iIN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRD DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.5751 of 2000 Between: Boddu Nageswara Rao. ... PETITIONER AND Malladi Byravaswamy. ...RESPONDENT Counsel for the Petitioner : Mr. V.L.G.K. Murthy Counsel for the Respondent : Mr. A. K. Kishore Reddy The Court made the following: ORDER: This is a revision under Section 22 of the Small Cause Courts Act. The suit filed by the petitioner/plaintiff for recovery of a sum of Rs.2,733/- with subsequent interest was dismissed by the II Additional Junior Civil Judge, Kakinada by the impugned judgment and decree in S.C.No.129 of 1998 dated 23.10.2000. 2. The revision is, therefore, filed by the petitioner/plaintiff primarily contending that the suit being one based on promissory note the Court below has erroneously dismissed the same disregarding the presumption available to the petitioner under Section 118 of the Negotiable Instruments Act. It is also contended that the suit pronote not being a compulsorily attestable document, non-suiting the petitioner on the ground that the attestor to the pronote is not examined is also not sustainable. 3. Heard both sides. 4. The plaint states in para 4 as follows: “The defendant for the purpose of his business investments borrowed a sum of Rs.1,200/- on 28.10.1995 from the plaintiff agreeing to repay the same with interest at 30% on demand to the plaintiff or his order and executed a demand promissory note in favour of the plaintiff on 28.10.1995.” The said suit is preceded by a notice of demand – Ex.A2 dated 26.09.1998. The said notice is acknowledged by the defendant under Ex.A3, which is the acknowledgement of the registered cover. However, in spite of service of notice as the defendant did not pay the amount the present suit was instituted on 26.10.1998. The defendant/respondent herein filed a counter admitting his signature on the revenue stamps as appearing in Ex.A1 pronote. 5. The contention of the respondent is that several signatures of the defendant were taken on blank papers including proforma promissory note though no consideration actually was paid to the defendant and as such, the claim of the plaintiff that the defendant borrowed the amount and executed the promissory note is incorrect. The said promissory note dated 28.10.1995 is in Telugu and written on a white paper. The signature of the defendant is on a revenue stamp and on the left hand side top the date of the promissory note is shown as 28.10.1995 and below the signature of the defendant also the same date is mentioned. Ex.A1 is signed by one attestor and scribe – P.W.2. 6. The trial court considered the evidence on record viz., documents aforesaid coupled with evidence of the plaintiff as P.W.1 and scribe as P.W.2 together with the evidence of D.W.1. The trial Court, however, proceeded to hold that the attestor having not been examined to prove Ex.A1 – pronote, unless one attesting witness is called and the execution is proved under Section 68 of the Evidence Act, the said pronote cannot be said to be have been proved. For the aforesaid proposition reliance was placed by the trial Court on a decision in RAJAMAL v. CHINNATHAL [AIR 1976 MADRAS 4]. The trial Court also found that originally in the plaint in para 4 extracted above, in the first sentence after the word ‘the defendant’, the following words were originally typed ‘along with their father’ but later the said words were struck off. Later an amendment was sought to be brought in for deleting the words ‘along with their father’ from para 4. The trial Court, therefore, was of the opinion that the act of borrowing the amount was by the defendant and his father and the suit filed only against the defendant could not be decreed. For the aforesaid conclusion, the trial Court relied upon Exs.B1 and B2, which are the copy of plaint served on the defendant along with suit summons and copy of the proposed amendment application, which was intended to be moved by the petitioner/plaintiff. 7. Learned counsel for the petitioner submits that the finding of the Court below on the first aspect regarding compulsory attestability of Ex.A1 pronote is ex-facie incorrect. Section 68 of the Evidence Act applies only to such documents, which are required by law to be attested and the promissory note being not one of the documents required by law to be attested, a fundamental error is committed by the trial Court in rejecting Ex.A1 on that ground. He also submits that the decision cited and relied upon by the trial Court relates to a case of mortgage, which requires attestation, unlike the present case. 8. Learned counsel for the respondent supports the impugned judgment on the ground that there is no proof of borrowing and keeping in view Exs.B1 and B2 it is obvious that the plaint allegations that the defendant borrowed the amount and signed the pronote does not appear to be true. With respect to Ex.A1 also the learned counsel points out that the writings at the top of Ex.A1 appear to be in different ink which gives rise to a suspicion regarding Ex.A1. 9. I have considered the aforesaid contentions. It is, however, true that Section 68 of the Evidence Act has no application as rightly pointed out by the learned counsel for the petitioner. More importantly, the execution of the signature by the defendant on the revenue stamp was admitted by him even in his evidence as D.W.1. His only contention was that several blank papers and blank proforma pronotes were got signed by him, as he has business dealings with the plaintiff. Apart from the above, under Section 118 of the Negotiable Instruments Act statutory presumption arises with respect to negotiable instruments and the burden to rebut the same is squarely on the defendant. Except the evidence of D.W.1 there is no other evidence on the part of the defendant. The statutory presumption available under Section 118 of the Negotiable Instruments Act, therefore, cannot be displaced unless there is sufficient rebuttal evidence. To the extent of the second ground on which the trial Court rejected the pronote based on Exs.B1 and B2 is also unsustainable inasmuch as the original plaint filed in the Court does not contain any such words as ‘along with their father’. As per the original plaint as well as the suit notice Ex.A1 it is the defendant alone who is said to be the borrower. Merely because the copy of the plaint served on the defendant did not have the correction by deleting those words typed in the plaint originally and merely because the plaintiff took steps seeking an amendment to delete the said words are, therefore, wholly irrelevant. Once it is found that those words are not in the original plaint the question of deletion of the said words by amendment or otherwise does not arise. Both the grounds on which the trial Court has dismissed the suit are, therefore, perverse and liable to be interfered with. The suit based on pronote filed by the plaintiff/petitioner herein, therefore, deserves to be decreed. 10. However, it is evident that the plaintiff has sought recovery of the amount covered by the pronote with interest at 30% per annum. In fact, the suit claim of Rs.2,733/- includes interest prior to the suit at 30%. The plaintiff is entitled for the decree for recovery of the amount covered by the suit pronote viz. Rs.1,200/-. But the claim for interest at 30% per annum thereon form the date of pronote i.e. 28.10.1995 till realization by the plaintiff is usurious and as such, the rate of interest is scaled down and the sum of Rs.1,200/- shall stand decreed with interest at 9% from 28.10.1995 till realization. The plaintiff shall also be entitled to the costs of the suit and the present revision, as certified. The civil revision petition is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J December 3, 2009 DSK