LOHORI SEETHAYYA Vs. MALGIREDDY MATTA REDDY

JUDGEMENT

(1.) The defendant is the appellant. The suit is on a promissory note, Ex. A-1 dated 13-4-1964 which purports to have been executed for a sum of Rs. 9,000/-. It does not bear any interest, The defence was that Ex. A-1 was obtained by the use of force and by playing fraud on the defendant, It was also pleaded that the promissory note was not supported by consideration and that the plaintiff was a money-lender within the meaning of the Hyderabad Money Lender's Act, 1349 Fasli (hereinafter referred to as 'the Act'). A plea was also raised that the debt due by the defendant had become extinguished under the Hyderabad Agricultural Debtors' Relief Act by reason of alleged payments made to the plaintiff. An issue in this behalf was framed by the lower court. The contention covered by that issue was given up in the Court below by the defendant. No argument was advanced before me also. About two months after the execution of Ex A-1 the plaintiff issued a notice Ex. A-3 dated 19-6-1964 to the defendant to which the defendant had sent the reply Ex. A-2 dated 13-7-1964.

(2.) The defendant, therefore, had admitted the execution of the promissory note and the onus therefore was on him to show that Ex. A-1 was executed under coercion and fraud. The burden is also on him to show that Ex. A-1 is not supported by consideration. Also on the question whether the plaintiff is a money-lender within the meaning of the Act, the burden is on the defendent. In Ex. A-2 reply notice to the plaintiff's notice dated 19-6-1964, the defendant stated that a relationship of creditor and debtor did exist between the plaintiff and the defendant for about five or six years prior thereto and the defendant was contracting the debts either in cash or in kind and he was periodically making part payments of the debt. In this notice, he claimed to be an illiterate and ignorant Lambadi. He denied having taken a loan of Rs. 9000/- from the plaintiff, and that he had executed the promissory note Ex. A-1. On 13-4-1964. the date of Ex. A-1, the plaintiff had played a trick and got the promissory note executed. What the trick was, was elaborated thus. The plaintiff sent men to bring the defendant by force on the plea that the account between them had to be settled. The defendant went and that later in the evening at about 9.00 P.M. the plaintiff closed the doors, beat the old defendant and forcibly obtained the signature on Ex. A-1. Inspite of the hue and cry raised by the defendant, no one came to his rescue. It was specifically stated that in case the plaintiff brought his account-hooks and showed the account the defendant was willing to pay whatever is due under the old transactions. But he specifically denied the execution of the promissory note It may be noticed that inspite of this notice, the plaintiff did not send any reply to the allegations of coercion and fraud and also instituted the suit after nearly two years on 11-7-1966. This belated institution of the suit, in view of the contents of the reply notice itself, raised some doubt about the truth of the execution of the promissory note, Ex. A-1, But, as stated by me earlier, the defendant having not denied the execution of the promissory note, it is ior him to establish the fact thar the promissory note was obtarned by coercion and fraud, In the written statement detailed facts were given leading to the execution of the promissory note. It was stated that one Challa Venkatareddy, son of Govinda Keddy of Thimmapur was indebted to the plaintiff and that the said Venkatareddy with a view to discharge his debt due to the plaintiff offered to sell some land belonging to him in Thimmapur. But when the plaintiff has proposed that the defendant should purchase this land for a sum of Rs. 4000/- the defendant bad agreed to purchase the same, provided the plaintiff advanced the said sum. In this manner, the plaintiff adjusted the debt of Challa Venkatareddy and made an entry in his Katha Books showing that the amount of Rs. 4000/- was borrowed by the defendant from the plaintiff. The defendant in discharge of the said debt of Rs. 4000/- had made payments on various dates particulars whereof were given in the written statement. According to the defendant, the payments made amounted to RKs. 8000/- and the plaintiff had assured him that he was making the necessary entties of payment in the Katha. The plaintiff had later on sent for the defendant and his son for settlement of the account regarding the loan of Rs. 4000/-. They went to the plaintiff's house along with a relative named Bhaggu. The defendant stated that nothing was due to the plaintiff and in case the accounts were brought before elderly persons they could be verified. The plaintiff prevented the defendant from going away and forced the plaintiff and bis son to stay till 9.00 P.M. The plaintiff at about 9 P.M. had necked out the defendant's son and sent away Bhaggu. The plaintiff gave the defendant a severe beating and forcibly took his thumb-impressions on some papers. The so called scribe of the document was also present, but no attesting witnessess at all were present. The defendant, in the written statement for the first time and in Ex. A-2 reply stated that he did not know how many documents were obtained from him and the nature of the transactions.

(3.) The defendant in support of the case that Ex. A-1 was not his free and voluntary act had examined himself as D.W, 5 and D.Ws. 1, 2 and 4. So far as D.W. 1 is concerned, he said he was not present on the relevant date. It was the teacher P.W. 3 that told him that the plaintiff got a promissory note executed after beating the defendant. D. W. 2 merely stated that the defendant and his son came to him and told him that the defendant was beaten by the plaintiff and that the plaintiff took his signatures on a note. The defendant showed him the injuries. He seems to be a debtor of the plaintiff. In cross-examination he stated that he does not remember the year or the season when the defendant told him about the beating. But he asserted tbaton the next day to the beating, he was told about it at about 7 A.M. He advised the defendant to give a petition if there were witnesses, but the defendant went away. D.W.4 is Bhaggu. He spoke to the fact that he accompanied the defendant and his son to the house of the plaintiff when he was called by the Gumastha (D.W. 1) He stated that the defendant had told the plaintiff that nothing was due to him. He further stated that the defendant said that he would pay whatever was due if the accounts were brought before elders. There. after the plaintiff sent out the defendant's son and closed the doors. He claims to have heard the beating sounds and the weaping of the defendant. The defendant then came out and told him that his thumb- impressions were taken on four or five papers' Thereafter he seems to have quietly gone away. In cross-examination he claimed to be a distant relation of the plaintiff. It is said that he did nor go inside the house of the plaintiff. He disclaimed any knowledge about the time when the defendant was inside the house of the plaintiff and then stated that it was for about half-an-hour. He did not call any neighbours when the defendant was being beaten. Apparently he himself did not seek to interfere. He even stated that he did not ask the plaintiff as to why he was beating the defendant. He did not even send the defendant's son to fetch villagers when the defendant was being beaten.