Telangana High Court

SA/515/2011 of Sri Bayana Venkata Rao Vs Sri Mudadla Simhachalam on 29 December 2011

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SRI JUSTICE V.V.S.RAO SECOND APPEAL No.515 OF 2011 29.12.2011 Between: Bayana Venkata Rao …Appellant AND Mudadla Simhachalam …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.515 OF 2011 JUDGMENT: The unsuccessful defendant in the Courts below is the

THE HON’BLE SRI JUSTICE V.V.S.RAO

SECOND APPEAL No.515 OF 2011

29.12.2011

Between:Bayana Venkata Rao

AND

…Appellant

Mudadla Simhachalam

…Respondent

THE HON’BLE SRI JUSTICE V.V.S.RAOSECOND APPEAL No.515 OF 2011

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JUDGMENT:

The unsuccessful defendant in the Courts below is the appellant.The plaintiff’s suit being O.S.No.879 of 2004 on the file of the Court ofthe IV Additional Senior Civil Judge (Fast Track Court), Visakhapatnamwas decreed on 18.06.2007. The defendant’s appeal being A.S.No.225of 2007 on the file of the Court of the Principal District Judge,Visakhapatnam was dismissed on 07.08.2009. Aggrieved by which, thepresent second appeal is filed.

By referring to the parties as per their status in the suit, the briefbackground of the case may be noticed. The plaintiff set up the casealleging that the defendant borrowed an amount of Rs.1,00,000/- on30.07.2001 agreeing to repay the same with interest at 24%. Theplaintiff issued a cheque and the same was encashed by the defendant,and in spite of the demands, amount was not paid. The defendantopposed the suit. He set up a case alleging that the plaintiff borrowedan amount of Rs.1,00,000/- from the defendant and the cheque wasgiven in consideration of the debt. He also alleged that it is the plaintiffwho borrowed money for discharging the sundry debts. He denied all other allegations.

The trial Court framed the lone issue. During the trial, plaintiffexamined as P.W.1 and marked four documents. The defendant did notadduce any documentary evidence but examined himself as D.W.1 andone Appalanaidu as D.W.2. D.W.2 deposed that plaintiff borrowed anamount of Rs.1,00,000/- from the defendant for the purpose ofdischarging sundry debts, and that he attested the pronote. In thecross-examination, however, he admitted that the defendant did notobtain any pronote for the amount lent by him. On consideringevidence, the trial Court decreed the suit accepting the case of theplaintiff. The appellate Court again on reconsideration confirmed thetrial Court.

The counsel for the appellant/defendant would submit that theCourts below failed to give importance to the evidence of independentwitness, D.W.2. According to him, when there was no rebuttableevidence, the version of D.W.2 ought to have been accepted.

The plea raised in the second appeal cannot be accepted. TheCourts below considered the contentious fact in issue and came to theconclusion that the case set up by the defendant is improbable and thathe failed to discharge the debt. Even otherwise, as found by theappellate Court, D.W.2 in the cross-examination stated that D.W.1 didnot obtain any promissory note. In which case, to the effect that heattested the promissory note is certainly not true.

The second appeal is misconceived and is accordinglydismissed. No costs.

_______________

(V.V.S.RAO, J)

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