THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.No.673 OF 2001 JUDGMENT The defendant in O.S.No.139 of 1997 on the file of the I Additional District Judge, Nellore, is the appellant herein. The suit was filed for recovery of Rs.1,54,000/- being the principal and interest amount due on a promissory note dated 25.06.1992 said to have been executed by the defendant with interest at 18% per annum as the defendant has not paid the amount in spite of repeated demands, the suit was filed for realization of the same. The defendant has filed a written statement contending that he has borrowed Rs.2 lakhs under two independent cheques for Rs.1 lakh each and the debt for Rs.1 lakh has been discharged and those transactions have taken place on 25.06.1992. So far as the present suit transaction is concerned, the defendant claims to have paid a sum of Rs.86,000/- on 20.06.1993. The plaintiff represented that he kept the original promissory note at the place of contract and, therefore, he issued the receipt to that effect. There is a good friendship and confidence between the plaintiff and the defendant and therefore, the amount was paid. The original receipt will be filed into the court at the appropriate time. Therefore, the defendant pleaded that after deduction of the payment of Rs.86,000/- he is prepared to pay the balance of amount. On the basis of the above pleadings, the following issues have been framed for trial:- (1) Whether the part payment of Rs.86,000/- made by the defendant on 20.06.1993 is true? (2) To what relief? On behalf of the plaintiff, P.Ws 1 to 3 were examined and marked Exs.A.1 to A.3. On behalf of the defendant, D.Ws 1 to 3 were examined and marked Ex.B.1. After considering the evidence on record, the learned I Additional District Judge, Nellore, decreed the suit of the plaintiff and aggrieved by the said judgment, the present appeal is filed. The points that arise for consideration are :- (1) Whether the discharge pleaded by the defendant is true? (2) Whether the plaintiff is entitled to the suit amount? (3) Whether the Judgment and Decree passed by the learned I Additional District Judge is legal and sustainable? POINTS No.1 to 3:- The learned counsel for the appellant contends that the allegations in the plaint are too vague and it does not disclose about the other transactions between the plaintiff and the defendant under the two cheques and only a reference was made to the single transaction with regard to which, the dispute is now under consideration. So far as this contention of the learned counsel for the appellant is concerned, since already the other debt is said to have been discharged and as there is no other claim relating to that, it is not a material fact to be pleaded in the plaint. The only fact that has to be pleaded by the plaintiff is the basis on which the claim is made against the defendant and the basis of such claim is the transaction with regard to Ex.A.1, which is not discharged. Therefore, the bona fides of the plaintiff on this account cannot be doubted. In fact, it is not the case of the defendant that the promissory note transaction under Ex.A.1 is not correct and that he has not received any consideration under Ex.A.1. It is the specific plea of the defendant that a sum of Rs.86,000/- was paid on 20.06.1993 and Ex.B.1 receipt was issued by the plaintiff. Therefore, when a plea of discharge has been set up by the defendant the burden is totally on him and no infirmities or any lack of evidence on the part of the plaintiff can be pleaded. The plaintiff is not expected to prove that he did not receive the money under Ex.B.1. It is for the defendant to prove that a valid discharge has been given under the promissory note Ex.A.1. It is to be noted that both the plaintiff and the defendant are said to be in contract business and are known to each other and the defendant is in the habit of borrowing money from the plaintiff. He is also aware of the fact that when any amount was paid and the debt was discharged, he should take back the promissory note or an endorsement shall be made on the promissory note. To explain the failure of making any endorsement on the promissory note, a plea was raised in written statement to the effect that the promissory note is said to be at the place of contract work of the plaintiff and therefore, the receipt Ex.B.1 was passed. But on this aspect, the evidence of D.W.1 or D.Ws 2 and 3, who are said to be associated with Ex.B.1 is totally silent. In fact, the evidence of D.W.1, who is the defendant does not disclose that he has asked about the promissory note or that he pleaded for an endorsement on the promissory note to be made by the plaintiff. It is pertinent to note that the defendant has also not stated that the plaintiff has represented that the promissory note was kept at the place of his contract and it is not available. Therefore, the first reason given by the defendant for not seeking an endorsement on the promissory note is not proved from his own evidence. It is further to be noted that whenever a bona fide plea of discharge of a promissory note under a receipt without any endorsement on the promissory note is pleaded, the defendant is expected to file the said document into the Court along with the written statement. Evidently, the written statement of the defendant was filed on 11.03.1996. The document Ex.B.1 was filed into the Court on the date when the defendant gave evidence i.e., in July, 2000 and on 27.02.2000. Therefore, nearly for a period of four years the document has not seen the light of the day and it was kept back any person pleading justifiable cause for not filing this document into Court should explain the same but there is no explanation from the defendant. Added to that, the written statement is totally silent as in whose presence this amount was paid and as to who is the person that actually scribed the receipt Ex.B.1. The association of D.Ws.2 and 3 is totally silent. Even if a document is not filed into the Court the party is expected to make a plea as to in whose presence and at what place the payment has been effected. The failure to make such to disclose the names of those persons and the failure to file the document along with the written statement at the earliest point of time are suspicious circumstances about the plea of the defendant. Added to that, the payment is said to have been made at Mulumoodi bus stand, Santhapet, Nellore. According to the case of the defendant he has gone to the house of the plaintiff and the plaintiff was not there and the plaintiff is said to come in a car and thereafter, he along with D.W.2 boarded the car and in the car he has paid the money and the receipt is said to have been written by D.W.2. Evidently, the place where the defendant was waiting is a very busy locality and one fails to understand as to how and why the necessity of writing the receipt Ex.B.1 in the car of the plaintiff. This is also an additional factor, which throws doubt about the claim of the defendant. Added to that, the defendant has not mentioned in his evidence as to on what date this particular transaction has taken place. His evidence in chief-examination does not show that on the particular day i.e., 20th Jun 1993 he paid the amount to the plaintiff and to that effect his evidence is very vague. He claims that he paid Rs.86,000/- to the plaintiff at Mulumoodi bus stand, Santhapet, Nellore, in the presence of D.W.2. In fact, the presence of D.W.3 is also not spoken by him. Therefore, all these circumstances clearly create a doubt on the plea of discharge pleaded by the defendant. More so, because the defendant is not a layman and is a contractor. Therefore, the lower Court has given sufficient reasons to discard the evidence of D.Ws 1 to 3 and as such, I find that much of the contentions raised by the counsel for the appellant blaming the plaintiff cannot be taken into consideration since the defendant has failed to discharge the burden of payment of the money under Ex.B.1. However, as can be seen from the judgment of the lower Court, the lower Court has granted interest at 18% per annum from the date of the suit till the date of realisation and also granted exemplary costs of Rs.2,000/- against the defendant. I feel, the grant of such interest is on a higher side and onerous and there are no special reasons given for awarding of exemplary costs of Rs.2,000/- to the plaintiff. Therefore, in view of the above circumstances, the suit of the plaintiff is decreed for a sum of Rs.1,54,000/- with interest at 12% per annum from the date of the suit till the date of decree and at 6% per annum from the date of decree till the date of realization on principal amount. As the transaction is not a commercial transaction to invoke the exception under Section 34 C.P.C, the exemplary costs granted by the lower Court is also deleted. With the above modification, the appeal is allowed in part. ______________________ N.R.L.NAGESWARA RAO,J 17th February 2011 bud