B. Srikanth Vs. Erukala Laxmi Suvarnamukhi - Court Judgment

P.S. Narayana, J.

1. This Court ordered Notice Before Admission on 24-11-2005. Sri Bankatlal Mandhani entered appearance. It is also brought to the notice of this Court that on 24-11-2005 while ordering Notice Board Admission, further ordered interim stay of all further proceedings on condition of the petitioner/ appellant depositing half of the decretal amount and costs within a period of six weeks failing which the stay granted shall stand vacated and on such deposit the respondent/plaintiff had been given liberty to withdrawn the same without furnishing any security. But however, the said conditional order was not complied with.

2. Be that as it may, the learned Counsel representing the appellant Sri C. V. Narayana Rao would maintain that the two substantial questions of Law which arise for consideration in this second appeal are as hereunder:

1. Whether the suit can be maintained in the absence of a licence under A.P. (Telangana Area) Money Lenders Act 1349 Fasli ?

2. Whether the suit can be maintained without issuance of the prior notice of demand ?

The learned Counsel also would submit that there is an admission made by P.W.I in relation to her lending of money on interest to the people in need and hence in the light of the admission made by P.W.I there is no need to further prove a fact which was admitted by P.W.I. The learned Counsel also pointed out to the relevant findings recorded by the appellate Court.

3. Per contra, Sri Ganshyam Das Mandhani would maintain that the first question in fact was not pleaded in the written statement before the Court of first instance and the said question was raised at the appellate stage. The learned Counsel also pointed out that the appellate Court had taken into consideration the submissions made by both the Counsel and recorded clear findings at Para-20 placing reliance on certain judgments. The learned Counsel also would maintain that as far as the second question is concerned, there is no Law which mandates that issuance of a notice of demand in a suit of this nature is a condition precedent for maintainability of the suit.

4. Heard both the Counsel.

5. Respondent in the second appeal is the plaintiff in O.S. No. 33/88 on the file of Senior Civil Judge, Mahabubabad. The appellant herein is the unsuccessful defendant and being aggrieved by the judgment and decree made by the Court of first instance, he carried the matter by way of Appeal A.S. No. 31/2005 on the file of VI Additional District Judge (III Fast Track Court), Warangal at Mahabubabad and the learned Judge having taken note of this objection had recorded findings and ultimately dismissed the appeal confirming the judgment and decree of the Court of first instance, but however without costs. Aggrieved by the said judgment and decree the present second appeal is preferred.

6. The suit is based on a promissory note. The same was resisted by filing a written statement. Before the Court of first instance, the following issues were settled:

1. Whether the plaintiff is entitled for suit claim as prayed for ?

2. Whether the suit is barred by Law of Limitation ?

3. Whether the suit promotes are forged and fabricated documents ?

4. To what result ?

The learned Judge recorded the evidence of P.W.I, P.W.2 and D.W.I and Exs.A-1 and A-2 were marked and ultimately the suit was decreed for a sum of Rs. 1,78,246/- with subsequent interest @ 6% per annum on Rs. 1,3 8,000/-, from the date of filing of the suit till the date of realisation with costs. Aggrieved by the same, the appeal A.S. No. 31/2005 was preferred on the file of VI Additional District Judge (HI Fast Tract Court), Warangal at Mahabubabad and a already aforesaid the same was confirmed no doubt, without costs. There is no serious controversy relating to several other factual aspects and hence the details relating thereto need not be discussed at length.

7. Before the appellate Court, the following question was raised ;

Whether the respondent/plaintiff was a professional money lender under the provisions of A.P. (Telangana Area) Money Lenders Act?.

The learned Judge had taken note of the alleged admission said to have been made by P.W.I in the cross-examination and also in the light of the definition of 'money lender' under Section 2(7) of the A.P. (Telangana Area) Money Lender Act 1349 Fasli and also in the light of the decisions in Somanath Baraman v. Raja S.V. Jaganatha Rao 1972 (2) ALT 149 and K. Varalakshmi v. Syed Khasim Hussain 1962 (2) ALT 210, came to the conclusion that even if the objection or contention raised by the appellant to be considered, the respondent/plaintiff would not fall within the definition of 'money lender' as defined under Section 2(7) of the aforesaid Act and even otherwise the burden is on the appellant herein/defendant to establish the same. It is also pertinent to note that this aspect was canvassed at the appellate stage and despite the same the said question had been considered at length and ultimately findings in detail had been recorded and the judgment and decree of the Court of first instance had been confirmed. Even otherwise, this Court is of the considered opinion that in the light of the facts and circumstances, the stray admission made by P.W.I cannot be taken advantage of and the burden cannot be cast on the party i.e., respondent/plaintiff when the same is expected to be discharged by the appellant/defendant. Further, this Court is of the considered opinion that this question raised at the appellate stage, at any rate, cannot be said to be a pure question of Law and it is a mixed question of fact and Law and when that being so the same cannot be permitted to be raised, but however the same was permitted to be raised and findings had been recorded by the appellate Court.

8. As far as the second question is concerned, it is needless to say that always issuance of notice of demand is not a condition precedent for the maintainability of the suit for recovery of amount on the strength of promissory notes. Hence the said question also is without any substance.

9. Viewed from any angle, the second appeal being devoid of merit, the same shall dismissed. No costs.