B. Prakash Rao, J.
1. The petitioner, who is the defendant No. 1, seeks to challenge the judgment and decree in SC No. 39 of 1994 dated 26-2-1997 on the file of the Subordinate Judge, Bobbili.
2. The respondent No. 1-Plaintiff filed the suit for recovery of a sum of Rs. 4,987/-which includes the principal and interest in pursuance of a pronote Ex.A-1 dated 19-11-1991 executed by the defendants 1 to 3. Originally, the said pronote was in favour of the defendant No. 4 for borrowing a sum of Rs. 3,750/- and later it was transferred in favour of the plaintiff by the defendant No. 4 on 21-4-1994 as per Ex.A-2 on receipt of a sum of Rs. 4,000/-. Thus, the plaintiff being a holder in due course sought to recover the amount on the ground that though the plaintiff has demanded the amount including issuance of a registered notice in Ex.A-3 dated 23-4-1994 no payment was forthcoming.
3. It is only the defendant No. 1-the petitioner who contested the suit. The other defendants 2 to 4 remained ex parte.
4. According to the defendant No. 1, defendants 2 to 4 belonged to Barber community and running a Band company. Later, the defendant No. 1 joined and the fourth defendant was the Manager of the company. At the time of joining, the defendant No. 4 obtained his signatures on blank white papers with revenue stamps as a sort of security with a view to create pro-notes if necessary as the other defendants were in custody of the instruments and musical articles. However, later, the defendant No. 1 got separated from the party and in spite of his demand, the papers were not returned and the matter had to be referred to mediation by the elders and thus the defendant No. 4 bore grudge against the defendant No. 1 and defendants 2 to 4 conspired together and in collusion with the plaintiff have created the document. The alleged transfer is only a benami and without consideration and the plaintiff had absolutely no capacity to pay any such amounts.
5. With this and other detailed allegations as contained in the respective pleadings, the Court below framed the point for consideration as to whether the suit pronote is true and supported by consideration.
6. In his support, the plaintiff examined himself as P.W. 1 and P.Ws. 3 and 4, the attestors of Ex.A-1 and P.W.2, the attestor of Ex.A-2 and the defendant No. 4, though remained ex parte, was examined as P.W.5. Similarly, in defence, the defendant No. 1 examined himself as D.W.1 supported by D.W.2, who spoke about the mediation.
7. On a consideration of the evidence and material on record, the Court below decreed the suit.
8. In this revision, Sri Bhaskar Rao, Counsel appearing for the petitioner strongly sought to contend that the suit pro-note itself is not true and the alleged transfer is one without consideration more so in view of the fact that the defendants 2 to 4 and the plaintiff colluded together. The main aspect of the defence is that all the defendants constituted a band company and at the time when the defendant No. 1 joined the party, his signatures were taken on blank papers and they have been used subsequently to create the suit pronote with false endorsement. In fact, according to him, the defendant No. 1 had also invested and purchased some more musical instruments later, which have not been accounted for and since he left the party followed by a mediation, defendants 2 to 4 in collusion with the plaintiff created the said transaction. That apart, the plaintiff had filed another suit in SC No. 106 of 1984, which has been subsequently dismissed as withdrawn.
9. In reply, Smt. Bhaskara Lakshmi, Counsel appearing for the respondents contended that in view of the overwhelming evidence as available on record, the original pronote and also the subsequent transfer has been amply proved and the same has remained unrebutted by any cogent evidence from the petitioner's side. Further, in view of the evidence of P.W.5, who was the defendant No. 4, and the proof of Exs.A-1 and A-2 through P.Ws.2 to 4, it cannot be said that the suit pronote or the later transfer is not true and without consideration.
10. With these and other submissions as made by both the Counsel, the question as sought to be raised on behalf of the petitioner is only as to whether the suit pro-note is true and the later transfer is with consideration?
11. As stated above, apart from his own evidence as P.W.1, the plaintiff had examined P.Ws.3 and 4 who were the attestors of Ex.A-1 and P.W.2, the attestor of Ex.A-2. P.W.5, the defendant No. 4, speaks about the original transaction and the later transfer in favour of the plaintiff. All these witnesses in one voice spoke about the execution and also passing of consideration under the pronote. There is no serious attempt on the part of the petitioner herein to doubt the veracity of their statements. The Court below has also taken into consideration these aspects apart from the fact that prior to the filing of the suit, the plaintiff has issued a notice in Ex.A-3 dated 23-4-1994 which has been received as evidenced by acknowledgments in Exs.A-4 and A-5 from the defendants 1 to 3. However, the said notice remained un-replied to nor there is anything to show the immediate reaction on the part of the petitioner, if really his case is true. The silence on the part of the petitioner till the filing of the suit and also in the absence of any other evidence to support his case, it is difficult to accept such a sweeping plea as to the dispute inter se and the resultant creation of any such document. Merely because the other suit in S.C.No. 106 of 1984 was dismissed, it would not in any way affect the claim under the suit note in this case.
12. In support of his submission, the Counsel for the petitioner placed reliance on the decision of the Madras High Court in Kurundaliammal v. Kunhi Kannan, AIR 1930 Mad. 141 wherein, considering Section 9 of the Negotiable Instruments Act, it was held that unless the plaintiff proves that he is a holder in due course within the meaning of Section 9 of the said Act, he could not have any higher or superior rights as against the other defendants. It was a case where the original transaction itself was found to be defective and therefore the transferee in due course was held to be not entitled to any far better rights than the original holder. Similar is the case in Mathura Prasad v. Mohd. Umar Khan, : AIR1965All402 wherein a Division Bench of the Allahabad High Court held that the endorsee of a pronote acquiring it with notice of dishonour and knowledge of defect in title is not a holder in due course and cannot get better rights than that of the transferor.
13. The aforesaid two cases pertain to a note which is defective with the original holder and, therefore, the holder in due course was held not entitled to any better title.
14. In this case, there is no such plea as to any such defect, which affects the original note and thus not conferring any better rights in favour of the holder in due course. The petitioner has not made out any such case to reject the original pronote in Ex.A-1 itself, in the absence of which it cannot be said that the subsequent transfer in Ex.A-2 is invalid.
15. Further, the conclusions as arrived at by the Court below are purely on appreciation of evidence and material on record and there is no error of whatsoever nature much less any perversity to warrant any interference by this Court under Section 25 of the Provincial Small Cause Courts Act.
16. In view of the above, I do not find any merits in the revision and it is accordingly dismissed. No costs.