THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.358 of 1998 JUDGMENT: The plaintiff in O.S.No.168 of 1990 on the file of the Additional Subordinate Judge, Chittoor is the appellant herein. The suit was one filed for recovery of a sum of Rs.1,02,000/-, being the principal and interest due on a promissory note dated 03.08.1987 for Rs.75,000/- executed by the defendant in favour of the plaintiff. The amount was not paid in spite of repeated demands and hence, the suit. The defendant filed written statement contending that the defendant has not executed any promissory note in favour of the plaintiff and the defendant never received any amount from the plaintiff much less Rs.75,000/- as alleged in para-3 of the plaint. Thus, the allegations are frivolous and fabricated. The Court has no jurisdiction to try the suit as the defendant is not resident of any place within the jurisdiction of the Court at Chittoor. The plaintiff in the year 1983 came in touch with the family of the defendant and became close. The father and mother of the defendant were doing business in real estate at Tirupati and the defendant also joined along with the plaintiff in the said business. In the year 1985, the plaintiff and the mother of the defendant Smt.Vasanthakumari entered into an agreement to purchase land in Sy.No.254/4 from one T.Rajaram and the plaintiff and the defendant’s mother jointly paid Rs.80,000/- and the plaintiff has paid Rs.40,000/-. Thereafter, some disputes arose. Due to that the plaintiff has fabricated an agreement of sale dated 06.01.1987 as if it was executed by Rajaram and issued a legal notice. A criminal case was filed, thereafter the plaintiff having realized the fault, executed an agreement dated 23.07.1987 and giving up his rights a final settlement was arrived at on 03.08.1987, whereunder the mother of the defendant was found due a sum of Rs.75,000/- and the plaintiff wanted a promissory note to be executed by her. In that connection, the defendant executed the present suit promissory note for the amount due by his mother. Therefore, it was not for cash consideration. It was further pleaded that on 17.06.1990, the plaintiff came to Tirupati and requested for payment of the money and the plaintiff has also stated if the lumpsum amount is paid, he would give up the part of the claim towards interest. On 17.06.1990 the mother was having a cash of Rs.85,000/- and consequently the said amount was paid in full settlement and after receiving the said amount a receipt was passed by the plaintiff promising to return the promissory note later. The attestors were not present at the time of the alleged promissory note transaction. Therefore, the defendant is not liable to pay the suit amount. The plaintiff has filed a rejoinder disputing the alleged receipt dated 17.06.1990 towards the settlement of the suit claim. On the basis of the above pleadings, the learned judge framed the necessary issues. On behalf of the plaintiff, P.Ws.1 and 2 were examined and marked Exs.A-1 to A-3 and on behalf of the defendant, D.Ws.1 to 4 were examined and marked Exs.B-1 to B-8 and Exs.X-1 to X-14. After considering the evidence on record, the lower Court has dismissed the suit. Aggrieved by the said judgment and decree dated 15.07.1997, the present appeal is filed. The points that arise for consideration are: 1. Whether the plea of discharge pleaded by the defendant is true? 2. Whether the plaintiff is entitled for the suit amount? POINTS: The learned counsel for the appellant strongly contends that on surmises and ignoring the inconsistent plea of defendant, the lower Court has accepted the evidence of the discharge and in fact the evidence on record does not support any such material and the evidence of expert cannot be looked into. Furthermore, the reasoning of the lower Court in para No.43 with regard to the conduct of the plaintiff in waiting till last day of limitation is fallacious. On the other hand, the learned counsel for the defendant supported the judgment and decree of the lower Court. The suit promissory note was said to have been executed on 03.08.1987. The suit was filed on 03.08.1990. Even the alleged discharge under Ex.B-2 is dated 17.06.1990. Therefore, the conduct of the plaintiff for waiting till the last day of limitation is no ground to suspect his bona fides since even the alleged discharge of the debt was not done by the defendant till the proximate date of expiry of the period of limitation. In this case, few facts have to be taken note of before appreciating the plea of the defendant. In the earlier part of the written statement in para No.6, it was specifically pleaded that the defendant never executed the promissory note by borrowing the money and at the later part of the pleading comes up with a theory that the promissory note was executed in fact for the money due by his mother. Therefore, the fact that the promissory note is supported by consideration is valid and enforceable need not be doubted. The burden, therefore, is exclusively on the defendant to prove the alleged discharge under Ex.B-2. Ex.B-2 is said to have been given on a letter head dated 17.06.1990 and contents therein are as follows: Date: 17-6-1990 RECEIPT I, S.Venugopal Reddy S/o Ramachandra Reddy, received Rs.85,000=00 (Eighty five thousand rupees only) today i.e. 17-6-1990 from K.KRUPANANDA REDDY S/o K.Muni Reddy towards the full settlement of the amount due under the pronote date 3-8-1987 executed by him in my favour, at the instance of the mediators. It is said to have been attested by K.Muralikrishna Reddy and another. It is useful to refer to the written statement, wherein the presence of these elders and the attestation by those individuals was not mentioned. The written statement only reads that on 17.06.1990 when the plaintiff came to Tirupati, he demanded money and mother of the defendant, who was examined as D.W.3, was having cash of Rs.85,000/- and towards full discharge the said amount was paid and the receipt was passed. The presence of Muralikrishna Reddy or the other attestor was not stated. This is a vital aspect, which the lower Court has failed to take into consideration. Furthermore, the money is said to have been paid by the mother of the defendant, who was examined as D.W.3, and this receipt Ex.B-2 does not show that the money was paid by her and she did not even attest that receipt. Ex.B-2 refers that at the instance of the mediators the settlement was made. The name of those mediators was not mentioned in the written statement. In fact, the plaintiff was confronted with his signature alone on the letter head dated 17.06.1990 and he was not confronted with the contents and Ex.B-2 was not marked when he was in the box. P.W.1 has denied the signature on the letter head dated 17.06.1990, which was said to have been filed in Court on 22.07.1991 and at that stage, it was not even suggested that this receipt Ex.B-2 was executed by him by taking the money. It is fundamental that the evidence in case of discharge by passing of a receipt has to be proved by confronting the person, who has passed the receipt but for the reasons best known only signature was asked and it was denied and the receipt Ex.B-2, which is alleged to have been passed by the plaintiff, was not put to him. Therefore, it clearly goes to show that P.W.1 was not questioned about this Ex.B-2 and when such a receipt is not confronted any amount of interested evidence of the defendant is of no avail. The lower Court has failed to take into consideration this aspect. So far as the evidence of the defendant is concerned, he admits that Ex.A-1 was executed for the consideration due from his mother. His evidence in chief examination clearly goes to show that the plaintiff came and asked him to pay the money and at that time his mother D.W.3 asked whether he brought the promissory note and informed that she has got part of Ex.A-1 amount and the plaintiff agreed to waive a sum of Rs.15,000/- towards interest and received a sum of Rs.85,000/-. This statement is also not there in the written statement. For the first time, he stated that Muralikrishna Reddy and Tirumalaiah attested the receipt and it is Ex.B-2. According to him, Ex.B- 2 letter head belongs to his office and he does not know that it has to be stamped. It was suggested to the plaintiff that he himself got Ex.B-2 typed, which version was not put when the plaintiff was in box and D.W.3 is the mother of the defendant and she spoke about the business transaction and execution of Ex.A-1 by the plaintiff at Balaji Bhavan, Tirupati and not in the village of the plaintiff. According to her, in May, 1990 they paid cash of Rs.85,000/- to the plaintiff at Balaji Bhavan and corrected herself as June. According to her, at that time, herself, the defendant, D.W.2 and one Tirumalaiah were present. The plaintiff is said to have promised to return the pronote and got Ex.B-2 receipt typed. Her evidence does not show that the interest was included and any mediation has taken place and the plaintiff has waived part of the interest and towards full satisfaction Ex.B-2 was executed. It was suggested to her that Ex.B-2 was not passed by the plaintiff. The evidence of D.W.2, who is the attestor on Ex.B-2, goes to show that in the year 1990 a sum of Rs.1,00,000/- was payable by the defendant to the plaintiff and on 17.06.1990 the plaintiff came for a settlement and the plaintiff did not bring the promissory note and a sum of Rs.85,000/- was paid by D.Ws.1 and 3 and the plaintiff brought the typed Ex.B-2 receipt. In the cross- examination, he stated that the plaintiff came to the lodge after he went there, D.W.1 asked for the promissory note and the plaintiff promised to return within one week. Therefore, from the evidence on record, it is quite clear that the plaintiff is said to have gone for demanding of the money and if that is the purpose it is difficult to believe that the plaintiff would have gone there without the promissory note and the defendant or D.W.3 would not have accepted such a conduct. Furthermore, when the promissory note is not returned no effort was made after one week demanding the return of the promissory note. The evidence of D.Ws.1 to 3 appears to be unnatural. If the defendant is to pay the money, the receipt should be scribed by the person on his behalf. But there is no reason as to why the plaintiff should be asked to go and get a typed receipt. In fact all of them are educated and can write and even without typing a receipt could have been written with hand. The place where the receipt was typed is not disclosed. In fact in para No.30 of the judgment, the learned judge found that there were ill-feelings or disputes between the plaintiff and defendant, when that being so, nobody would have paid the money without return of the promissory note. The lower Court has given much importance to the expert opinion. In para No.45 of the judgment, the lower Court found that the plaintiff instead of explaining his own conduct pointed out that the defendant had taken lot of time for filing the written statement and this is not a serious circumstance. As can be seen from the docket, the suit was numbered on 08.11.1990 and on 10.12.1990 the defendant appeared and thereafter the written statement was not filed and after four adjournments costs were paid and the written statement was filed on 22.07.1991. If really, a promissory note debt has been discharged and the receipt is available no party would take so much of time to file the written statement. It has to be further noted that the execution of the promissory note itself was for settlement of the disputes between D.W.3 and the plaintiff with regard to the immovable property. In fact, the signatures, which are taken in open Court marked as Ex.X-2, are not in the same form as contained in Ex.B- 2 and they cannot be taken as standard signatures for comparison. He was not asked to write as a signature like Ex.B-2. In fact, no other comparative material of a similar signature was given to the expert. Therefore, in such circumstances, the opinion of the expert loses its importance when and what was considered is only a part of the signature with the first letters and not the total full signature. On all the circumstances, a legal notice was given under Ex.A-2 on 07.06.1990 and it was returned ‘as refused’ on 11.06.1990. If that is the conduct of the defendant while being in consistent touch demanding the money, it is difficult to believe that he would have gone to the defendant without the promissory note. The lower Court has not properly appreciated the evidence on record and the conduct of the defendant. On the other hand, in spite of inconsistent pleas apart from insufficient pleas given benefit to the defendant and accepted Ex.B-2, which was, evidently, filed on 22.07.1991 along with the written statement long after the appearance in the Court. The evidence of D.Ws.1 and 3 is indisputably interested and the evidence of D.W.2 is not convincing and, therefore, I have no hesitation in holding that the judgment and decree passed by the learned Senior Civil Judge is liable to be set aside. Accordingly, the Appeal Suit is allowed and the judgment and decree of the lower Court is set aside and the suit of the plaintiff is decreed for a sum of Rs.1,02,000/- (Rupees one lakh two thousand only) with subsequent interest at 12% per annum on the principal sum of Rs.75,000/- from the date of suit till the date of decree and at 6% per annum from the date of decree till the date realization. The plaintiff will be entitled with the costs throughout. ________________________ N.R.L.NAGESWARA RAO, J 31-10-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.358 OF 1998 Date: 31-10-2011 MR