissory note and when he demanded for repayment and also issued legal notice under Ex.A-2, the defendant did not pay and issued reply notice under Ex.A-3 denying execution and alleged that it is a rank forgery. In order to prove Ex.A-1 promissory note, the plaintiff examined himself as P.W.1 and also examined the scribe and attester of promissory note, as P.Ws.2 and 3. They categorically deposed that defendant borrowed the amount and their evidence in the cross-examination is consistent. Though the defendant has taken the plea of forgery, she failed to substantiate the same by leading any evidence or seeking the court to send the document to an expert for opinion. She denied even her thumb impression on the vakalat and written statement filed in the court. Therefore, the courts below rightly held that the plaintiff proved execution of Ex.A-1 promissory note. 12. The contention of the defendant is that the plaintiff has no capacity to lend the money. From the material on record, the plaintiff proved execution of Ex.A-1. The defendant in her evidence admitted that the plaintiff has got lands. Therefore, when the defendant has taken the plea that the plaintiff has got no capacity to lend money and when she has admitted that the plaintiff has got lands, the burden is on her prove the same. She did not lead any evidence in support of her contention and there is also no whisper about the incapacity of the plaintiff in her evidence. Further, in the reply notice given under Ex.A-3, she did not state that the plaintiff has no capacity to lend the money. In view of these circumstances, that inference that can be drawn is that the plaintiff has capacity to advance money to the defendant. Therefore, the question of law framed for consideration does not constitute substantial question of law and I do not find any other substantial question of law for interference of this court under Section 100 C.P.C. and accordingly, the second appeal fails and is dismissed. No costs. AVS ----------------------------- 08--02--2011