* THE HONOURABEL SRI JUSTICE GHULAM MOHAMMED AND * THE HONOURABLE SRI JUSTICE P. SWAROOP REDDY + APPEAL SUIT No.675 OF 2005 % Date 28-09-2010 # K.M. Surya, S/o. Late K. Munaswamy Reddy R/o. D.No.525, Balaji Colony, Thirupathi, Chittoor District. …. Appellant v. $ L. Jayarama Reddy, S/o. L. Chenna Reddy, R/o.H.No.18-1-308, Bhavani Nagar, Thirupathi, Chittoor District …. Respondent ! Counsel for the Appellant : Sri P. Gangaiah Naidu, Sr. Counsel for Sri G. Krishna Moorthy ^ Counsel for the Respondent : Sri V.L.N.G.K. Murthy < GIST: > HEAD NOTE: ? Cases referred 1. 2003(3) ALT 513 2. 1994(2) ALT 589 3. AIR 1973 AP 342 FB 4. 1997(1) ALD 246 5. AIR 1939 LAHORE 388 C/15 HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND HONOURABLE SRI JUSTICE P. SWAROOP REDDY APPEAL SUIT No.675 OF 2005 JUDGMENT: (Per Hon’ble Sri Justice Ghulam Mohammed) This Appeal Suit is filed against the judgment and decree in O.S. No.5 of 1999 dated 27-06-2005 passed by the learned V Additional District Judge, Tirupati. 2. Appellant is defendant and respondent is plaintiff. 3. For the sake of convenience, the parties are referred to as arrayed in the Suit before the trial Court. 4. Plaintiff filed the Suit for recovery of a sum of Rs.13,59,751/- together with interest at 24% per annum from the date of Suit till realization and with costs on the basis of the letter dated 14-03-1996, receipt dated 30-03-1996 and a cheque dated 20-04-1996. 5. The case of the plaintiff is that defendant borrowed a sum of Rs.6,00,000/- from him on 01-03-1996 for his business purpose and executed a letter dated 14-03-1996 acknowledging the debt and promising to repay the same with interest at 18% per annum. Again on 29-03-1996, defendant borrowed a sum of Rs.22,386/- from the plaintiff as per the running account maintained by him (plaintiff) in the regular course and acknowledging the same issued a receipt on 30-03-1996. Further, defendant borrowed a sum of Rs.1,67,614/- vide cheque bearing No.520623 of plaintiff’s account bearing No.7887 of Bank of Baroda, Tirupati and encashed the cheque as per the entries in the Savings Bank Account of the plaintiff. While so, when the plaintiff demanded the defendant to repay the debts taken from him, he postponed the same on one pretext or the other and seeing the hostile attitude of the defendant to avoid the liability, he got issued a legal notice dated 16-02-1999 and the defendant in spite of receipt of the same, neither repaid the debts nor issued reply. Therefore, the plaintiff filed the Suit for recovery of a sum of Rs.13,59,751/- with future interest at 24% per annum. It is also averred that plaintiff restricted his claim for interest at 24% per annum though the defendant agreed to repay the amount of Rs.6,00,000/- with interest at 18% per month and that the defendant is not an agriculturist, as such, he is liable to pay interest as agreed upon. 6. Defendant filed written statement denying the plaintiff’s case that he borrowed the alleged amounts from him, but admitted that he executed the letter dated 14-03-1996 in favour of plaintiff stating that he received Rs.6,00,000/- from him on 01-03-1996 and also passing a receipt admitting receipt of Rs.22,386 on 29-03-1996, but not as debtor. He also denied that he has borrowed Rs.1,67,614/- from the plaintiff vide cheuqe No.520625 and stated that said amount was repaid to him by the plaintiff. He further stated that he has no liability at all to pay any amount to the plaintiff. He admitted that the plaintiff got issued a legal notice dated 16-02-1999 and he failed to give reply to the same as the plaintiff is a close relative to him being brother of his father-in-law and plaintiff’s relatives assured him that they would settle the dispute. 7. Defendant’s further case is that he is an agriculturist. Plaintiff used to take his help in carrying business of medicines and purchasing properties and accordingly plaintiff gave Rs.6,00,000/- to him on 01-03-1996 asking him to purchase a landed property in Tirupati surroundings that could get good value in future. Two weeks thereafter, the plaintiff asked him to give a formal letter for the above amount and, therefore, he gave a letter in favour of the plaintiff for that amount, but by mistake he mentioned the rate of interest as 18% per month instead of 18% per annum. He admitted that he has to pay the said amount towards sale consideration to the vendors of the plaintiff. He further states that on 21-03-1996, plaintiff received back a sum of Rs.2,00,000/- stating that he needs the same and that he would repay the same within few days and thereafter as per the instructions of the plaintiff, he collected an amount of Rs.22,386/- from the retail medical shops and sent the letter dated 30-03-199 informing about the receipt of the amount. Thereafter, plaintiff issued a cheque to him on 20-04-1996 for Rs.1,67,614/- towards refund of Rs.2,00,000/- received from him on 21-03-1996. It is also his case that letters and receipts issued by him in favour of the plaintiff are not sufficiently stamped, as such, they shall not be considered at all and that the Suit is barred by limitation. 8. Based on the rival pleadings, the following issues and additional issue were framed by the trial Court for trial: ISSUES: “1. Whether the plaintiff is entitled for the suit amount? 2. Whether the defendant received the amounts from the plaintiff for the reasons stated in the written statement i.e. for purchasing lands for plaintiff under the three agreements? 3. To what relief ?” ADDITIONAL ISSUE: “Whether the suit is barred by limitation?” 9. To substantiate his case, plaintiff got examined himself as PW.1 and got marked Exs.A-1 to A-16. On behalf of the defendant, DWs.1 to 5 were examined and Exs.B-1 to B-9 were marked. Ex.X-1 was also marked. 10. Based on the evidence on record and after an elaborate consideration of the same, disbelieving the case of the defendant that he took amount from the plaintiff for purchasing the landed properties on behalf of the plaintiff and holding that the Suit is within limitation as the period of limitation starts from the date of acknowledgment of the debt i.e., on 14-03-1996 by the defendant and not from the date of borrowing the amount and that the Suit was filed on the last day of limitation i.e., on 15-03-1996, decreed the Suit for Rs.7,90,000/- with interest at 18% per annum on Rs.6,00,000/- from the date of Ex.A-1 dated 14-03-1996 till the date of decree and with interest at 18% per annum on Rs.1,90,000/- from the date of suit i.e., 15-03-1999 till the date of decree and thereafter at 6% per annum on the total amount of Rs.7,90,000/-. 11. Aggrieved of the judgment and decree of the trial Court, defendant filed the present appeal. 12. Sri P. Gangaih Naidu, learned Senior counsel appearing for the defendant – appellant, contended that the Suit is barred by limitation as the period of limitation begins from the date of receipt of the amount i.e., from 01-03-1996, and therefore, the suit filed on 15-03-1999, which is beyond three years, is barred by limitation. He further contends that Ex.A-1 document is inadmissible in evidence and the same ought not to have been marked as the defendant raised an objection in his written statement itself that said document is insufficiently stamped, but the learned trial Judge committed an error in marking Ex.A-1 ignoring the objection of the defendant. 13. To counter the above contention, Sri V.L.N.G.K. Murthy, learned counsel for the plaintiff – respondent, submitted that period of limitation begins from the date of acknowledgment of the debt but not from the date of receipt of the amount and a plain reading of Ex.A-1 letter dated 14-03-1996 executed by the defendant in favour of the plaintiff clearly shows that on 14-03-1996 defendant acknowledged receipt of Rs.6,00,000/- from the plaintiff agreeing to pay interest at 18% per month, as such, period of limitation starts from 14-03-1996 but not from the date of receipt of the amount on 01-03-1996, on which day amount was received by the defendant, as such, the Suit is within limitation. He further contends that if the defendant took the amount in dispute from the plaintiff for purchasing landed properties on behalf of the plaintiff, there is no necessity of mentioning about the interest at 18% per month in Ex.A-1 and this circumstance itself shows that defendant has borrowed the amount in dispute from the plaintiff. He also contends that all the agreements of sale, relying on which defendant says that he (defendant) paid the sale consideration, show that plaintiff paid the entire sale consideration and thus it is clear that the entire amount of Rs.6,00,000/- taken by the defendant from the plaintiff under Ex.A-1 was for his business purposes with interest at 18% per month. 14. Now the questions that arise for consideration are; 1. Whether the plaintiff is entitled to the suit amount ? 2. Whether the suit is barred by limitation ? 3. Whether Ex.A-1 is insufficiently stamped, and, if so, the suit is not maintainable ? 4. Whether the defendant is an agriculturist, and, if so, he is not liable to pay interest ? Question No.1: “Whether the plaintiff is entitled to the suit amount ?” 15. Plaintiff contends that defendant borrowed a sum of Rs.6,00,000/- from him on 01-03-1996 for his business purpose and executed a letter dated 14-03-1996 acknowledging the debt and again on 29-03-1996, defendant borrowed a sum of Rs.22,386/- from him as per Ex.A-2 account slip dated 30-03-1996 of the account book. Further, defendant borrowed a sum of Rs.1,67,614/- under the original of Ex.A-3 cheque bearing No.520623 of plaintiff’s account bearing No.7887 of Bank of Baroda, Tirupati and encashed the cheque as per the entries in the Savings Bank Account of the plaintiff. However, when the plaintiff demanded the defendant to repay the debts taken from him, he postponed the same on one pretext or the other and seeing the hostile attitude of the defendant to avoid the liability, he got issued a legal notice dated 16-02-1999 and the defendant in spite of receipt of the same, neither repaid the debt nor issued reply. Hence, he filed the suit for recovery of a sum of Rs.13,59,751/- with future interest at 24% per annum. 16. Defendant admits that he received the amounts covered by Exs.A-1 and A-2, but contends that the same are not towards the debt as alleged by the plaintiff but for paying the same to the vendors of the plaintiff and for purchasing the landed properties on behalf of the plaintiff. He also admits that he has received the amount under Ex.A-3 cheque, but contends that said amount was repaid by the plaintiff to him towards the amount received under Ex.B-6 voucher dated 21-03-1996 for Rs.2,00,000/-. He also admits issuance of legal notice under the original of Ex.A-4 dated 16-02-1999 by the plaintiff for recovery of the amounts covered by Exs.A-1 to A-3 and his not giving reply. 17. Defendant further states that plaintiff being brother of his father-in-law, is his close relative and he used to take help from him in carrying business in medicines and purchasing properties and for that purposes plaintiff gave Rs.6,00,000/- to him to purchase land for him in Tirupati surroundings for investment purpose and as the plaintiff asked for passing a formal letter for that amount, he issued Ex.A-1 for the said amount and by mistake mentioned the rate of interest as 18% per month instead of 18% per annum. He also states that on 21-03-1996 plaintiff received back a sum of Rs.2,00,000/- from him and asked him to receive the collection amount from the retail medical shops, who had to pay to the plaintiff towards purchase of medicines. Thus, defendant received a sum of Rs.22,386/- on behalf of the plaintiff and sent Ex.A-2 letter dated 30-03-1996 to the plaintiff towards receipt of the said amount. Later under Ex.A-3 cheque, plaintiff gave Rs.1,67,614/- to him towards refund of Rs.2,00,000/- taken from him on 21-03-1996 under Ex.B-6. 18. In a suit for recovery of amount, the burden lies on the plaintiff to prove that he gave the suit amount to the defendant, but in view of the admission of Exs.A-1 to A-3 and also Ex.A-4 and non- issuance of any reply to Ex.A-4 by the defendant, the burden shifts to the defendant to prove that he has not received those amounts towards debt and that they are received for some other purposes. 19. Defendant contends that plaintiff took back a sum of Rs.2,00,000/- vide Ex.B-6 on 21-03-1996 from out of Rs.6,00,000/-, but plaintiff denied to have executed Ex.B-6. Defendant did not take any steps to send Ex.B-6 to handwriting expert to prove the same. Defendant admitted that he has not issued any reply to Ex.A-4 legal notice issued by the plaintiff. Having received a notice demanding to discharge liability of Rs.7,90,000/-, no person would keep quiet, if really there was no liability. All these circumstances would go against the defendant and proves the case of the plaintiff. In the circumstances, there is no need to go into other defences put forth by the defendant, since Exs.A-1 to A-3 clinchingly establish that defendant borrowed a sum of Rs.7,90,000/- under those documents and is liable to repay the same with interest. Accordingly, this issue is answered in favour of the plaintiff and against the defendant. Question No.2: “Whether the suit is barred by limitation ?” 20. The contention of the defendant is that if he has borrowed the amount of Rs.6,00,000/-, as alleged by the plaintiff, on 01-03-1996, under Ex.A.1, limitation of three (3) years for filing the suit for recovery of the amount starts from 01-03-1996, though he issued letter dated 14-03-1996 acknowledging the said amount, and ends by 01-03-1999 and the suit was filed on 15-03-1999, as such, the suit is barred by limitation. Whereas, according to the plaintiff, defendant borrowed a sum of Rs.6,00,000/- from him on 01-03-1996 and to that effect he executed Ex.A-1 letter on 14-03-1996 acknowledging the said debt, as such, he filed the suit on 15-03-1999 i.e., on the last day of expiry of the limitation as 14-03-1999 happened to be Sunday, and therefore, the suit is well within limitation. 21. Though the defendant borrowed the amount of Rs.6,00,000/- on 01-03-1996, as he issued the letter of acknowledgement of the said amount on 14-03-1996, limitation starts from the date of acknowledgment of the debt i.e., on 14-03-1996 but not from the date of receipt of amount, as such, limitation of three years period ends by 14-03-1999 as per Section 12(1) of the Limitation Act, 1963 (for short “Limitation Act”), according to which for computing the period of limitation for any suit, the day from which such period is to be reckoned, shall be excluded. However, as 14-03-1999 happened to be Sunday, that day can be excluded as per Section 4 of the Limitation Act, which says that where the prescribed period for any suit expires on a day when the Court is closed, it can be instituted on the day when the Court reopens. Thus, as 14-03-1999 happened to be Sunday on which day the Court remains closed, the Suit can be permitted to be instituted on 15-03-1999. Therefore, we hold that the suit filed on 15- 03-1999 is well within the period of limitation. Thus, this question is answered in favour of the plaintiff and against the defendant. Question No.3: “Whether Ex.A-1 is insufficiently stamped, and, if so, whether the suit is not maintainable ?” 22. The contention of the defendant is that Ex.A-1 letter dated 14-03-196 under which he alleged to have borrowed a sum of Rs.6,00,000/- is insufficiently stamped, as such, it is not admissible in evidence. He contends that though he took an objection in his written statement that Ex.A-1 document is insufficiently stamped, the learned trial Judge ignoring his objection marked the same. In support of his contention, he relied on the decision of a learned single Judge of this Court in BOLLEDDULA LAKSHMI DEVI v. BOLLEDDULA PAPANNA AND OTHERS[1], wherein it is held that without deciding the objection raised by the other side, admitting the partition deed, which is insufficiently stamped and unregistered, is a mistake on the part of the Court. 23. Whereas, the learned counsel for plaintiff contends that since the defendant admitted to have executed Ex.A-1, the learned trial Judge rightly marked the same. He also relied on the decision of a learned single Judge of this Court in PUVVADA SIVAJI v. ALAMURI MALLIKHARJUNA RAO AND ANTOHER[2], wherein it is held that it is a well settled principle that once a document is marked, the appellate authority cannot go into the admissibility of a document though the other side has taken objection in their written statement, but when no objection was taken at the time of marking of a document and when once the document is marked, it amounts to application of judicial mind of the officer with regard to the admissibility of the document. He also relied on the decision of a Full Bench (consisting of eight Judges) of this Court in L. SAMBASIVA RAO v. T. BALAKOTIAH[3] and also the decision of a learned single Judge of this court in M. NARASIMHULU v. M. LAXMAMMA[4]. 24. In Sambasiva Rao’s Case (Supra 3), it is held as under: “The Small Cause suit was filed by the plaintiff on the foot of a promissory note dated 28th of April 1966 executed by the first defendant in her favour for Rs.375/- and the suit was to recover Rs.437/-. Defendants 2 and 3 are the sons of the first defendant; but defendant 1 and 3 remained ex parte and only the second defendant contested the suit. It is true, that the promissory note was not sufficiently stamped. But no objection was taken by the office. The husband of the plaintiff went into the box as P.W.1. During his examination-in-chief, the promissory note was marked as an exhibit and received in evidence without any objection. It was duly endorsed by the presiding officer as required by the Civil Procedure Code. Thus, it became an exhibit and part of the record. It was only during the cross- examination of P.W.1. that the insufficiency of the stamp on the promissory note was noticed and then objection was raised as to the maintainability of the suit on such promissory note. The lower Court found that the first defendant did, in fact, receive the amount of Rs.375/- and also held that Section 35 was only a bar to the admissibility of an unstamped or insufficiently stamped document. But when it was admitted in evidence it cannot afterwards be withdrawn. Consequently, it decreed the suit. Therefore, the second defendant has brought this revision petition. Section 36 of the Stamp Act provides that “where an instrument has been admitted in evidence such admission shall not except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped”. Therefore, in view of the undoubted fact that the promissory note had been admitted in evidence no objection could be raised at any stage in the suit that it was not duly stamped. Section 35 is only a bar to the admissibility of unstamped or insufficiently stamped documents. Since an unstamped document is inadmissible in evidence……” 25. In Puvvada Sivaji’s case (Supra 2), on which reliance is placed by the plaintiff, it is held that when once a document is marked though there was objection in the written statement for marking the same by the other side and when no objection was taken at the time of marking the document, it amounts to application of judicial mind of the officer with regard to admissibility of the document. 26. Accordingly, in view of the law laid down in the decisions referred supra relied on by the learned counsel for the plaintiff and as the defendant clearly admits execution of Ex.A-1 and receipt of Rs.6,00,000/- thereunder and failed to prove that he has taken that amount for purchasing of landed properties on behalf of the plaintiff and not as a debt as alleged by him, the question of inadmissibility of Ex.A-1 into evidence does not arise due to under stamping and that the defendant cannot raise objection that it is insufficiently stamped. Thus, this question is also answered in favour of the plaintiff and against the defendant. Question No.4: “Whether the defendant is an agriculturist, and, if so, he is not liable to pay interest ?” 27. The contention of the defendant is that he is an agriculturist, as such, he is not liable to pay interest. Whereas, plaintiff contends that defendant is a businessman and he borrowed the amounts from him for his business purposes, as such, he is liable to pay interest. 2 8 . Defendant, in his cross-examination, as DW.1 clearly admitted that he is a B.Tech. graduate and also running a travelling agency under the name and style of Surya Travels, he owns seven (7) buses and two (2) mini buses apart from one personal car and a Tata Sumo, which establish that he is well educated and doing business. Further, in his affidavit of chief-examination, the defendant himself admitted his occupation as business. In those circumstances, as contended by the learned counsel for plaintiff, even if the defendant has any agricultural land and income over the same, he cannot be treated as an agriculturist in view of the proviso (C) of Section 60(1) of CPC and also the decision of the Full Bench of Lahore High Court in NIHAL SINGH v. SIRI RAM AND OTHERS[5], wherein it is observed as under: “The word ‘artizan’ in S.60(b) does not mean a person who merely engages in some particular handicraft for pleasure or as a hobby or even as an additional source of income, but it means a person who employs himself in a handicraft personally and who depends for his living essentially on the proceeds derived from that handicraft. The juxtaposition of the word ‘agriculturist’ along with the word ‘artizan implies a person who occupies himself in tilling the soil and whose livelihood depends on this tilling of the soil. As the word ‘agriculturist’ must meant the same whether used in cl.(b) or cl.(c), the word ‘agriculturist’ in cl.(c) means a person who personally engages himself in the tilling of the soil and whose livelihood depends upon the proceeds derived from that tilling of the soil. The test afforded by considering the main source of income or the sole source of income, is not an absolutely correct test. The true test is whether a man personally engages in tilling and whether this occupation is essential to his maintenance. A man who merely receives rent from tenants or the income of produce derived by the employment of servants or partners cannot be said to be personally engaging himself in tilling the soil and cannot be said to depend for his livelihood upon the proceeds derived from so engaging himself in the tillage of the soil. Such person is therefore not an agriculturist; 47 PR 1987; AIR 1938 Lah 72 and AIR 1939 Lah 40.” 29. In the case on hand, except pleading that he is an agriculturist, defendant has not produced any material in support of his contention and, on the other hand, he himself mentioned his occupation as ‘business’ in the affidavit of his chief-examination apart from admitting in his cross-examination that he is running a travel agency under the name and style of Surya Travels. In view of the same, it can be safely held that defendant is a businessman and is not an agriculturist, and, therefore, he is liable to pay interest as fixed by the trial Court. Accordingly, this question is answered in favour of the plaintiff and against the defendant. 30. For the aforesaid reasons, we see