THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.829 OF 2001 JUDGMENT: The plaintiff in O.S.No.16 of 1996 on the file of the Court of Senior Civil Judge, Narsapur is the appellant herein. The suit was filed for recovery of Rs.1,76,150-13 paise being the principal and interest due on a promissory note. The allegations in the plaint go to show that the second defendant is the undivided son and third defendant is the wife of the first defendant. For the joint family necessities a sum of Rs.74,000/- was borrowed on 24-06-1990 by the first defendant and a pronote was executed agreeing to pay the said amount @ 24% and in spite of repeated demands to pay the said amount, it was not discharged. However, on 10-06-1993 the first defendant made a payment of Rs.100/-which was duly endorsed on the pronote. The second defendant is liable to pay the said debt. The first defendant filed a written statement denying the allegations in the plaint about the borrowing of Rs.74,000/- for the purpose of joint family necessities and executing the pronote of the said sum and also the endorsement dated 10-06-1993 is not true. According to the defendant, he used to borrow from the plaintiff’s husband now and then small sums from Rs.100/- to Rs.1000/- and there was never any need or occasion for borrowing such a huge sum. After discharge of the said amounts, chits were received by the husband of the plaintiff. The second defendant is not a member of the joint family. The property attached belonged to the third defendant who is not liable to pay any amount. Therefore, the suit is liable to be dismissed. The second defendant filed a separate written statement denying the liability for the suit debt and also the allegation of the borrowing for the benefit of the family. The third defendant is not liable to pay the said amount and they are not necessary parties. The third defendant filed a memo adopting the written statement of the second defendant. On the basis of the pleadings, the following issues have been framed for trial. 1. Whether the suit pronote dated f24-06-1990 is true, valid and binding on the defendants? 2. Whether the plaintiff has not capacity to lend a huge amount of Rs.74,000/-? 3. Whether the payment endorsement dated 10-06-1993 for Rs.100/- is true, valid and binding on the defendants? 4. Whether the defendants 2 and 3 are not necessary parties to the suit? 5. Whether the interest claimed is usurious and penal? 6. Whether the suit is against the defendants 2 and 3 is barred by time? 7. To what relief? On behalf of the plaintiff PWs.1 and 2 were examined and marked Exs.A-1 to A-9 and on behalf of the defendants DWs.1 to 3 are examined and marked Exs.B-1 to B-22. After considering the evidence on record, the learned Senior Civil Judge dismissed the suit of the plaintiff and aggrieved by the said judgment, the present appeal is filed. The points that arise for consideration are:- 1. Whether the first defendant has borrowed a sum of Rs.74,000/- and executed the pronote and made the part payment as alleged by the plaintiff? 2. Whether the defendants are liable to pay the suit debt? 3. Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? 4. To what relief? POINTS: This being a suit based on a promissory note, the execution of which has been denied by the defendant, the burden is on the plaintiff to prove the execution and passing of the consideration. PW.1 is the husband of the plaintiff. PW.2 is the attester on the pronote. Their evidence goes to show that the first defendant has borrowed a sum of Rs.74,000/- under Ex.A-1 and thereafter executed pronote Ex.A-1 and also made a part payment under Ex.A-2. PW.1 also stated that the first defendant borrowed the money for his agricultural and family expenses and decree was prayed against the first defendant and against the properties of the second and third defendants. In cross examination he admitted that first defendant has borrowed under several chits under Exs.B-1 to B-12 from him and also Ex.B-13 discharged pronote and he denied that the first defendant never borrowed more than Rs.1200/- from him. His evidence further goes to show that he also filed a suit against the scribe of the pronote and his wife has got fixed deposits. The attester Ganga Raju died and he filed Ex.A-6 death extract. The evidence of PW.2 on the other hand goes to show that he attested Ex.A-1 and first defendant has borrowed a sum of Rs.74,000/- and the consideration was paid in his presence. According to him, second defendant was not present at the time when the pronote was executed. He belongs to the caste of the plaintiff. As against this evidence, the evidence of DW.1 goes to show that he was borrowing from the plaintiff’s husband who is PW.1 some small amounts and was repaying them and he relied upon Exs.B-1 to B-13 to prove those transactions. According to him, he did not borrow Rs.74,000/- and the execution of Ex.A-1 pronote and also did not make any payment under Ex.A-2. In cross examination he stated that he and second defendant lived together till 1986 and thereafter they have separated. He admitted that he never signed on any blank papers and he also denied the signatures on Exs.B-13 and A-1 and he denied the same. He claims that his eye sight is not proper and therefore he could not identify the signatures on the summons or vakalat. DW.2 is the second defendant and DW.3 is the third defendant and both of them have denied the liability and the borrowing. The learned Senior Civil Judge after considering the evidence on record in para.41 of the judgment found that the plaintiff did not place any material to show that the plaintiff has got capacity to lend a sum of Rs.74,000/- and in para.42 found that when defendant was only borrowing small sums in 100s, the plaintiff cannot be expected to lend a huge amount of Rs.74,000/- and ultimately in para.49 he found that there was no much cross-examination in course of evidence of PW.1 regarding execution of Ex.A-1 though he was cross examined on other aspects and also found in para.48 that first defendant admitted his signature on the left side of the stamps on Ex.A-1 but immediately he added that he was unable to see the letters on account of eye sight. In para.49 it was also found by the learned Senior Civil Judge that many discrepancies were not elicited in cross examination of PW.1 with regard to execution of Ex.A-1 by first defendant except the time. Ultimately, according to the learned Judge, the defendant was borrowing only a sum of Rs.1500/- and the borrowing of Rs.74,000/- is improbable and hence dismissed the suit. The fact that PW.1 and his wife do money lending business cannot be disputed. The fact that the first defendant was borrowing money from the plaintiff or PW.1 is also not in dispute. In fact the learned Senior Civil Judge found that the evidence of PWs.1 and 2 about the execution of pronote is not discredited in cross examination. Therefore, it clearly goes to show that the execution of the pronote and the evidence of PWs.1 and 2 is acceptable. In fact in the written statement or in the evidence there is no allegation of any need for the plaintiff or PW.1 to fabricate Ex.A-1 pronote or Ex.A-2 were mentioned. It is unreasonable for the learned Judge to hold that a person was only borrowing in 100s and that there was no need for borrowing of Rs.74,000/- and therefore the suit pronote is not true. It is not even the case of the first defendant that he signed on any blank pronotes. The fact that the first defendant was in the habit of borrowing cannot be denied from Exs.B-1 to B-13. Therefore, merely because a larger sum of amount was lent to the first defendant, it cannot be a ground to doubt the suit transaction when the execution of the pronote is proved and accepted by the lower court. The presumption that it is supported by consideration as mentioned in the pronote and it is for the defendant to rebut the presumption. In this case there is absolutely no such evidence to rebut such transaction. On the other hand, the relationship between the parties was a financial relationship of lending money. Therefore, in view of the above circumstances and in view of the evidence of PWs.1 and 2, I have no hesitation in holding that the pronote was executed by the first defendant after borrowing Rs.74,000/- and the payment endorsement under Ex.A-2 is also sufficiently proved by the evidence of PW.1 and the reasons given by the learned Senior Civil Judge in dismissing the suit are not at all convincing if not perverse. Therefore, I hold that the first defendant being executant of the pronote is liable to pay the debt. Since the third defendant is not executant of the document she is not liable to pay the amount and there is also no proof of the borrowing of the amount for the benefit of the family and as such the second defendant is also not liable to pay the same. Since as per the evidence of PW.1 the borrowing is for agricultural purpose the interest cannot be claimed @ 24% and only 12.5% interest is payable by the defendant. Accordingly, the suit of the plaintiff is decreed against the first defendant only for a sum of Rs.74,000/- with interest @ 12.5% from 24-06-1990 till the date of decree less the payment on 10-06-1993 which is Rs.100/- with the same interest and subsequent interest @ 6% from the date of decree till date of realisaiton. The suit against the second and third defendants is dismissed. The plaintiff will be entitled to costs in the lower court and in this court. The points are accordingly answered. In the result the appeal is allowed setting aside the judgment and decree dated 04-11-2000 of the Senior Civil Judge, Narsapur in O.S.No.16 of 1996. The suit of the plaintiff is decreed against the first defendant only for a sum of Rs.74,000/- with interest @ 12.5% from 24- 06-1990 till the date of decree less the payment on 10-06-1993 which is Rs.100/- with the same interest and subsequent interest @ 6% from the date of decree till date of realisaiton. The suit against the second and third defendants is dismissed. The plaintiff will be entitled to costs in the lower court and in this court. _______________________ N.R.L.NAGESWARA RAO,J 28-04-2011 TSNR