ADILAKSHMI Vs. A VENU

JUDGEMENT

(1.) Respondent-plaintiff filed the suit for recovery. It is the case of the plaintiff that the defendant had approached plaintiff for monetary help towards construction of house taken-up by her and borrowed a sum of Rs.50,000/-. The defendant-appellant had agreed to repay the said amount together with interest at the rate of two per cent per month. It is the further case of the plaintiff that the defendant-appellant executed on demand promissory note Exhibit-P1 and also issued a post-dated cheque for Rs.50,000/-. The cheque was presented, it was returned with an endorsement "insufficient funds". Notice-Exhibit-P5 has been issued to the defendant-appellant; it was not served. Thereafter, suit has been filed. It is the case of the respondent- plaintiff that though the plaintiff had admitted his signature on the cheque-Exhibit-P3, but however, denied the same found on Exhibits P1 and P2. The same is improper on the part of the defendant. The notice was issued on the defendant-appellant and the defendant-appellant had filed written statement denying the transaction. It has been stated in the written statement that Exhibits P1 and P2, on demand promissory note has not been signed and the signature on it is denied. One Rangaiah, who happens to be the friend of the defendant-appellant has misused the cheque Exhibit P3 and in collusion with him the plaintiff has preferred the suit. It is further stated about the non-execution of Exhibits P1 and P2 and also Exhibit P3 to the plaintiff. In order to establish the same, the plaintiff should have examined the witness Rangaiah. It is further stated that the consideration has not been established and Rangaiah has not been examined which is fatal to the case. However, the learned judge has committed an error and decreed the suit. The court below framed issues and the same have been answered in favour of the plaintiff and suit has been decreed directing the defendant to pay the agreed amount of Rs.50,000/- plus interest. Against the said decree, this appeal is preferred.

(2.) The plaintiff has been examined as PW1 and the defendant has been examined as DW1. The plaintiff marked document Exhibits-P1 to P8, viz. on demand promissory note and consideration receipt as Exhibits P1 and P2; cheque, bank endorsement as Exhibits P3 and P4; copy of legal notice and postal receipt made through certificate of posting and returned postal cover as Exhibits P5 to P8. Defendant has not produced or marked any document. It is the contention of the defendant- appellant that primarily the legal notice issued as per Exhibit P5 has not been served on the defendant. Hence, there is no compliance of issuance of notice. Secondly, as it is admitted by PW1 in his chief and cross examination that Rangaiah was witness to Exhibits P1 and P2 and the signature on Exhibits P1 and P2 has been denied, plaintiff should have examined Rangaiah. Under the circumstance the plaintiff has disowned in establishing the fact of execution of Exhibits P1 and P2. The defendant-appellant has relied upon the judgment in the case of SAFTARSAB v. B. ALLAIAH @ ALLAPPA reported in ILR 2005 KAR. 2911 and submitted that execution of Exhibits P1 and P2 on demand promissory note has to be proved and unless it is established the liability shall not be shifted on the defendant- appellant to prove it.

(3.) Heard the learned counsel for the parties and gone through the records that are made available. It is the case of the plaintiff that the defendant has executed on-demand Promissory Note Exhibit P1; it also bears the signature of the defendant on it dated 26th February 1987 executed for Rs.50,000/-. Exhibit P2 is the acknowledgement for having accepted Rs.50,000/-. It is stated therein that for the purpose of putting up construction at site No.89 allotted by the Bangalore Development Authority, she has taken loan of Rs.50,000/- from the plaintiff and has paid the entire amount and the is acknowledged. It bears the signature of defendant. In the witness column, name of Rangaiah has been found. The submission of the appellant, both in written statement as well as the submission before this Court, is that the signature found in Exhibit P1 and P2 is not her signature. When such is the denial, it is the duty on the part of the plaintiff to establish about the signature. No such effort has been made by the plaintiff. Secondly, with regard the fact that Rangaiah who happen to the witness to Exhibit P2, it is specially alleged by the appellant that Rangaiah has misused the cheque which was in his possession and he colluded with the plaintiff to file the suit for recovery of money. Here, two denials have been made, (1) that absolutely the signature of the defendant on Exhibit P2 is not her signature; and (2) Rangaiah has misused the cheque. When these two denials are alleged against Rangaiah, it is the duty on the part of the plaintiff to examine Rangaiah but the same has not been done. On the other hand, in order to establish the fact that the signature on Exhibit P2 is of the defendant, necessary application should have been made or submission should have been made to the Court to compare the signature taken on Exhibits P1 and P2 with other signatures of the Defendant-appellant or the signatures made on Exhibit P2 should have been referred to an expert for comparison. Further, it is found out from the records that Exhibit P5 is the legal notice issued to the defendant, but though in the evidence of PW1 it has come out that it has been served, the defence of DW1 is that exhibit P5 has not been served on the defendant. These two fundamental defects have been found. Had execution of Exhibits P1 and P2 is admitted, then it would have been easy for the Court to decree the suit directing the defendant to pay the amount. But basically, when execution of Exhibits P1 and P2 having been denied, then the Court has committed an error in not directing the plaintiff to prove the signature of the defendant or else to examine Rangaiah who is the witness to Exhibit P2. Unless these two things have been complied with, question of decreeing the suit or directing the appellant to pay the said amount is improper. Exhibit P3 is the cheque which is available in the record on which the name of the plaintiff is found as Venu Naidu. Whereas, in the suit from the cause title, it is seen the plaintiff's name is A Venu S/o Chengala Naidu. These discrepancies have not been discussed by the Court below. The 'date' column and the 'Rupees' column are kept blank. Since it was brought to the notice of of the defendant, he has shown to the court the certified copy obtained from the Court in which the date column and the amount column has been filed with a particular date and also the amount in figures as Rs.50,000/-. This has not been clarified as to how the documents in possession of the appellant- defendant in which the date and amount has been filed and it is not so in the Exhibit P3. The submission of the appellant- defendant that when the execution of Exhibits P1 and P2 itself is denied, the burden shifts on the plaintiff to prove. Unless execution of on demand promissory note and acknowledgement are proved, the burden would not shift on the defendant to prove or disprove. In this regard, it is useful to refer to the judgment of this Court in the case of SAFTARSAB (supra) wherein in the course of the judgment at paragraph 8, it is observed thus: