Andhra HC (Pre-Telangana)
P. Rukmangadha Chetty vs The Public Finance Corporation, Rep. By ... on 20 June, 1996
Equivalent citations: 1996(4)ALT472
Author: Y.V. Narayana
Bench: Y.V. Narayana
ORDER Y.V. Narayana, J.
1. This Civil Revision Petition is filed by the Defendant in S.C. No. 239 of 1988 on the file of the learned Prl. Subordinate Judge, Chittoor against the judgment and decree dated 8-9-1989 decreeing the suit filed by the respondent herein.
2. The brief facts of the case are: The respondent-Finance Corporation filed the suit on the basis of a promissory note Ex.A-1 dated 9-12-1987 executed by the petitioner herein for a sum of Rs. 1,500/- agreeing to repay the same with interest at 18% p.a. Though in the body of the promissory note, the names of the petitioner and his son Hemadri were mentioned as borrowers, the suit promissory note was executed by the petitioner only. Hence the respondent filed the suit against the petitioner alone. In spite of repeated demands made by the respondent, the petitioner failed to repay the suit debt. The petitioner is not entitled to the benefits of Act 4 of 1938 and Act 45 of 1987.
3. The petitioner filed a written statement denying in general the plaint averments and raising the following contentions. On 9-12-1987 the petitioner went to the respondent for a loan of Rs. 1,500/-. The respondent insisted that the petitioner and his son Hemadri should execute the promissory note jointly; then only the respondent will pay the amount. As the son of the petitioner was not available then, the petitioner alone executed two promissory notes each for a sum of Rs. 1,500/- on the same day, as the respondent usually takes two promissory notes for the same amount lent by him. The respondent is in the habit of advancing half of the amount and takes a promissory note for double the amount paid or obtains two promissory notes for the same amount Thus the petitioner had to executed two promissory notes on the same day each for a sum of Rs. 1, 500/-, though actually he did not receive any amount under those promissory notes. Thus the suit promissory notes are not supported by consideration. As the son of the petitioner did not execute the promissory note, though his name was also shown as executant, the suit promissory note is incomplete and hence it is unenforceable. When the petitioner insisted the respondent to return the suit promissory notes, he represented that they were destroyed and that he need not worry. The petitioner believed the representation of the respondent, but was shocked to see that he filed two suits on the basis of the two promissory notes. There is no cause of action for the suit. At the time of execution of the promissory notes, there were actually no attestors. Hence the suit is liable to be dismissed with costs.
4. The respondent examined himself as P.W.1 and marked the suit promissory note as Ex.A-1. The petitioner examined himself as D.W.1. On the basis of the oral and documentary evidence adduced by the parties, the Court below decreed the suit holding that the petitioner failed to prove his case of failure of consideration under the suit promissory note Ex.A-1 and that the failed to prove that the promissory note came into existence under the circumstances stated by him in his written statement. Aggrieved by the said judgment the petitioner filed the present revision petition.
5. It is contended by the learned counsel for the petitioner that Ex.A-1 suit promissory note is an incomplete and unenforceable document, having mentioned two names i.e., the petitioner and his son, in the body as executants , binding themselves jointly and severally, but was executed by the petitioner alone. It is also contended by him that the finding of the Court below that the promissory note Ex.A-1 is supported by consideration is erroneous and illegal.
In support of his contention he relied on the evidence of P.W.1 (i.e.), the respondent, who stated in the chief-examination itself that in Ex. A-l the name of the petitioner's son was also mentioned as executant, but he did not actually sign the promissory note Ex.A.-l, as he was not available and that the petitioner alone signed the promissory note. He further admitted in the chief-examination itself that the attestors were present when Ex.A-1 promissory note was executed by the petitioner. But he did not examine them as his witnesses to support his contentions, for the reasons best known to him. In the cross-examination he clearly stated that he paid the consideration under the promissory note to both the petitioner and his son. He immediately stated that the petitioner's son was not in the village on that day. In such circumstances it is not known as to how the respondent had paid the amount mentioned in the promissory note to the petitioner's son, who was not present in the village at the time of execution of Ex.A-1. He further admitted that he himself scribed Ex.A-1 by filling up the printed form. Hence his evidence is self-interested one. No reason was shown by the respondent as to why he did not examine the attestors of the promissory note, who are independent persons. Though he took a plea in the plaint that in spite of repeated demands, the petitioner has not chosen to repay the amount due under the suit promissory note, in the cross-examination he admitted that he did not issue any registered notice to the petitioner before filing the suit. There is no independent evidence adduced In this case, except the self- interested sole testimony of the respondent, whose evidence cannot be based to decree the suit as he admitted in the cross-examination that he paid the consideration under the suit promissory note both to the petitioner and his son, who was not admittedly present an the village itself on that day. So the finding of the Court below about passing of the consideration under the promissory note to the petitioner, by invoking the presumption is not just and correct.
6. It is to be seen that the contents of suit promissory note Ex.A-1 go to show that the petitioner herein and his son P. Hemadri jointly and severally promised to pay the respondent-corporation or order the sum of Rs. 1,500/- with interest at 18% p.a. for value received in cash on that day (i.e., 9-12-1987). So the intention of the document Ex.A-1 is to bind both the petitioner and his son jointly and severally to pay the suit amount. But Ex.A-1 promissory note was executed by the petitioner alone and his son P. Hemadri did not execute the same. Unless the son of the petitioner executes the promissory note, the intention of binding himself does not arise. Since it is not executed by the son of petitioner, it is an incomplete document and hence it becomes unenforceable. More over the document Ex.A-1 was not intended to bind the executants till all the executants had signed and completed it and mat it never went beyond the stage of an unperfected proposal. My view of this is supported by the decision rendered by the Madras High Court reported in Sivaswami Chetty v. Sevugan Chetty, 1902 (Vol. 12) MLJ 17 and also by the decision rendered by the Peshawar High Court reported in Kalu Ram v. Feroz Shah, AIR 1941 Peshawar 45.
7. For the aforesaid reasons I hold that the suit promissory note Ex.A-1 was not validly executed; it is an incomplete document, hence unenforceable in law; and that no consideration was passed under it.
8. I therefore set aside the judgment and decree dated 8-9-1989 passed by the Court below and allow the Civil Revision Petition, but without costs. Consequently the suit S.C. No. 239 of 1988 on the file of the learned Prl. Subordinate Judge, Chittoor is dismissed, but without costs.