Dismissed

G. Sanjeeva v. M. Vishnu Kumar

Telangana HC15 Feb 2023SA/782/2018

Case brief

AI extract

What is this about?

In this second appeal under Section 100 CPC regarding a suit for recovery of money on a promissory note, the High Court dismissed the appeal at the admission stage. The Court held that the lower courts correctly appreciated the evidence and that the appellant failed to discharge the burden of rebutting the presumption of consideration under Section 118. It also rejected the jurisdiction plea.

What did the court decide?

The second appeal was dismissed at the admission stage confirming the judgments of the Courts below; no order as to costs.

G. Sanjeeva Vs M. Vishnu Kumar — Contract and Commercial Disputes | Telangana HC (2023)

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[³²⁶⁰ ]

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAY, TI-{E FIFTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

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SECOND APPEAL NO: 782 oF 2018

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(Appeal Under Section 100 of C.P.C., against the iudgment and Decree dated 17 -22023 made in A.S.No.129 of 2010 on the file of the Court of the XXVII Additionat Chief Judge at Secunderabad Preferred against the Decree in O.S.No.340 of 2008, dated 12-3-2010 on the file of the Court of the 1st Junior Civil Judge at Secunderabad.)

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Between:

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G. Sanjeeva, S/o. Govind, aged 45 years, Occ:Service, Ryo.H.No.1-1-159/3, Opp Kranti Avenue, Padmarao Nagar, Secunderabad.

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..APPELLANT

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ANb

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M. Vishnu Kumar, Sio. M. Narsaiah, aged 42 years, Occ: Service, R/o, 302, Prasant Towers, Behind E-Seva, Snehapuri colony, Nacharam Road, Hyderabad.

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...RESPONDENT

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Counsel for the Appellant : SRI.A.SAMEER KUMAR

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Counsel for the Respondents : M/S.MANDHATA SLK SRUTHA KEERTHT

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The Court at the stage of admission made the following Judgment : -

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TIIE HI )I\I'BLE SRI JUSTICE A.SANTIIOSFT }TEI)DY

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;ECOND APPEAL N0.782 0F 2018

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JUDGMIiN'T'

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This sccon. i zppeal is filed under Section 100 of the (. ivi procedure Code, 1908 (fc, s rort "CPC) by the unsuccessful rlefenca'rt a;saililg the concurreni lincl rr1;s of the trial Court in O.S.No.340 of 20r:r8 and the first appellatc^(-'otLrr. in A.S.No.129 of 2010.

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'fhc suit filed by the respondent-plaintiff t,eftrre tl.e I'irst Junior Civil J Lrdgc, Ci y Civil Court at Secunderabad, i; one t'r.,r r,:covcry of money drre ur,Je r Ex.A. I promissory note, drted ZzL.05 200.5, for Rs.50,000i- u'it.l irterest thereon against the appelJanr-tlt:i..nd.nt a,cl the transactior u',rsr n(rt settled inspite of various demi,nds, re1,.istr:red notice was issue.l llirrsgfi an Advocate under Ex.A.ll and ihe del'endant receivecl tltc siL nt. He neither replied nor paid the elnourrt. In the written statenLcr: hled by the defendant, it is contrnded t.rat le has not executed the Il; ..,1,.1 prorrissory note, that the p. aintif i had taken his signatru'e ou bk rrtr- promissory note in the finanr:ial trr.saclions took place betwccrr t rnr and the plaintiff in the year i'.OOl ;n,l 2)02. The

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i:a ai;

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plaintiff obtained^{two chequesby force in the year 2004' A notice dated} 09.11.2005^{was also sent by the plaintiff to the defendant claiming} the cheque^{amountof Rs.60,000/-,dated09.07.2004 by changingthe date} of issuance^{of said cheque as 14'05'2005and when the said cheque was} presented, it^{was dishonoured' The defendant denied the liability andthe} blank signed^{promissory note has been utilized by the plaintifffor the} pulpose of creating^{the suitpromissory note'}

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The^{partieswenton trial' The hial Court after leading evidence' oral} and documentary,^{heldthat the suitpromissorynote was executedby the} defendant^{and on the basis of presumption under Section 118 of the} Negotiable^{Instruments Act' 1881 (forshort"the Act)and the plaintiffis} entitled to^{succeed.The trial Court relied on the evidence of Pw'land} PW.2 and^{Exs.A.l to A-5 for the said purpose'Ex'A'l is the demand} promissory^{notedated25'05'2005'Ex'A'2 is the officecopy of legal} notice dated^{24-03.2008' Exs'A'3 to 5 are the postal receiptand} acknowledgments^{respectively'The defendantexamined himselfas} DW.l^{andmarked Exs'B'l to B'5' The hial Court held that Ex'A'l was}

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supported b1. cr nr;ideration and the defendant has borrcu:d thc amount

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as inentiol)ed th.:r,:in. The suit was decreed with c,rsts

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The cieferr,: ult prefeffed appeal before the lorver appr:lla.e Court in A.S.No.129 or- 1010 on the file of XXVII Additic,nar Chi:l'Judge, Ciry Civil Courrs, S; :unclerabad

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In pala l'lo I^(r of the judgment of the lower irppellrrt. Court, while

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dismissinp th,: : rl:eal, held as under:

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" In re above circumstanccs, I do not find any i lt gali y or irregLrlarit u committed by the lower Court irr com ni. to the conc lus i :rr th:t the plaintiff is entitled for presunrption tl,s.l l8 of i.\egotiatrli: Irstrument ,\ct and defendant lailed to disclrargc his burden i nl tire documents before the court clearly gocs tt :,hor,, thc plainLifl'ad anced the loarr and the defendant availed the Llurr an I the samc is rr '. lischargcd, thereby I have no hcsitrtion t: hck the plaintill'di, lot commit any ilJegality or inegularity in conins that <icferrdarrl i , I able to pav the suit amount as prayeJ for. IrL ,,iew of the abor,: i scussion I have answered the points accordinglt.

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Challenginl tre said decision, the defendant has cr)rn,, to this Court with this Seccnc A ppeal.

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As per hr, Mentorandum of Second Appeat, he following

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substantial qu,isl o ts are fornlulated:

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i. Whether^{the promissorynote suffers from any material} alterations as^{perSection87 of the NegotiableInstruments} Act, 1881?

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ii) Whether in^{law, the lowcrappellate Court was rightin} the of finding^{of the trial Court with regardto} "6nn.ring ,r"*.rrii.^{laid down unler Section 118(a)of the Act'when} ii"?"i,i"a-,^{could establish thattheNegotiableInstrutnentis} no, n ffy^{supported by considerationwiththe evidenceon} .LJ ,fru,^{pi"ponderance of probabilitiesare in his favour?}

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iii) Whether^{first Junior CivilJudge, Secunderabad has got} jurisdiction to try the suit?

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Leamed counsel^{for the appellant-defendant submits that the} defendant^{has not borrowed any amountfrom the plaintiff'However'} the defendant^{had signed the blank promissory note andthe contentsare} filled by the^{plaintiff and fabricated Ex'A'1 promissorynote' Therefore'} the defendant^{is not liable to pay the suit claim'He also submitsthat the} Ex.A.l^{promissory note is not supported by consideration'The} defendant^{haspleaded specificallyand also stated in his evidence' As} such, the^{presumptionunderSection 118 (a) of the Act is not availableto} the plaintiff^{and the same is not enforceableinlaw'} In support of^{his contentionshe relied on the decisions of}

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Kundan Lal La flaram v" Custodian, Evacuee Properrty, Bombayl, K,P"O.Modide:nkutty Hajee v. Pappu Man.iooran2 and Basalingappa^, " lWudibasappa3"

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Per co,'iu,z leamed counsel for the respr,ndent - FrlairLtiff, while suppofiing the I inlings recorded by the Courts below, sr r-b mits that there are no material :rl -erations at all to the suit promissory rLor.e and even if, issuance of'blar k promissory note to the plaintiff is tnLe , lhat would not amount to r ralerial alteration and the ,lefenc.ant is given prima facie rlr nority to holder (plaintiff) to make lLi rr co rplete the instrument arLd n,rke it negotiable. He further sut,mits rhirt the plaintiff has proved tha: E:r.A. I promissory note was supprtrted 1r1 co;-rsideration as recited in t.h .: Negotiable Instrument and also addu:e,J evidence in support ther€rol As such, the plaintiff is rig1rtll. enr.itle1 to raise presumption^,-rn ler Section 1i8 (a) of the Act ancl the lrur.den is on the defendant to^jir lrrove that the Ex.A.l promissory note s not supported by considerat: or

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t AlR 19615upl.em,t Ci Jr: 1316 '119961^{8 srpreme C. .rr cases 586} t (2019) 5 srpre." Cc . rt Cases 418

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After^{having gone through the judgmentsof the trial Court and the} first appellate^{Court, Ifind that the trial Court' after takinginto} consideration^{of the evidenceof the plaintiff as PW' I and attestorPW'2} to Ex.A.l^{promissorynote, held that Ex'A' 1 promissorynote was} executed by^{the defendant. The first appellate Courtalso heldthat the} plaintiff^{proved the executionof Ex'A' 1 promissorynote by the} defendant.^{Naturally,the burden is on the defendant to prove thatthe} said document^{is not supported by consideration'}

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In^{the instantcase, the evidence of plaintiff disclosesthat on} 24.O5.2OO5,the^{defendant executed Ex'A'lin his favour in the presence} of PW.2,^{who is attestorto Ex'A'l' In his evidence' PW'2deposed} about the^{suit transactionthat the defendantborrowed an amount of} Rs.50,000/-^{and he signed on Ex'A'l in his presence'}

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( {

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The^{case of the defendantis that there are monetarytransactions} between^{himself and the ptaintiffin the year 2001 and 2002and} during the said^{period, the plaintiff took blanksigned promissory notes} and cheques'^{It isinteresting tonote that inthe}

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cross-exan-rina ti< n o1'defenclant, he admitted that^,chcc[ r: trarrsaction is nothing to do u.l h Ex.A.1 pronote". Apart from ttis, thr rlefendant also admitted his si1 nrrture on the Ex.A.l promissor./ note . However, he pleadeci that 1h:r,: is no liability under the said prcr:rissory note. It is also alleee I that the promissory note is inrenled a.nd fabr.icated document ancl r niy to extl.act the money, the ccntents therein were filled-up and Frl^,d the false suit. Undisputedly, er cept rh:r evidence of deI'endant rrs D<sup>,/. l, there is no other reliable evidence t,t believe the contention that r ,r transaction took place under Ex. A.l arrd there was no considerati()n ag Li,st the said Negotiable Instrumr.nt. Iir:.h the Courts havc concun'ent y hcld that the delendant failed to plircr: atry cogent evidcnce to belj :r,e his contention that Ex.A.l ^as not ;uppofled by consideratirtn.

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No'"v. it is e evant to see the ingredients of Siecriorr I lg (a) ol the Negotiable Instn ments Act, 1881, which reads as urder:

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"Until tlre :o rtrary is proved, the lollowing presumptior s ;hal I be made

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of considc atiolr: that every negotiable instrumerrt rvas nadt, or dr.arvr fol r: rnl idcration, and that evcry such instrutneul r\ht:n it has

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been accepted,^{indorsed, negotiatedor transfened'was accepted'} indorsed,^{negoiiatedor transferredfor consideration;}

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In Bharat^{Barrel and Drum ManufacturingCompany}

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v. Amin Chand^{Payretala, the Apex Court held as under:}

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" A^{perusalof the writtenstatementof the defendant would} "l"*lv^{ani inambiguously show that to disprovethe considerationof} il;#;;; Noie, h"'had^{brought certain circumstances to the} ;;il; "i,f""^{.f ii"} ihe^'court "viden""^{which he} led by the^{wanled defendant to probabilising in that regard by was notleading} ,"""","a bv any^{of the judges dealingwith the casea'" noticed herein} ;;;#;.^- i'i lil "u'""..^{of dispiovingthe cxistence} ^^{of the} ;;;.id".",i,"^,^{the onus of prool of the legil presumption in favour of} the ptaintiff^{could notbe shifted'"}

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t5. ln the instant^{case,the evidence led by the defendant to rebut the}

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presumption^{under Section118 of the Act was not acceptedby the trial} Court and^{the lower appellateCourt' It is also quite evident fromthe} perusal of the^{evidence on record'}

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In ICP.O.^{Modideenkutty Hajee's case(2 supra)' the Apex Court}

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at para No.l t^{held as under:}

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It would^{thus be clear that when the suit is based on} p-".", ""0-p..i.rory not" is^{proved.tohavebeen-executed',section} t 18 [al^{raises the presumptlon,until the contrary is.proved'that the} ;rii,ril;il *lt *ua"^{forconsideration'That initialpresumption}

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o l(rgsg) s scc gsl

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raiscd und r;ection li8 [a] becomes unavailable when hr: pl;intilT hirns,elf pJr rds in the piaint diflclcnt consideration,. ll l.e plead; that thc pror.ris ory note is supportcd by a consideration as recitcd in the ncgctiaL,l(r nitrument and thc evidence adduced in suppor thr:reol, the burden s on the detbnciant to disapprove that tl e pronris jor) note is not supl; ,rtcd by consideration or different consirlcratiorr other than one lecilcd in the prontissory notc did pass. lfthat consicle,iLt on s not valic in I.l lror enforccable in law, the court woul( consi,ler rvhether thc suit p trotc As supported by valid considr)ratron c. legalll, cnfbrceablr consideration.^'l'ake fbr instance, a prorotc e.<r:c. ted for a time-barret dcbt. It is still a valid consideration. fhe lhlsi .y cf thl: plea of ,he piaintiffalso would bc a factor to be consid,rr.r:d by thc coun.'flle^',u den of proof is of academic interest \vhen tlre ovicencc rvas adduc d by the parties. l'hc court is requircd trr e<arninr: the evidt:nce a d consider lvhether thc suit as pleaded in tht grlaint has bcen establ slrcd and thc suit rcquircs to be decreed or d ism is: ed.

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In Kunda r l-al Rallaram's case (l supra), the .A.p:>: Ccurt at para

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No.4 held iis un( er

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To a,preciatc this argument it would be nec(ssary tc roti)c at the outset ll ,: 5ser. of the presumption under Section tli 01' the Negotiablt: lt sttunrents Act and also the different metho(is zvlilable to a pers()n aga rs whom such a presurnption is drawn o r,lbu: llre s ime. The relevant prrrt of Section I I 8 of the Negotiable Instru mr)nts Acl reads:

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"U rtil th, crntrary is proved, thc lollowing presrrmptio rs sha I bc madc:

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(a) that .rr':ry negotiablc instrument was ma(le ,)r lrirwn for considcratiot rLnd that every such instrument, when lt I rs l;een accepted, nc rr:rcd, negotiated or transferred, was accepted i;rdolsed, ncgotiated o: mnslerred for considcration."

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After^{exposition of law on Section118 of the Act, comingto the} present case, on^{considerationof the material on record, the evidenceof} the plaintiff supported^{by the evidence of PW'2 attestorto Ex'A'l that} the plaintiff^{having received hand loan of Rs'50,000/- executedEx'A'1} promissory note.^{Thedefendant failedto placeanycogentevidenceto} show that he^{has given a blank signed promissorynote without} consideration^{and the said promissory note was fabricated and the} plaintiff used the^{sameby frling the presentsuit' The issue of material} alteration was^{also not specificallyraised by ieamed counsel for the} defendant in^{both the courts below. However,these thingsare taken} note by the^{trial Court and the first appellateCourtand held thatthe} plaintiff has^{proved the execution of the promissorynote by the} defendant.^{There is no specific plea of materialalteration by the} defendant. As^{such, no specific issuewas framed on the saidaspect and} no specihq^{frndingwas given by both the Courts below thereon'} Therefore, there is^{no force in the contentionof the defendant that} Ex.A.1 was not^{supported by consideration'}

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The other ground raised by leamed counseL^{for tht: defendantis}

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that there is nc, territoriat^jurisdiction to entertair^{the ruit by the trial} Cour1, as no lre rsaction took^piace within^{the lirnitso I liecunderabad} Courts.

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Section 120^,c1'the Code of Civil Procedure,^{1908 readr' as under:}

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Section 20 Olher suits to be instituted where defen<iants^{re silie} o' causc of acrl orr arises.

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Subjoct .o the limitations aforesaid, every suit shall^{be i rslitut,:din} a Couft \vit ,in the local limits of whose^{jurisdiction--}

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(a) the dofe rdirnt, or each ofthe defendants where there ale rncre lhan one, lt the 1 me of the commencement of the suit, actually^znr; voluntarill. e: idcs, or carries on business, or^personitlly *'orkr;^for gain; or

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(b) any cf t Le Cef'endants. rvhere there are more than one, al il.e titne ofthc conrr rencement ofthc suit, actually and voluntarily r:sides^or carrics on t .ts ness, or personally works for^{gain,providedJt:rt in} such cas,: e t.h':r the leave of the Court is^given, or^the defi:r^cL:ntswho do not resir i), cr carry on business, or^personally work fot 1.ai r, a:; aloresaitl. a .q riesce in such institution: or

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(c),he,:ar :;e ofaction, rvholly or in part, arises."

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A perusa c,f the^jurisdiction para of the plrint d s,:loses that the

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defendant is re,,i<[ing at Padma Rao Nagar, Ser:undela:rad. which is within the^jurisr iction o1 the trial Courl. Therefo'e, ther€ is :ro force in

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the contention of the learned counsel for the defendant that the hial Court has no^jurisdiction to entertain the present suit.

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The trial Court and the first appellate Court appreciated the evidence available on record in proper perspective. Therefore,^while considering the scope of 100 of C.P.C, I do not find any irregularityⁱⁿ appreciation of evidence either by the trial Court or by the first appellate Court. No material has been over looked nor any inadmissible^evidence has been considered by the Courts below for recording^{such hndingsand} as such, there is no scope for interference in such concurrent findings recorded by the trial Court and the first appellate Court.^Further,the judgments of the trial Court and the first appellate Court do not disclose any irregularity or perversity. Thus, this Court^{is satisfied that thereare} no substantial questions of law requiring consideration^{of this matter in} this second appeal invoking Section 100 CPC. In^{consequence,this} second appeal has to be dismissed at the admission^stage.

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In the result, the second appeal^{is dismissedat the admission stage} itself confirming the concurrent findings^{of the trial Court in O.S.No.340}

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of 2008 and^{the li sl appellateCourt in A'S'No 129 c'f 201') Howcver' in}

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the circumslanoe^{I of the case.there shallbe no ordet as t<l ti: costs'}

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As a seqr-.:l^{interlocutoryapplications, if rn1 perrding in this}

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second appeal,^{sl ,rilstandclosed'}

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Scl/-M.MANJULA DEt'UTY REGISTRAR

//TRUE COPY//

SiECtION OFFICER

To 1 . The XXVII^{i ,d,iitionalChief Judgeat Secunderab€ d}

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z. iiiJunior'^{C ril Judge at Secunderabad'} 6 o"; CC r;-^{jr:in.SAMErn KUN/AR, Advocatg [cPUc]} ; 5;; ;6 iI ',r)'.ir,inNonArn^{bli{ snufHA KEEFTHT'Ad"ocate[oPUC]} 5. Two^CDC< Pi'-'s

HIGH COURT

DATED:1 5102,t2023

JUDGMENT

SA.No.782 of 2018

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