THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.274 of 2011 Date:08th July, 2011 Between: Bandi Sreeramulu …Appellant/Defendant and Muddisetty Venkataiah …Respondent/Plaintiff *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.274 of 2011 JUDGMENT: This Second Appeal is directed against the judgment and decree, dated 21.01.2011, passed in A.S.No.12 of 2010 on the file of V Additional District Judge, Rayachoty, Kadapa District, whereby and whereunder the learned Additional District Judge dismissed the appeal, confirming the judgment and decree, dated 06.02.2010, passed in O.S.No.19 of 2009 on the file of the Senior Civil Judge, Rayachoty, Kadapa District. 2. a) The respondent is the plaintiff and the appellant is the defendant in O.S.No.19 of 2009 on the file of the Senior Civil Judge, Rayachoty. The plaintiff filed the suit for recovery of Rs.1,60,560/- basing on two promissory notes, dated 20.07.2003 one for Rs.40,000/- and another for Rs.30,000/- executed by the defendant. According to the plaintiff, the defendant borrowed Rs.40,000/- in the morning and Rs.30,000/- in the evening on 20.07.2003 and made part-payments of Rs.2,000/- and Rs.3,000/- respectively on 15.06.2006, and that the defendant failed to pay the balance amount in spite of repeated demands. b) The defendant pleaded in the written statement that except an amount of Rs.40,000/-, he did not borrow any amount from the plaintiff and disputed the part payments of Rs.2,000/- and Rs.3,000/-. The suit pronote for Rs.30,000/- and part payment endorsements thereon are forged and fabricated. The defendant used to pay a sum of Rs.2,000/- per month regularly from 20.08.2003 to 20.08.2006 towards the pronote, dated 20.07.2003, for Rs.40,000/-. He demanded return of the promissory note after receiving the balance amount of Rs.24,000/- and interest under the said pronote, for which, the plaintiff replied that the said pronote was misplaced and it would be returned to the defendant immediately after tracing the same. In the meanwhile, the defendant transferred to Kurnool District and taking advantage of the same, the plaintiff fabricated endorsements on the back of the said pronotes forging his signature. It is further pleaded by the defendant that the plaintiff acknowledged the receipt of monthly payments at the rate of Rs.2,000/- per month for a period of 36 months i.e. by issuing a receipt, dated 16.06.2006, which has been marked as Ex.B1. c) The trial Court framed the following issues for trial: 1) Whether the suit pronote dt.20.07.2003 for rs.30,000-00 is true, correct and supported by consideration? 2) Whether the defendant had made payments at the rate of Rs.2,000- 00 per month regularly from 20.08.2003 to 20.08.2006 towards the pronote dt.20.07.2003 for Rs.40,000.00 as pleaded by him? 3) Whether the part payment endorsement dt.15.06.2006 on suit promotes are true and genuine one? If so, suit claim is barred by limitation? 4) To what relief? d) On behalf of the plaintiff, he got himself examined as PW.1, and examined one C.Bala Krishna as PW.2 and marked 4 documents as Exs.A1 to A4. On behalf of the defendant, he got himself examined as DW.1 and marked one document as Ex.B1. e) The learned Senior Civil Judge, on appreciation of the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the defendant failed to prove Ex.B1 receipt and thereby decreed the suit of the plaintiff for a sum of Rs.1,60,560/- with interest on Rs.65,000/- at the rate of 12% p.a. from the date of suit till the date of decree and at the rate of 6% p.a. from the date of decree till the date of realization, by judgment, dated 06.02.2010. Assailing the said judgment and decree, the defendant filed A.S.No.12 of 2010 on the file of the V Additional District Judge, Rayachoty, Kadapa District. f) The learned Additional District Judge formulated the following points for determination: i) Whether the second suit pronote dt.20.07.2003 for Rs.30,000/- is true, valid and binding on the defendant? ii) Whether the defendant made part payments totaling to Rs.72,000/- at the rate of Rs.2000/- per month regularly from 20.08.2003 to 20.08.2006 towards the pronote dt.20.07.2003 for Rs.40,000/- as pleaded by the defendant? iii) Whether the part payment endorsements dt.15.6.2006 on two suit prontoes are true and genuine? iv) Whether the suit claim is barred by limitation? v) Whether there are any sufficient grounds to set aside the decree and judgment dt.6.2.2010 in O.S.No.19/2009 on the file of Senior Civil Judge’s Court, Rayachoty as prayed for? g) On re-appreciation of the evidence brought on record and on hearing the counsel appearing for the parties, the lower appellate Court held all the points in favour of the respondent/plaintiff and against the appellant/defendant and thereby dismissed the appeal, confirming the judgment and decree, dated 06.02.2010, passed in O.S.No.19 of 2009 on the file of the Senior Civil Judge, Rayachoty, by judgment, dated 21.01.2011. Hence, this Second Appeal. 3. Heard learned counsel appearing for the appellant/defendant and perused the judgment of the trial Court as well as the judgment of the lower appellate Court. 4. Learned counsel appearing for the appellant/defendant submits that the trial Court as well as the lower appellate court failed to consider the evidence brought on record in right perspective and thereby erred in decreeing the suit of the respondent/plaintiff. He would further contend that Ex.B1 is the receipt issued by the plaintiff and once Ex.B1 receipt is accepted, there cannot be any further amount to be paid to the plaintiff. 5. The trial Court has considered the plea of the defendant with regard to Ex.B1 receipt. It is observed by the trial Court that the defendant neither examined the panchayatdars before whom he stated to have paid the money nor the defendant put Ex.B1 receipt to the plaintiff while being examined as PW.1. It is pertinent to note the observation made by the trial Court in this regard, which reads as hereunder: “12. Plaintiff got suggested to the defendant during cross examination that he did not issue Ex.B1 and defendant fabricated the same forging the signature with mala fide intention to evade the suit amount. The affidavit of defendant filed in lieu of chief examination is not consistent with the written statement contents in relation to the fact that the receipt allegedly issued by the plaintiff was kept with the panchayath elders. Neither written statement nor the chief affidavit of defendant discloses name and address of the alleged panchayath elders with whom the alleged receipt said to have been kept. Absolutely, no explanation is offered by the defendant in his evidence or in the affidavit filed in support of interlocutory application i.e., I.A.No.459/09 filed to receive the said receipt, the reasons for non finding the said receipt along with written statement. Ex.B1 receipt did not place before PW.1 at the time of cross-examination. There is a material inconsistency in relation to the date of alleged issuance of Ex.B1 receipt by the plaintiff as defendant got mentioned in the written statement and also stated in his affidavit, the date of issuance of said receipt as 16.6.2006 whereas he got suggested the plaintiff during cross-examination the date of issuance of said receipt as 16.7.2006. Defendant further got mentioned in the written statement specifically that used to pay sum of Rs.2,000-00 regularly for every month from 20.08.2003 to 20.08.2006. As observed earlier defendant stated in his affidavit the said period as “20=08-200 to 20=08=200”. As seen from Ex.B1 receipt, where it appears that a sum of Rs.72,000-00 was received on 16.6.2006 for the period i.e., 20.08.2003 to 16.6.2006 at the rate of Rs.2,000/- per month. Thus, there is material inconsistency in relation to the alleged part payment of Rs.2,000-00 by the defendant to the plaintiff. Non disclose the names and address of alleged panchayatdars with whom Ex.B1 receipt said to have been kept and non examination of any such elders and non placing of Ex.B1 receipt before PW.1 during cross examination with a suggestion that purported signatures therein are that of him, gives scope to create any amount of doubt about correctness of the version of defendant in relation to Ex.B1 allegedly issued by the plaintiff. Therefore, it cannot be said that defendant established by cogent and convincing evidence that Ex.B1 receipt was issued by the plaintiff. Hence, it can be held safely that defendant failed to establish that he made part payment at the rate of Rs.2,000-00 regularly from 20.08.2003 to 20.8.2006 towards Ex.A1 pronote. Accordingly, this issue is answered against the defendant and in favour of plaintiff.” 6. The lower appellate Court also re-appreciated the evidence of PWs.1 and 2 and DW.1 and came to the conclusion that the judgment and decree of the trial Court does not warrant interference. The trial Court as well as the lower appellate Court appreciated the evidence brought on record in right perspective in rejecting the plea of discharge set up by the appellant/defendant. There is no substantial question of law involved in this Second Appeal warranting admission. 7. Accordingly, the Second Appeal is dismissed at the admission stage. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:08th July, 2011. cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.274 of 2011 Date:08th July, 2011