HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.18 OF 1995 JUDGMENT: The appeal is filed against the judgment in O.S.No.45 of 1990 on the file of the Additional District Judge, Hindupur. Defendants Nos.1 to 3, 5, 7 to 9 in the above suit are the appellants herein. 2. The suit was filed for recovery of Rs.30,720/- alleging that defendants Nos.2 to 9 are partners of the 1st defendant firm and the 2nd defendant is the Managing Partner. On 30.07.1985 for the benefit of the firm defendants Nos.2 and 4 borrowed a sum of Rs.20,000/- under four promissory notes i.e., Rs.5,000/- each and executed four promissory notes in favour of the plaintiff and his wife. Subsequently, the 4th defendant made a payment of Rs.675/- under each of the promissory note on 12.12.1987. Thereafter, the wife of the plaintiff transferred the promissory notes in favour of the plaintiff. Subsequently, in spite of repeated demands, the balance amount was not paid and therefore, the suit was filed for recovery of the amount. The 7th defendant has filed written statement, which was adopted by defendants Nos.2 and 8. They have denied the execution of all the promissory notes and endorsement made by the 4th defendant and also disputed the transfer endorsements in favour of the plaintiff. 3. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the suit promissory notes are true? 2) Whether the endorsement of payment on each of the pronote is true? 3) Whether the transfer endorsement of C & D marked pronotes by Nirmaladevi is true and valid? 4) To what relief? 4. On behalf of the Plaintiff, PWs.1 and 2 were examined and marked Exs.A.1 to A.16. On behalf of the defendants, DW.1 was examined and marked Ex.B.1 and Ex.C.1. After considering the evidence on record, the learned Additional District Judge decreed the suit of the plaintiff. Aggrieved by the same, the present appeal is filed. 5. The points that arise for consideration are: 1) Whether the suit transaction is true and the appellants are liable to pay the suit amount? 2) Whether the subsequent interest granted by the lower Court is proper? 6. POINTS: The contention of the plaintiff is that the 1st defendant is a registered firm and defendants Nos.2 to 9 are the partners of the firm. The written statement was filed by defendant No.7 alone, which was adopted by defendants Nos.2 and 8 and they did not dispute about the fact that they are the partners of the firm and that defendant No.2 was the Managing Partner of the firm. Initially, the execution of the promissory notes was denied. The original holder of the promissory note was examined as PW.2 and she spoke about the passing of the consideration and execution of promissory notes Exs.A.1 to A.4 by defendants Nos.2 and 4. PW.1 is the husband of PW.2 and he also spoke about the transactions under Exs.A.1 to A.4. In the cross- examination, there is no serious dispute about the execution of the promissory notes. In fact, defendant No.4, who was examined as DW.1, has admitted the execution of the promissory notes Exs.A.1 to A.4. Though defendant No.2 has denied the execution of the promissory notes and has filed the appeal, he did not go into box to deny the execution of the promissory note. Therefore, in view of the admission of defendant No.4 and also the evidence of PWs.1 to 4, the execution of the promissory notes and passing of the consideration is established. 7. The learned counsel for the appellants contends that there is no proof of payment endorsement under Exs.A.5 to A.8 and defendant No.4, who is said to have made the said endorsement has denied the said payments and the lower Court has taken up the onerous task of comparing the signatures on the summons and came to the opinion about th truthfulness of the payment and this approach of the lower Court is not proper. It is to be mentioned that the 4th defendant, who has given evidence, has not filed any written statement in the suit denying the execution of the promissory notes or denying the payment endorsements under Exs.A.5 to A.8. Therefore, any amount of evidence given by him in the Court denying the Exs.A.5 to A.8 cannot be given credence and on the other hand, if the credibility of the evidence is to be taken into consideration, the evidence of PWs.1 and 2 has to be given much weight since the defendants having denied the execution of the promissory notes have admitted the execution of Exs.A.1 to A.4 by the evidence of DW.1. Therefore, even if the comparison of the signatures by the lower Court may not be necessary, the very fact that the 4th defendant has not denied the payment endorsement alleged by him and has remained ex parte in the suit clearly goes to show that his evidence is not acceptable and the evidence of PW.2 clearly establishes the payment endorsement under Exs.A.5 to A.8 supported by the evidence of PW.1. Therefore, I have no hesitation in holding that none of the appellants can now dispute about the binding nature of the transaction since they have not given evidence in the lower Court and there is no serious dispute about the borrowing for the necessity of the firm, the Judgment passed by the lower Court for the suit sum cannot be faulted. However, the lower Court has granted interest at 12% per annum till the date of realization and keeping in view the provisions of Section 34 of the Civil Procedure Code and there being no special contract or the transaction being not a commercial nature, interest from the date of decree till the date of realization is modified to 6% per annum. With the above modification, the judgment and decree of the lower Court is confirmed and accordingly, the appeal is disposed of. There shall be no order as to costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:14.10.2011 INL