Chevva Guravaiah Vs. Sedam Pandu Rangaiah - Court Judgment

P.S. Narayana, J.

1. The substantial question of law which arises for consideration in this Second Appeal is as hereunder:

'Is not the appellate Court in error in reversing the Judgment and decree of the trial Court without considering the recitals in Ex.A-1 regarding passing of consideration of Rs. 25,000/- and as such finding is vitiated for non-consideration of the material evidence on record?'

2. The unsuccessful plaintiff, aggrieved by the reversing Judgment and decree made in A.S.No. 9/90 on the file of District Judge, Mahaboobnagar had preferred the present Second Appeal. The appellant/plaintiff instituted a suit O.S.No. 78/87 on the file of Subordinate Judge, Mahaboobnagar for recovery of an amount of Rs. 25,000/- with interest at 18% per annum and costs.

3. The parties are referred to as arrayed before the Court of first instance as 'plaintiff' and 'defendant'.

4. It was pleaded in the plaint that the plaintiff is a business man by profession and in that connection when he went to Jedcherla, the defendant also being the business man of Jedcherla, met the plaintiff and requested to give hand loan of Rs. 25,000/- agreeing to mortgage his own house No. 5-68 situated at Jedcherla town for which the plaintiff had agreed to advance the said amount of Rs. 25,000/- agreeing to mortgage his own house No. 5-68 situated at Jedcherla town for which the plaintiff had agreed to advance the said amount of Rs. 25,000/- as loan to the defendant. As per the agreement and request of the defendant, the plaintiff had decided to give hand loan of Rs. 25,000/- to the defendant and brought the non-judicial stamps worth Rs. 750/- from the stamp vendor at Badepally along with defendant and after getting into full confidence the plaintiff had paid Rs. 25,000/- to the defendant on 28-1-1987 and handed over the stamps to defendant to execute the mortgage deed and to present before the Sub-Registrar, Jedcherla. The plaintiff, defendant and witnesses in whose presence the defendant had received the sum of Rs. 25,000/- went to the document writer at Sub-Registrar's office, Badepally and the defendant requested the said document writer to scribe the mortgage deed admitting receipt of Rs. 25,000/- and also instructing him to scribe the mortgage deed with a condition that there is no interest for the amount of Rs. 25,000/- which is received, but half of the rent fetching over the mortgage house No. 5-68 be paid to the plaintiff with further instruction to repay the entire amount within 11/2 years. Accordingly, the document writer had scribed the mortgage deed and obtained signature of the defendant and witnesses and handed over the document to the defendant to present before the Sub-Registrar for registration. After receipt of document from the document writer, the defendant instead of presenting the document for registration went out saying that he will come back within a few minutes after attending the nature calls. The plaintiff and the witnesses waited for half an hour, but the defendant did not turn up. So they went in search of the defendant and when the plaintiff and the witnesses and the other elderly persons went to the house of the defendant, the defendant was lying on his bed and when questioned, the defendant answered that he is not feeling well and he will come to the Registrar's office the next day and get the document registered in favour of the plaintiff. But even after request of the plaintiff on 29-1-1987 the defendant did not come to the Registrar's office to execute the registered mortgage deed. Whenever the plaintiff requested the defendant to execute the mortgage deed, the defendant is postponing the registration of the document with one or other reason with a mala fide intention on instigation of his father Buchaiah and handed over the mortgage deed scribed and signed to the plaintiff on 2-2-1987. The plaintiff requested the defendant number of times orally either to register the mortgage deed in favour of the plaintiff or refund the amount which he had taken, but the defendant had been postponing to register the mortgage deed. So, the plaintiff had got issued a legal notice on 2-4-1987 and the same was returned unserved and again the plaintiff got issued another notice on 22-4-1987 and the defendant received the same on 23-4-1987, but so far the defendant neither presented the mortgage deed for registration nor repaid the amount to the plaintiff. Hence the plaintiff filed the suit for recovery of the said amount of Rs. 25,000/- with interest and costs.

5. The defendant filed a written statement admitting that the defendant asked the plaintiff at Jedcherla when the plaintiff went on his business work to advance a sum of Rs. 25,000/- to him and the plaintiff agreed to advance the said amount. It was further pleaded that it is true that the plaintiff brought the non-judicial stamps worth Rs. 750/- but the defendant did not receive the money. It was further pleaded that the plaintiff tried to impress upon, the defendant that he would give amount of Rs. 25,000/- in instalments as defendant is very young and inexperienced in business and that the plaintiff will give the amount as and when the defendant needed the money in business. The defendant did not agree for this and wanted to speak with his father and finally the defendant withdrew from executing the document as plaintiff was not prepared to give entire amount of Rs. 25,000/-. The plaintiff retained the papers with himself and therefore the question of registration of the mortgage deed does not arise. It was further pleaded that it is true that the plaintiff and defendant went to the document writer to get the document written, but the allegation that the defendant admitted receipt of amount before the document writer is false. It was also pleaded that it is true that the defendant asked the scribe to write conditions that there should be no interest for the proposed loan of Rs. 25,000/- and in lieu of interest the plaintiff should receive half of the rent from the house bearing No. 5-68 situated at Jedcherla and further that the amount should be repaid within 11/2 years. It was further pleaded that it is true that the document writer had scribed the mortgage deed and obtained the signature of defendant and the witnesses. The plaintiff asked the defendant to present the document for registration without paying any money by promising to pay money to him. The defendant though over the situation and wanted to speak with his father and ultimately the defendant did not accept for registration basing on promises of the alleged sum of Rs. 25,0000/- and therefore the document could not be registered. It is false that the plaintiff, witnesses and the other elder persons came to the house of the defendant and the defendant was lying on the bed and that when questioned the defendant answered that he was not feeling well and that he could come to Registrar's office on the following day to register the document. The allegation that the defendant handed over the document to the plaintiff is false inasmuch as the defendant never laid hands on the document as the document remained always with the plaintiff as the plaintiff himself purchased the non-judicial stamp paper. The allegation that the plaintiff got issued legal notice on 2-4-1987 is not to the knowledge of the defendant. The plaintiff got issued legal notice dated 2-4-1987 only to harass the defendant. The defendant is residing at Pothulamadugu village. As the defendant is engaged in agricultural operations he could not get the reply notice issued immediately. For filing this false suit, the plaintiff is liable to pay compensatory costs.

6. On the strength of the above pleadings of the respective parties, the following Issues were settled in the Court of first instance:

(1) Whether the plaintiff lent Rs. 25,000/- to the defendant?

(2) Whether the plaintiff is entitled to the decree prayed for?

(3) To what relief?

7. On behalf of the plaintiff P.W.1, the plaintiff in the suit and P.W.2 and P.W.3, the attestors of the mortgage deed marked as Ex.A-1 and apart from Exs.A-1, Ex.A-2 -legal notice dated 22-4-1987 and Ex.A-3 -acknowledgment by the defendant, were marked. As against this evidence, the defendant examined himself as D.W.1 and no documents were marked. The Court of first instance on appreciation of the oral and documentary evidence came to the conclusion that the plaintiff was able to establish the payment of Rs. 25,000/- to the defendant and accordingly decreed the suit with costs with future interest @ 6% per annum from the date of suit till the date of realization. Aggrieved by the same, the defendant had preferred A.S.No. 9/90 on the file of District Judge, Mahaboobnagar and the appellate Court had reversed the Judgment and decree of the Court of first instance and allowed the Appeal directing the parties to bear their own costs. Aggrieved by the same, the present Second Appeal is filed.

8. Sri Gangarami Reddy, the learned counsel representing the appellant/plaintiff had taken me through the findings recorded by the Court of first instance and also the appellate Court. The learned counsel pointed out that to prove Ex.A-1, apart from the evidence of P.W.1 though clear evidence of P.W.2 and petitioner; W3 is also available, the appellate Court had mainly reversed the Judgment and decree of the trial Court on the ground that the presumption available in the case of negotiable instrument cannot be extended to a case of this nature. The learned counsel also pointed out that the appellate Court also had pointed out certain discrepancies which may not alter the genuineness of the claim in any way which had been duly proved by the appellant/plaintiff. The learned Counsel had taken me through the evidence of P.W.1, P.W.2 and also P.W.3 and had submitted that the findings recorded by the appellate Court in disbelieving the payment of Rs. 25,000/- are totally unsustainable especially in the light of the clear recital in Ex.A-1 relating to the payment of Rs. 25,000/- which had been amply proved, well supported not only by the evidence of P.W.1, the plaintiff, but by the evidence of P.W.2 and P.W.3, the attestors also.

9. Though notice had been served, none represents the respondent/defendant in the Second Appeal. Heard the counsel for appellant at length and also perused the oral and documentary evidence available on record and also the findings recorded by both the Courts below.

10. The appellant/plaintiff filed the suit for recovery of an amount of Rs. 25,000/- with future interest and costs to be recovered from the defendant on the ground that the defendant borrowed a sum of Rs. 25,000/- from him on 28-1-1987 and executed a mortgage deed in relation to H.No. 5-68 situated at Jedcherla town on non-judicial stamp worth about Rs. 750/- produced by the plaintiff at registration office. The registration of the document could not take place as the defendant after signing the document left the place stating that he will come again after passing urine and hence the plaintiff filed the suit for recovery of Rs. 25,000/-. It is pertinent to note that the defendant admitted the execution of the mortgage deed, but the stand taken by him is that the plaintiff did not pay Rs. 25,000/- to him. The evidence of P.W.1 is clear and categorical. He narrated in detail all the aspects relating to the payment and the execution of Ex.A-1 and the attestors attesting the document. Several suggestions were put, but all the suggestions were denied by P.W.1 P.W.2 deposed that he knows the plaintiff and the defendant who are residents of Jedcherla and the plaintiff lent amount to defendant Rs. 25,000/- on 28-1-1987 and there is no interest on this amount, but half of the rent of the house of the defendant which is about to be mortgaged has to be received by the plaintiff and the defendant agreed to execute the registered mortgage deed in respect of his house and the plaintiff paid Rs. 25,000/- to the defendant and P.W.2 and another attestor Narayana Setty were present at that time. The said Narayana Setty was examined as P.W.3. P.W.3 also had supported the version in toto of both P.W.1 and P.W.2. As against this evidence, the evidence of D.W.1 is available on record wherein he had explained that he did not receive the amount. D.W.1 deposed that he went to the Registrar's office and the plaintiff came to the Registrar's office and stated that he will pay the amount agreed to the needs of him i.e. D.W.1, and not at one time. But however, D.W.1 asked the plaintiff to pay the entire amount at one time and he will register the mortgage deed and since the plaintiff did not pay any amount he did not register the mortgage deed. D.W.1 also deposed that without reading the contents of Ex.A-1 he signed in it, but the contents of Ex.A-1 were read over to him at that time. D.W.1 also deposed that P.W.2 and P.W.3 were present at that time when he signed Ex.A-1.

11. It is pertinent to note that the small discrepancies which had been pointed out by the appellate Court in fact were taken notice of even by the Court of first instance and all the factual aspects had been discusfeed in detail. It is no doubt true that the suit is based on the strength of an unregistered mortgage deed and there is a recital in Ex.A-1 relating to the receipt of consideration of Rs. 25,000/-. Apart from the evidence of P.W.1, both the attestors who had attested Ex.A-1 had in toto supported the evidence of P.W.1, the plaintiff/ appellant in the present Appeal. In fact, the notice Ex.A-2 also was issued and it appears from record that the respondent/defendant had not cared even to reply. Except the evidence of D.W.1, an interested testimony, there is no other evidence adduced on behalf of the respondent/defendant so as to contradict the stand taken by the appellant/ plaintiff in this regard. Hence, in any view of the matter, the whole approach of the appellate Court in reversing the well considered Judgment of the trial Court on the ground that there are certain minor discrepancies in the evidence, and on the ground that the presumption available in case of negotiable instruments cannot be extended in a case of this nature, in my considered opinion, cannot be sustained, for the main reason that when clear evidence is available the evidence of P.W.1 to P.W.3, coupled with the recitals in Ex.A-1, definitely such findings are vitiated for non-appreciation of the evidence in proper perspective and this erroneous approach of the appellate Court is definitely a substantial question of law to be decided in this Second Appeal. In fact, this Court while admitting the Second Appeal had rightly framed the said question referred to supra. In the light of the same, I have no hesitation in holding that the reversing Judgment and decree of the appellate Court are not sustainable and are liable to be set aside.

12. Accordingly, the Judgment and decree of the appellate Court in A.S.No. 9/90 on the file of District Judge, Mahaboobnagar are hereby set aside and the judgment and decree made by the original Court Subordinate Judge, Mahaboobnagar in O.S.No. 78/87, are hereby restored. The Second Appeal, thus is allowed, with costs.