HON’BLE SRI JUSTICE R.KANTHA RAO S.A.NO.992 OF 2008
Date:28.08.2009:
Between:
Palla Eswaraiah …Appellant And Gurram Venkata Vijaya Bhaskar …Respondent HON’BLE SRI JUSTICE R.KANTHA RAO S.A.NO.992 OF 2008 JUDGMENT:
This second appeal is filed against the judgment dated 13.08.2007 passed in A.S.No.97 of 2006 by the II Additional District Judge, Madanapalli against the Judgment and decree, dated 27.03.2006 in O.S.No.46 of 2003 passed by the Senior Civil Judge, Madanapally.
The first appeal against which the present second appeal is filed relates to the judgment confirming the findings of fact and law wherein the preliminary decree for a sum of Rs.2,73,537/- was passed by the trial Court with subsequent interest at 12% per annum and future interest at the rate of 6% per annum and the principal sum and fixing the period of redemption at three months.
While admitting the second appeal, this Court framed the following substantial question of law for determination:
“Whether the lower court is justified in holding that the appellant/defendant is not entitled for scalling down the interest as held by the trial court in an appeal filed by the defendant in the findings of any cross objections filed by the plaintiff?
I have heard the learned counsel appearing for the appellant and the respondent.
For the sake of convenience, the parties are referred as plaintiff and defendant as arrayed in the trial Court.
A perusal of the judgment of the trial Court as well as the first appellate Court indicates that both the Courts below have elaborately dealt with the above questions in detail in the judgments.
The first appellate Court in paragraph 11 of it’s judgment held that the initial burden is upon the defendant to prove that interest more than the prescribed rate as contemplated under Act IV of 1938 was collected in addition to having interest on interest by the plaintiff.
In proof of his contention the defendant has marked Ex.B.5 before the trial Court which is chit in respect of a total amount was Rs.2,58,064/- out of which the principal amount being Rs.1,15,000/- and interest amounting to Rs.1,43,064/-. Referring to the said document, the first appellate Court rightly held that the said document does not contain the signature of the plaintiff. The plaintiff, has specifically denied Ex.B.5 during the course of cross examination of the defendant and the defendant failed to prove the contents of Ex.B.5. This finding requires no interference, because absolutely there was no evidence let in by the defendant. The first appellate Court also further held that even if the defendant proved Ex.B.5 it does not improve his case, because even assuming that the contents in Ex.B.5 are true, no inference can be drawn indicating that interest on interest was charged.
The defendant also filed Exs.B1 to B.4 promissory notes said to have been executed by the defendant between the period 1986 to 1993 for various amounts and tried to impress upon the trial Court that the amount under the suit mortgage deed is nothing but the entire amount together with interest due on the said promissory notes. But as rightly observed by the first appellate Court that the said promissory notes do not contain the signature of the plaintiff showing cancellation of the promissory notes. It also considered the admission made by the defendant in the cross examination that he did not obtain the discharge forms from the plaintiff and that he does not remember whether he handed over the Exs.B.1 to B.4 to his advocate for filing the same into the Court and also that nobody gave him Exs.B.1 to B.4. The learned first appellate Court further found that in all the four promissory notes, the signatures of the attestors were kept blank. Add to this the defendant did not make any whisper about exs.B.1 to B.4 – promissory notes in the written statement filed by him.
On a reappraisal of the above stated evidence, the learned first appellate Court negatived the contention of the defendant that the plaintiff charged interest on interest which is contrary to law. Thus, the trial Court as well as the first appellate Court gave concurrent findings of fact on law involved in the subject matter before them, and ultimately the first appellate Court confirmed the finding of the trial Court that there was no basis for the defendant to contend that the rate of interest claimed by the plaintiff in respect of the transactions prior to Ex.A.1 mortgage deed usurious and affirmed the finding of the trial Court that the interest allowed by the trial Court is in accordance with law and is not liable to be scaled down any further.
From the above, it is obvious that the trial Court as well as the first appellate Court did not commit any mistake as to the relevant provisions applicable to the suit transaction and the appraisal of evidence on record by the trial Court and its reappraisal by the first appellate Court is not perverse or unreasonable. Thus, in fact, the case on hand does not involve any substantial question of law for determination.
The second appeal, therefore, fails being devoid of any merit and the same is dismissed without any order as to costs.
R.KANTHA RAO,J Dated:28.08.2009 Kvrm