CRP/1214/2007 of Mandalapu Anjaneyulu, Vs Guduri Narayanamma, on 31 December 2010

ORDER:

This revision is filed against the judgment and decree, dated17.11.2006, in Small Cause Suit No.6 of 2005, on the file of the SeniorCivil Judge, Addanki. Respondent herein is Plaintiff in the suit. Theplaintiff filed the suit for recovery of suit amount. The allegation in theplaint goes to show that the petitioner/defendant has borrowed a sum of Rs.6,900/- from one Shaik Mastan, S/o. Peda Saida of Vellacheruvuon 01.08.1995 and executed a Promissory Note in favour of himagreeing to pay the same with interest at 24% per annum. On01.06.1997, Shaik Mastan transferred the said Promissory Note infavour of the plaintiff for a consideration of Rs.8,418/- and in spite ofdemands made by the plaintiff orally and in writing by way of notice,the defendant failed to pay the amount.

2. The petitioner/defendant filed a written statement contending thatthe suit Promissory Note is a forged one and that the defendant did notexecute the Promissory Note and no consideration was paid. Hecontended that his wife purchased an extent of Ac.0-92 cents of landfrom the plaintiff on 01.08.1995 under a registered sale deed. He paidthe entire sale consideration and possession was also delivered tothem. But, in the said sale deed the Survey Number of the land waswrongly shown. Subsequently, he and his wife came to know of it andrequested the plaintiff to execute a rectification deed with correct DoorNumber and also to get another deed from GadiparthiRamalakshmaiah, from whom the plaintiff obtained the sale deedoriginally. On 28.09.1995, the plaintiff executed a rectification deedwith correct Door Number and represented that GadiparthiRamalakshmaiah fell sick and it is her responsibility to get therectification deed with correct Door Number. But she did not do so aspromised by her. When the defendant approached the RevenueDepartment for issuance of a passbook, the Revenue Departmentrefused to grant the passbook to the defendant and his wife. Thedefendant informed the same to the plaintiff and pressed for therectification document with correct Door Number. Then the plaintiffdemanded for another sum of Rs.30,000/- as the value of the land wasincreased. Then a galata had taken place and the defendant and hiswife threatened that they will file a suit against the plaintiff and takeaction against her and recover damages also. Keeping the abovedispute in mind, the plaintiff got forged the Promissory Note with thehelp of Shaik Mastan, the alleged attesters, scribe and her son-in-law. As the passbook was not issued in favour of defendant's wife inrespect of the property purchased by her from the plaintiff, thedefendant and his wife could not utilize the property for some otherpurposes, except for cultivation. The defendant is having disputes withhis younger brother. Taking undue advantage of it, all of them colludedtogether and fabricated the suit Promissory Note. Therefore, the alleged transfer of Promissory Note in favour of the plaintiff forconsideration is not valid and it is not supported by any consideration.Therefore, the defendant pleaded for dismissal of the suit.

3. On behalf of the plaintiff, PWs.1 to 5 were examined and EXs.A1to A3 were got marked. On behalf of the defendant, he himself wasexamined as DW.1 and Exs.B1 to B11 were got marked.

4. After considering the evidence on record, the learned SeniorCivil Judge decreed the suit of the plaintiff. Aggrieved by the saidjudgment, the present revision is filed by the defendant.

5. The points that arise for consideration are:

6. The suit is based on a Promissory Note, the execution of whichwas denied by the petitioner/defendant. The burden is on therespondent/plaintiff to prove the execution and if such execution isproved, the presumption of passing of the consideration can be raised,which is rebuttable. PW.4 is the original holder of the Promissory Noteand he claims to have paid cash to the defendant and obtainedPromissory Note, Ex.A1 and it was transferred for consideration infavour of the plaintiff, PW.1, under Ex.A2. The scribe of the PromissoryNote is said to be no other than the brother of the defendant.

7. The learned counsel for the petitioner contends that there isvariation about the place of execution of the Promissory Note and alsothe manner in which the consideration was passed. He also found faultwith the observations of the learned Senior Civil Judge that it is thedefendant, who has to disprove the execution of the Promissory Note,and did not take any steps and consequently, contends that thejudgment and decree passed by the learned Senior Civil Judge is not sustainable.

8. As can be seen from the claim of the defendant, it is quite clearthat the defendant has purchased land from the plaintiff on 01.08.1995,which is also the date of suit Promissory Note. Thereafter, there seemsto be a rectification deed obtained by the defendant from the plaintiff,as there was difference in the survey number. According to the case ofthe defendant, they demanded a rectification deed from the vendor ofthe plaintiff and to obtain such a document the plaintiff demandedRs.30,000/- and as such, the plaintiff has developed grudge againstthe defendant and fabricated the document. The facts clearly disclosethat there were transactions between the plaintiff and the defendantand that the defendant is not a stranger to the plaintiff. The lower Courttook into consideration the evidence of PW.5, who is one of theattesters on the Promissory Note, which shows that the defendanthimself was the scribe of the Promissory Note and it was executed athis house. Evidently, such type of contradiction from a witness, who isgiving evidence after long time, is not so material. With regard to theplace of execution of the Promissory Note or about the particulars ofthe scribe, he was not confronted with the document to say as to whowas the scribe of the Promissory Note. The native place of the partiesis not disputed. Therefore, from the evidence of PWs.4 and 5, theexecution of the Promissory Note is proved without any doubt andthere is absolutely no need or motive for fabrication of the document bythe plaintiff or PW.4, when evidently there were transactions betweenboth of them.

9. Evidently, when the execution of the Promissory Note isadmitted or proved, the presumption under Section 118 of theNegotiable Instruments Act, 1881, rise and the burden shifts to thedefendant to disprove the same. The law is now well settled that theconsideration mentioned in the Promissory Note need not be the sameconsideration and if the document is supported by any other valid

consideration, the claim can be enforced. The learned counsel for thepetitioner strongly relied upon the evidence of PW.1 while givingevidence in O.S.No.185 of 1998, which was marked as Ex.B1,whereunder it was stated that the property was sold for Rs.60,000/-and the defendant shall pay Rs.35,000/- to her and Rs.30,000/- toPW.4 towards sale consideration of the said land and the defendantpaid Rs.23,000/- to PW.4 in the presence of elders and for the balance,the Promissory Note for Rs.6,900/- was executed. The evidence ofPW.4, on this aspect, is also sought to be relied upon by the learnedcounsel for the petitioner. Even assuming that there is anyinconsistency about the nature of payment of consideration under thePromissory Note, Ex.A1, in view of the admitted fact that the defendanthad purchased the land from the plaintiff for a sum of Rs.60,000/-, thetheory pleaded by the plaintiff in the earlier suit cannot be said to be afalsehood to destroy the suit Promissory Note and to deny the relief tothe plaintiff. It clearly goes to show and probablize that towards theconsideration payable under the sale deed, the Promissory Note wasexecuted by the defendant in favour of PW.4 and consequently, thatmay be the reason as to why the transfer was affected in favour of theplaintiff. Even if the transfer is not for consideration, it can be a transfersimplicitor entitling the plaintiff to file the suit for recovery of the money.The evidence adduced by the defendant does not improbabilize theclaim of the plaintiff and the learned Senior Civil Judge has givensufficient reason to hold that the defendant executed the saidPromissory Note and it is supported by valid consideration. I do notfind any reason to interfere with the judgment and decree of the lowerCourt.

10. Accordingly, the Civil Revision Petition is dismissed withcosts.

____________________________

N.R.L.NAGESWARA RAO, J

December 31, 2010MD

THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO

CIVIL REVISION PETITION No.1214 OF 2007

December 31, 2010