HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 168 OF 2010. 11th NOVEMBER, 2010 BETWEEN K.Aruna Kumar … Appellant and Pothireddy Obula Reddy ….Respondent. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 168 OF 2010. JUDGMENT: This Second Appeal is ﬁled aggrieved over the judgment and decree dated 23.11.2009 passed in A.S.No. 254 of 2007 by the learned VI additional District Judge, Markapur, Prakasam District, conﬁrming the judgment and decree dated 31.10.2006 passed in O.S.No. 137 of 2002 by the learned Junior Civil Judge, Giddalur. For the sake of convenience, the parties to the Second Appeal hereinafter are referred to as arrayed in the suit. The suit in O.S.No. 137 of 2002 is ﬁled by the plaintiﬀ for recovery of Rs.75,925/- based on the promissory note said to have been executed by the defendant on 12.5.1999 by borrowing Rs.49,000/- agreeing to repay the same with interest at the rate of 18% per annum. The defendant resisted the suit by ﬁling the written statement. In the written statement it was stated that the father-in-law of the defendant initially borrowed a sum of Rs.32,000/- from the plaintiﬀ on 12.6.1996 agreeing to repay the same with interest at the rate of 18% per annum and executed a pronote in favour of the plaintiﬀ. After three years, in respect of the said promissory note, renewal promissory note was executed for Rs.49,000/- after deducting Rs.280/- out of Rs.49,280/- calculating the interest for three years. After 1 ½ year, the father-in-law of the defendant paid Rs.5,000/- towards interest and requested the plaintiﬀ to endorse the said payment on the back of the promissory note. The plaintiﬀ did not agree for the same, instead, insisted the defendant being the daughter-in-law of the original borrower, to execute a promissory note and accordingly obtained promissory note on 12.5.1999. Therefore, as the suit promissory note is not supported by any cash consideration and it is only a renewal of earlier pronote dt.12.6.1996, the plaintiﬀ is not entitled to recover the suit amount and therefore, the suit is liable to be dismissed. Based on the above rival pleadings, the trial Court framed the following issues for trial: 1. Whether the suit promissory note is not supported by cash consideration ? 2. Whether it is renewal of earlier promissory note ? 3. Whether the plaintiff is entitled for costs ? 4. Whether the plaintiﬀ is entitled for suit amount ? 5. To what relief ? To prove the claim, on behalf of the plaintiﬀs, P.Ws. 1 and 2 were examined and Exs. A.1 was marked. On behalf of the defendants, D.Ws. 1 to 5 were examined and Exs. B.1 and B.2 were marked. The trial Court on a consideration of the oral and documentary evidence available on record, recorded that since the defendant admitted execution of Ex.A.1, to prove her allegation that the pronote was not supported by cash consideration and it is only renewal of earlier pronote, the burden is on her to prove the same, but she failed to prove her case. Holding so, the trial Court decreed the suit with costs for an amount of Rs.75,925/- with future interest on Rs.49,000/- at 12% per annum from the date of suit till the date of decree and thereafter at 6% per annum till realization. Aggrieved by the decree and judgment dated 31.10.2006 passed in O.S.No. 136 of 2002, the defendant ﬁled appeal in A.S.No. 254 of 2007 on the ﬁle of the learned VI Additional District Judge, Markapur. The lower appellate Court on re-appreciation of the entire evidence on record conﬁrmed the judgment and decree of the trial Court. Being not satisﬁed with the judgment and decree of the lower appellate Court, the present Second Appeal is filed. The only submission advanced by the learned Counsel for the appellant is that execution of pronote was not supported by cash consideration and hence the same is not valid and not sustainable under law. In the backdrop of the above submission, I shall now proceed to scrutinize the evidence, both oral and documentary, available on record, so as to examine as to whether the lower appellate court as well as the trial Court have appreciated the evidence in correct perspective or whether any interference is called for. Before adverting to the contentions of the learned Counsel for the appellant, be it noted that the scope of this Court under Sec. 100 C.P.C. is quite narrow. Therefore, within the ambit of the appellate jurisdiction of this court under Sec. 100 CPC, it has to be seen, whether any substantial questions of law raised by the learned Counsel for the appellant in the Memorandum of Grounds need consideration and warrant any interference. It is not in dispute that the defendant admitted execution of pronote. However her contention is that no consideration was passed under Ex.A.1 and it is only renewal of earlier pronote executed by her father-in-law in favour of the plaintiﬀ. The trial Court discussed the said issue exhaustively in its judgment under issues 1& 2, the relevant paras of which are reproduced hereunder for better understanding: “It is the case of the plaintiﬀ that on 12.5.1999 the defendant borrowed Rs.49,000/- and executed Ex.A.1 pronote and failed to repay the debt. To prove his case, the plaintiﬀ himself examined as PW.1, he examined one of the attesters as PW.2. T hus the plaintiﬀ proved the execution of pronote. Even otherwise there is no dispute regarding the execution of pronote. T he defendant admitted the execution of pronote. But her contention is that no consideration was passed under Ex.A.1 and it is renewal of earlier pronote executed by her father-in-law in favour of plaintiﬀ. So heavy burden lies on the defendant to prove that suit pronote is not supported by consideration. To prove her case she examined her father-in- law as DW.2. He deposed that on 12.6.1996 he borrowed Rs.32,000/- from plaintiﬀ and executed Ex.B.1 pronote with interest at 18% p.a. and interest was calculated for three years and total came to Rs.49,280/- and Rs.280/- was deducted and pronote for round ﬁgure of Rs.49,000/- was executed by him on 12.5.1999. he ﬁled the alleged pronote and the same was marked as Ex.B.2. T he plaintiﬀ is admitted the execution of Ex.B.1 pronote of Ex.B.2 by defendant’s father-in-law in favour of him. If the case of defendant is considered and the amount on Ex.B.1 is calculated for three years with interest at 18% p.a. it will come to Rs.49,280/-, but the evidence of DW.2 discloses that he executed the pronote as renewal of Ex.B.1 on 12.5.1999. So the amount has to be calculated up to 12.5.1999 only. When the interest is calculated on Rs.30,000/- @ 18% p.a. up to 12.5.1999 it will come to Rs.48,800/-. So the case of defendant seems to be false. Even otherwise when renewal of pronote is obtained by calculating the amount the amount will be calculated on the back of previous pronote. But there is no endorsement on the back of Ex.B.1 to the eﬀect that the amount was calculated on that pronote and fresh pronote was obtained as renewal of previous pronote. T his also creates doubt about the genuineness of the case of the defendant. T his doubt further strengthens in view of the material available on record. T hough the plaintiﬀ is denying Ex.B.2. D.W.2 is contending that he executed Es.B.2 as renewal of earlier pronote Ex.B.2. So the kun-discharged pronote should be with the creditor and not with the debtor. How D.W.2 come into possession of un-discharged pronote executed by him is not explained. T his also gives raise to a doubt about the genuineness of the case of the defendant. T he defendant examined DW.4 as one of the attesters on Ex.B.2. T here is no mention in the written statement about the names of attesters on Ex.B.2. He was introduced substantially, so much credence cannot be given to his evidence. More over, he deposed that no consideration was passed under the pronote dt.12.5.1999 it was marked as Ex.B.2. T his suit is ﬁled basing on Ex.A.1 and not basing on Ex.B.2. So if consideration was passed or not under Ex.B.2 or not is no way concerned with the case of the defendant. T he evidence of DW.4 only shows that no consideration was passed under Ex.B.2. He did not speak any whisper about the execution of pronote by defendant and passing of consideration under Ex.A.1 So his evidence is of no help to the case of defendant. DW.5 is attester on Ex.B.1 T hough he deposed that no consideration was passed under Ex.B.2 admittedly he did not attest Ex.B.2 Even otherwise his evidence is of no help to the case of defendant and he did not state anything about the execution of pronote by defendant and passing of consideration. So the evidence of DWs 4 and 5 is of no help to the case of defendant in proving that no consideration was passed under Ex.A.1. T he defendant examined one of the attesters onEx.A.1 as DW.3.Adittedly he is relative of plaintiﬀ. It was suggested to him that there is dispute as he is speaking in favour of defendant and against the plaintiﬀ. He deposed that the plaintiﬀ brought the pronote and obtained his signature. He further deposed that in his presence he has not paid Rs.49,000/- to defendant. At one breath he is deposing that plaintiﬀ did not pay Rs.49,000/- to defendant. When he is not present at the time of execution of pronote he is not competent to say that no consideration was passed under Ex.A.1 pronote. In the cross examination also he categorically deposed that he has not seen whether the consideration was passed or not ? Since his evidence discloses tht he was not present at the time of execution of pronote he is not competent to say that no consideration was passed under Ex.A.1 and his evidence cannot be relied upon. Moreover it was suggested to PW.1 in the cross examination that DW.3 was not present at the time of execution of Ex.A.1 by defendant. T he defendant is contending that the DW.3 was not present at the time of execution of pronote but he introduced him to speak that no consideration was passed under Ex.A.1. T hus the evidence of defendant is self- contradictory. In view of the enmity between plaintiff and DW.3 and in view of the evidence of DW.3 which discloses that he was not present at the time of execution of pronote. His evidence cannot be relied upon. His evidence is of no help to the case of defendant to prove that no consideration was passed under Ex.A.1 It is the contention of the defendant that when DW.2 intended to pay Rs.5,000/- towards interest on Ex.B.2 the plaintiff insisted for execution of pronote by defendant with the some date of Ex.B.2 since defendant is a teacher. If the plaintiﬀ wants to obtain a pronote through defendant since she is a teacher, he was not obtained the same at the time of obtaining the alleged renewal of pronote. But he did not do so. More over as already discussed above there is no endorsement on the back of the Ex.B.1 that the interest was calculated and another pronote was obtained from DW.2 as renewal of pronote. More over the defendant her contention that Ex.A.1 is renewal of previous pronote Ex.B.1. But the evidence adduced is quite contra. If Ex.A.1 is renewal of earlier pronote Ex.B.1. It should have been obtained on 12.5.1999. But the evidence discloses that Ex.A.1 was obtained in the year 2000 or 2001. Even the evidence of Dws.1 and 2 dislcoses that Ex.A.1 was obtained as security and not as renewal of Ex.B.1. T hus the evidence of DWs 1 & 2 is quite contra to their pleadings and their evidence is self- contradictory. Moreover as already discussed above if Ex.A.1 was executed as renewal of Ex.B.1 or as security for the amount due under the alleged pronote Ex.B.2. T here should be found endorsement on the back of Ex.B.1 and the alleged Ex.B.2 should have been with plaintiﬀ since the debt was not discharged. T hese all creates a doubt about the genuineness of the case of the defendant. T he defendant failed to discharge her burden. On the other hand, the plaintiﬀ proved his case. More over when the defendant admits her signature in the pronote the presumption that the Negotiable Instrument was made or drawn for consideration is available to the plaintiﬀ unless and until it is rebutted by adducing consistent evidence. As already discussed above the defendant failed to discharge his burden and rebut the presumption. T hese issues are answered accordingly.” From the above it is clear that the plaintiﬀ does not obtain the alleged pronote at the time of obtaining the renewal of pronote. According to the undisputed facts of the case of the defendant herself, Ex.B.1 is the promissory note under which her father-in-law was liable to pay amount to the plaintiﬀ and after calculating the amount due under Ex.B.1, for the balance after adjustment, Ex.B.2 promissory note was obtained, and, for return of Ex.B.2 to her with consideration, the plaintiﬀ obtained Ex.A.1 promissory note, since because Ex.B.2 which ought to have been with the plaintiﬀ, was produced by the defendant. The return of Ex.B.2 itself implies that amount due under it was paid to the plaintiﬀ and the said payment was adjusted as cash payment under Ex.B.1, which is a valid consideration for obtaining promissory note, Ex.A.1 from the defendant. Therefore, the lower Appellate Court rightly observed that since cash is not passed directly as contended by the plaintiﬀ in respect of Ex.A.1, it cannot be said that there is no consideration at all passed on from the plaintiﬀ to the defendant in respect of Ex.A.1 promissory note and that the plaintiﬀ is only enforcing the liability under Ex.A.1 promissory note alone treating that Ex.B.2 was discharged as consideration for execution of Ex.A.1 promissory note. Both the Courts below, after considering the evidence and contentions advanced by the learned Counsel on either side, concurrently held that the contention of the defendant that Ex.A.1 is not supported by valid consideration has no substance and not supported by any evidence. This being a ﬁnding of fact, this court in exercise of its appellate powers under Sec. 100 shall not re-appreciate the evidence. The trial Court as well as the lower appellate court have properly appreciated the oral evidence in consonance with the documentary evidence. For the foregoing discussion, I do not see any question of law, much less a substantial question of law, involved in the Second Appeal so as to interfere with the judgments of the Courts below under Section 100 C.P.C. The Second Appeal is dismissed at the admission stage. There shall be no order as to costs. --- -------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 11th November, 2010. Msnro