AS/2110/1993 of Yarla Gangaiah Vs Margani Gangamma on 31 December 2010

JUDGMENT:-

The first defendant in O.S.No.23 of 1991 on the file of the court ofSenior Civil Judge, RayachotY is the appellant herein. The suit was filedfor recovery of an amount of Rs.67,963/- which is the amount due on apronote dated 01-08-1983.

Allegations in the plaint goes to show that first defendant in order tomeet his family necessities and for purchase of a lorry borrowed a sumof Rs.50,000/- and executed a pronote. The first defendant withoutpaying the amount was acquiring the properties in the names of seconddefendant and his relatives and later a notice was issued by the plaintiffto the defendant. Hence the suit.

The first defendant has filed a written statement denying theborrowing of Rs.50,000/- from the plaintiff and execution of a pronote.The allegations that the first defendant is screening the properties is alsodenied. According to the case of 1[st] defendant that thematernal aunt of the first defendant and the plaintiff were partners in alorry ATR 3145. As the plaintiff and the first defendant are close friendssince 1953, the first defendant persuaded his maternal aunt viz., SiddamVenkatamma to take the plaintiff as partner in her lorry. The plaintiff didnot invest any amount in the lorry. But he arranged a loan of Rs.40,000/-from a finance company viz., Pavan Kumar Auto Finance Company onthe said lorry, for which both plaintiff and defendant stood as guarantors. The plaintiff was in charge of the vehicle and was managing the incomeand expenses. While so, differences arose between the partners andfinally the elders including the first defendant settled the dispute. Theveicle was assessed at Rs.1 lakh. It was agreed that SiddamVenkatamma should pay Rs.50,000/- to the plaintiff and that the plaintiffshould discharge the amount due to the financer and the vehicle willremain with Siddam Venkatamma.

The second defendant is the wife of first defendant also denied the allegation and claiming that she is not a necessary party to the suit andclaimed that the properties exclusively belongs to her.

The defendants also filed an additional written statement and thefirst defendant contended that the suit pronote was executed as a resultof Panchayat held between the plaintiff and one Venkatamma and theletters said to have been written by the plaintiff on 14-09-1985 and 20-10-1985 clearly establishes the above facts. The suit pronote was executedonly on condition of the plaintiff discharging the loan amount borrowedfrom a finance company. The second defendant also filed additionalwritten statement supporting the earlier allegations. The plaintiff filed arejoinder denying the allegations in the additional written statement.

After competition of above pleadings, the following original issues were settled.

1. Whether the plaintiff is entitled for the suit amount with costsand interest as prayed for?and interest as prayed for?

2. Whether the defendant No.2 is not liable for the suit amount asalleged by the defendant No.2?alleged by the defendant No.2?

3. Whether the defendant No.1 has executed the suit pronote atthe instance of one Venkatamma and the plaintiff as alleged byD-1 without consideration?the instance of one Venkatamma and the plaintiff as alleged byD-1 without consideration?

4. Whether the suit is bad for misjoinder of parties as alleged byD-2?D-2?

5. To what relief?

Later, the following additional issue was also framed.

1. Whether the letters dated 4-09-1985 and 20-10-1985 relates tothe suit debt?the suit debt?

On behalf of the plaintiff, PW.1 and PW.2 were examined andmarked Exs.A-1 to A-26. On behalf of the defendant DWs.1 to 4 wereexamined and marked Exs.B-1 to B-3.

After considering the evidence on record, the learned Senior CivilJudge decreed the suit of the plaintiff and aggrieved by the saidjudgment, the present appeal is filed.

The suit against the second defendant was dismissed.

The points that arise for consideration are:-

(1) Whether the Judgment and decree passed by the learnedSenior Civil Judge is legal and sustainable/Senior Civil Judge is legal and sustainable/

(2) To what relief?

-POINTS:

From the evidence of DW.1 and the amended written statement, itis clear that the pronote was executed by the first defendant alone andnot by the second defendant. Therefore, the lower court rightly dismissedthe suit against the second defendant. According to the claim of the firstdefendant the suit pronote is not supported by consideration for thereason that his maternal aunt Venkatamma was running a lorry bearingNo.ATR 3145 and as she was incurring losses, the plaintiff who is hisfriend came forward to run the lorry in case if he was given a share andoffered to obtain a loan from Pavan Kumar Finance Company andaccordingly the Plaintiff, Venkatamma and defendant had borrowed asum of Rs.40,000/- which was spent for the repairing of the lorry.Thereafter a panchayat was held and elders valued the lorry for Rs.1lakh and settled the issue that Venkatamma should pay an amount ofRs.50,000/- to the plaintiff and take back the lorry and the plaintiff shoulddischarge the debt due to the finance company. In that connection, thedefendant was asked to execute a pronote for Rs.50,000/- in favour ofthe plaintiff as a security and accordingly she executed the pronote. Ifreally the facts stated by the defendant are true he should haveexamined Venkatamma or any of the persons who were present at thetime of panchayat. But without mentioning the names of thepanchayatdars, he has merely introduced DWs.3 and 4 who arepanchyatdars. Even otherwise the best person to speak about panchayatis Venkatamma who has taken the lorry. Evidently, the suit pronote is inthe hand-writing of the first defendant and it shows that the money wasborrowed. Even otherwise, according to the case of the defendant, a sumof Rs.40,000/- was borrowed by the plaintiff from a finance company andthere is nothing to show that the said debt was discharged by theVenikatamma or the defendant. One fails to understand as to why the

Conclusion

first defendant should execute a pronote in favour of the plaintiff whenlorry was taken by Vankatamma and Venkatamma should payRs.50,000/- to the plaintiff and the plaintiff has to discharge the debt dueto the financial company. Probably if the theory of the defendant is to bebelieved, it can be taken as a execution of the pronote on behalf of theVenkatamma since she has taken back the lorry and the plaintiff has todischarge the loan to the finance company. As rightly found by the lowercourt, there is no document evidencing such understanding and it hasrightly discarded the theory of panchayat and the belated circumstancespleaded in the written statement about the execution of the pronote. Asrightly found by the lower court Exs.B-1 and B-2 does not reflectanything about the suit transaction. The defendant having admitted theexecution of the pronote, the presumption carries with it supported bycash consideration. The evidence adduced on his behalf is not sufficientto rebut the same and he came with belated version about thecircumstances under which the pronote was executed. The lower courthas rightly rejected the same and even if the entire transaction is to bebelieved, I have no hesitation to hold that the pronote executed by thedefendant can also be towards the liability of Venkatamma who hastaken back the lorry and therefore, I do not find any reason to interferewith the judgment of the lower court. The points are therefore answered.

Accordingly the appeal suit is dismissed. No order as to costs.

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N.R.L.NAGESWARA RAO,J

31-12-2010TSNR