IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.663 OF 2001 Date:08.03.2011 Between:- Kola Venkatappaiah .. Appellant. A N D Alugulasetty Umamaheswara Rao .. Respondent. The Court made the following: JUDGMENT: The appeal arises out of a judgment passed in O.S.No.659 of 1989 on the file of the Principal Subordinate Judge, Guntur. The suit was filed for recovery of Rs.46,170/- with interest at the rate of 18% per annum. The defendant in the said suit is the appellant herein. 2. The suit was filed for recovery of Rs.46,170/- being the principal and interest due on the promissory note dated 12.11.1986 for a sum of Rs.30,000/- said to have been executed by the defendant agreeing to pay the same with 18% interest. Due to nonpayment of the same by the defendant, the suit was filed for recovery of the amount. 3. Defendant has filed a written statement contending that he has no need to borrow the money from the plaintiff and the plaintiff has no capacity to lend and the suit promissory note is a fabricated one. It was further pleaded that there were some property disputes with regard to a Will, which is said to have been executed by P.Nancharamma, and due to the same the suit promissory note was fabricated. It was further pleaded by the defendant that the interest claimed by the plaintiff is excessive and exorbitant and the suit is liable to be dismissed. 4. On the basis of the above pleadings, the following issues were framed by the trial Court for trial: 1. Whether the suit promissory note dated 12.11.1986 is true, valid and binding on the defendant? 2. Whether the interest claimed is excessive and penal? 3. To what relief? 5. On behalf of the plaintiff, P.Ws.1 to 4 were examined and marked Exs.A-1 to A-7, from the evidence of P.W.4 Exs.X.1 to X.6 are marked. On behalf of the defendant, the defendant himself examined as D.W.1 and no documents are marked. 6. After considering the evidence on record, the learned Principal Subordinate Judge, Guntur decreed the suit of the plaintiff. 7. Aggrieved by the said judgment, the present appeal is filed by the defendant. 8. The points that arise for consideration are: 1. Whether the suit promissory note is true and the defendant is liable to pay the money? 2. Whether the interest granted by the lower Court is excessive? 3. Whether the judgment and decree passed by the learned Principal Subordinate Judge, Guntur, is legal and sustainable? P O I N T S: 9. The fact that there is a relationship between the plaintiff and defendant is not in dispute. According to the case of the plaintiff, the defendant has borrowed a sum of Rs.30,000/- and executed a promissory note Ex.A.1. When the execution of the promissory note has been specifically denied by the defendant, the burden is on the plaintiff to prove the execution of the promissory note. Apart from himself, the plaintiff has examined P.W.2, the scribe of the promissory note, and P.W.3, attestor of the promissory note, who spoke about the defendant executing the promissory note and receiving of the consideration. So as to prove the capacity of the plaintiff, he has also examined P.W.4, Bank Manager, to show that he has got some deposits in the bank and has got available cash. As the lower Court after appreciation of the evidence, came to the conclusion that there is no much material to discredit the testimony of P.Ws.2 and 3, who are the scribe and the attestor of the promissory note. The theory developed by the defendant shows that there were disputes between the plaintiff and the defendant with regard to the conveyance of the property by P.Nancharamma, evidently no suit was filed between the parties and some complaints are said to have been given to the police. The admitting of those complaints and the date of execution of the Will are not placed on record to probabalise the motive of the plaintiff to fabricate the suit promissory note. In the absence of such evidence, the sole testimony of the defendant cannot be accepted in view of the disinterested evidence of P.Ws.2 and 3, whose evidence was rightly appreciated by the lower Court. Therefore, in view of the above circumstances, the contention of the defendant that he did not receive the consideration under the promissory note Ex.A.1 and that it was a fabricated one, cannot be accepted. 10. So far as the interest is concerned, the learned counsel for the appellant contends that the suit transaction is of the year 1986 and prevailing rate of interest at that point of time is not proved to be 18% and though the defendant is said to be doing some business, there is nothing to show that the promissory note amount was borrowed for commercial purposes and for making any profits in the business of the defendant. The mere fact that the defendant was doing business is no ground to conclude that the rate of interest at the rate of 18% granted by the lower Court can be sustained as legal. Therefore, according to him the granting of the interest at the rate of 18% is usurious. Apart from it, it is his claim under Section 34 of the Civil Procedure Code (for short CPC) granting of interest at the rate of 18% from the date of suit till the date of decree without there being any sufficient reasons on record and without holding that it is a commercial transaction between the parties is beyond and against the spirit of Section 34 of CPC. There cannot be any dispute about the fact that under Section 34 of CPC the grant of subsequent interest is restricted except in cases of commercial transactions. In this case, there is not of much evidence to show that transactions between the plaintiff and defendant are in the nature of commercial transactions to exercise the exception of discretion vested with the Court. 11. Therefore, taking into consideration the above facts and also the meagre amount borrowed by the defendant, I find that the granting of interest at the rate of 18% appears to be on higher side and I feel the ends of justice would met if the suit of the plaintiff is decreed for a sum of Rs.30,000/- with interest at the rate of 12% per annum from 12.11.1986 till the date of decree and with subsequent interest at the rate of 6% per annum till the date of realization. Accordingly, the points are answered. 12. In the result, the appeal is partly allowed. The suit of the plaintiff is decreed for a sum of Rs.30,000/- with interest at the rate of 12% per annum from 12.11.1986 till the date of decree and with subsequent interest at the rate of 6% per annum till the date of realization. Parties are directed to bear their own costs. ______________________________ N.R.L.NAGESWARA RAO, J 08th March, 2011 KSP