HONOURABLE SRI JUSTICE S.RAVI KUMAR SECOND APPEAL No.1323 OF 2006
Dated 31-12-2014
Between:
K.R.Wilson and others.
..Appellant.
And:
Vadlamudi Lakshmi Kanthamma.
..Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR SECOND APPEAL No.1323 OF 2006
JUDGMENT:
This appeal is against judgment dated 9-10- 2006 in A.S.No.148 of 2005 on the file of VIII Additional District and Sessions Judge (Fast Track Court), Vijayawada whereunder judgment dated 30-9-2005 in O.S.No.601 of 2002 on the file of IV Additional Senior Civil Judge, (Fast Track Court) , Vijayawada, is reversed.
Appellants herein are legal representatives of sole defendant in O.S.No.601 of 2002 and respondent herein is sole plaintiff in the said suit filed for recover of money.
Parties are herein after referred to as plaintiff and defendant for convenience and better understanding.
Plaintiff filed O.S.No.601 of 2002 for recovery of Rs.1,89,632/- with interest alleging that the defendant K.R. Wilson borrowed a sum of Rs.1,00,000/- from the plaintiff on 10-9-1999 promising to repay the same with interest at 24% p.a., and executed a promissory note on the same day and when the defendant failed to repay the said amount, in spite of demand, plaintiff got issued a legal notice dated 20-8-2002 and the defendant neither acknowledged the notice nor given any reply nor paid the amount and therefore, plaintiff filed the suit for recover of money.
Defendant resisted the claim of plaintiff and according to the original written statement, the plea of defendant is that wife of defendant subscribed a chit for Rs.50,000/- run by the plaintiff and she participated in the auction conducted in the month of February, 2001 and became successful bidder and a sum of Rs.28,000/- was paid to the wife of defendant and at that time, plaintiff took cheque of KDCC Bank with the signature of wife of defendant and after repayment of the chit amount when the dependant demanded for return of cheque, she postponed the same on one pretext or the other and finally informed the defendant that the cheque was lost and miss-placed and that she would not take any legal action but contrary to it, suit is filed by forging the signature of defendant on the promissory note.
Subsequently, defendant filed additional written statement contending that he was at Moulali, for undergoing training of refresher course at zonal training centre, Moulali from 4-9-1999 to 16-9-1999 and that he was not available at Vijayawada on 10-9-1999 and prayed for dismissal of the suit.
On these allegations and counter allegations, trial court framed appropriate issues and conducted trial during which, three witnesses are examined on plaintiff’s side besides marking four documents and two witnesses are examined on defendant’s side besides marking two documents. On an overall consideration of oral and documentary evidence, trial court dismissed the suit by accepting plea of defendant. Aggrieved by the dismissal of the suit, plaintiff preferred appeal and appellate court on a reappraisal of oral and documentary evidence, disbelieved the plea of the defendant and accepted the contention of plaintiff and decreed the suit. Aggrieved by the judgment of the appellate court, defendant preferred the present second appeal.
As per the grounds of appeal, the following are the substantial questions of law to be determined by this court in the second appeal.
14. (a) Whether the first appellate court judgment made on surmises, conjunctures and it is in perverse in nature for arriving the execution of the suit document of Ex.A.1 at midnight of 10-9-1999 contrary to human nature, conduct and behavior?
14. (b) Whether the first appellate court rendered judgment on imagination while arriving to the suit document of Ex.A.1, contrary to Ex.B.1 and B.2 and also the evidence of P.W-2, who is an independent witness of Railway department, who confirmed as on the date of suit document, the appellant was under training in Hyderabad?
14. (c) Whether the trial court and appellate court are right in making attachment of the retirement benefits of the appellant contrary to Section 60 (1) (ia) and (l) of C.P.C.?
14 (d) Whether the first appellate court went wrong in reversing the trial court judgment without properly appreciating the contents of the plaint, which is lacking the material facts of execution of Ex.A-1 and time of execution at Vijayawada?
Heard arguments.
Though as many as ten grounds are urged in the Memorandum of grounds, arguments are advanced only on the point that appellate court passed the judgment on surmises and conjectures and therefore, it is perverse in nature and liable to be set aside. Though the other ground contended is that trial court and appellate court have erred in ordering attachment of the retirement benefits of the defendant contrary to Section 60 (1) (1a) and (1) of C.P.C. that is not a subject matter because that is in respect of some interim order or orders in the E.P.(which is not separately challenged) for which a separate remedy is available to challenge which the appellant has not availed. Except this ground, all other grounds urged are in respect of appreciation of factual matrix.
Therefore, the point that would arise for consideration of this court in the second appeal is whether the findings of the appellate court are on the surmises and conjectures and presumptions and whether it amounts to perverse findings.
POINT:
It is the specific case of the plaintiff that defendant i.e., K.R.Wilson borrowed Rs.1,00,000/- on 10-9-1999 for his family necessity and executed Ex.A.1 promissory note but thereafter failed to repay the said amount. Defendant at the first instance contended that suit promissory note is forged one but no specific plea is taken with regard to forgery and specific plea is that his wife joined in chit being run by plaintiff and in connection of that chit transaction, blank signed cheques with signatures of defendant’s wife were collected by the plaintiff but they were not returned in spite of discharge of money due under the chit transaction. In the additional written statement, plea that was taken by the defendant is that he was at Moulali in connection of a departmental training on the alleged date of execution of promissory note and the suit promissory note is a rank forgery.
Advocate for appellant submitted that defendant by examining himself as D.W.1 and by examining D.W.2 and by marking Exs.B.1 and B.2 clinchingly established that he was at Moulali from 4-9-1999 to 16- 9-1999 in connection with departmental training course at zonal training centre, Moulali, Secunderabad and the trial court accepting the same, dismissed the suit but the appellate court on mere surmises without there being any specific plea disbelieved the version of the defendant on the ground that there is possibility of reaching Vijayawada from Moulali after training hours. He further submitted that plaintiff and attestor deposed in their evidence that suit promissory note was executed between 11 P.M., and 12 Mid night on 10-9- 1999 and that was accepted by the appellate court though there was no such pleading either in the legal notice or in the plaint.
He also submitted that plaintiff is a lady and defendant approaching a lady at odd hour for the purpose of money is highly improbable and unnatural but the appellate court without observing these aspects reversed a well reasoned findings of the trial court and therefore, judgment of the appellate court has to be treated as perverse.
On the other hand, advocate for plaintiff contended that as the defendant is in need of money, there is nothing wrong in accepting the evidence of plaintiff and attestor with regard to time of execution of promissory note. He further submitted that in the original written statement, there is no specific plea with regard to execution of promissory note or about the training underwent at Moulali. He submitted that the evidence of attestor and scribe who are third parties would clinchingly establish that defendant executed Ex.A.1 promissory note having received Rs.1,00,000/- and their evidence remained unrebutted and the appellate court rightly decreed the suit and there are no grounds to interfere by this court in the second appeal.
As already referred above, three witnesses are examined on plaintiff’s side. Plaintiff herself is examined as P.W.1 and one of the attestors of promissory note is examined as P.W.2 and scribe is examined as P.w.3. All the three in one voice deposed that the defendant came to the house of plaintiff around 11-30 P.M., and that the plaintiff advanced Rs.1,00,000/- to the defendant because of the close acquaintance between two families. All the three were cross examined at length on behalf of defendant but nothing could be elicited from them to doubt their testimony. As against this, defendant is examined himself as D.W.1 and examined senior clerk in the zonal training institute Moulali as D.W.2, to support his plea that he underwent training at Moulali from 4-9-1999 to 16-9- 1999.
No doubt from the evidence of D.Ws.1 and 2 and documents Exs.B.1 and B.2, it is clear that defendant underwent training from 4-9-1999 to 16-9- 1999, but what has to be seen is whether defendant can approach plaintiff on that day. While dealing with this aspect, the appellate court observed, since the travel time between Vijayawada to Hyderabad is about 5 to 6 hours, it is quite possible for the defendant to reach Vijayawada after completion of training hours on 10-9-1999. From the evidence of DWs.1 and 2, it is clear that training course was upto 4 P.M., every day and therefore, after 4 P.M., trainees will be free. When travel time between Vijayawada and Hyderabad is 5 to 6 hours, it is quite possible for the defendant to reach Vijayawada by 9 or 10 P.M., after completing training course for the day on 10-9-1999. When the evidence of P.Ws.1 to 3 clearly establish that the suit promissory note was executed around 11 or 11.30 P.M., this probabalizes and supports the transaction under Ex.A.1. As already referred above, in the written statement first filed, the specific plea was that plaintiff obtained cheque containing signatures of defendant’s wife in connection with chit transaction.
On a consideration of oral and documentary evidence, appellate court observed that there is no obstacle for the defendant to visit Vijayawada after training is over on the day on which suit promissory note was executed. When the conclusion of training hours for the day, was at 4 P.M., and journing time from Hyderabad to Vijayawada is five to six hours, and the time of execution as deposed by P.Ws.1 to 3 are considered together, it probabablises and supports the transaction under Ex.A.1. When there is a close acquaintance between the two families, the objection of the appellant that the execution of promissory note at odd time cannot be sustained particularly in view of clinching evidence of attestor and scribe. As rightly pointed out by advocate for plaintiff that appellate judge has rightly appreciated the evidence on record and its findings are not on surmises and presumptions and they are based on material evidence and supporting circumstances.
On a scrutiny of the material, I do not find any perversity in the findings of the appellate judge and the learned appellate judge rightly reversed findings of the trial court which was carried away with the contention of the defendant about his training at Moulali without considering the probabilities and possibility of defendant reaching Vijayawada after training hours.
For these reasons, I am of the view that there is no substantial question of law that requires consideration by this court and that the appeal is devoid of merits.
Therefore, this Second Appeal is dismissed. No costs.
As a sequel to the disposal of this appeal, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR
Dated 31-12-2014
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR
Dvs
SECOND APPEAL No.1323 OF 2006 Dated 31-12-2014