The Commissioner of Income Tax-III, vs. B.C. Sanghani

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI FRIDAY THE SEVENTEENTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO APPEAL SUIT NO: 294 OF 2008 Appeal Under Section 96 of CPC against the judgment & decree dated 25.02.1994 in OS No.55 of 1990 on the file of the II Additional District Judge, East Godavari District, Rajahmundry. Between: Velugubanti Abbanna Naidu, S/o Venkata Chalam, Hindu, Aged 51 Cultivation, Vemagiri, E.G. District. years. ...Plaintiff/Appellant AND 1. Ithireddy Ayyanna, S/o Venkataswamy, Hindu, Aged 80 years Cultivation Venkayammapeta, Kadiam, E.G. District. (R1 is dismissed for default vide Court Order dated 23.06.2006) 2. Ithireddy Subba Rao, S/o Venkataswamy, Hindu, Aged 43 years. Cultivation Venkayammapeta, Kadiam E.G. District. ...Respondents/Respondents Counsel for the Appellant: SRI M.V. DURGA PRASAD Counsel for the Respondents: SRI M.V. SURESH The Court made the following: Judgment

IN THE HIGH COURT OF ANDHRA PRADESH:: AMARAVATI THE HON>BLE SRI JUSTICE V.GOPAT.a appeal suit N0.2Q4 OF onna KRISHNA RAO JUDGMENT: - The Appeal, under Section 96 Procedure [for Plaintiff challenging the Decree 25.02.1994, of the Code of Civil short ‘the C.P.C.’], is filed by the and Judgment, dated in O.S.No.55 of 1990 passed by the 11 Additional District Judge, East Godavari, Rajahmundry, [for short ‘the trial Court’]. The Respondents herein are the defendants in the said Suit. 2. The Respondent/Plaintiff filed the Suit of a decree directing the Respondents/Defendants sum of Rs.38,156/- together with interest @12°/c costs. praying for passing to deposit the o per annum and 3. Both the parties in the Appeal will be referred are arrayed before the trial Court. to as they I

2 VGKR, J A.S.No.294of 2008 4. The brief averments of the plaint, in O.S.No.55 of 1990, are as under:- (i) Plaintiff is a money lender of Vemagiri village and he is an Income-Tax assessee. The defendant Nos.l and 2 are brothers and they are residents of Kadiam. The defendants have three other brothers i.e. Suranna, Ramanna and Janardhanarao. Whenever they are in need of money, they borrow the amounts from the plaintiff by executing promissory notes. The defendants and their three other brothers approached plaintiff on 03.3.1970 for a fresh loan and the plaintiff lent them a cash of Rs.5,782/- and took a consolidated promissory note (Ex.A.l) for Rs. 15,000/- comprising Rs.5,782/- and the amount due towards the principal and interest on the promissory notes dated 25.11.1967 and 25.3.1969. While so, on 06.8.1980, the defendants 1 and 2 are requested the plaintiff to lend them a further sum of Rs. 11,000/- and promised to make their three other brothers to execute the promissory note. Plaintiff then insistetj the defendants and their brothers to renew the I

3 VGKR, J A.S.No.294of 2008 Rs.31,000/- (Ex.A.3). It stipulates the payment of 12% interest per annum and the defendants failed to get their three brothers to execute the promissory note dated 06.8.1980. Having taken fresh loans on 06.8.1980, the defendants somehow got issued a telegram dated 08.8.1980 to the plaintiff intimating that he had obtained their marks and signatures on some blank papers. Plaintiff immediately sent a reply denying that he obtained signatures the thumb marks of the defendants on blank papers. Plaintiff demanded immediate payment of the debts covered by all the promissory notes. In sequence thereof, the defendants approached the plaintiff through mediators. The defendants are not entitled to the benefit under the provisions of the Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977 (Act 7 of 77) as they are not only having extensive lands but also carrying on hotel business. The defendants are tenants of Taneeru Suryakantham and Venkatarao. The interest is already scaled down as per the provisions of the Andhra Pradesh (Andhra Area) Agriculturists Relief Act, 1938 (Act 4 of 1938).

4 VGKR, J A.S.No.294 of 2008 5. The defendants filed the written statement denying all the averments made in the plaint except the status of the plaintiff a money lender and the defendants are having three brothers. It is contended that the defendants did not borrow the amount from the plaintiff on 03.3.1970 and denied the execution of Ex.A. 1 Promissory Note. It is pleaded that the plaintiff, with the assistance of his associates, by force and under duress obtained the signatures / thumb marks of the defendants and their three brothers on the alleged Consolidated Promissory Note (Ex.A.3). The defendants are not tenants of Taneeru Suryakantham and Venkatarao. The defendants are agriculturists having small extents of lands and therefore, they are entitled for the relief under Act 7 of 1977. as 6 Based on the above pleadings, the trial Court framed the following issues: (i) Whether the thumb marks of D.l signatures of D.2 are obtained in pro-note dated 06.08.1980 under duress and force and the said pro-note is unenforceable? and

5 VGKR, J A.S.No.294of2008 (ii) Whether the thumb impressions of D.l and signatures of D.2 are obtained under the payment endorsements made of earlier pro note and the suit claim is barred by time? (Hi) Whether the defendants are small farmers? (iv) Whether the suit dept abated under the provisions ofA.P. Act. VII of 1977? (v) Whether any of the suit pro-note is not supported by consideration? (vi) To what relief? During the course of trial in the trial Court, on behalf of 7. the Plaintiff, PWl was examined himself and marked as Exs.Al to A21. On behalf of the Defendants, DWl and DW2 were examined and marked as Exs.Bl to B11. After completion of the trial and hearing the arguments of 8. both sides, the trial Court dismissed the Suit vide its Judgment, dated 25.02.1994, against which the present appeal is preferred by the Plaintiff in the Suit questioning the Decree and Judgment passed by the trial Court. Heard Sri V. Chetan Shusheel, learned counsel 9 represented on behalf of Sri M V Durga Prasad, learned counsel

6 VGKR, J A.S.No.294of 2008 for the appellant. No representation on behalf of the respondents. 10. Sri V. Chetan Shusheel, represented on behalf of Sri M V Durga Prasad, learned counsel for the appellant would contend that the decree and judgment passed by the trial Court is contrary to law and he would further contend that even though the plaintiff proved the execution of suit promissory notes, the trial Court dismissed the suit and he would further contend that the appeal may be allowed. “ Whether the Decree and Judgment passed by the trial Court needs any interference? If so, to what extent”? POINT:- 11. The suit claim is based on the Exs.Al to A7 promissory notes said to have been executed by both the defendants i.e.. defendant Nos.l and 2. In order to prove the claim of the plaintiff, the plaintiff relied on his sole testimony as P.Wl. The plaintiff stated the contents of the plaint in his evidence in chief examination. As per his own admissions of the plaintiff in the

7 VGKR, J A.S.No.294 of 2008 cross examination that the three other brothers of the defendants did not sign on Ex.A3 promissory note and the names of the five brothers including the defendants are shown in Ex.A3 promissory note. The fact remains that Ex.A3 goes to show that both the defendants and borrowed the other three brothers money of Rs.31,000/- from the plaintiff on the date of execution of Ex.A3 dated 06.8.1980. It was admitted by pro-note, an amount of Rs. 11,000/- was only given. The Ex.A3 promissory note executed for an amount of Rs.31,000/- and the contention of the plaintiff is that to discharge the the plaintiff that on the date of Ex.A3 was amounts under Ex.Al promissory note dated 03.3.1970 and Ex.A2 promissory note dated 15.5.1975 and for consolidating the said two promissory notes, he obtained Ex.A3 pro-note on 06.08.1980 for an amount of Rs.31,000/-. The own admissions of the plaintiff clearly show that the consideration of Rs. 11,000/- was only passed to the defendants on the date of Ex.A3 go to pro-note. Both the defendants i.e., D1 and D2 denied the execution of Ex.A3 pro note and they pleaded that the plainti ^^^qined their 7 ^

8 VGKR, J A.S.No.294 of 2008 signatures by way of coercion on the white papers. There is no mention in Ex.A3 that the defendants borrowed the amount on behalf of their three other brothers. Another important admission made by the P.Wl, in his evidence in cross examination is that the l^t defendant put his thumb impression in Ex.A3 and 2"'^ defendant put his signature on the said promissory note and the other three brothers of the defendants did not sign or put any thumb impression in the said pro-note. The Ex.A3 clearly goes to show that there is one signature and two thumb impressions on the said pro-note. But the plaintiff fails to explain the discrepancy. Another important point is that there was an exchange of notices between the defendants and the plaintiff immediately after the alleged Ex.A3 pro-note dated 06.08.1980. The plea of the and 2"^ defendants is that no consideration was passed under the said promissoiy note. The Ex.A3 reveals that the thumb impression of the defendant is taken at the extreme right side of the paper whereas the alleged thumb impression of the 2"^ defendant was obtained on extreme left side of the said Pro-note.

9 VGKR, J A.S.No.294 of 2008 The evidence of P.W. 1 clearly goes to show that he is an Income-Tax assessee, he used to maintain accounts and it is not in dispute by both sides that the plaintiff is a money lender. But to discharge his liability, the plaintiff failed to produce the account books which are available with him and the notice 12. under Order XII RuIe-8 of C.P.C. was served by the learned counsel for the defendants, but the plaintiff counsel for production of account books. But for the reasons best known to the plaintiff, he failed to produce the said account books before the trial Court. 13. It was alleged by the defendants that they have handed over the blank papers containing their signatures to the plaintiff and those signatures and thumb marks were obtained by way of threat and also coercion. As stated supra, the plaintiff mainly relied on Ex.A3 pro-note, which was executed for Rs.31,000/-. As per the own admissions of the plaintiff, the consideration of Rs. 11,000/- was only passed under the said promissory note. The defendants are disputing the total consideration which was

10 VGKR, J A.S.No.294 of 2008 alleged to be passed under Ex.A3 promissory note and the entire burden rests on the plaintiff to prove his case, defendants denied the execution of the promissory note as well Since the passing of consideration, the plaintiff failed to examine the both the attesters and so also scribe of the promissory note and thereby the plaintiff failed to discharge the burden of proving the execution of Ex.A3 and passing of consideration. The law is well settled that the defendants i.e., D1 and D2 alleged borrowers are as disputing the passing of consideration and so also denying the execution of the promissory note, the initial burden lies on the plaintiff, to prove the said promissory note by examining the attesters or the scribe of the promissory note, but the plaintiff failed to discharge his burden. The trial Court by giving cogent reasons rightly dismissed the said Suit and there is no illegality the said finding given by the trial Court. The Judgment and Decree passed by the trial Court is perfectly sustainable under law. There are no grounds to interiere with the Judgment and Accordingly, the point is in Decree passed by the trial Court. answered.

11 VGKR, J A.S.No.294of 2008 Decree passed by the trial Court. Accordingly, the point is answered. 14. In the result, the Appeal Suit is dismissed confirming the Judgment and Decree, dated 25.02.1994, in O.S. No.55 of 1990 on the file of the 11 Additional District Judge, Rajahmundry, East Godavari District. No order as to costs. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed. SD/- V DIWAKAR DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The II Additional District Judge, Rajahmundry, East Godavari District (with records if any) 2. One CC to Sri M V Durga Prasad, Advocate [OPUC] 3. One CC to Sri M V Suresh, Advocate [OPUC] 4. The Section Officer, V.R. Section, High Court of A.P. at Amaravathi (to dispatch the Lower Court record) 5. Three CD Copies sree

HIGH COURT DATED: 17/11/2023 JUDGMENT + DECREE AS.No.294 of 2008 Coffey 2.'aizl2if D5I_ DISMISSING THE APPEAL SUIT WITHOUT COSTS