IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE FIFTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.630 of 1999 Between: Garikapati Veeraiah, S/o.Appaiah. - - - Appellant. AND Garikapati Veeriah, S/o.Kotaiah. - - - Respondents. The Court made the following: THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.630 of 1999 JUDGMENT: This is defendant’s appeal against the decree passed by the lower appellate Court reversing the decree of dismissal passed by the Trial Court. The respondent/plaintiff had filed a suit in O.S.No.249 of 1989 on the file of the Principal Munsif Magistrate, Bapatla for recovery of Rs.4,080/- based on a suit pro-note for Rs.3,000/- marked as Ex.A1, dated 28.7.1986. The respondent/plaintiff had claimed interest over the amount covered by the pro-note at the rate of 12% per annum from the date of pro-note till the date of realization of the suit claim Rs.4,080/-. The appellant/defendant filed written statement asserting that he did not borrow any amount from the plaintiff on 28.7.1986, but further stated that he earlier borrowed Rs.6,000/- on 8.3.1985 and had executed a pro-note to repay the amount with interest at the rate of 24% per annum. The defendant further states that on 28.7.1986, i.e., the date of Ex.A1, the defendant paid Rs.6,000/- towards pro-note debt. But so far as the interest is concerned, the amount of Rs.2,000/- could not be paid by him, and therefore, the plaintiff obtained another suit pro-note-Ex.A1 for Rs.3,000/-. It is also admitted that the defendant himself has scribed the said pro-note with his hand. He also took a plea that he had repaid Rs.2,500/- on 15.8.1987 towards full satisfaction of the said pro-note-Ex.A1. The defendant contended that the plaintiff should have destroyed the pro-note but have used it for present suit. The trial Court framed the following issues:- “1. Whether the suit pro-note is devoid of consideration? 2. Whether the defendant paid Rs.2,500/- on 15.8.1987 in full satisfaction of the suit pro-note? And 3. To what relief?” While the plaintiff examined himself as P.W.1, the defendant himself was examined as D.W.1 and the two attestors as D.Ws.2 and 3. In the evidence of P.W.1 in cross-examination, it is stated as follows:- “It is not true that the defendant borrowed money from 8.3.85. But even on 28.7.86 the defendant has not borrowed money from me.” On the basis of the following sentence in the cross- examination of P.W.1, it was contended that admittedly, no consideration was passed from the plaintiff to the defendant, as such, the suit pro-note is not valid for want of consideration. The trial Court had accepted the said plea of the appellant/defendant and dismissed the suit, the appellate Court has, however, had reversed impugned appellate judgment by taking into consideration the oral evidence. However, in this appeal, the defendant attacks the manner in which the lower appellate Court has appreciated the evidence on record and in particular, the aforesaid extracted admission of P.W.1 by describing it as inadvertent errors. This second appeal was admitted on 30.10.1999, but apparently by oversight, the substantial question of law was not formulated. The grounds of appeal containing specific formulation of substantial questions of law and in particular, ground No.3, is as “whether the judgment of the appellate Court is rather perverse”. The learned counsel for the appellant has also made submissions with reference to the aforesaid substantial question of law. In the circumstances, therefore, under the proviso to Section 100 CPC, I deem it appropriate to formulate the said question as substantial question of law and I have heard the appeal elaborately. Sri Rama Murthy, learned counsel for the appellant has drawn my attention to the pleadings particularly the plaint allegations, where the plaintiff asserts that the defendant borrowed Rs.3,000/- from plaintiff under the pro-note dated 28.7.1986 and the learned counsel would read this part of the pleading together with the admission of P.W.1, which is extracted as above and submits that when the plaintiff himself claims of no passing of consideration in the plaint but denies that any consideration has passed on the date of pro-note in the cross- examination, the suit itself ought to have been dismissed. Learned counsel states that the appellate court brushed aside the said consideration on the ground that the said admission might be inadvertent, which is not permissible. Leaned counsel also states that the evidence of D.Ws.2 & 3 has also not been appreciated properly by the appellate Court and in spite of their categorical statements that no amount was paid by the plaintiff to the defendant, the appellate Court still proceeded to decree the suit. Learned counsel has relied on the decision of the Supreme Court in Jai Singh v. Shakuntala[1] for the proposition that the second appellate Court can scrutinize the evidence but the same does not clothe the superior Courts within the jurisdiction and interfere in any and every matter and the same should be returned only in exceptional cases. There is no dispute with regard to the legal proposition enunciated in the aforesaid decision and in order to satisfy myself with regard to the contention of the learned counsel for the appellant, I have examined the pleadings as well as the evidence of P.W.1 and D.Ws.1 to 3. The findings of the lower Appellate Court with reference to the admission of P.W.1 as well as the appreciation of the evidence of D.Ws.2 & 3, no doubt it is improper and the learned counsel for the appellant is right in submitting that there is a clear error of appreciation of the evidence committed by the lower appellate Court. However, that could not make any difference in view of the fact that it is the specific case of the defendant himself in the written statement as well as in the evidence that the suit pro-note was executed by him and even according to the defendant, no consideration in cash passed from plaintiff to defendant but towards the due interest for the earlier pro-note, this pro-note was executed. Therefore, since passing of consideration in cash was not the case of the defendant also the said admission would not make any difference even if the plaint allegations of borrowing the amount by the defendant is not accepted. It is well settled that consideration contemplated under the Negotiable Instruments Act can be in cash or any kind, which includes forbearance from sueing as well as acknowledging the antecedent debt. Since Ex.A1-pro-note was admittedly scribed by the appellant- defendant himself and the execution of the pro-note is also admitted, I do not see any error committed by the lower appellate Court in decreeing the suit and the lower appellate Court is justified in reversing the judgment of the trial Court. The appellate Court has also relied upon the other evidence on record namely that of P.W.1 and D.Ws.2 & 3 and has come to the correct conclusion but for the different reasons as mentioned above, the substantial question of law, therefore, is answered in the negative. The Second Appeal is accordingly dismissed. However, no order as to costs. _________________________ VILAS V. AFZULPURKAR, J Date:15.09.2010. mrb [1] AIR 2002 SUPREME COURT 1428.