IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTH DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.791 of 2010 Between: Gurthuthi Kondamma … Appellant And Pittala Talupulamma and two others … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.791 of 2010 JUDGMENT: Unsuccessful plaintiff in the courts below filed this second appeal aggrieved by the decree and judgment, dated 30.09.2008, passed by the Principal District Judge, East Godavari at Rajahmundry in dismissing A.S.No.92 of 2006, confirming the decree and judgment dated 31.12.2005, passed in O.S.No.100 of 2002, by II Additional Senior Civil Judge, (Fast Track Court), Rajahmundry dismissing the suit filed by the appellant/plaintiff for granting a preliminary decree for recovery of Rs.2,38,500/- being the balance of principal amount and the interest due on a promissory note, dated 22.09.1999, for a sum of Rs.1,50,000/- with future interest at 24% per annum. Plaintiff pleaded that the defendants borrowed a sum of Rs.1,50,000/- from him on 20.09.1999 and executed a suit promissory note agreeing to repay the said amount with interest at 24% per annum and the 1st and 2nd defendants created an equitable mortgage by depositing their title deeds pertaining to the schedule property as a security to repay the amount and also executed memorandum of deposit of title deeds, dated 23.09.1999, but failed to repay the debt in spite of demands. The 1st defendant filed a written statement, which was adopted by the 2nd and 3rd defendants, stating that the plaintiff took a portion of the schedule property on lease from the 1st and 2nd defendants, but failed to pay necessary rents in spite of demands. The defendants borrowed Rs.5,000/- from one Papayamma through Marayyya and the plaintiff. In that context, the said Marayya obtained the signatures of the defendants as security to repay the amount and he also obtained their title deeds as security in that context and infact being illiterate persons they did so. Subsequently, disputes arose between the defendants on one side and Marayya and the plaintiff on the other side and, therefore, the defendants issued notice, dated 06.04.2001, to return back the documents,for which Marayya got issued reply about the transaction in question. Further, the plaintiff got no capacity to pay Rs.1,50,000/- to the defendants. The defendants are daily wage earners and with a view to grab their property, the plaintiff filed the suit. On the basis of the above pleadings, the trial court framed the following issues for trial: 1. Whether the plaintiff is entitled for preliminary decree for the suit amount? 2. Whether the plaintiff has no cause of action to file the suit? 3. To what relief? To substantiate his plea, the plaintiff examined himself as P.W.1 and two more witnesses were examined P.Ws.2 and 3 and got marked Exs.A1 to A3. On behalf of the defendants, the 1st defendant was examined as D.W.1 and three more witnesses were examined as D.Ws.2 to 4 and got marked Exs.B1 to B4. The trial court on appreciation of the oral and documentary evidence dismissed the suit holding that the affidavit in lieu of chief examination is conspicuously silent with respect to the reiteration of the contents of the rejoinder filed by the plaintiff or a categorical denial of the pleadings contained in the written statement. In the very beginning of his cross-examination, P.W.1 candidly deposed that she is residing in a thatched hut and having no bank account and running a pan shop. Her evidence further reveals that the defendant is selling tiffin on the roadside and neither herself nor the defendants are rich people. She admitted that she is residing as a tenant under the 1st defendant and that she does not know Alli Chinna Pulla Rao and Papayamma. In her cross-examination she deposed that she was not aware about the defence taken by the defendants, which clearly goes to show that she was not aware of the transaction and accordingly, dismissed the suit. On appeal being filed, the lower appellate court famed the following three points for consideration: 1. Whether the plaintiff has placed sufficient evidence to establish that the suit documents are true, valid and binding on the defendants? 2. Whether the defendants have placed sufficient evidence to substantiate their claim to the effect that Marayya obtained their signatures on a blank paper for a different purpose and Marayya got created the suit documents by making use of such blank papers and hence they are not valid? 3. Whether the lower court considered the evidence properly and arrived at correct conclusions and whether its judgment and decree are sustainable or not? The lower appellate court after reanalyzing the oral and documentary evidence held that in a suit for promissory note the initial burden is upon the plaintiff with regard to the execution of Ex.A1 and also her capacity to lend an amount of Rs.1,50,000/-. The plaintiff who was examined as P.W.1 admitted in the cross-examination that she is residing in a thatched hut and got no bank account and running a pan shop and her husband has no bank account and neither herself nor the defendants are rich people. She also admitted that she was residing as a tenant of the 1st defendant and she paid necessary rents for her living house to the defendants. She admitted that she did not borrow any amount from others to lend the amount to the defendants and her husband never lent any amount. Though it is her evidence that her husband received amounts from A.P.Paper Mills and it was lent to the defendants, to substantiate the same, there was no poof to believe the same to be true and correct and failed to give any details about the amount covered under Ex.A1. The evidence of P.Ws.2 and 3 is also inconsistent with regard to the execution of the document. The evidence of the plaintiff that for the last one year she failed to pay any rents to the 1st defendant and that she did not borrow any amount from others for the purpose of lending it to the defendants, clearly goes to show that she has no capacity to lend the said amount. She further admitted in the cross-examination that the attestors of Ex.A1 were her husband’s friends and at a later stage, she deposed that the attestors of Ex.A1 were brought by the defendants and she requested them to attest Ex.A1. Further, in the cross-examination, she stated that P.W.3 was introduced by one of the attetors through her husband and at a later stage she deposed that the defendants themselves brought the scribe. Further, in Ex.A1, it is mentioned that the amount was borrowed for the family necessities of the defendants, whereas it is the evidence of P.W.1 that she was told by the defendants that the amount was being borrowed for discharging the debts. Whereas P.W.3 admitted in the cross-examination that the husband of P.W.1 and the 3rd defendant came to him while he was at the Registrar office on the date of Ex.A1 and Ex.A2 was written on a stamped paper, but in fact it was scribed on a white paper styling it as memorandum of deposit of title deeds. As against the said evidence, the 1st defendant was examined as D.W.1 admitted that she gave Ex.A3 at the time of receiving the loan of Rs.5,000/- to the plaintiff and that the 2nd and 3rd defendants and herself did not affix their thumb marks on Ex.A1. She further stated that at the time of lending Rs.5,000/- her mother, her husband and herself affixed their thumb marks on the promissory note and gave it to the plaintiff. D.W.2 corroborated the claim of the defendants, that he did not sign on any documents as attestor at the time of borrowing Rs.5,000/-. Holding so, the lower appellate court dismissed the appeal. From the above discussion it is clear that the defendants not only discharged their burden while cross- examining the plaintiff witnesses that she has no capacity to lend the amount of Rs.1,50,000/-, but also rebutted the presumption under Section 118 of the Negotiable Instruments Act. Concurrent findings of facts reached by the courts below on appreciation of evidence do not give rise to any question of law much less any substantial question of law for consideration in this second appeal. Accordingly, the Second Appeal is dismissed. There shall be no order as to costs. __________________ A.GOPAL REDDY, J 8th October 2010 lmv