DASARI SATYANARAYANA Vs. ALAPATI SREERAMULU

JUDGEMENT

(1.) This appeal is directed against a decision of the learned Subordinate Judge, Eluru by which the judgment and decree in O. S. 517/63 on the rile of the District Mucsif, Kovvur, were confirmed, Plaintiff is the appellant.

(2.) The suit was filed for recovery of money alleged to be due under two promissory notes, Exs. A. 1 and A. 2 dated 7-4-1962 and 6-5-62, executed by the defendant in favour of the plaintiff for Rs.1046/- and Rs. 2312/- respectively. Execution of these promissory notes is admitted by the defendant in his written statement but he pleaded that they are not supported by consideration and, were executed by him at a time when he was heavily involved in debts and at the advice of the plaintiff, who is no other than his own nephew, with a view to have the benefit thereof for himself in the event of his other creditors proceeding against him. On a consideration of the evidence adduced in the case, the trial Court felt satisfied that the promissory notes are devoid of consideration and accordingly dismissed the suit but without costs. This decision was Confirmed in appeal by the learned Subordinate Judge. Eluru. Hence this second appeal. Sri Bapiraju, the learned counsel for the appellant, contended that the decision under appeal is vitiated as the Courts below did not bear in mind the statutory presumption available to his client under section 118 of the Negotiable Instruments Act while examining the evidence adduced in the case and assessing its probative value and also because the learned Subordinate Judge disregarded certain admissions made by the defendant's own witnesses regarding the passing of consideration for the suit promissory notes while reaching the impugned conclusion. It is further urged that the Court below was very much influenced by the so-called variance between the recitals in the promissory notes and the evidence adduced on behalf of the plaintiff with regard to the manner in which the consideration passed when it ought not to have allowed this circumstance to influence its decision if the defendant failed to rebut the statutory presumption that the promissory notes are supported by consideration, Learned Counsel for the respondent, on the other hand, argued that the finding sought to be impeached being one of fact, cannot be questioned over again in this Second appeal.

(3.) The recital in Ex, A-1 promissory note regarding consideration is This recital, if literally translated into English, will read "as follows "Cash borrowed, being in need, on account of engine expenses etc," The other promissory note, Ex. A-2, recites that the defendant borrowed the sum of Rs.2,312/- in cash for agricultural expenses.