HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 628 OF 2011 . DATED 24TH June, 2011 BETWEEN Sri Maddipati Ganga Rao …Appellant And Sri Maddipati Naga Venkata Rajesh ….Respondent. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 628 OF 2011 JUDGMENT: The appellant herein is the defendant in the suit in O.S.No. 422 of 2006 on the file of the learned Principal Junior Civil Judge, Kovvur. The respondent herein, who is the plaintiff, filed the aforesaid suit against the appellant/defendant for recovery of a sum of Rs.96,670/- being the balance of principal and interest at 18% p.a. due under the pronote dated 15.09.2004 executed by the defendant in his favour for Rs.80,000/- with subsequent interest and costs thereon. The trial Court after a full fledged trial and consideration of the oral and documentary evidence adduced by the parties, decreed the suit under judgment and decree dated 30.01.2009. Being aggrieved by the same, the appellant/defendant preferred an appeal in AS.No.11 of 2009. The learned Additional Senior Civil Judge, Fast Track Court, Kovvur, on a reappraisal of the evidence on record dismissed the appeal by his judgment and decree dated 22.02.2010. Dissatisfied with the judgment of the lower appellate Court, the appellant/defendant preferred the present Second Appeal. The learned Counsel for the appellant/defendant inter alia submits that the respondent/plaintiff failed to file income tax returns to prove that Ex.A.1 is supported by consideration and hence the Courts below ought to have drawn adverse inference with regard to the lending of the suit amount by the plaintiff to the defendant. The learned Counsel submits that non issuance of reply to the Ex.A.2-notice does not circumvent the respondent/plaintiff proving Ex.A.1 and hence adverse inference can not be drawn against the appellant/defendant when he fails to give reply to the notice under Ex.A.2, all the more so, when issuance of reply to the legal notice is not mandatory. The learned Counsel further asserts that the Courts below ought to have followed the principle enumerated under Section 72 of the Indian Evidence Act to compare the admitted signature of the appellant/defendant with the disputed signature on Ex.A.1. Before adverting to the aforesaid submissions, be it noted that the scope of this court under Sec. 100 C.P.C. is quite narrow. Therefore, within the scope and ambit of the appellate jurisdiction of this court under Sec. 100 CPC, let me examine, whether any interference is warranted by this Court, more particularly in the light of the concurrent findings recorded by both the courts below. The learned Counsel for the appellant/defendant submits that in as much as the plaintiff-PW.1 admitted in his cross-examination that he would file income tax returns for the year 2004-05 and the debts and loans advanced by him shall have to be shown in the income tax returns, and since he failed to file the same, adverse inference is to be drawn. Pursuant to the notice issued under Order XI Rule 16 CPC to produce the income tax returns, the respondent/plaintiff filed a memo before the Court below stating that he has not filed income tax returns in his individual capacity, vis a vis as partner in the firm, he has shown his income in the returns. Since the plaintiff/respondent categorically admitted that he did not file the income tax returns in his individual capacity, mere non filing of the same cannot be held against him for drawing of adverse inference with regard to lending of suit amount. The appellant/defendant admitted himself that the respondent/plaintiff is a big landlord and that itself draws an inference that he could have lent the money under Ex.A.1. Coming to the next submission, though there was ample time to give reply to the notice got issued by the respondent/plaintiff on 6.4.2006 under Ex.A.2, which was acknowledged by the appellant/defendant on 7.4.2006 under Ex.A.3, for the reasons best known to him, the appellant/defendant did not choose to issue a reply notice denying the claim of the respondent/plaintiff under Ex.A.1-promissore note. The appellant/defendant, on the other hand, contended that he raised the dispute before the elders on receipt of the notice under Ex.A.2 and the respondent/plaintiff agreed to withdraw the same. To substantiate the same, the defendant examined one of the elders as D.W.2 before whom he was said to have raised a dispute. A perusal of the evidence shows that it is not suggested to P.W.1 in his cross-examination that D.W.2 questioned the plaintiff on behalf of the defendant as to why he got issued the legal notice to the defendant and in such circumstances, no reliance can be placed on the evidence of D.W.2 that a dispute was raised before him by the defendant against the plaintiff after receipt of legal notice under Ex.A.2. In such circumstances, an adverse inference can be drawn against the appellant/defendant that to come over false plea that as he raised a dispute before the elders, he did not choose to issue a reply to the legal notice under Ex.A.2. In normal course, the context envisaged under the law governing the subject field invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The payer has the statutory obligation to make a demand by giving notice. The thrust in the law is on the need to make a demand. It is only the mode for making such demand which the legislature has prescribed. Once it is dispatched his part is over and next depends on what the sendee does. Though the reply to the said legal notice is not mandatory, but, if the sendee/receiver of the notice does not choose to give a reply to the legal notice denying the claim of the payer, normally an adverse inference is liable to be drawn against the payee. As regards the last submission of the learned Counsel for the appellant that the Courts below ought to have followed the principle enumerated under Section 72 of the Indian Evidence Act to compare the admitted signature of the appellant/defendant with the disputed signature on Ex.A.1., it is to be seen that it is for the appellant/defendant to take steps to file a petition before the Court below to send the disputed signature appearing on Ex.A.1 promissory note to an handwriting expert to compare the same with his admitted signatures. Even in the cross-examination, P.W.1 stated that he has no objection for comparison of the admitted signatures by the handwriting expert. The appellant/defendant having failed to do so now cannot take advantage of the same. Both the Courts below placing reliance on oral and documentary evidence concurrently held that the respondent/plaintiff has established that the Ex.A.1 is true and valid document and the appellant/defendant executed the same after receiving the consideration and as the appellant/defendant failed to repay the loan amount even after receipt of the legal notice under Ex.A.2, the appellant/defendant is therefore liable to pay the same with subsequent interest thereon. Having gone through both the oral and documentary evidence adduced by either side, I do not find any question of law muchless a substantial question of law. I am of the considered view that the courts below have rightly appreciated the evidence, both oral and documentary, in the right perspective and the findings arrived at do not call for any interference by this Court in exercise of its jurisdiction under Section 100 CPC. The second appeal fails and is accordingly dismissed. No order as to costs. ------------------------------ ------ JUSTICE ASHUTOSH MOHUNTA Dated 24TH JUNE, 2011. Msnro