IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY EIGTH DAY OF MARCH, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 61 OF 2001 BETWEEN: Sreerama Seetha Rama Murthy @ Seetha Ramaiah …APPELLANT AND Sreerama Venugopal Setty …RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 61 OF 2001 JUDGMENT: The plaintiff in O.S.No. 33 of 1999 on the file of Principal Senior Civil Judge, Kurnool, is the appellant herein. 2. The suit was filed for recovery of Rs.2,64,050/- being the principal and interest due on a promissory note, dated 20.07.1996 executed by the defendant in favour of the plaintiff. 3. According to the case of the plaintiff, the defendant has borrowed a sum of Rs.2,00,000/- on 20.07.1996 agreeing to repay the same with interest at 12% per annum. In spite of repeated demands, he did not pay the money. When a notice was given, the defendant gave a reply with false allegation of settlement on 30.09.1996. Therefore, the defendant is liable to pay the suit amount. 4. The defendant filed a written statement contending that the plaintiff has no capacity to lend the money. The plaintiff and defendant are brothers. On 20.07.1996 a panchayat was held for partition of their provisions in the General Stores and one Kasula Jangam Setty, the brother-in-law, was the elder. During the panchayat, the plaintiff has accepted to give his claim on a condition of payment of Rs.2,00,000/- by the defendant to him. As the plaintiff has insisted for execution of a promissory note, the defendant has executed the same and it was kept with his brother-in-law and it was taken away by the plaintiff. The plaintiff has filed the suit on the basis of that promissory note. On 30.09.1996 a recital was incorporated in the agreement, dated 30.09.1996 to the effect that the promissory note between the plaintiff and the defendant becomes ineffective. Therefore, the defendant is not liable to pay the said amount. 5. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the suit pronote becomes ineffective in view of partition agreement dated 30.09.1996 as alleged by the defendant in his written statement? 2) Whether suit pronote came into existence as alleged in para 3 of written statement? 3) Whether the suit pronote is not supported by cash consideration? 4) Whether the plaintiff is entitled suit amount as prayed for? 5) To what relief? 6. On behalf of the plaintiff, PWs.1 and 2 were examined and marked Exs.A-1 to A-6. On behalf of the defendant, DWs.1 to 4 were examined and marked Exs.B-1 to B-14. 7. After considering the evidence on record, the learned Principal Senior Civil Judge, Kurnool, dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the suit promissory note is supported by consideration? 2) Whether the defendant is not liable to pay suit amount? 3) Whether the judgment and decreed passed by the Principal Senior Civil Judge, Kurnool, is legal and sustainable? 9. POINTS: The learned counsel for the appellant contends that the approach of the lower Court in deciding the case is not proper and the burden was cast on the plaintiff even though the execution of the promissory note was admitted and the mere failure to prove passing of the consideration will not destroy the case of the plaintiff. It is to be noted that the specific plea of the defendant in the written statement is that there was an agreement to partition the provisional stores and towards the share of the plaintiff a sum of Rs.2,00,000/- was sought to be given and as the plaintiff has insisted for the execution of the promissory note, the suit promissory note was executed. Therefore, from the evidence of DW-1 and also the written statement, it is quite clear that the consideration mentioned in the promissory note Ex.A-1 is value of the share of the plaintiff in the provisional stores. The law is well settled that the consideration under a promissory note and the presumption of consideration need not be cash consideration and it need not be the sum that was mentioned in the promissory note. It should be valid consideration under a contract. When the plaintiff and defendant agreed to partition the provisional stores and an agreement was reached at the sum of Rs.2,00,000/- shall be paid to the plaintiff and the promissory note was executed and when it is admitted that subsequently provisional stores were taken by the defendant, it is futile to argue that the suit promissory note is not supported by consideration. In fact, Ex.B-8 is note book in which the division of provisions was shown. Evidently, Ex.B-8 does not show the cancellation of the promissory note, which was said to have been mentioned in Ex.B-9. The theory that the promissory note was kept in the pocket of the brother-in-law of the parties and that it was stolen by the plaintiff has no relevancy at all when the plaintiff is the beneficiary of the promissory note and when no action was taken after such a theft. In fact, the evidence of DW-2, who is said to be the elder for division of the provisional stores, clearly goes to show that he has convinced the defendant for the division of the shop and as the defendant has no money, the defendant executed a promissory note in favour of the plaintiff for Rs.2,00,000/-. Therefore, the promissory note was evidently supported by consideration towards the share of the plaintiff in the provisional stores. DW-2 is not even the scribe or attester of the promissory note. His evidence does not show that the provisional store was not partitioned and that the defendant did not get the provisional stores. On the other hand, he specifically admits that the provisions were got partitioned between the plaintiff and the defendant on 20.07.1996 in his presence. Therefore, this evidence of DW-2, who was examined on behalf of the defendant, clearly shows that the suit promissory note was executed by the defendant for consideration. Even otherwise the evidence of DW-4 goes to show that on 03.10.1996 the provisional stores was partitioned and worth of the provisions was assessed at Rs.3,00,000/- and cash and other liabilities at Rs.1,00,000/-, total come into Rs.4,00,000/-. Evidently, under Ex.B-8 earlier understanding dated 20.07.1996 was not mentioned. The evidence of DW-4 does not disclose as to who got the provisional and what are the particulars of the provisional each got. If really the rights under the promissory note were given up, it would have mentioned under Ex.B-8. Another contention on behalf of the defendant, which was accepted by the lower Court, is that there was a division of the properties on 30.09.1996 and Ex.B.9 agreement was entered into, in which it was mentioned that the claims on the promissory note are mutually withdrawn and therefore, the plaintiff is not entitled for the amount. In fact, the lower Court has accepted the above contention of the defendant. Ex.B.9 is disputed by the plaintiff. Even otherwise it relates to the division of the immovable properties, which are shown in ‘A’ and ‘B’ schedule, it does not refer to the division of any immovable property. According to the evidence of DW.4, under Ex.B.8 the partition of the provisional stores has taken place from 03.10.1996 to 05.10.1996 and Ex.B.8 was written. If the contention on Ex.B.9 relied on by the defendant is true, then by the date of Ex.B.9 the rights in the provisional stores also should have been resolved. On the other hand, the recitals in Ex.B.9 clearly reveals that except the properties that were partitioned under Ex.B.9, there are no other properties to be partitioned between the parties. It was further stated that from the date of Ex.B.9, the promissory notes executed mutually will not have any effect. Therefore, if the defendants wants to rely upon Ex.B.8, the recitals in Ex.B.9 clearly negatives the same as there are no properties to be divided and the irresistible conclusion will be that the partition was effected on 20.07.1996 itself and towards the share of the plaintiff the suit promissory note was executed and consequently Ex.B.8 is falsified. Further-more, Ex.B.9 is too vague to accept that the liability under the suit promissory note is also withdrawn by the parties. If really the defendant intended that the suit promissory note shall not enforce, there is no reason as to why the fact was not mentioned to the effect that the promissory note executed at the instance of the brother- in-law for partition of the provisional stores also stands cancelled. This also gives any amount of doubt about the contention of the defendant. There is also no reason as to why the return of the promissory note was not taken in spite of the fact that the suit promissory note was said to have been stolen from the pocket of the DW-2. Therefore, all the circumstances clearly goes to show that the plea of the defendant is not true and even though plaintiff might not have established that Ex.A.1 promissory note is for cash consideration, the evidence of the defendant and his plea supported by the evidence of DW-2 clearly go to show that there is valid consideration, which is the value of the share in the provisional stores. The lower Court has given unnecessary importance to Exs.B.8 and B.9 ignoring the evidence of DW.2, which has got a great bearing to decide the facts of the case against the defendant. Therefore, the judgment and decree passed by the learned Principal Senior Civil Judge, Kurnool is not legal and sustainable and accordingly, the judgment is set aside and the suit of the plaintiff is decreed for a sum of Rs.2,00,000/- with interest at 12% per annum from 20.07.1996 till the date of decree and with subsequent interest at 6% per annum from the date of decree till the date of realisation. The plaintiff will be entitled to costs through out. Accordingly, points are answered. 10. In the result, the appeal is allowed by setting aside the judgment of the learned Principal Senior Civil Judge, Kurnool and the suit of the plaintiff is decreed for a sum of Rs.2,00,000/- with interest at 12% per annum from 20.07.1996 till the date of decree and with subsequent interest at 6% per annum from the date of decree till the date of realisation. The plaintiff will be entitled to costs through out. ________________________ N.R.L.NAGESWARA RAO, J Date: 28-03-2011. INL