Tatipamula Naga Raju vs Pattem Padmavathi

2. Being aggrieved by the dismissal of Second Appeal

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No.587 of 2008 by the High Court of Andhra Pradesh, the

defendant (appellant herein) has filed this appeal.

3. For the sake of convenience, parties to the

litigation have been described as arrayed in the trial

court.

4. The suit had been filed by the plaintiff (respondent

herein)

for

recovery

of

Rs.1,90,000/- from the defendant, who is the appellant

herein, with interest and the claim was based on a

promissory note, which was alleged to have been executed

by the defendant for Rs.1,25,000/-.

5. The trial court dismissed the suit in the

circumstances stated hereinbelow:

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6. The case of the plaintiff was that a sum of

Rs.1,25,000/- had been borrowed by the defendant and the

defendant had, therefore, executed a Promissory note for

Rs.1,25,000/- on 18th September, 2001. In spite of

demand, as the amount was not repaid, the plaintiff was

constraint to file Original Suit No.933 of 2003 for

recovery

of the

said

amount

along

with

interest

thereon.

7. The case of the defendant was that though the

Promissory note had been executed by him, no amount was

payable by the defendant to the plaintiff. According to

the defendant, he had borrowed Rs.1,25,000/- from the

son of the plaintiff, namely Pattem Nanaji Sanker @

Nanaji. According to the defendant, four Promissory

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notes had been executed by him. One Promissory note was

for Rs.50,000/- and three Promissory notes were for Rs.

25,000/- each. The defendant was having financial

difficulties and, therefore, he could not pay the said

amount to Nanaji but with the help of certain mediators,

he had settled the dues with Nanaji for Rs.90,000/- and

paid the same to him.

8. Upon

payment

of

Rs.90,000/- by the defendant in full settlement of his

dues, Nanaji ought to have returned the aforestated four

Promissory notes to the defendant but he returned only

three Promissory notes and did not return one Promissory

note for Rs.25,000/-, as he had misplaced the same and

he promised that he would return the said promissory

note for Rs. 25,000/- as and when he would find it.

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9. According to the defendant, the plaintiff had used

the said fourth Promissory note of Rs.25,000/- which had

been given by the defendant to Nanaji. According to the

defendant, by adding a figure `1' before `Rs.25,000/-'

the plaintiff had made an amount of Rs.1,25,000/- from

Rs.25,000/-. The plaintiff had taken undue advantage by

interpolating figure `1' before `25,000/-' because

Rs.25,000/- had not been written in words.

10. Thus, according to the case of the defendant, no

amount was payable by him to the plaintiff but the

plaintiff had misused the Promissory note given by him

to Nanaji by interpolating figure `1' before figure

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`25,000'.

11. At the time of trial, hand-writing expert, DW-4 had

been examined, who stated that figure `1' had been

interpolated in the Promissory note whereby figure

`25,000/-' was made `1,25,000/-'.

12. The

hand-

writing

expert

was of

the said

opinion

for the

reason

that he could show that space between figure `1' and `2'

was not regular and the entire figure of Rs.1,25,000/-

was not written in one line. Figure `1', which was

added subsequently was not in the same line of Rs.

25,000/-. His report was accepted by the trial court

and after considering the evidence, more particularly

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the evidence of the hand-writing expert, the trial court

came to the conclusion that the Promissory note, which

had been executed for Rs.25,000/- was tampered with by

the plaintiff by adding figure `1' so as to make

Rs.1,25,000/-.

13. The trial court also discussed the evidence led by

the

mediators i.e. DW-2 and DW-3, in whose presence the

defendant had settled his dues with Nanaji, the son of

the plaintiff. The suit was, therefore, dismissed.

14. Being aggrieved by the dismissal of the suit, the

plaintiff had filed an appeal, being Appeal Suit No.346

of 2006 which had been allowed by the learned Additional

District and Sessions Judge (Fast Track Court)

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Vijayawada. The appeal was allowed because the lower

appellate court put more stress on the execution of the

Promissory note which had been admitted by the

defendant. Moreover, the lower appellate court was of

the view that if the dues had been settled, the

defendant would not have permitted Nanaji to retain one

Promissory note for Rs.25,000/- In the circumstances,

the

appeal

was

allowed

and the

suit was

decreed

with

costs

for Rs.1,90,000/- with interest thereon.

15. Being aggrieved by the order passed in the appeal,

the defendant filed Second Appeal No. 587 of 2008 in the

High Court of Andhra Pradesh and the said appeal was

dismissed by the High Court because no substantial

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question of law was involved in the appeal.

16. We have heard the learned counsel and have

considered the judgments of all the three courts.

17. After careful consideration, we are of the view

that the trial court had properly appreciated the

evidence, especially the evidence of the hand-writing

expert - DW-4. Upon perusal of the discussion of

evidence in the judgment, it is clear that in the

opinion of the expert, figure `1' had been written

subsequently before `25,000/-' in the Promissory note.

The trial court rightly appreciated the evidence of the

mediators, in whose presence the dues of the defendant

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had been settled and Nanaji, son of the plaintiff was

paid Rs.90,000/- in full settlement of Rs.1,25,000/-

borrowed by the defendant from Nanaji. The defendant had

admitted the earlier transactions which he had with the

son of the plaintiff. In our opinion, the evidence of

the mediators and hand-writing expert was duly

considered and appreciated by the trial court and the

trial

court

had come

to a

right

conclusion. There was absolutely no reason for the

lower appellate court to arrive at a different

conclusion than the one arrived at by the trial court.

We are, therefore, of the opinion that the findings

arrived at by the trial court are absolutely correct and

no justifiable reasons have been given by the lower

appellate court for arriving at a different conclusion.

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18. In our opinion, simply because the defendant had

fairly admitted his signature, the court should not have

come to the conclusion that the amount was payable by

the defendant especially when there was an expert's

evidence that figure `1' was added so as to make the

figure 1,25,000/- from figure 25,000/- and when the

mediators had deposed to the effect that there were

transactions between the defendant and the son of the

plaintiff and in pursuance of the said transaction,

Promissory notes were executed by the defendant and one

of the Promissory notes was not returned to the

defendant. The explanation given by the defendant,

which was supported by ample evidence, ought to have

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considered by the lower appellate court and the lower

appellate court should not have been guided by a mere

fact that the defendant had admitted execution of the

Promissory note. In our opinion, in such a set of

circumstances, the defendant ought not to have been

saddled with a liability to pay the amount in pursuance

of the tampered Promissory note for which no

consideration had ever passed from the plaintiff to the

defendant.

19. As the High Court did not find any substantial

question of law, it did not entertain the second

appeal.

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20. For the aforestated reasons, we are in agreement

with the conclusion arrived at by the trial court and,

therefore, we set aside the order passed by the High

Court as well as the order passed by the lower appellate

court and restore the order passed by the trial court

whereby the suit had been dismissed.

21. The

appeal

is

allowed

accordingly but without any order as to costs.

........................................J. (Dr. MUKUNDAKAM SHARMA)

.............................J. (ANIL R. DAVE) New Delhi February 24, 2011

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