Andhra HC (Pre-Telangana)
M. Narasimhulu vs M. Laxmamma on 1 August, 1996
Equivalent citations: 1996(4)ALT906
Author: R. Bayapu Reddy
Bench: R. Bayapu Reddy
ORDER R. Bayapu Reddy, J.
1. This appeal is filed by the defendant in O.S.No. 48 of 1982 on the file of the First Additional Subordinate Judge, Kurnool, questioning the decree and Judgment dated 24-9-1983 by which the suit filed for recovery of the suit amount was decreed.
2. The Respondent is the plaintiff and he filed the said suit contending that the defendant borrowed an amount of Rs. 13,500/- from him on 30-5-1979 and agreed to repay the same with interest; that subsequently, on the same evening the defendant executed a memorandum in writing in the shape of a promissory note evidencing the earlier borrowing; that subsequently the defendant failed to discharge the debt inspite of a lawyer's notice issued to him prior to the filing of the suit and that the suit was, therefore, filed for recovery of the suit amount. The defendant contested the suit contending that he never borrowed the amount from the plaintiff and never executed any promissory note; that the plaintiff has no means to lend the amount to the defendant and the defendant has no necessity also to borrow such amount; that a false claim was made by the plaintiff and that the suit was liable to be dismissed.
3. On the basis of the evidence adduced before it, the lower Court came to the conclusion that the suit debt is true and the defendant borrowed the amount from the plaintiff and failed to repay the same and as such the suit was decreed for the suit amount. Aggrieved by the said judgment and decree, the defendant has chosen to file the present appeal.
4. The point for consideration is whether the suit debt is true and whether there are any valid reasons to interfere with the decree and Judgment of the lower Court.
5. The contention of the plaintiff is that on the morning of 30-5-1979 the defendant borrowed a sum of Rs. 13,500/- from him agreeing to repay the amount; that subsequently on the same evening he executed a memorandum in writing in the form of a promissory note to evidence such debt contracted by him and that the defendant is liable to pay such amount to him. The memorandum in writing which is in the form of a promissory note is marked as Ex.A-1 through P.W.I who is the plaintiff. It is seen from a perusal of the material on record that no objection was raised by the defendant when the said document was marked through P.W.1 as an exhibit. Ex. A-1 is a promissory note which is insufficiently stamped. But, inasmuch as the document was marked without any objection during the course of the evidence of P.W.1, the defendant cannot now raise the objection regarding the admissibility and validity of Ex.A-1. Such view was clearly held in the Full Bench decision of this Court reported in L. Sambasiva Rao v. T. Balakotaiah, which is also referred to by the lower Court in its Judgment. Ex.A-1 which is written by the defendant himself in his own hand coupled with the evidence of P.W.I who is the plaintiff shows that the suit debt is true.
6. As a matter of fact, the suit is filed on the basis of the original cause of action by the plaintiff specifically contending that the defendant borrowed the 45 amount of Rs. 13,500/- on the morning of 30-5-79, and to evidence such loan transaction, he executed Ex. A-1 on the same evening. This is not a theory which was sought to be set up by the plaintiff for the first time when the suit was filed. Prior to the filing of the suit, the plaintiff got issued Ex.A-2, lawyer's notice, to the defendant who received such notice as seen from Ex.A-3, postal acknowledgement. It is clearly mentioned in Ex.A-2 that the defendant borrowed the amount in the morning on 30-5-1979 and subsequently, executed the promissory note to evidence such debt in the evening. The defendant who received such notice issued to him prior to the filing of the suit, did not even choose to send a reply denying the borrowing and the execution of the promissory note. This circumstance goes a long way in showing that the suit debt is true and that the defendant has chosen to come up with a belated and false theory both with regard to the borrowing of the amount as well as the execution of the promissory note. The plaintiff has also let in the evidence of P.W.2 who is an independent witness and who has spoken about the borrowing of the suit amount by the defendant on the morning of 30-5-1979. The lower Court rightly accepted the evidence of P.Ws. 1 & 2 and decreed the suit on the basis of the original cause of action.
7. The conduct of the defendant and the evidence adduced on his behalf clearly shows that he had in fact borrowed the amount, but has chosen to deny the same with a view to avoid his liability. He appears to have set up the plea of "alibi" contending that on.30-5-79 he was confined in a Nursing Home having been operated for an ailment and as such, he would not have borrowed the amount and would not have executed Ex. A-1 on that day. He has also let in the evidence of D.W.2 and filed Ex.B-1 medical certificate, said to have been issued by D.W.2. Ex.B-1 is dated 29-5-1979 and it is, however, found mentioned in that certificate that the defendant who was admitted in the hospital and was operated on 29-5-79 was discharged on 6-6-1979. The date of Ex.B-1 is specifically mentioned by D.W.2 as 29-5-1979. If really the certificate was issued on 29-5-1979 itself, it cannot even be imagined for a moment as to how the date of discharge could also be mentioned in the said certificate as 6-6-1979. This circumstance itself clearly shows that D.W.2 has issued a false certificate just to oblige the defendant for his own reasons. The lower Court has, therefore, rightly refused to accept the theory of "Alibi" sought to be set up by the defendant. In view of such circumstances, it is clear that the lower Court rightly came to the conclusion that the defendant borrowed the suit amount from the plaintiff on 30-5-1979 and subsequently executed Ex.A-1 to evidence such loan transaction and, therefore, decreed the suit. There are absolutely no valid reasons to interfere with such Judgment delivered by the lower Court.
8. In the result, the appeal is dismissed with costs of the respondent.