Yadana Koteswara Rao v. Kalari Suresh

THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO SA.No.63 of 2016 ORDER :

This Second Appeal is filed challenging the judgment and decree dt.16.06.2015 in Appeal Suit No.97 of 2013 on the file of Judge, Family Court - cum - VII Additional District Judge, West Godavari, Eluru, confirming the judgment and decree dt.03.06.2013 in O.S.No.80 of 2011 on the file of Principal Senior Civil Judge, Eluru. 2.

The appellant herein is defendant in the above suit.

3.

The respondent / plaintiff filed the above suit for recovery of sum of Rs.4,62,131/- with costs and subsequent interest, allegedly due under a promissory note.

4.

The respondent contended that he is the cobrother of appellant, that the appellant borrowed a sum of Rs.5 lakhs on 02.01.2008 for business purpose from respondent at his residence at Chataparru, and the appellant executed Ex.A.1 - Promissory note agreeing to repay the said amount with interest at the rate of 24 per cent per annum with yearly rests, either to respondent or order on demand.

5.

The respondent contended that appellant paid

Rs.2 lakhs to him on 10.07.2009 towards part payment and made endorsement on the back side of pro-note (Ex.A.2), and another part payment of Rs.1,60,000/- was also made on 07.09.2009 (Ex.A.3); that appellant did not make any further payment even after repeated demands; that he issued a legal notice dt.25.01.2011 (Ex.A.4) to which a reply (Ex.A.5) was given by appellant with false allegations pleading total discharge of the dues in December, 2010; and thereafter, the suit was filed. 6.

In the written statement filed by appellant he admitted that he borrowed a sum of Rs.5 lakhs and executed Ex.A.1 Promissory note in favour of respondent, but he pleaded that he discharged the entire pro-note debt in the presence of his father-in-law, viz., Paladagu Narayana Rao, his wife, one M. Prasad and other elders, to the respondent. He contended that having assured to return Ex.A.1, the respondent did not return it.

7. Before the Trial Court, the respondent examined PW.1 and marked Exs.A.1 to A.6.

The appellant examined himself and marked Exs.B.1 to B.3.

8. By judgment and decree dt.03.06.2013, the Court below decreed the suit. It held that appellant had not examined either his father-in-law or other persons mentioned by him in the written statement as witnesses to the alleged re-payment of balance debt in December,

2010, and therefore, the said plea cannot be accepted; that appellant did not do anything to secure the return of pro-note even after the alleged discharge of debt by him; that there is no endorsement on the promissory note about the payment of the balance amount due; and therefore, the plea of discharge cannot be accepted.

9. The appellant challenged the same in AS.No.97 of 2013 before the VII Additional District Judge, West Godavari, Eluru.

10. By judgment and decree dt.16.06.2015, the said appeal was also dismissed, and it confirmed the findings of Trial Court.

11. Challenging the same, the present Second Appeal is filed.

12. Heard the counsel for appellant. None appeared for respondent.

13.

The counsel for appellant contended that the appellant was denied an opportunity to examine the persons who witnessed the repayment of the debt by him to respondent in December, 2010.

14. Actually this contention is not correct because the judgment of Trial Court reveals that appellant examined himself as DW.1 and even marked three documents on his side. It was open to appellant to examine any other

witnesses he chooses in support of his plea of discharge, but he has not indicated what steps he has taken to summon those witnesses to give evidence in support of his case. The execution of Ex.A.1 - Promissory note having been admitted, the burden is on the appellant to prove the plea of discharge.

There is no payment endorsement on the reverse of promissory note which would have been there normally, if any payment had been made. Admittedly Exs.A.2 and A.3 payments made by appellant were endorsed on the back of Ex.A.1. The appellant had also not filed any receipt evidencing payment of the amount towards full discharge of the amount due under the promissory note. If this plea of discharge is really true, he should have taken steps to recover the custody of Ex.A.1 - Promissory note, but he did not even issue legal notice to respondent demanding its return.

15. I am of the opinion that both the Trial Court as well as the lower Appellate Court have correctly appreciated the evidence on record and held in favour of respondent. 16.

There is no question of law, much less any substantial question of law arising for consideration in this Second Appeal.

Therefore, the Second Appeal is dismissed at the stage of admission. No order as to costs.

17. As a sequel, miscellaneous applications pending if

any in this Second Appeal, shall stand closed. __________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 01-07-2016 Ndr/*