MULPURA VENKATARAMAYYA Vs. DEVABHAKTUNI KESAVANARAYANA

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent against the judgment and decree of Sanjeeva Row Nayudu, J. partly reversing the judgment and decree of the Subordinate Judge, of Vijayawada in O. S. No. 148 of 1954. The plaintiff is the appellant. He instituted a suit for recovery of Rs. 5825/- on foot of a promissory note executed by the defendant in his favour on 30-7-1951. The plaintiff and the defendant have married sisters. The plaintiff is a resident of Manikonda and the defendant is a resident of Avutapalli. The case of the defendant is that he made in all ten payments on different dates and that only a balance of Rs. 1973/- was due by him.

(2.) We have carefully perused the entire documentary and oral evidence in the case. Exhibits B-1 and B-2 do not throw any light on the three payments in dispute. On 19-9-1952 under Exhibit B-2, the plaintiff requested the defendant to send the money for purchasing a site. There is no reference to the payment of Rs. 1100/- in that letter. The next letter Exhibit B-1 dated 30-11-53 also throws no light on the truth of the payments. He requested the defendant to bring not less than Rs. 3000/-. The evidence of the defendant in regard to these three payments was disbelieved by the learned Subordinate Judge who heard and saw him as also by the learned Judge of this Court. Exhibit B-3 is relied on by the defendant to prove that certain calculations of payments were made between the parties. The document is understandable as pointed out by both the Courts.

(3.) There are two clinching circumstances which lead us to the conclusion that the payments are not true. In paragraph 2 of the written statement, the defendant stated that he made all the entries of payment in his note-book on the respective dates. Exhibit B-3 shows that the defendant is a timber merchant carrying on business at Avutapalli. The defendant has not produced his note book to evidence the payments. The Subordinate Judge rightly drew adverse inference as against the defendant for the non-production of the account book. The learned Judge disbelieved the other seven payments on the ground that the account book has not been produced. But for no reason whatsoever he did not advert to this circumstance in believing these payments.