I IN iNK filCH C( JURI OF KARNATAKA CIRCUH BENCH AlE GULBARGA DAIFD TIlLS FIlE 1 3th DAY OP NOVEMBER, 2009 REF ORE iHit I-ION 1-ILK MR i1JS FLEE A.S.PACHHAPURE REGULAR FIRS F APPLJQ0720QA SRI WREN K BALAVANTHARA.J 5/0 K VEERANNA MAJOR, OCC:AGRIL K/C) HALLI HoSUR MANVi TQ, RAICHUR DIET .. APPELLANT (BY SRI SHIVAKUMAi< KALLOOR, ADV) AND ‘1 SK1NIVAS 5/0 Y SAFVANARAYANA MAJOR, OCC:AGRIL K/C JALAPUR, MANV1 H) RAICI IUR I MET FESPONDENT (BY SRi R B I)ESHPANDE FOR C/R) THIS RRA FILED IT/S 9b OF CPC AGAINS F THE JUDGMENT AND DECREE DATED: 3.8.02 PASSED IN OS NO 19S/ 1997 ON THE PILE OF THE ADDL CIVIL JUDGE jSRDNJ, RAICHUR, DECREEING THE SUIT FILED BY THE RESPONDENT FOR RECOVERY OF MONEY. THIS RSA AFTER HEARING AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY. THE COURT DELIVERED THE FOLLOWING: JUDGMENT The unsuccessful defendant has approached this Court in appeal. challenging a decree for a sum of Rs.85, 141/- obtained by the plaintiff before the Trial Court in a suit for recovery of money. 2. The facts relevant for the purpose of this appeal are as under: I will be referring the parties as per their rank before the Trial Court. The appellant herein is the defendant, whereas the respondent is the plaintiff who instituted the suit for recovery of an amount of Rs. 1,29,950/- with future interest at the rate of 3% per month from the date of the suit till its realisation. Both the plaintiff and the I defendant hail from Andhra Pradesh. The defendant used to approach the father of the plaintiff for loan now and then for the purpose of his agriculture and for fertilizer and he used to repay the loan amount after the season. Thereby the plaintiff and the defendant had maintained good relationship and in that way there were many transactions between them for about six to seven years prior to the institution of the suit. 3. It is in the year 1994 that the defendant requested for a loan of Rs.65,000/- in the month of December stating that he requires the money for his family and also agriculture. As the relationship between the parties were cordial, the plaintiff assured the defendant that, he will arrange the amount within 15 to 20 days. So also the plaintiff claimed that as the amount is big he would charge interest at 3% per month 4 4. The plaintiff arranged for the sum and the defendant came on 28.12.1994 and the plaintiff called the defendant to get a scribe and the witnesses and to bring the revenue stamp. The defendant came in the evening along with witnesses and necessary revenue stamp and as the plaintiff had utilised a sum of Rs.2,000/- by then he said that he would pay Rs.63,000/- and the defendant agreed for the same. 5. That in pursuance of this agreement Vishveshwar Rao, the scribe wrote the promissory note as per the instructions of the defendant and after writing the document, the plaintiff paid the sum of Rs.63.000/- to the hands of the witnesses and after the defendant affixed the stamp and signed the promissory note, took the amount of Rs.63,000/- from the witnesses who attested the document. 6. In the month of August 1995. the plaintiff requested the defendant to repay the amount with 5 interest. The defendant expressed his inability due to the loss of crop and payment of heavy lease amount. The plaintiff kept quite for some time, but the defendant began to avoid to meet the plaintiff and hisfather. This conduct of the defendant made the plaintiff to doubt the repayment. He requested the witnesses and his scribe to pursue the matter and settle the payment. But the defendant avoided the repayment even thereafter. 7. The plaintiff was badly in need of the amount and he requested the defendant twice and as the defendant denied to repay the loan with interest, the plaintiff issued legal notice dated 12.10.1997 calling upon him to repay the amount with interest. But the defendant replied the said notice through lawyer denying the transaction and execution of the promissory note. The plaintiff submits that he is entitled to Rs.63,000/- as principal amount and interest of Rs.66,950/- at 3% per month upto November 1997 i.e. 6 total sum of Rs. 1,29,950/- with interest at 3% per month. It is under these circumstances, that as the defendant did not repay the amount, the plaintiff instituted the suit for recovery of Rs. 1,29,950/- with interest at 3% till the date of realisation of the amount and also sought for the costs of the suit. 8. In pursuance of the summons issued, the defendant appeared before the Trial Court and filed his written statement contending that the suit is barred by time and that it is not maintainable. So also it was his contention that the promissory note is not sufficiently stamped and that he has not executed any demand promissory note in favour of the plaintiff nor took any loan much less the amount of Rs.63,000/- from the plaintiff at any time. He submits that the plaintiff has fabricated, false and fictitious document styling it as a demand promissory note and that the plaintiff has to strictly prove the said transaction. He has denied all 7 other allegations regarding difficulties of the defendant, approach of the plaintiff for repayment and his inability to repay the loan etc.. and on these grounds he sought for dismissal of the suit. 9. On the basis of the pleadings the Trail Court framed the following issues: (1) Whether plaintiff proves that suit transaction between himself and defendant has occurred as contended in para No.3 and 4 of the plaint? (2) Whether plaintiff proves that he has paid an amount of Rs.63,000/- to the defendant on executing promissory note by the defendant as alleged in the para No.5 of the plaint? (3) Whether defendant proves that suit of the plaintiff is not maintainable as alleged in the pal-a No.3 of the written statement? (4) Whether suit of the plaintiff is in time? (5) Whether plaintiff is entitled to recover suit sum from the defendant? (6) Whether plaintiff is entitled to the pendente lite and future interest at the rate of Rs.3% per month? 8 (7) What order and decree? 10. During the trial, the plaintiffwas examined as PW- 1 a witness PW-2 and In the evidence he got marked Exs.P-1 to P-4 documents. The defendant examined himself as DW- 1 and In his evidence the documents Exs.D-1 to D-6A were marked In his evidence. Therefore, the Trial court on appreciation of the evidence on record and after hearing the counsel for the parties held that the promissory note has been proved but he denied the Interest at 3% per month and granted simple Interest at 12% on the amount of loan from the date of the transaction tin the date of the Institution of the suit and granted a decree for Rs.85,141/- with pendente lite Interest at 12% pa from 3.12.1997 to 3.8.2002 and the Interest at 8% from the date of the decree tin Its payment. Aggrieved by the Judgment and decree of the Trial Court, the defendant has approached this Court In appeal. 9 .4 11. I have heard the learned counsel for the appellant and also the respondent. 12. In view of the rival contentions raised, the points that arise for my consideration are: (1) Whether the plaintiff proves that he advanced loan of Rs.63,000/- to the defendant on execution of the promissory note by the defendant as per Ex.P1.? (2) Whether the defendant has rebutted the presumption raised on the execution of the demand promissory note? (3) Whether there Is any necessity to reduce the rate of Interest.? (4) Whether there are any grounds to Interfere with the judgment and decree of the court below.? 13. It Is the contention of the learned counsel for the appellant, that the execution of the demand promissory note has not been proved and that the perusal of Ex.P-1 the demand promissory note Itself I0 raises serious doubt regarding Its genuineness and that there Is a gap In between the written, portion and the signature on the revenue stamp and therefore, he submits that the Trial court committed an error In accepting the execution of the document by the defendant. So also, he contended that the signature on Ex.P-1 was disputed by the defendant and the Trial Court committed an error In holding that the signature Is that of the defendant without sending the disputed and admitted signature to the handwriting experts and therefore, It committed an error in accepting the Ex.P1. Further more he submits that the scribe of the document Is not examined and the contents have not been proved and further the passing of consideration under Ex.P1 Is also not proved satisfactorily. He claims that there are many dIscrepancIes in the evIdence of the plaintiff and his witness and therefore, claims that the court below committed an error in granting a decree for money. 11 14. Per contra, the learned counsel for the respondent submits that the Trial Court has taken into consideration the material placed on record including the fact that the defendant has denied his signature on the written statement filed by him and on proper appreciation of the material on record has granted the decree. He submits that the appellant has not made out any grounds to call for interference. 15. I have carefully scrutinized the pleadings of the parties the evidence led and also the documents admitted in evidence in the context of the submissions made by the learned counsel. So far as the proof of the document is concerned, the plaintiff who has been examined as PW— 1 has produced Ex.P- 1 the demand promissory note which is in Telugu language and there is the signature on the revenue stamps below the writing. So also, the scribe of the document has put his signature at Ex.P- 1D and two attesting witnesses have 1’ 12 signed this document as Ex,P 1(c) the signature of the defendant is marked as Ex.P1(a). The translation of this document has been produced at Ex.P-2 and the contents reveallhat on 28.12.1984, the defendant for his personal needs and agricultural purpose received an amount of Rs.63,000/- and agreed to repay the loan with interest at 3% per month and that this document has been written in the presence of the attesting witnesses and the parties. It is no doubt true that the defendant has disputed the signature on Ex.P- 1. But his attitude is peculiar in the sense that even his signature on the written statement has been disputed by him. So this conduct of the defendant in disputing his signature on the written statement raises doubt so far as his conduct is concerned. It is no doubt true that the plaintiff has to prove the execution of the document and to discharge his burden he has stated in his evidence regarding the execution of the document at Ex.P- 1, the putting of the signature by the defendant at 13 Ex.P-ia and the signature of the attesting witneses including the scribe, he also states in his evidence that he paid Rs.63,000/- to the defendant at. that time. He is specific in his submission that the defendant has put his signature on the revenue stamps at Ex.P- 1(a). Further more, PW-2 is an attesting witness to the document and he states in his evidence that on 28. 12.1984 he was present and that at the time of the transaction the plaintiff paid an amount of Rs.63,000/- to the defendant who had brought the scribe, who his own brother and also the attesting witnesses in addition to the revenue stamps. PW-2 states that he was present at the time of the execution of the document and the said document was signed by the defendant in his presence. He speaks about the details of the transaction including the interest payable and the evidence of PW—2 corroborates that of PW— 1. As could be seen from the signature of the defendant on Ex.D- 1 at D- 1(a) and the written statement filed by him, the 14 comparison lead to the only inference that they are similar. Further more, it is in the evidence of the defendant himself that his younger brother Vishweshwar Rao used to attend the court on each of the dates while recording the evidence but he did not allow his brother to give his evidence before the court as the said scribe was the brother of the defendant. 16. It is well established principle of law that so far as the proof of the contents of the documents are concerned, it may be proved by the primary or secondary evidence, the proof of execution is a question of fact and has to be proved by oral evidence by examining a witness who saw the executant signing the document or by expert evidence. In the case on hand, PW-2 was the person who is an attesting witness to Ex.P- 1 and it is he who saw the defendant executing the document and putting his signature on Ex.P 1. The perusal of Sec.67 of the Evidence Act reveals that the 15 writing on the signature of the document can be proved by a person who has the acquitance of the signatute and also by the person who was present at the time of the execution of t.he document and saw the party signing the document. So the consistent version of PW 1 & PW-2 that they saw the defendant signing Ex.P- 1 at the time of its execution would establish that it is a defendant who put the signature on Ex.P-1. When the defendant denied his signature on the written statement, it indicates his conduct and an adverse inference could be drawn that he is in the habit of putting the signature and later denying it. Even the comparison of the written statement and Ex.P— 1 would prove that they are similar. In addition to this inference, the evidence of PWs. 1 & 2 in my opinion is sufficient to prove the execution of the documents. 17. The learned counsel for the appellant has relied upon the decision of this Court reported in 16 Uk 2006 KAR 2911 (Sciftarsab Vs. B. AlksJolz @ Allappoj and this court taking Into consideration Sec. 118 of the Negotiable Instruments Act 1981 (hereinafter called as ‘the Act’ for short) held that before raising the presumption, It Is necessary that the plaintiff has to prove the execution of the document and It Is In such circumstances only, the burden shifts upon the defendant. So also he has relied upon the decision reported in AIR 1991 MS&A (Sri Khetramohan Ray Vs. Udayanarayan Panda & another.) taking into consideration the fact that In a suit for recovery of amount on the basis of the promissory note where the defendant had taken the plea that he has put the signature or thumb Impression on the blank paper, the court held that It Is the plaintiff who has to prove the execution of the promissory note by the plaintiff and thereafter ownership shifts and there was no consideratIon for the transaction. Taking into consideration the principle laId down by the courts In 17 the above decisions and the evidence led by the plaintiffs, there Is ample material In the evidence of PWs. 1 & 2 that the document Ex.P- 1 was executed by the defendant In favour ofthe plaintiff In the presence of PW-2 and the scribe of the document was none else than the brother of the defendant. 18. It Is the consistent version of both the witnesses that an amount of Rs.63,000/- was paid to the defendant at the time of the transaction and in my considered opinion the execution has been proved satisfactorily and thereby a presumption arises u/s. 118 of the NI Act. So it is the burden upon the defendant to rebut the said presumption and In this regard except the evidence of DW- 1 no material is placed on record to discharge the said burden. Though he states In his evidence, that as he discontinued the transaction with the plaintiff, the relationship was strained and that the plaintiff took the advantage and created a false document and has filed a false suit. This defence In my 18 opinion is not natural and acceptable. I do not think that the plaintiff would go to an extent of creating a document Ex.P- 1 to take revenge against the defendant and the fact that the brother of the defendant is the scribe of the document and PW-2 is the attesting witness and the evidence reveals the advancement of loan of Rs.63,000/- and the execution of Ex.P- 1 has been proved and the evidence of interested witness is insufficient to rebut the presumption. 18. When once the signature of the defendant is proved from the evidence on record, then there is a duty cast upon the defendant to explain the circumstances in which he has put his signature. But the defendant has not made any such efforts but g6 to the extent of denying his own signature on the written statement. In the circumstances, the Trial Court has taken into consideration of all these aspects and rightly held that the plaintiff has proved the execution of the document and also the passing of the consideration on the basis of 1 9 the evidence of PWs. 1 and 2 and also the conduct of the defendant. The plaintiff has also produced Ex.P-3 the legal notice and after the receipt of the reply, has instituted the suit. Though the defendant has taken a defence that the suit is not maintainable but he has not put forth any grounds to prove the same. 19. So far as the rate of interest is concerned, the Trial Court has taken into consideration that the interest charged by the plaintiff at 3% pm is exorbitant and has considered the simple interest at 12% pa on the amount of Rs.63,000/- so it calculated the interest at Rs.22, 124 from the date of the transaction till suit and granted a decree for Rs.85, 14 1/-. So far as the future interest from the date of decree, it granted interest at 8% on the suit claim. Taking into consideration the circumstances in which the defendant is placed and that he has to pay huge amount of Rs.85, 141/- this court can exercise discretion u/s.34 of the CPC and I think in the interest of justice the future interest has to 20 be reduced to 6%. In the circumstances the appellant has not made out any such ground to call for the interference except to the extent of reducing the future interest from the date of decree from 8% to 6%. In that view of the matter, I answer the point No. 1 in the Affirmative and point No.2 in the Negative and Point Nos. 3 & 4 partly in affirmative and partly in negative and proceed to pass the following: ORDER The appeal is allowed in part confirming the decree for Rs.85, 141/- with pendente lite interest at 12% from 3.12.1997 to 3.8.2002 and reducing the rate of interest to 6% on the principal sum of Rs.63,000/- from the date of decree till its realisation. A modified decree in the terms stated above shall be drawn. Sd D1* I-I