SA/1323/2006 of K.R.Wilson (died) Vs Vadlamudi Lakshmi Kanthamma on 31 December 2014

HONOURABLE SRI JUSTICE S.RAVI KUMARSECOND APPEAL No.1323 OF 2006

--Dated 31122014

Between:

K.R.Wilson and others.

..Appellant.

And:

Vadlamudi Lakshmi Kanthamma.

..Respondents.

HONOURABLE SRI JUSTICE S.RAVI KUMARSECOND APPEAL No.1323 OF 2006JUDGMENT:

This appeal is against judgment dated 9-10-2006 in A.S.No.148 of 2005 on the file of VIII AdditionalDistrict and Sessions Judge (Fast Track Court),Vijayawada whereunder judgment dated 30-9-2005 inO.S.No.601 of 2002 on the file of IV Additional SeniorCivil Judge, (Fast Track Court) , Vijayawada, isreversed.

Appellants herein are legal representatives ofsole defendant in O.S.No.601 of 2002 and respondentherein is sole plaintiff in the said suit filed for recover ofmoney.

Parties are herein after referred to as plaintiff anddefendant for convenience and better understanding.

Plaintiff filed O.S.No.601 of 2002 for recovery ofRs.1,89,632/- with interest alleging that the defendantK.R. Wilson borrowed a sum of Rs.1,00,000/- from theplaintiff on 10-9-1999 promising to repay the same withinterest at 24% p.a., and executed a promissory noteon the same day and when the defendant failed to repay the said amount, in spite of demand, plaintiff gotissued a legal notice dated 20-8-2002 and thedefendant neither acknowledged the notice nor givenany reply nor paid the amount and therefore, plaintifffiled the suit for recover of money.

Defendant resisted the claim of plaintiff andaccording to the original written statement, the plea ofdefendant is that wife of defendant subscribed a chitfor Rs.50,000/- run by the plaintiff and she participatedin the auction conducted in the month of February,2001 and became successful bidder and a sum ofRs.28,000/- was paid to the wife of defendant and atthat time, plaintiff took cheque of KDCC Bank with thesignature of wife of defendant and after repayment ofthe chit amount when the dependant demanded forreturn of cheque, she postponed the same on onepretext or the other and finally informed the defendantthat the cheque was lost and miss-placed and that shewould not take any legal action but contrary to it, suit isfiled by forging the signature of defendant on thepromissory note.

Subsequently, defendant filed additional writtenstatement contending that he was at Moulali, forundergoing training of refresher course at zonaltraining centre, Moulali from 4-9-1999 to16-9-1999 and that he was not available atVijayawada on 10-9-1999 and prayed for dismissal ofthe suit.

On these allegations and counter allegations,trial court framed appropriate issues and conductedtrial during which, three witnesses are examined onplaintiff’s side besides marking four documents andtwo witnesses are examined on defendant’s sidebesides marking two documents. On an overallconsideration of oral and documentary evidence, trial court dismissed the suit by accepting plea ofdefendant. Aggrieved by the dismissal of the suit,plaintiff preferred appeal and appellate court on areappraisal of oral and documentary evidence,disbelieved the plea of the defendant and acceptedthe contention of plaintiff and decreed the suit. Aggrieved by the judgment of the appellate court,defendant preferred the present second appeal.

As per the grounds of appeal, the following arethe substantial questions of law to be determined bythis court in the second appeal.

14. (a) Whether the first appellate court judgmentmade on surmises, conjunctures and it is in perversein nature for arriving the execution of the suit documentof Ex.A.1 at midnight of 10-9-1999 contrary to humannature, conduct and behavior?

14. (b) Whether the first appellate court renderedjudgment on imagination while arriving to the suitdocument of Ex.A.1, contrary to Ex.B.1 and B.2 andalso the evidence of P.W-2, who is anindependent witness of Railway department, whoconfirmed as on the date of suit document, theappellant was under training in Hyderabad?

14. (c) Whether the trial court and appellatecourt are right in making attachment of the retirementbenefits of the appellant contrary to Section 60 (1) (ia)and (l) of C.P.C.?

14 (d) Whether the first appellate courtwent wrong in reversing the trial court judgment withoutproperly appreciating the contents of the plaint, whichis lacking the material facts of execution of Ex.A-1 andtime of execution at Vijayawada?

Heard arguments.

Though as many as ten grounds are urged in the Memorandum of grounds, arguments are advancedonly on the point that appellate court passed thejudgment on surmises and conjectures and therefore,it is perverse in nature and liable to be set aside. Though the other ground contended is that trial courtand appellate court have erred in ordering attachmentof the retirement benefits of the defendant contrary toSection 60 (1) (1a) and (1) of C.P.C. that is not asubject matter because that is in respect of someinterim order or orders in the E.P.(which is notseparately challenged) for which a separate remedy isavailable to challenge which the appellant has notavailed. Except this ground, all other grounds urgedare in respect of appreciation of factual matrix.

Therefore, the point that would arise forconsideration of this court in the second appeal iswhether the findings of the appellate court are on thesurmises and conjectures and presumptions andwhether it amounts to perverse findings.

POINT:

It is the specific case of the plaintiff thatdefendant i.e., K.R.Wilson borrowed Rs.1,00,000/- on10-9-1999 for his family necessity and executedEx.A.1 promissory note but thereafter failed to repaythe said amount. Defendant at the first instancecontended that suit promissory note is forged one butno specific plea is taken with regard to forgery andspecific plea is that his wife joined in chit being run byplaintiff and in connection of that chit transaction, blanksigned cheques with signatures of defendant’s wifewere collected by the plaintiff but they were notreturned in spite of discharge of money due under thechit transaction. In the additional written statement,plea that was taken by the defendant is that he was atMoulali in connection of a departmental training on the alleged date of execution of promissory note and thesuit promissory note is a rank forgery.

Advocate for appellant submitted that defendantby examining himself as D.W.1 and by examiningD.W.2 and by marking Exs.B.1 and B.2 clinchinglyestablished that he was at Moulali from 4-9-1999 to 16-9-1999 in connection with departmental training courseat zonal training centre, Moulali, Secunderabad andthe trial court accepting the same, dismissed the suitbut the appellate court on mere surmises without therebeing any specific plea disbelieved the version of thedefendant on the ground that there is possibility ofreaching Vijayawada from Moulali after training hours. He further submitted that plaintiff and attestor deposedin their evidence that suit promissory note wasexecuted between 11 P.M., and 12 Mid night on 10-9-1999 and that was accepted by the appellate courtthough there was no such pleading either in the legalnotice or in the plaint.

He also submitted that plaintiff is a lady anddefendant approaching a lady at odd hour for thepurpose of money is highly improbable and unnaturalbut the appellate court without observing theseaspects reversed a well reasoned findings of the trialcourt and therefore, judgment of the appellate courthas to be treated as perverse.

On the other hand, advocate for plaintiffcontended that as the defendant is in need of money,there is nothing wrong in accepting the evidence ofplaintiff and attestor with regard to time of execution ofpromissory note. He further submitted that in theoriginal written statement, there is no specific plea withregard to execution of promissory note or about thetraining underwent at Moulali. He submitted that theevidence of attestor and scribe who are third parties would clinchingly establish that defendant executedEx.A.1 promissory note having received Rs.1,00,000/-and their evidence remained unrebutted and theappellate court rightly decreed the suit and there areno grounds to interfere by this court in the secondappeal.

As already referred above, three witnesses areexamined on plaintiff’s side. Plaintiff herself isexamined as P.W.1 and one of the attestors ofpromissory note is examined as P.W.2 and scribe isexamined as P.w.3. All the three in one voicedeposed that the defendant came to the house ofplaintiff around 11-30 P.M., and that theplaintiff advanced Rs.1,00,000/- to the defendantbecause of the close acquaintance between twofamilies. All the three were cross examined at lengthon behalf of defendant but nothing could be elicitedfrom them to doubt their testimony. As against this,defendant is examined himself as D.W.1 andexamined senior clerk in the zonal training instituteMoulali as D.W.2, to support his plea that heunderwent training at Moulali from 4-9-1999 to 16-9-1999.

No doubt from the evidence of D.Ws.1 and 2and documents Exs.B.1 and B.2, it is clear thatdefendant underwent training from 4-9-1999 to 16-9-1999, but what has to be seen is whether defendantcan approach plaintiff on that day. While dealing withthis aspect, the appellate court observed, since thetravel time between Vijayawada to Hyderabad is about5 to 6 hours, it is quite possible for the defendant toreach Vijayawada after completion of training hours on10-9-1999. From the evidence of DWs.1 and 2, it isclear that training course was upto 4 P.M., every dayand therefore, after 4 P.M., trainees will be free. When travel time between Vijayawada and Hyderabad is 5 to6 hours, it is quite possible for the defendant to reachVijayawada by 9 or 10 P.M., after completing trainingcourse for the day on 10-9-1999. When the evidenceof P.Ws.1 to 3 clearly establish that the suit promissorynote was executed around 11 or 11.30 P.M.,this probabalizes and supports the transaction underEx.A.1. As already referred above, in the writtenstatement first filed, the specific plea was that plaintiffobtained cheque containing signatures of defendant’swife in connection with chit transaction.

On a consideration of oral and documentaryevidence, appellate court observed that there is noobstacle for the defendant to visit Vijayawada aftertraining is over on the day on which suit promissorynote was executed. When the conclusion of traininghours for the day, was at 4 P.M., and journing timefrom Hyderabad to Vijayawada is five to six hours, andthe time of execution as deposed by P.Ws.1 to 3 areconsidered together, it probabablises and supports thetransaction under Ex.A.1. When there is a closeacquaintance between the two families, the objectionof the appellant that the execution of promissory noteat odd time cannot be sustained particularly in view ofclinching evidence of attestor and scribe. As rightlypointed out by advocate for plaintiff that appellatejudge has rightly appreciated the evidence on recordand its findings are not on surmises and presumptionsand they are based on material evidence andsupporting circumstances.

Issues

On a scrutiny of the material, I do not find anyperversity in the findings of the appellate judge and thelearned appellate judge rightly reversed findings of thetrial court which was carried away with the contentionof the defendant about his training at Moulali without considering the probabilities and possibility ofdefendant reaching Vijayawada after training hours. For these reasons, I am of the view that there isno substantial question of law that requiresconsideration by this court and that the appeal isdevoid of merits.

Therefore, this Second Appeal is dismissed. Nocosts.

As a sequel to the disposal of this appeal, theMiscellaneous Petitions, if any, pending, shall standdismissed.

____________________

JUSTICE

S.RAVI KUMAR

--Dated 31122014Dvs.

HONOURABLE SRI JUSTICE S.RAVI KUMAR

Dvs

SECOND APPEAL No.1323 OF 2006--Dated 31122014