THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR APPEAL SUIT No.1170 of 2003 Dated:- 18th November, 2011 Between:- Pokala Ramakrishna Rao …Appellant AND Indurthi Veera Swamy THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR APPEAL SUIT No.1170 of 2003 JUDGMENT:- This appeal is directed against the judgment and decree dated 05.03.2003 passed in O.S.No.79 of 2001 by the Principal Senior Civil Judge, Ongole, whereby and whereunder, the suit filed by the respondent herein was decreed. 2. The appellant herein is the defendant and the respondent herein is the plaintiff before the Court below. For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the Court below. 3. The brief facts of the case are as follows:- The plaintiff filed a suit stating that the defendant had borrowed an amount of Rs.50,000/- on 07.11.1997, Rs.50,000/- on 08.11.1997 and Rs.60,000/- on 11.11.1997 for his business purpose and executed three promissory notes agreeing to pay the same with interest at the rate of 24% per annum. Later he made part payment of Rs.500/- with regard to each promissory note on 25.09.2000 and endorsed the same on the reverse of the promissory notes, but subsequently, failed to pay the amount. 4. The defendant contested the matter and filed written statement contending inter alia that the plaintiff has no capacity to lend such huge amounts and that the plaintiff is conducting money lending business and that he is in habit of obtaining demand promissory notes for double the amounts he lent and to receive the cheques for double the amounts. His further case is that he had borrowed an amount of Rs.25,000/- on 07.11.1997, Rs.25,000/- on 08.11.1997 and Rs.30,000/- on 11.11.1997 from the plaintiff, but the plaintiff had obtained promissory notes for double the amounts and also obtained cheques for the said amounts. His further case is that the plaintiff’s father issued a lawyer’s notice to his brother on 11.11.1999 for which his brother issued a reply through his advocate on 26.12.1999 and then the matter was settled between the parties before the elders in the month of December, 2000 and the total due amount was paid to the plaintiff’s father and that the plaintiff’s father returned the promissory notes executed by the brother of the defendant, the demand promissory notes executed by the defendant on 08.11.1997 and also the cheques issued by the defendant and the plaintiff made a representation that the promissory notes were misplaced and promised to return the same subsequently. The defendant believed the version of the plaintiff and his father but subsequently the plaintiff filed the suit making use of the same demand promissory notes which were promised to be returned to him. It is also his case that the defendant paid interest to the plaintiff at the rate of 24% per annum through Shaik Abdul Rahman, S/o. Sultan Basha. He has also denied the payment of due amount on 25.09.2000 and further denied the endorsement said to have been made by him. 5. The Court below framed necessary issues for trial. On behalf of the plaintiff, he himself was examined as P.W.1 and one Gare Padmanabham was examined as P.W.2 and Exs.A.1 to A.7 were marked. On behalf of the defendant, he himself was examined as D.W.1 and one I.Padmanabham was examined as D.W.2 and no documentary evidence has been let in. 6. The Court below, on appreciation of oral and documentary evidence available on record, came to the conclusion that the defendant’s plea that the plaintiff promised to return the promissory notes but had failed to return the same seems to be improbable and unbelievable and that the plaintiff has proved his case and, accordingly, decreed the suit. Hence this appeal. 7. Heard the arguments of Sri M.V.S.Suresh Kumar, learned counsel for the appellant and Sri P.Venkata Rao, learned counsel for the respondent. 8. The main submission of the learned counsel for the appellant/defendant is that the Court below failed to see that the plaintiff is in the habit of obtaining promissory notes for higher amounts than the amounts he actually lend. It is also his submission that the Court below failed to see that there is settlement between the parties in December, 2000 and that the defendant has discharged the promissory note debts and that the endorsement of part payment on the reverse of the promissory notes were obtained prior to the settlement between the parties so as to save limitation. 9. The points that arise for consideration is whether there are any grounds to interfere with impugned judgment of the Court below. 10. The plaintiff has been examined as P.W.1. He categorically deposed that the defendant had borrowed an amount of Rs.50,000/- on 07.11.1997, Rs.50,000/- on 08.11.1997 and Rs.60,000/- on 11.11.1997 for his business purpose and executed promissory notes on even dates in his favour. Exs.A.1, A.2 and A.3 are the promissory notes dated 07.11.1997, 08.11.1997 and 11.11.1997 respectively. According to the plaintiff, the defendant paid an amount of Rs.500/- towards part payment to each of the promissory notes and endorsed the same on the reverse of the said three promissory notes. The said endorsements on the three promissory notes are marked as Exs.A.4 to A.6 respectively. To substantiate his case, the plaintiff has also examined P.W.2, who is the attestor to the above documents. 11. The defendant himself was examined as Ex.D.1. He categorically deposed that he had executed three promissory notes under Exs.A.1 to A.3 respectively and he admitted that he made the part payment and endorsed the same on the reverse of those three promissory notes under Exs.A.4 to A.6 respectively. The defendant is not an illiterate. He is a contractor in Ongole Municipality. Therefore, the version of the defendant that he did not receive the amount shown in the promissory notes cannot be accepted. Thus, the plaintiff proved that the defendant executed Exs.A.1 to A.3 promissory notes and endorsed about the part payment on the reverse of the promissory notes under Exs.A.4 to A.6. 12. The next contention of the defendant is that there was settlement between the parties and that as per the settlement, he had paid the entire amount, but the plaintiff had not returned the promissory notes executed by him. Admittedly, the burden lies on the defendant to prove the said facts. Ex.A.7 is the reply notice issued by the defendant to the plaintiff on 02.01.2000, wherein, he has referred about the mediation. He has also admitted that he did not issue any notice either to the plaintiff or to his father demanding return of the promissory notes. The father of the plaintiff was examined as D.W.2 and nothing has been brought on record to substantiate the claim of the defendant that there was settlement between the parties and in pursuance of such settlement he had paid the due amount to the plaintiff. It is clear from the record that the defendant had taken inconsistent pleas and failed to prove his stand. 13. In view of the above, I do not see any reason to interfere with the impugned judgment of the Court below either on facts or on the issue of interest. 14. Accordingly, the appeal suit is dismissed. There shall be no order as to costs. _________________________ Justice B.Chandra Kumar 18th November, 2011 Bvv