Sri Ch.Vivek Anand Srinivas

I.P.04/2019 II ASCJ/VSP 1

IN THE COURT OF THE II ADDL. SENIOR CIVIL JUDGE,

VISAKHAPATNAM

Present: Sri Ch. Vivek Anand Srinivas, II Addl. Senior Civil Judge, Visakhapatnam.

Wednesday, this the 08th day of November, 2023

Insolvency Petition No.04/2019

Between:

1) Sri Adari Siva Rama Krishna, S/o. Late Adari Jagga Rao, Age:56 years, Hindu, Business, Resident of D. No.20-150/1, Ganapathi Nagar, Near Community Hall, Kottapallem Village in Gopalapatnam Post, Visakhapatnam City Limits. Aadhar No.589064099828; and

2) Smt. Adari Lalitha Kumari, W/o. Adari Siva Rama Krishna, Age:52 years, Hindu, Business, Resident of D. No.20-150/1, Ganapathi Nagar, Near Community Hall, Kottapallem Village in Gopalapatnam Post, Visakhapatnam City Limits. Aadhar No.383201879531. ….Petitioners A n d:

1) Sri Akkireddy Naga Raju, S/o. Late Appa Rao, Age:48 years, Occ:Real Estate & Employee in Sahara India, Hindu, Residing in RRV Puram (Venkatapuram Village), Gopalapatnam, L. G. Polimers Road, Visakhapatnam – 530029. Mobile:9885572466;

2) Sri Uppada Satyanarayana Reddy (Sahara Agent), S/o. Simhachalam Area, Age:44 years, Occ: Meno News Reporter, Residing at Adivivaram Centre, Adivivaram Post, Near Chinta Cheettu, Visakhapatnam City Limits, PIN:530028. Mobile:8555015658;

3) Sri P. Dharma Raju @ Chitilu Raju, S/o. Late Rama Rao, Hindu, Age:42 years, Occ: working as employee in Chit Fund & Finance ofce, Residing in Durgadevi gudi Dharmakartha, Kothapallem Village in Gopalapatnam, Visakhapatnam. PIN.530027. Mobile:8328563975;

4) Sri T. Tirupathi Rao, S/o. Not known to the Petitioner, Hindu, Age:45 years, Occ: Business, Residing in Nandavanipallem, Running Kirana Shop, Chintagattala Post, Sabbavaram S. O., Pendurthy Mandal, Visakhapatnam City:

5) Sri Konakanaka Raju, S/o. K. Appala Naidu, Age:48 years, Occ: Meals Hotel business, Hindu, Residing in Jerripothulapallem, Beside Bottling Company, Pendurthy Mandal, Visakhapatnam – 530027. Mobile:9966065205;

6) Sri G. Musili Naidu, S/o. Musili Naidu, Hindu, Age:47 years, Occ: Pan shop business, Resident of Pedanarava beside Bottling Company, Jerripothulapallem Village, Pendurthy Mandal, Visakhapatnam City Limits, Mobile:9984458611;

7) Smt. Scheme Lakshmi, W/o. Not known, Hindu, Age:48 years, Occ: Business, Resident of Ganapathi Nagar, Kothapallem Village, Near Community Hall backside road, Gopalapatnam Post Pendurthy Mandal, Visakhapatnam City Limits, Mobile:7286082035;

ORDER - FAIR

I.P.04/2019 II ASCJ/VSP 2

8) Smt. B. Appala Narasamma @ Kaligamma, W/o. Gangaram, Age:60 years, Occ: Housewife, Residing in Ganapathi Nagar, Near Community Hall backside Road, Kothapallem Village, Gopalapatnam Post, Pendurthy Mandal, Visakhapatnam City Limits, PIN.530027;

9) Sri P. Kanaka Raju, S/o. Not known to the petitioners, Hindu, Age:70 years, Occ:Auto Driver, Residing at Schme Lakshmi Opp:House, Ganapathi Nagar, Kothapalem Village in Near Community Hall backside road, Gopalapatnam Post, Visakhapatnam City Limits – 530027, Mobile:9398286768;

10) Sri Savukaru Papa Rao, S/o. Not known to the Petitioners, Hindu, Age:52 years, Occ: Coolie, Ganapathi Nagar, Kothapalem Village in Near Community Hall backside road, Gopalapatnam Post, Visakhapatnam City Limits – 530027;

11) Smt. Demudamma (Auto Ramana ATTA), W/o. Not known to the petitioner, Hindu, Age:65 years,Housewife, Resident of Near by house of Inti Appa Rao, Kothapalem Gopalapatnam Post, Pendurthyu Mandal, Visakhapatnam – 530027;

12) Sri Auto Appala Naidu, S/o. Not known to the petitioners, Hindu, Age:45 years, Vegetable Vendor, Residing at Main Road,Beside Sulabh Complex & Pan shop/Fish Colony, Main Road, Kothapallem Village, Gopalapatnam Post, Visakhapatnam;

13) Smt. Kuragayalu Amma, W/o. Nooka Raju, Age:52 years, Business, Resident of Ganapthi Nagar, Kothapallem Village Near Community Hall Back side road, Gopalapatnam Post, Visakhapatnam-530027;

14) Sri S. Rameshm, S/o. Not known to the petitioners, Age:40 years, Hindu, Resident of Kothapallem Village, Near Co-operative Bank, Occ:Pan Shop/ Kirana Shop, Gopalapatnam Post, Visakhapatnam – 530027 Cell:9603337148;

15) Sri Dadi Adinarayana, S/o. Dadi Polees, Hindu, Age:45 years, Occ: Business, Resident of Kothapallem Village in Gopalapatnam Post, Visakhapatnam. Cell:9885926468;

16) Sri M. Lakshmana Rao (Mestri), S/o. Not known to the petitioners, Hindu, Age:50 years, Occ: Mason, Resident of Near Community Hall Road, Kothapallem Village in Ganapathi Nagar, Gopalapatnam Post, Visakhapatnam – 530027. Cell:9849146884;

17) Sri K. Surya Narayana, S/o. Not known to the petitioners, Hindu, Age:40 years, Occ: Sahara Agent, Resident of Main Road in Prahaladapuram, Simhachalam Road, Gopalapatnam Post, Visakhapatnam – 530027. Cell:8639308225;

18) Smt. Radi Desappa, W/o. Lakshmi, Age:60 years, Hindu, Occ: Teddy Topper Business, Resident of Pedanarava Village in Narava Post, Pendurthy Mandal, Visakhapatnam – 530027;

19) Smt. Gavara Devi, W/o. Gavara Narisinga Rao, Age:38 years, Occ: Housewife, Resident of Backside street of Ramakrishna Baddi / shop, Pedanarava, Narava Post, Pendurthy (M), Visakhapatnam – 530027. Cell:9515446769;

20) Sri Mohan (Mestri), S/o. Not known to the petitioners, Hindu, Age:45 years, Occ: Contractor, Resident of Near Community Hall backside road, Kothapallem Village in Gopalapatnam Post, Visakhapatnam – 530027;

ORDER - FAIR

I.P.04/2019 II ASCJ/VSP 3

21) Sri P. Eswara Rao (cook master), S/o. Not known to the petitioners, Hindu, Age:32 years, Occ: Cooking, Resident of Ganapathinagar, Near Nookalamma Temple, Opp. House in Gopalapatnam Post, Pendurthy Mandal, Visakhapatnam – 530027. Cell:8179585828;

22) Sri Eswara Rao, S/o. Not known to the petitioners, Hindu, Age:45 years, Occ: Milk Business, Resident of Yellapuvanipallem Village, Chitilu-Attanu, Gopalapatnam Post, Pendurthy Mandal, Visakhapatnam - 530027. Cell:9391661917;

23) Sri Akula Mahesh, S/o. Not known to the petitioners, Hindu, Age:42 years, Occ: Business, Resident of Main Road, R R V Puram Village, LG Polymers Road, Gopalapatnam Post, Pendurthy, Visakhapatnam – 530029;

24) Sri Salapu Mahesh, S/o. Not known to the petitioners, Age:48 years, Occ: Mestri, Resident of Jerripothulapallem Village in Chintagattala Post, Pendurthy Mandal, Visakhapatnam City Limits;

25) Sri Kandula Satyanarayana, S/o. Late K. Venkata Ramana, Hindu, Age:45 years, Occ: Milk Vendor, Resident of D. No.4-245, Ravindra Nagar, Near Nookalamma Temple, Main Road, Gopalapatnam – 530029. Visakhapatnam City Limits, Cell:8886561780;

26) Smt. D. Chinnammalu, W/o. Not known to the petitioners, Hindu, Age:47 years, Housewife, Resident of D. No.4-245, Ravindra Nagar, Near Nookalamma Temple backside house, Tea Shop, Main road, Gopalapatnam Post, Visakhapatnam City – 530027;

27) Dadi Divya, C/o. Dadi Achiyya Naidu, D/o. K. Ramu, Age:22 years, Occ: Running Tution, Resident of Near Community Hall Road, Ganapathi Nagar, Kothapallem Village in Gopalapatnam Post, Visakhapatnam City Limits. Cell:7207291362;

28) Jerri Pothula Venkatamma, D/o. Durgalamma, Age:75years, Occ: Housewife, Resident of Near house of Tractor Nagaraju, Pedanarava Village in Narava Post, Church Road, Gopalapatnam – 530027; Visakhapatnam City;

29) Sri G. Venkata Rao, S/o. Not known to the petitioners, Hindu, Age:50 years, Occ: Government Ration Depot Owner, Resident of Kothapallem Village in Gopalapatnam Post, Visakhapatnam City Limits – 530027;

30) Sri R. V. S. Appa Rao, S/o. Not known to the petitioners, Hindu, Age:45 years, Occ: Kirana Shop Business, Mamidi Thota Centre, Kanchana Medical Shop, Kothapallem Village in Gopalapatnam Post, Visakhapatnam – 530027;

31) Sri Ramakrishna, S/o. Not known to the petitioners, Hindu, Age:46 years, Occ: Fruit Seller, Resident of D. No.20-150/1/1, Ganapathi Nagar, Near Community Hall, Backside road, Kothapallem Village, Gopalapatnam Post, Visakhapatnam City Limits – 530027;

32) Devi, D/o. D. Ramakrishna, Hindu, Age:30 years, Occ; Housewife, Resident of Near Community Hall backside road, Ganapathi Nagar Colony, Kothapallem (V), Gopalapatnam Post, Visakhapatnam – 530027;

33) Smt. Kalyani, W/o. Parusuram, Hindu, Age:45 years, Hindu, Housewife, Resident of Near Community Hall backside road, Ganapathi Nagar Colony, Kothapallem (V), Gopalapatnam Post, Visakhapatnam – 530027;

34) Sri Saleem, S/o. Not known to the petitioners, Hindu, Age:48 years, Occ: Business, Ganapathi Nagar, Near Community Hall backside road, Kothapallem (V), Gopalapatnam Post, Visakhapatnam – 530027;

ORDER - FAIR

I.P.04/2019 II ASCJ/VSP 4

35) Sri Maddala Sathi Babu, S/o. Mahalakshmi Naidu, W/o. Maddala Kala, Hindu, Age:45 years, Occ: Business, Near compost in Dibba Veedhi, Ramalayam Opp.& near Nagendra Swamy Temple, Anakapalle – 531001, Visakhapatnam Rural District;

36) Sri PVN Patnaik, S/o. Not known to the petitioners, Hindu, Age:48 years, Occ: Sahara India Employee, Resident of Beside Simhachalam Petrol bunk, Off:Sahara India, Gopalapatnam Post, Visakhapatnam;

37) Smt. Sappa Krishnaveni, W/o. Sappa Srinivasa Rao, Age:38 years, Occ: Housewife, Resident of Janatha Colony, Konda Upper Place, Malkapuram Post, Visakhapatnam City Limits;

38) Sri G. Satyanarayana, S/o. Not known to the petitioners, Hindu, Age:50 years, Occ: Coolie, Resident of Jerripotulapallem Village, Beside Bottling Company & Pan shop, Chintagatla Post, Pendurthy mandal, Visakhapatnam City Limits;

39) Smt. Pala Sattamma, W/o. Satyam, Age:65 years, Hindu, Housewife, Resident of Jerripotulapallem Village, Beside Bottling Company & Pan shop, Chintagatla Post, Pendurthy mandal, Visakhapatnam City Limits;

40) Smt. Pala Lakshmi, W/o. P. Appa Rao, D/o. Pala Satyam, Age:38 years, Housewife, Resident of Jerripotulapallem Village, Beside Bottling Company & Pan shop, Chintagatla Post, Pendurthy mandal, Visakhapatnam City Limits;

41) Smt. Chintala Achiyyamma, W/o. Not known to the petitioners, Hindu, Age:65 years, Housewife, Resident of Bottling Company road, Beside house of Baddi Appa Rao, Jerripotulapallem Village, Chinagadili Post, Pendurthy mandal, Visakhapatnam City Limits; and

42) Sri B. Appa Rao, H/o. Manga Tulasi, Occ:Retired Railway Employee, Hindu, Age:65 years, Resident of Kothapallem Village, Bhulokamma Temple Opp. Road – Apartment, Gopalapatnam Post, Visakhapatnam – 530027. Cell:9110792299.

… Respondents

This petition is coming on 19-10-2023 for fnal hearing before me in the presence of Sri I. Kondala Rao, Advocate for Petitioners, and of Sri S. Eswara Rao& M. MadhusudanaRao, Advocates fled counter for Respondents 4 to 7, 9 to 12, 16, 21, 27 and 42,and the other respondents having remained exparte, and upon hearing the learned Counsel for the Petitioner and the matter having stood over for consideration till this day, this Court delivered the following:

O R D E R

1.This is a petition fled by the Petitioners under Sections 7 & 10 of

Provincial Insolvency Act, to declare them as insolvents, as prayed for.

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I.P.04/2019 II ASCJ/VSP 5

2.The brief averments of the petition are:

The Petitioners used to run a kirana business and also fnance business, chit business and they also do chit business at their house in the name and style Sri Nookambika Sravanamasam chits, but there is no document to prove the same and the said business continued for ten years and as the Petitioners have no sufcient funds to do the business, they used to borrow amounts from the Respondents; and the Respondents also joined as members in the chits and contributed amounts for ten months and each member paid

Rs.600/- (Rupees Six Hundred Only) and as per the oral agreement the

Petitioners shall provide kirana provisions to all the members at the end of 12th month of every year; and the Petitioners gave the said amounts collected from the Respondents to various persons to get more interest and they avoided repayment to the Petitioners for which Petitioners borrowed huge amount from the Respondents to make payments to the chit members and also for doing business; and subsequently due to heavy competition and loss in the business the Petitioners could not pay amounts to the

Respondents and unable to discharge their debts and some of the creditors used to come to the house of the Petitioners and threatened them with dire consequences and the Petitioners have no movable and immovable properties except the properties shown in ‘B’ schedule which are not sufcient to clear the debts shown in ‘A’ schedule and prayed to declare them as insolvents. Hence, the petition.

3.The 8th Respondent fled her counter which was adopted on Memo by Respondents 4 to 7, 9 to 12, 16, 21, 27 and 42 and they denied the petition allegations and contended that, the Petitioners are having house property at Kothapallem, Gopalapatnam, Visaskhapatnam and fled the

ORDER - FAIR

I.P.04/2019 II ASCJ/VSP 6 petition by suppressing the facts before the Court and the petition fled by the Petitioners is not maintainable under law and prayed to dismiss the petition. The other Respondents remained exparte.

4.To prove their respective contentions, on behalf of the Petitioners, PWs 1 and 2 were examined. On behalf of the Respondents RW1 was examined.

No documentary evidence was fled on either side.

5.Heard, the learned Counsel for the Petitioners and the Respondents.

6.Now, the point for determination is:

Whether the Petitioners 1 and 2 are entitled to be declared as

insolvents, as prayed for?

7.At the outset, this is a petition fled by the Petitioners under Section 7 and 10 of Provincial Insolvency Act to declare them as insolvents.

8.On behalf of Petitioners, PWs 1 and 2 were examined and on behalf of the Respondents RW1 was examined and no documents are fled on either side. PW1 is the 1st Petitioner. PW2 is the Witness on behalf of the

Petitioners. RW1 is the 4th Respondent.

9.Now, since the Petitioners fled the present petition to declare them as insolvents, the initial burden is on the Petitioners to prove and establish that they are not having any movable or immovable properties in their names, to discharge the debts of the Respondents; and that they have furnished all the books and records pertaining to their business before the Court as per the mandatory provisions under the Act.

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I.P.04/2019 II ASCJ/VSP 7

10.To prove their contention, the 1st Petitioner was examined as PW1 by fling his chief examination and he testifed in accordance with his petition averments. According to the Petitioners it is an admitted fact that they have done kirana business and also some private chit business and for the said purpose they borrowed amounts from the Respondents. It is the contention of the Petitioners that due to loss in the business they could not discharge the debts of the Respondents and their assets are not sufcient to discharge the debts of the Respondents and prayed to declare them as insolvents. So, it is an admitted fact that the Petitioners have done kirana business, chit business and fnance business as per their own admission in their petition. It is the contention of the Petitioners that they gave the amounts borrowed from the Respondents to one Polamarasetty Ramu, Potunuru Narsinga Rao and Ch. Lalitha on monthly interest and as they failed to pay the amounts and return the amounts to the Petitioners they sustained loss. But, the

Petitioners did not show them in the schedule showing the amounts due to them from the said persons. PW1 admitted that he did not fle any suits against them for recovery of amounts lent to them, and he also admitted that he did not give any police complaint against them for not repaying the amounts to him. So, it shows that the Petitioners failed to show their debtors in the petition and how much amount the said three persons are due to the

Petitioners. Moreover, the Petitioners failed to produce the accounts and ledgers of their business as per Section 22 of the Provincial Insolvency Act, which is a mandatory provision before the Court to show the proft and loss of their business and also the amounts borrowed by them and amounts due to them. So, it shows that the Petitioners failed to comply with the mandatory provisions under law which disentitles the Petitioners for the relief to declare them as insolvents. Moreover, the suppression of the facts of the amounts

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I.P.04/2019 II ASCJ/VSP 8 due to the Petitioners from the three persons to whom they lent amount in the schedule annexed to the petition itself amounts the suppression of facts which is fatal to the case of the Petitioners.

11.Though PW2 was also examined by the Petitioner he also testifed in accordance with the evidence of PW1 in his chief examination afdavit. In his cross examination he testifed that he only knows about the incidents which took place at his house at Anakapalle and he does not know about the other particulars which took place prior to the Petitioner shifting to Anakapalle, and he also stated that the other incidents were informed to him by the family members of the Petitioners. So, the evidence of PW2 is no way useful to the case of the Petitioners to show that they are not having any properties in their name and that they are not able to discharge the debts of the

Respondents. Though, the 4th respondent was examined as RW1 and testifed that the Petitioners collected amounts from him and other Respondents who are daily agricultural labours and they invested the amounts with the

Petitioners, but the Petitioners without paying amount to them fled the present petition only to avoid payment to them. Though, he was cross examined nothing material was elicited from his cross examination to discredit his evidence and to show that the Petitioners are not in a position to discharge the debts of the Respondents. So, when the Petitioners failed to comply with the mandatory provision under Section 22 of Provincial

Insolvency Act, by fling their books of accounts, ledgers and other documents pertaining to their kirana business. chits and fnance business and also the private chit business which they used to run as admitted in their petition, and when the Petitioners also failed to show the persons who are due of amount to them which they stated in their petition, in the schedule

ORDER - FAIR

I.P.04/2019 II ASCJ/VSP 9 annexed to the petition, it shows that the Petitioners have suppressed the said facts before the Court and presented the present petition without complying with the mandatory provisions under the Act. So, when the

Petitioners failed to comply with the mandatory provisions under the Act, it is held that the petition fled by the Petitioners to declare them as insolvents is not maintainable under law and liable to be dismissed. Accordingly, the point is answered.

12. In the result, the petition is dismissed with costs.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by

me in open Court, this the 08th day of November, 2023.

II Addl. Senior Civil Judge, Visakhapatnam.

Appendix of evidence No. of witnesses examined for

Petitioners:

P.W.1/Sri Adari Siva Rama Krishna P.W.2/Sri Konathala Uma Maheswara Rao

Respondents:

R.W.1/Sri T. Tirupathi Rao

Exhibits marked for

No exhibits are marked on either side.

II Addl. Senior Civil Judge, Visakhapatnam.

ORDER - FAIR

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O.S.325/2018, Dt : 02-04-2024

PCJ(SD)/VSP

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION) AT

VISAKHAPATNAM

Present :Ch.Vivek Anand Srinivas

Principal Civil Judge (Senior Division),

Visakhapatnam.

Tuesday, this the 2nd day of April, 2024

Original Suit No.325/2018

Between : ICICI Bank Ltd., Visakhapatnam rep. by its Debit Service Manager and POA Holder, B.S.S.Prasad, S/o B.Suryanarayana, Hindu, aged 33 years, Ramnagar, Visakhapatnam, Mobile No.95734 888833, Aadhaar No.8273 0473 3113. … Plaintiff

A n d : Ichapurapu Venkata Rao, S/o Dharma Rao, Hindu, aged 57 years, D.No.11- 125, Yadala Street, Chodavaram, Visakhapatnam District-531 036, Mobile No.96523 70347. … Defendant

This suit is coming on 15-03-2024 for final hearing before me in the presence of Sri.A.N.Murali Krishna, Advocate for the Plaintiff and Sri.B.Chandra Sekhar, Advocate for the Defendant and subsequently remained exparte on 15-03-2024 and having stood over for consideration to this day, this Court delivered the following :

J U D G M E N T

1.This is a suit filed by the Plaintiff Bank against the Defendant, for recovery of suit amount of Rs.4,53,938/- together with subsequent interest and costs of the suit, basing on a loan transaction.

2. The brief averments of the plaint are :

The Plaintiff is ICICI Bank Ltd., a Company incorporated under the

Companies Act, 1956 having its registered office at Mumbai and one of its branch is at Visakhapatnam and the Plaintiff is in the business of finance and extending - 2 -

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PCJ(SD)/VSP loan facility against property, consumer loans etc. and the Defendant is customer of Plaintiff Bank who availed loan facility and approached the Plaintiff vide loan application, dt.09-01-2017 seeking personal loan of Rs.5,50,000/- and the same was sanctioned and disbursed on 23-01-2017 vide account

No.LPVPM00035240351 and the Defendant has executed a credit facility application form on 09-01-2017 in favour of Plaintiff Bank and agreed to repay the entire loan amount with interest at 42 equated monthly installments of

Rs.16,019/- each together with 24% per annum and the loan amount was released and utilized by the Defendant and after availing the loan the Defendant was very irregular in repayment and last payment was made on 08-01-2018 and as the

Defendant failed to pay the loan amount inspite of repeated demands from the

Plaintiff, the Plaintiff Bank got issued a lawyer’s notice, dt.27-09-2017, but the

Defendant failed to repay the borrowed amount and the Plaintiff Bank filed the present suit. Hence the suit.

3.Initially the Defendant filed his written statement and denied the plaint allegations and contended that the Plaintiff Bank sanctioned personal loan to the

Defendant and at the time of sanctioning the loan the Plaintiff Bank obtained signature of the Defendant on empty printed blank papers only and after sanctioning loan the Defendant paid installments without any default, but the

Plaintiff Bank did not issue any receipt and thereafter filed a false suit only to extract amount from him unlawfully and that the Plaintiff Bank never demanded the Defendant to repay the loan amount and no notice was issued to him and that - 3 -

O.S.325/2018, Dt : 02-04-2024

PCJ(SD)/VSP the Defendant is not liable to pay any amount to the Plaintiff Bank and prayed to dismiss the suit. Subsequently, the Defendant remained exparte.

4.Basing on the rival contentions, the following issues were settled for trial :-

I S S U E S

1. Whether the Defendant paid loan installments without any default to the Plaintiff Bank, as contended by the Defendant ?

2. Whether the Plaintiff Bank is entitled to recover the suit claim from the

Defendant ?

3. To what relief ?

5.To prove his contention, the Plaintiff Bank examined its Manager as P.W.1 and got marked Exs.A1 to A6 documents. The Defendant remained exparte after filing his written statement.

6.Heard, the learned Counsel for the Plaintiff.

Issue Nos.1 and 2 :

1. Whether the Defendant paid loan installments without any default to the Plaintiff Bank, as contended by the Defendant ?

2. Whether the Plaintiff Bank is entitled to recover the suit claim from the

Defendant ?

7.At the outset, this is a suit filed by the Plaintiff Bank against the Defendant, for recovery of suit amount, basing on a loan transaction. On behalf of the

Plaintiff, P.W.1 was examined and Exs.A1 to A6 were marked. On the other hand, the Defendant remained exparte. P.W.1 is the Manager of the Plaintiff Bank.

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O.S.325/2018, Dt : 02-04-2024

PCJ(SD)/VSP

Ex.A1 is the Compared copy of power of attorney, dt.18-09-2019. Ex.A2 is the

Loan application, dt.09-01-2017. Ex.A3 is Credit facility application form, dt.09- 01-2017. Ex.A4 is the Loan account statement of the Defendant. Ex.A5 is the

Office copy of loan recall notice. Ex.A6 is the Prepayment of personal loan account No.LPVPM00035240351, dt.02-02-2018.

8.Now, since the Plaintiff filed the present suit for recovery of suit amount from the Defendant, the initial burden is on the Plaintiff to prove and establish that it is entitled to recover the suit amount from the Defendant as prayed for.

9.To prove its case, the Branch Manager of the Plaintiff Bank was examined as P.W.1 by filing his chief examination affidavit and reiterated his plaint pleadings and testified that, the Defendant availed personal loan from the Plaintiff

Bank by applying for loan as per Ex.A2 and he also executed credit facility application under Ex.A3 and after receiving the amount, the Defendant failed to pay the installments regularly and he made the last installment on 18-01-2018 as per Ex.A4 and the Plaintiff Bank got issued a loan recall notice under Ex.A5 and as the Defendant failed to repay the loan amount the Plaintiff Bank filed the present suit.

10.In support of its contention, the Plaintiff Bank also exhibited Exs.A1 to A6 documents. Ex.A1 is the power of attorney issued in the name of P.W.1 to give evidence on behalf of the Plaintiff Bank. Ex.A2 shows that the Defendant applied for personal loan under Ex.A2 application and also executed credit facility application under Ex.A3 in favour of the Plaintiff Bank. So, the Exs.A2 and A3 categorically prove that Defendant availed loan from the Plaintiff Bank agreeing - 5 -

O.S.325/2018, Dt : 02-04-2024

PCJ(SD)/VSP to repay the borrowed amount with interest at 24% per annum in 42 monthly installments. The Ex.A4 shows that the Defendant was irregular in payment of installments and he paid the last installment on 18-01-2018. The Ex.A5 shows that the Plaintiff Bank got issued a loan recall notice to the Defendant demanding him to repay the borrowed amount but the Defendant failed to repay the borrowed amount. The Ex.A6 is the prepayment of personal loan account in the name of

Defendant. So, Exs.A2 to A6 documents show that Defendant availed personal loan from the Plaintiff Bank, agreeing to repay the loan amount in 42 installments with interest at 24% per annum. The Ex.A4 shows that Defendant was irregular in payment of installments and thereafter stopped payment of installments by paying the last installment on 18-01-2018 and also failed to repay the loan amount inspite of issuing Ex.A5 notice. So, Exs.A2 to A6 documents prove and establish the case of the Plaintiff Bank that the Defendant availed personal loan from it and thereafter was irregular in payment of installments and that he was due of suit amount to the Plaintiff Bank.

11.Though, the Defendant remained exparte without cross-examining P.W.1, but his written statement contents show that he admitted the loan taken by him from the Plaintiff Bank and contended that he paid entire loan amount to the

Plaintiff Bank and the Plaintiff Bank failed to give any receipts to him. So, it shows that Defendant admitted the loan transaction with the Plaintiff Bank, but to prove his contention as per his written statement contents, he failed to appear

before the Court and state his case on oath and submit himself for cross-

examination by the Plaintiff. So, when the Defendant failed to appear before the - 6 -

O.S.325/2018, Dt : 02-04-2024

PCJ(SD)/VSP

Court and state his case on oath, it is to be presumed that the contents of his written statement are not correct. So, when the Plaintiff failed to cross-examine

P.W.1 and also failed to submit himself for cross-examination by the Plaintiff and failed to appear before the Court and state his case on oath, it is held that the contentions raised by the Defendant in his written statement are not correct. So, when the Plaintiff proved its case by examining P.W.1 and exhibiting Exs.A1 to

A6 documents, it is held that the Defendant is liable to pay the suit amount to the

Plaintiff as prayed for, as the Defendant failed to repay the loan amount obtained from the Plaintiff Bank. Hence, it is held that the Defendant did not pay the loan installments without any default to the Plaintiff Bank as contended by him and that the Plaintiff Bank is entitled to recover the suit claim from the Defendant as prayed for. Accordingly, issues 1 and 2 are answered in favour of the Plaintiff

Bank and against the Defendant.

Issue No.3 :

To what relief ?

12.In view of the discussion made supra and also the findings arrived at while answering the issues 1 and 2, wherein it is held that the Plaintiff Bank is entitled to recover the suit claim from the Defendant, it is held that the suit filed by the

Plaintiff Bank against the Defendant is entitled to be decreed in its favour.

Accordingly, this issue is answered in favour of the Plaintiff Bank and against

the Defendant.

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O.S.325/2018, Dt : 02-04-2024

PCJ(SD)/VSP

13. IN THE RESULT, the suit is decreed with costs, in favour of the

Plaintiff Bank and against the Defendant, directing the Defendant to pay to

the Plaintiff Bank, the suit amount of Rs.4,53,938/- (Rupees Four Lakh Fifty-

Three Thousand Nine Hundred and Thirty-Eight Only) together with

subsequent interest at 6% per annum from the date of suit till the date of

realization on the principal outstanding amount of Rs.4,12,398/- (Rupees

Four Lakh Twelve Thousand Three Hundred and Ninety-Eight Only).

(Dictated to the Stenographer, transcribed by her, corrected by me in my personal laptop and

pronounced by me in the open Court on this the 2nd day of April, 2024.).

Sd/- CH.VIVEK ANAND SRINIVAS

Principal Civil Judge (Senior Division),

Visakhapatnam.

Appendix of evidence

No. of witnesses examined for

For Plaintiff : For Defendant :

P.W.1 : Md.Althaf HussainNone

No. of documents marked for

For Plaintiff :

Ex.A1 : Compared copy of power of attorney, dt.18-09-2019.

Ex.A2 : Loan application, dt.09-01-2017.

Ex.A3 : Credit facility application form, dt.09-01-2017.

Ex.A4 : Loan account statement of the Defendant.

Ex.A5 : Office copy of loan recall notice.

Ex.A6 : Prepayment of personal loan account No.LPVPM00035240351, dt.02-02-2018.

For Defendant : -Nil-

Sd/- CH.VIVEK ANAND SRINIVAS

Principal Civil Judge (Senior Division),

Visakhapatnam.

- 8 -

O.S.325/2018, Dt : 02-04-2024

PCJ(SD)/VSP

Date of Presentation : 20-03-2018 Date of Filing : 02-04-2018

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION) AT

VISAKHAPATNAM

Present :Ch.Vivek Anand Srinivas

Principal Civil Judge (Senior Division),

Visakhapatnam.

Tuesday, this the 2nd day of April, 2024

Original Suit No.325/2018

Between : ICICI Bank Ltd., Visakhapatnam rep. by its Debit Service Manager and POA Holder, B.S.S.Prasad, S/o B.Suryanarayana, Hindu, aged 33 years, Ramnagar, Visakhapatnam, Mobile No.95734 888833, Aadhaar No.8273 0473 3113. … Plaintiff

A n d : Ichapurapu Venkata Rao, S/o Dharma Rao, Hindu, aged 57 years, D.No.11- 125, Yadala Street, Chodavaram, Visakhapatnam District-531 036, Mobile No.96523 70347. … Defendant

This is a suit filed by the Plaintiff Bank against the Defendant, for recovery of suit amount of Rs.4,53,938/- together with subsequent interest and costs of the suit, basing on a loan transaction.

Value of the suit for the purpose of Court fee and jurisdiction is Rs.4,53,938/- and a Court fee of Rs.7,026/- is paid U/Sec.20 r/w Art.I (a) & (b) of Sch.I of A.P.C.F. and S.V.Act.

This suit is coming on 15-03-2024 for final hearing before me in the presence of Sri.A.N.Murali Krishna, Advocate for the Plaintiff and Sri.B.Chandra Sekhar, Advocate for the Defendant and having stood over for consideration to this day, this Court doth order and passed the following :

D E C R E E

1. that the suit be and the same is hereby decreed in favour of the Plaintiff Bank and against the Defendant;

2. that the Defendant do pay to the Plaintiff Bank, the suit amount of Rs.4,53,938/- (Rupees Four Lakh Fifty-Three Thousand Nine Hundred and Thirty-Eight Only) together with subsequent interest at 6% per annum from the date of suit till the date of realization on the principal outstanding - 9 -

O.S.325/2018, Dt : 02-04-2024

PCJ(SD)/VSP amount of Rs.4,12,398/- (Rupees Four Lakh Twelve Thousand Three Hundred and Ninety-Eight Only); and

3. that the Defendant do also pay to the Plaintiff Bank a sum of Rs.7,028/- (Rupees Seven Thousand Twenty-Eight only) towards institutional costs of the suit.

Given under my hand and the seal of this Court, this the 2nd day of April, 2024.

Sd/- CH.VIVEK ANAND SRINIVAS

Principal Civil Judge (Senior Division),

Visakhapatnam.

MEMORANDUM OF COSTS

For Plaintiff : For Defendant :

No costs memo filed on either side.

Stamps on VakalatRs.2-00

Stamps on PlaintRs.7,026-00

Costs Instituted Rs. 7,028-00

Sd/- CH.VIVEK ANAND SRINIVAS

Principal Civil Judge (Senior Division),

Visakhapatnam.

- 1-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION) AT

VISAKHAPATNAM

Present :Ch.Vivek Anand Srinivas

Principal Civil Judge (Senior Division),

Visakhapatnam.

Tuesday, this the 2nd day of April, 2024.

S.O.P.No.1/2019

Between :

1. Gonthina Eswara Rao, S/o late Simhachalam, Hindu, aged 40 years, r/at D.No.19-48/4/2, Gopalapatnam, Chandranagar, Visakhapatnam District, Aadhaar No.8671 3845 0012, Cell No.98662 72688.

2. Gonthina Appa Rao, S/o late Simhachalam, Hindu, aged 50 years, r/at D.No.1-140, Beside Eruwada Village, Sabbavaram, Visakhapatnam District, Aadhaar No.7102 2565 4184, Cell No.98664 83709. … Petitioners

A n d : The Branch Manager, Bank of India, NAD Kotha Road Branch, Visakhapatnam. … Respondent

This petition is coming on 11-03-2024 for hearing before me in the presence of Sri.T.V.Subrahmanyeswara Rao, Advocate for the Petitioners and of Sri.W.V.N.Ramalingam, Advocate for the Respondent and having stood over for consideration to this day, this Court delivered the following :

O R D E R

1.This is a petition filed by the Petitioners 1 and 2, under Section 372 of Indian

Succession Act, to grant succession certificate in favour of the Petitioners, to enable them to receive the petition schedule amount.

2. The brief averments of the petition are :-

- 2-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

The 1st Petitioner is nephew’s son and 2nd Petitioner is the nephew of Salapu

Appalaswamy and the said Salapu Appalaswamy during his lifetime executed an unregistered Will, dt.21-09-2015 in favour of 1st Petitioner bequeathing all his properties with absolute rights in his favour and during the lifetime of Salapu

Appalaswamy, he made a fixed deposit for an amount of Rs.4,00,000/- along with the Petitioners on 16-08-2016 for a period of three years and the same will be matured on 16-08-2019 and the said Salapu Appalaswamy died on 02-02-2018, leaving the Petitioners as his legal heirs and the wife of deceased Salapu

Appalaswamy predeceased him and they have no issues and the death of Salapu

Appalaswamy was informed to the Respondent and there are no other legal heirs to the deceased Salapu Appalaswamy except the Petitioners and they are entitled to encash the FDR amount lying with the Respondent and when the Petitioners approached the Respondent Bank, they insisted for production of succession certificate and they filed the present petition. Hence, the petition.

3.The Respondent filed its counter and denied the petition allegations and contended that the deceased Salapu Appalaswamy deposited an amount of

Rs.4,00,000/- with them in the name of said Salapu Appalaswamy and Petitioners herein jointly in account No.560442710000209 and there is no nominee mentioned in the said deposit and the Petitioners have to establish that they are only entitled to

- 3-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP receive the said amount and that they are ready to release the amount as per the orders of the Court.

4.At the time of registering the petition, a general notice was issued by way of paper publication calling upon for objections, but none appeared before the Court with any objections.

5.To prove their respective contentions, on behalf of the Petitioners, P.Ws.1 and 2 were examined and Exs.P1 and P2 were marked. On behalf of the

Respondent, R.W.1 was examined and no documents were marked.

6.Heard, the learned Counsel for the Petitioners.

7.Now, the point for determination is :-

Whether the Petitioners are entitled for the relief to grant succession

certificate in their favour with respect to the petition schedule

amount as prayed for ?

P O I N T :

8.At the outset, this is a petition filed by the Petitioners, under Section 372 of

Indian Succession Act, to grant succession certificate in their favour to enable them to receive the petition schedule amount as prayed for.

- 4-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

9.On behalf of the Petitioners, P.Ws.1 and 2 were examined and Exs.P1 and P2 were marked. On behalf of the Respondent, R.W.1 was examined and no documents were marked. P.W.1 is the 1st Petitioner.P.W.2 is the 2nd Petitioner.

Ex.P1 is the Original death certificate of Salapu Appalaswamy, dt.02-02-2018.

Ex.P2 is the Original unregistered Will, dt.21-09-2015 executed by Salapu

Appalawamy in favour of 1st Petitioner. R.W.1 is the Branch Manager of the

Respondent Bank.

10.Now, since the Petitioners filed the present petition, seeking the relief to grant succession certificate in their favour, to enable them to receive the petition schedule amount, the initial burden is on the Petitioners to prove and establish that they are the legal heirs of deceased Salapu Appalaswamy and that they are entitled for issuance of succession certificate in their favour to receive the petition schedule amount from the Respondent Bank as prayed for.

11.To prove their contention, on behalf of the Petitioners, the Petitioners examined themselves as P.Ws.1 and 2 and filed their chief-examination affidavits and reiterated the petition pleadings and testified that 1st Petitioner is nephew’s son and 2nd Petitioner is the nephew of Salapu Appalaswamy and during the lifetime of

Salapu Appalaswamy they made fixed deposit for Rs.4,00,000/- jointly on 16-08- 2016 for three years which will mature on 16-08-2019 and Salapu Appalaswamy died on 02-02-2018 by executing an unregistered Will in favour of 1st Petitioner,

- 5-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP bequeathing all his movable and immovable properties and his wife predeceased him and they have no issues and except the Petitioners there are no other legal heirs to Salapu Appalaswamy and when the Petitioners approached the Respondent Bank for encashment of FDR, they insisted for succession certificate and they filed the present petition.

12.In support of their contention, the Petitioners also exhibited Exs.P1 and P2 documents. Ex.P1 is the death certificate of Salapu Appalaswamy which shows that Salapu Appalaswamy died. Ex.P2 shows that Salapu Appalaswamy executed a

Will in favour of 1st Petitioner bequeathing all his movable and immovable properties in the name of 1st Petitioner. It is the specific contention of the

Petitioners that during the lifetime of Salapu Appalaswamy, he along with the

Petitioners jointly opened the FDR for Rs.4,00,000/- and that it will mature on 16- 08-2019. To that extent, it is an admitted fact as the Respondent is also admitting the same. Now, the Petitioners are contenting that there are no other legal heirs to

Salapu Appalaswamy. It is pertinent to state here that, at the time of registering the petition a general publication was issued calling upon objections from third parties with respect to issuing of succession certificate in favour of Petitioners, but none appeared before the Court even after the said publication was issued by the Court, with any objections. So, it prima facie shows that there are no other persons claiming the petition schedule amount belonging to the deceased Salapu

- 6-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

Appalaswamy. Moreover, the Ex.P2 Will shows that Salapu Appalaswamy bequeathed all his movable and immovable properties in favour of 1st Petitioner by executing a Will in his favour. But, the said Will has to be proved. But, still this petition is a succession petition, in which the enquiry is a summary enquiry and the order in present petition will not confer any absolute right with respect to the petition schedule amounts over the Petitioners and a succession certificate can be granted in favour of the Petitioners, who are better entitled for receiving the petition schedule amount from the Respondent Bank. If there are any title claimants over the said amount they have to be determined before a separate forum, for issuing said amount in the name of Petitioners and to claim any share in the said amount.

So, when admittedly, the FDR shown in the petition schedule was jointly obtained by Petitioners and Salapu Appalaswamy and when no persons are objecting the issuance of succession certificate in favour of Petitioners, and when R.W.1 also testified that deceased Salapu Appalaswamy opened the FDR jointly with the

Respondent and that the Respondent has no objection to pay the amount as per the orders of this Court, this Court feels that this is a fit case to issue succession certificate in favour of the Petitioners, to receive the petition schedule amounts from the Respondent Bank to the extent of the share of Salapu Appalaswamy in the

FDR, hence it is held that the Petitioners are entitled for granting succession certificate in their favour for receiving petition schedule amount from the

- 7-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

Respondent Bank. Accordingly, the point is answered in favour of the

Petitioners.

13. IN THE RESULT, the petition is allowed without costs, granting

succession certificate in favour of the Petitioners 1 and 2, for the amount

shown in the petition schedule, authorizing the Petitioners 1 and 2 to receive

the petition schedule amount from the Respondent. The Petitioners 1 and 2

are directed to deposit the succession fee amount into the Court within two

months from the date of this order to receive succession certificate from this

Court.

(Dictated to the Stenographer, transcribed by her, corrected by me in my personal laptop and

pronounced by me in the open Court on this the 2th day of April, 2024.).

Sd/- CH.VIVEK ANAND SRINIVAS

Principal Civil Judge (Senior Division),

Visakhapatnam.

Appendix of evidence

No. of witnesses examined for

For Petitioners : For Respondent :

P.W.1 : G.Eswara RaoR.W.1 : G.Srinivasa Rao

P.W.2 : G.Appa Rao

No. of documents marked for

For Petitioners :

Ex.P1 : Original death certificate of Salapu Appalaswamy, dt.02-02-2018.

- 8-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

Ex.P2 : Original unregistered Will, dt.21-09-2015 executed by Salapu

Appalawamy in favour of 1st Petitioner.

For Respondent : - N I L -

Sd/- CH.VIVEK ANAND SRINIVAS

Principal Civil Judge (Senior Division),

Visakhapatnam.

- 9-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

ENGROSSED THE SUCCESSION CERTIFICATE ON PAYMENT OF COURT

FEE OF Rs.24,000/- PAID BY WAY OF CFMS TRANSACTION ID:80032426462024, BANK REFERENCE NO.CPADUKQNN9 OF STATE

BANK OF INDIA, DISTRICT COURT BRANCH, VISAKHAPATNAM.

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION) AT

VISAKHAPATNAM

Present :Ch.Vivek Anand Srinivas

Principal Civil Judge (Senior Division),

Visakhapatnam.

Tuesday, this the 2nd day of April, 2024.

S.O.P.No.1/2019

Between :

1. Gonthina Eswara Rao, S/o late Simhachalam, Hindu, aged 40 years, r/at D.No.19-48/4/2, Gopalapatnam, Chandranagar, Visakhapatnam District, Aadhaar No.8671 3845 0012, Cell No.98662 72688.

2. Gonthina Appa Rao, S/o late Simhachalam, Hindu, aged 50 years, r/at D.No.1-140, Beside Eruwada Village, Sabbavaram, Visakhapatnam District, Aadhaar No.7102 2565 4184, Cell No.98664 83709. … Petitioners

A n d : The Branch Manager, Bank of India, NAD Kotha Road Branch, Visakhapatnam. … Respondent

This petition is coming on 11-03-2024 for hearing before me in the presence of Sri.T.V.Subrahmanyeswara Rao, Advocate for the Petitioners and of Sri.W.V.N.Ramalingam, Advocate for the Respondent and having stood over for consideration to this day, this Court engrossed the succession certificate as follows :

SUCCESSION CERTIFICATE

This is a petition filed by the Petitioners 1 and 2, under Section 372 of Indian Succession Act, to grant succession certificate in favour of the Petitioners, to enable them to receive the petition schedule amount.

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SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

Whereas upon considering the oral and documentary evidence adduced by petitioners which lent support to the case of petitioners, this Court hereby passes order in favour of the Petitioners 1 and 2, for the amount shown in the petition schedule, authorizing the Petitioners 1 and 2 to receive the petition schedule amount from the Respondent. The Petitioners 1 and 2 are directed to deposit the succession fee amount into the Court within two months from the date of this order to receive succession certificate from this Court.

This certificate is accordingly granted to the petitioners 1 and 2.

S C H E D U L E

For encashment of FDR, deposited as a fixed deposit by the deceased viz. Salapu Appalaswamy on 16-08-2016 for a period of three years along with the petitioners herein and the same will be matured on 16-08-2019.

The details of FDR No.5600442710000209, dt.16-08-2016 of Bank of India, NAD Kotha Road Branch, Visakhapatnam for an amount of RS.4,00,000/- (Rupees Four Lakh Only).

The original challan is enclosed to the Succession Certificate.

Given under my hand and the seal of this Court, on this the 2nd day of April, 2024.

Sd/- CH.VIVEK ANAND SRINIVAS

Principal Civil Judge (Senior Division),

Visakhapatnam.

Sd/- S.KAVITHA

for (S.KAVITHA)

Principal Civil Judge (Senior Division),

Visakhapatnam. To : The Petitioner Nos.1 and 2

1. Gonthina Eswara Rao, S/o late Simhachalam,

2. Gonthina Appa Rao, S/o late Simhachalam through their counsel Sri.T.V.Subrahmanyeswara Rao.

Note : As per Order-XX Rule-8 of C.P.C., the successor of the Court has signed.

Note: This copy is to be retained in the case record.

- 1-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION) AT

VISAKHAPATNAM

Present :Ch.Vivek Anand Srinivas

Principal Civil Judge (Senior Division),

Visakhapatnam.

Tuesday, this the 2nd day of April, 2024.

S.O.P.No.1/2019

Between :

1. Gonthina Eswara Rao, S/o late Simhachalam, Hindu, aged 40 years, r/at D.No.19-48/4/2, Gopalapatnam, Chandranagar, Visakhapatnam District, Aadhaar No.8671 3845 0012, Cell No.98662 72688.

2. Gonthina Appa Rao, S/o late Simhachalam, Hindu, aged 50 years, r/at D.No.1-140, Beside Eruwada Village, Sabbavaram, Visakhapatnam District, Aadhaar No.7102 2565 4184, Cell No.98664 83709. … Petitioners

A n d : The Branch Manager, Bank of India, NAD Kotha Road Branch, Visakhapatnam. … Respondent

This petition is coming on 11-03-2024 for hearing before me in the presence of Sri.T.V.Subrahmanyeswara Rao, Advocate for the Petitioners and of Sri.W.V.N.Ramalingam, Advocate for the Respondent and having stood over for consideration to this day, this Court delivered the following :

O R D E R

1.This is a petition filed by the Petitioners 1 and 2, under Section 372 of Indian

Succession Act, to grant succession certificate in favour of the Petitioners, to enable them to receive the petition schedule amount.

2. The brief averments of the petition are :-

- 2-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

The 1st Petitioner is nephew’s son and 2nd Petitioner is the nephew of Salapu

Appalaswamy and the said Salapu Appalaswamy during his lifetime executed an unregistered Will, dt.21-09-2015 in favour of 1st Petitioner bequeathing all his properties with absolute rights in his favour and during the lifetime of Salapu

Appalaswamy, he made a fixed deposit for an amount of Rs.4,00,000/- along with the Petitioners on 16-08-2016 for a period of three years and the same will be matured on 16-08-2019 and the said Salapu Appalaswamy died on 02-02-2018, leaving the Petitioners as his legal heirs and the wife of deceased Salapu

Appalaswamy predeceased him and they have no issues and the death of Salapu

Appalaswamy was informed to the Respondent and there are no other legal heirs to the deceased Salapu Appalaswamy except the Petitioners and they are entitled to encash the FDR amount lying with the Respondent and when the Petitioners approached the Respondent Bank, they insisted for production of succession certificate and they filed the present petition. Hence, the petition.

3.The Respondent filed its counter and denied the petition allegations and contended that the deceased Salapu Appalaswamy deposited an amount of

Rs.4,00,000/- with them in the name of said Salapu Appalaswamy and Petitioners herein jointly in account No.560442710000209 and there is no nominee mentioned in the said deposit and the Petitioners have to establish that they are only entitled to

- 3-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP receive the said amount and that they are ready to release the amount as per the orders of the Court.

4.At the time of registering the petition, a general notice was issued by way of paper publication calling upon for objections, but none appeared before the Court with any objections.

5.To prove their respective contentions, on behalf of the Petitioners, P.Ws.1 and 2 were examined and Exs.P1 and P2 were marked. On behalf of the

Respondent, R.W.1 was examined and no documents were marked.

6.Heard, the learned Counsel for the Petitioners.

7.Now, the point for determination is :-

Whether the Petitioners are entitled for the relief to grant succession

certificate in their favour with respect to the petition schedule

amount as prayed for ?

P O I N T :

8.At the outset, this is a petition filed by the Petitioners, under Section 372 of

Indian Succession Act, to grant succession certificate in their favour to enable them to receive the petition schedule amount as prayed for.

- 4-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

9.On behalf of the Petitioners, P.Ws.1 and 2 were examined and Exs.P1 and P2 were marked. On behalf of the Respondent, R.W.1 was examined and no documents were marked. P.W.1 is the 1st Petitioner.P.W.2 is the 2nd Petitioner.

Ex.P1 is the Original death certificate of Salapu Appalaswamy, dt.02-02-2018.

Ex.P2 is the Original unregistered Will, dt.21-09-2015 executed by Salapu

Appalawamy in favour of 1st Petitioner. R.W.1 is the Branch Manager of the

Respondent Bank.

10.Now, since the Petitioners filed the present petition, seeking the relief to grant succession certificate in their favour, to enable them to receive the petition schedule amount, the initial burden is on the Petitioners to prove and establish that they are the legal heirs of deceased Salapu Appalaswamy and that they are entitled for issuance of succession certificate in their favour to receive the petition schedule amount from the Respondent Bank as prayed for.

11.To prove their contention, on behalf of the Petitioners, the Petitioners examined themselves as P.Ws.1 and 2 and filed their chief-examination affidavits and reiterated the petition pleadings and testified that 1st Petitioner is nephew’s son and 2nd Petitioner is the nephew of Salapu Appalaswamy and during the lifetime of

Salapu Appalaswamy they made fixed deposit for Rs.4,00,000/- jointly on 16-08- 2016 for three years which will mature on 16-08-2019 and Salapu Appalaswamy died on 02-02-2018 by executing an unregistered Will in favour of 1st Petitioner,

- 5-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP bequeathing all his movable and immovable properties and his wife predeceased him and they have no issues and except the Petitioners there are no other legal heirs to Salapu Appalaswamy and when the Petitioners approached the Respondent Bank for encashment of FDR, they insisted for succession certificate and they filed the present petition.

12.In support of their contention, the Petitioners also exhibited Exs.P1 and P2 documents. Ex.P1 is the death certificate of Salapu Appalaswamy which shows that Salapu Appalaswamy died. Ex.P2 shows that Salapu Appalaswamy executed a

Will in favour of 1st Petitioner bequeathing all his movable and immovable properties in the name of 1st Petitioner. It is the specific contention of the

Petitioners that during the lifetime of Salapu Appalaswamy, he along with the

Petitioners jointly opened the FDR for Rs.4,00,000/- and that it will mature on 16- 08-2019. To that extent, it is an admitted fact as the Respondent is also admitting the same. Now, the Petitioners are contenting that there are no other legal heirs to

Salapu Appalaswamy. It is pertinent to state here that, at the time of registering the petition a general publication was issued calling upon objections from third parties with respect to issuing of succession certificate in favour of Petitioners, but none appeared before the Court even after the said publication was issued by the Court, with any objections. So, it prima facie shows that there are no other persons claiming the petition schedule amount belonging to the deceased Salapu

- 6-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

Appalaswamy. Moreover, the Ex.P2 Will shows that Salapu Appalaswamy bequeathed all his movable and immovable properties in favour of 1st Petitioner by executing a Will in his favour. But, the said Will has to be proved. But, still this petition is a succession petition, in which the enquiry is a summary enquiry and the order in present petition will not confer any absolute right with respect to the petition schedule amounts over the Petitioners and a succession certificate can be granted in favour of the Petitioners, who are better entitled for receiving the petition schedule amount from the Respondent Bank. If there are any title claimants over the said amount they have to be determined before a separate forum, for issuing said amount in the name of Petitioners and to claim any share in the said amount.

So, when admittedly, the FDR shown in the petition schedule was jointly obtained by Petitioners and Salapu Appalaswamy and when no persons are objecting the issuance of succession certificate in favour of Petitioners, and when R.W.1 also testified that deceased Salapu Appalaswamy opened the FDR jointly with the

Respondent and that the Respondent has no objection to pay the amount as per the orders of this Court, this Court feels that this is a fit case to issue succession certificate in favour of the Petitioners, to receive the petition schedule amounts from the Respondent Bank to the extent of the share of Salapu Appalaswamy in the

FDR, hence it is held that the Petitioners are entitled for granting succession certificate in their favour for receiving petition schedule amount from the

- 7-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

Respondent Bank. Accordingly, the point is answered in favour of the

Petitioners.

13. IN THE RESULT, the petition is allowed without costs, granting

succession certificate in favour of the Petitioners 1 and 2, for the amount

shown in the petition schedule, authorizing the Petitioners 1 and 2 to receive

the petition schedule amount from the Respondent. The Petitioners 1 and 2

are directed to deposit the succession fee amount into the Court within two

months from the date of this order to receive succession certificate from this

Court.

(Dictated to the Stenographer, transcribed by her, corrected by me in my personal laptop and

pronounced by me in the open Court on this the 2th day of April, 2024.).

Sd/- CH.VIVEK ANAND SRINIVAS

Principal Civil Judge (Senior Division),

Visakhapatnam.

Appendix of evidence

No. of witnesses examined for

For Petitioners : For Respondent :

P.W.1 : G.Eswara RaoR.W.1 : G.Srinivasa Rao

P.W.2 : G.Appa Rao

No. of documents marked for

For Petitioners :

Ex.P1 : Original death certificate of Salapu Appalaswamy, dt.02-02-2018.

- 8-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

Ex.P2 : Original unregistered Will, dt.21-09-2015 executed by Salapu

Appalawamy in favour of 1st Petitioner.

For Respondent : - N I L -

Sd/- CH.VIVEK ANAND SRINIVAS

Principal Civil Judge (Senior Division),

Visakhapatnam.

- 9-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

ENGROSSED THE SUCCESSION CERTIFICATE ON PAYMENT OF COURT

FEE OF Rs.24,000/- PAID BY WAY OF CFMS TRANSACTION ID:80032426462024, BANK REFERENCE NO.CPADUKQNN9 OF STATE

BANK OF INDIA, DISTRICT COURT BRANCH, VISAKHAPATNAM.

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION) AT

VISAKHAPATNAM

Present :Ch.Vivek Anand Srinivas

Principal Civil Judge (Senior Division),

Visakhapatnam.

Tuesday, this the 2nd day of April, 2024.

S.O.P.No.1/2019

Between :

1. Gonthina Eswara Rao, S/o late Simhachalam, Hindu, aged 40 years, r/at D.No.19-48/4/2, Gopalapatnam, Chandranagar, Visakhapatnam District, Aadhaar No.8671 3845 0012, Cell No.98662 72688.

2. Gonthina Appa Rao, S/o late Simhachalam, Hindu, aged 50 years, r/at D.No.1-140, Beside Eruwada Village, Sabbavaram, Visakhapatnam District, Aadhaar No.7102 2565 4184, Cell No.98664 83709. … Petitioners

A n d : The Branch Manager, Bank of India, NAD Kotha Road Branch, Visakhapatnam. … Respondent

This petition is coming on 11-03-2024 for hearing before me in the presence of Sri.T.V.Subrahmanyeswara Rao, Advocate for the Petitioners and of Sri.W.V.N.Ramalingam, Advocate for the Respondent and having stood over for consideration to this day, this Court engrossed the succession certificate as follows :

SUCCESSION CERTIFICATE

This is a petition filed by the Petitioners 1 and 2, under Section 372 of Indian Succession Act, to grant succession certificate in favour of the Petitioners, to enable them to receive the petition schedule amount.

- 10-

SOP 1/2019 Dt: 02-04-2024 PCJ (SD)/VSP

Whereas upon considering the oral and documentary evidence adduced by petitioners which lent support to the case of petitioners, this Court hereby passes order in favour of the Petitioners 1 and 2, for the amount shown in the petition schedule, authorizing the Petitioners 1 and 2 to receive the petition schedule amount from the Respondent. The Petitioners 1 and 2 are directed to deposit the succession fee amount into the Court within two months from the date of this order to receive succession certificate from this Court.

This certificate is accordingly granted to the petitioners 1 and 2.

S C H E D U L E

For encashment of FDR, deposited as a fixed deposit by the deceased viz. Salapu Appalaswamy on 16-08-2016 for a period of three years along with the petitioners herein and the same will be matured on 16-08-2019.

The details of FDR No.5600442710000209, dt.16-08-2016 of Bank of India, NAD Kotha Road Branch, Visakhapatnam for an amount of RS.4,00,000/- (Rupees Four Lakh Only).

The original challan is enclosed to the Succession Certificate.

Given under my hand and the seal of this Court, on this the 2nd day of April, 2024.

Sd/- CH.VIVEK ANAND SRINIVAS

Principal Civil Judge (Senior Division),

Visakhapatnam.

Sd/- S.KAVITHA

for (S.KAVITHA)

Principal Civil Judge (Senior Division),

Visakhapatnam. To : The Petitioner Nos.1 and 2

1. Gonthina Eswara Rao, S/o late Simhachalam,

2. Gonthina Appa Rao, S/o late Simhachalam through their counsel Sri.T.V.Subrahmanyeswara Rao.

Note : As per Order-XX Rule-8 of C.P.C., the successor of the Court has signed.

Note: This copy is to be retained in the case record.

E.P.106/2020 in

O.S.1030/2011

II ASCJ/VSP 1

IN THE COURT OF THE II ADDL. SENIOR CIVIL JUDGE:

VISAKHAPATNAM

Present:Sri Ch. Vivek Anand Srinivas, II Addl. Senior Civil Judge, Visakhapatnam.

Monday, this the 06th day of November, 2023

E.P.106/2020 in O.S.1030/2011

Between:

1) Sri Dadi Chinna Rao (Died);

2) Smt. Dadi Hymavathi, W/o. Chinna Rao, Hindu, Age:52 years, Resident of D. No.18-22, Chandra Nagar, Gopalapatnam, Visakhapatnam;

3) Kikkuru Masatan Reddy (Died); and

4) Dadi Bhaskara Rao, S/o. Late Chinna Rao, Hindu, Age:38 years, Resident of D. No.18-22, Chandra Nagar, Gopalapatnam, Visakhapatnam.

(The 4th D.Hr. was impleaded as per the orders of this Court in EA.19/2022,

dated:01-04-2022).

...Plaintiff/Decree Holderf

And :

1) Sri Nagala Appa Rao, S/o. Cyhinamuthyalu, Hindu, Age:76 years, Resident of D. No.20-6, Chandra Nagar, Gopalapatnam, Visakhapatnam;

2) Sri Nagala Ramakrishna, S/o. Appa Rao, Hindu, Age:52 years, Resident of D. No.20-6, Chandra Nagar, Gopalapatnam, Visakhapatnam;

3) Sri Nagala Easwara Rao, S/o. Appa Rao, Hindu, Age:48 years, Resident of D. No.20-6, Chandra Nagar, Gopalapatnam, Visakhapatnam;

4) Sri Nagala Chalapathi Rao, S/o. Appa Rao, Hindu, Age:45 years, Resident of D. No.20-6, Chandra Nagar, Gopalapatnam, Visakhapatnam;

5) Sri Nagala Juvva Raju, S/o. Appa Rao, Hindu, Age:40 years, Resident of D. No.20-6, Chandra Nagar, Gopalapatnam, Visakhapatnam;

6) Smt. Nagala Appala Narasamma, W/o. Appa Rao, Hindu, Age:65 years, Resident of D. No.20-6, Chandra Nagar, Gopalapatnam, Visakhapatnam;

7) Sri Nagala Appalakonda, W/o. Late Venkata Rao, Hindu, Age:68 years, Resident of D. No.20-6, Chandra Nagar, Gopalapatnam, Visakhapatnam; and

8) Sri Nagala Srinuvasa Rao, S/o. Late Venkata Rao, Hindu, Age:30 years, Resident of D. No.20-6, Chandra Nagar, Gopalapatnam, Visakhapatnam.

….Defendantf/Judgment Debtorf

Order - Fair

E.P.106/2020 in

O.S.1030/2011

II ASCJ/VSP 2

This petition coming on 20-09-2023 for fnal hearing before me in the presence of Sri P. V. S. Kukkutefwara Rao, Advocate for Petitioners, and of Sri S. S. Naidu, Advocate fled counter for 5th Respondent which was adopted by Respondents 2, 3, 4, 6 & 8, and upon hearing both sides, and the matter having stood over for consideration till this day, this Court made the following :

O R D E R

1. This is a petition fled by the Petitioners under Order XXI Rule 34 CPC, to direct the Respondents 1 to 8, to execute Registered Sale Deed in their favour as per the direction in the decree, failing which to register the property by the Court in favour of the Petitioners at the expenses of the Petitioners and for costs of the petition.

2.The brief averments of the Petition are:

The Petitioners 1 to 4 are the Decree Holders in the suit and that they fled the suit for specifc performance of agreement, dated:19-04-1998 directing the

Respondents to execute Registered Sale Deed in their favour, but the

Respondents failed to execute the Registered Sale Deed within the time stipulated by the Court, and the Respondents also did not prefer any appeal against the said decree and judgment, and the Respondents have deliberately and willfully failed to execute the deed of sale in their favour, and prayed to direct the Respondents to execute the sale deed and on their failure prays the

Hon’ble Court to execute Registered Sale Deed in favour of the Petitioners on

behalf of the Respondents, at the expenses of the Petitioners and for costs of the petition and they fled the present petition. Hence, the petition.

3.The 5th Respondent fled his counter which was adopted by the

Respondents 2 to 4, 6 and 8 on Memo and they denied the petition allegations and contended that, the Agreement of Sale is not a genuine document as it is

Order - Fair

E.P.106/2020 in

O.S.1030/2011

II ASCJ/VSP 3 not registered and it is also liable for stamp duty and penalty and the said decree which was passed in favour of the Petitioners is an exparte decree and they fled petitions to set aside the exparte decree along with the petition to condone the delay in fling the petition and they are pending; and that the EP schedule property is not divided as per ryothwari patta and without confrmation of the right and title of the Judgment Debtors, the EP is not maintainable under law and prayed to dismiss the plea.

a)The Respondents also fled additional counter and contended that even if the decree is an exparte decree, the Court ought to have gone into the merits of the case, and the said decree and judgment is not valid under law; and that the

Court passed the decree is not having jurisdiction to deal with the suit and the claim of the Petitioners is barred by limitation and prayed to dismiss the petition.

4.No oral or documentary evidence is adduced by the Petitioner.

5.Heard both sides. The learned counsel for the Petitioners also fled his written arguments.

6.Now, the point for determination is:

Whether the Petitionerf are entitled for the relief to direct the

Refpondentf to execute the Regiftered Sale Deed in their favour,

failing which to execute the fale deed by the Court in favour of the

Petitionerf on behalf of the Refpondentf, af prayed for?

POINT:

7.At the outset, this is a petition fled by the Petitioners under Order 21

Rule 34 CPC, to direct the Respondents to execute Registered Sale Deed in their favour as per the direction in the decree and on their failure to do so, the

Order - Fair

E.P.106/2020 in

O.S.1030/2011

II ASCJ/VSP 4

Hon’ble Court may be pleased to execute Registered Sale Deed in their favour

on behalf of the Respondents as prayed for. No oral or documentary evidence is adduced on either side.

8.Now, it is the contention of the Petitioners that, they obtained a decree against the Respondents for specifc performance of Agreement of Sale wherein, the Respondents were directed to execute Registered Sale Deed in favour of the

Petitioners within three months from the date of judgment, but the Respondents failed to comply with the directions given by the Court and they fled the present

EP directing the Respondents to execute Registered Sale Deed in favour of the

Petitioners, failing which praying the Court to execute Registered Sale Deed in their favour on behalf of the Respondents at the expenses of the Petitioners. On the other hand, the Respondents are not denying the decree passed by the

Court and their main objection for opposing the execution petition are 1) the decree passed by the Court is an exparte decree; 2) the suit Agreement of Sale is an unregistered document, and it is liable for stamp duty and penalty; 3) the

Court has no jurisdiction to entertain the suit; 4) the suit is barred by limitation.

All the said objections raised by the Respondents are to be taken at the earlier point of time before the trial Court where the decree was passed. But, the

Respondents failed to take the said objections before the trial Court which passed the decree and allowed the decree to be passed in favour of the

Petitioners and against them. Though, the Respondents contend that they fled a petition to set aside the exparte decree along with the petition under Section 5 of Limitation Act and pending, but they did not take any steps to get the EP stayed by the Court which passed the decree. Moreover, as per the contention of the Petitioners, it shows that the said petition fled by the Respondents are dismissed by the Court.

Order - Fair

E.P.106/2020 in

O.S.1030/2011

II ASCJ/VSP 5

9.It is also the contention of the Petitioners that, the Respondents failed to prefer any appeal on the decree and judgment passed by the Court and the said decree became fnal. The Respondents also did not contend that they preferred any appeal on the decree and judgment in OS.1030/2011. So, it shows that the decree has become fnal. Now, this Court being the executing Court, cannot go beyond the decree. except to execute the decreed passed by the Court. Though, the Respondents contend that the Court which passed the decree has no jurisdiction to entertain the suit; and that the suit is barred by limitation, but no material was placed before the Court to show the same. Moreover, as already stated supra, the said pleas are to be taken before the Court which passed the decree, and once the decree has been passed, the executing Court has no other option except to execute the decree and cannot go beyond the decree. So, in the said circumstances and objections raised by the Respondents are held to be not tenable under law and when once the decree has been passed and when the petition fled the Respondents to set aside the exparte decree along with Section 5 of Limitation Act is dismissed, and when the Respondents also failed to prefer any appeal on the decree and judgment in OS.1030/2011, it is held that the objections raised by the Respondents are held to be not tenable under law.

10.The Respondents also contend that since the patta was not divided and the shares of the Respondents are not specifed, the petition is not maintainable under law. But, no evidence was placed by the Respondents before the Court to show that, their shares were not divided and that they got the property under a ryothwari patta. But, when a competent Court has granted a decree in favour of the Petitioners and against the Respondents to execute the sale deed for the property the Respondents, the Respondents are duty bound to execute the said

Registered Sale Deed in favour of the Petitioners as per the directions given by

Order - Fair

E.P.106/2020 in

O.S.1030/2011

II ASCJ/VSP 6 the Court in the decree. So, when the Petitioners have obtained a decree and judgment against the Respondents, directing them to execute Registered Sale

Deed in their favour within three months from the date of judgment and when the Respondents failed to comply the same, it is held that the Petitioners are entitled for the relief to get the Registered Sale Deed executed through Court on behalf of the Respondents at the expenses of the Petitioners. Accordingly, the point is answered.

11. In the refult, the petition if allowed with coftf, in favour of the

Petitionerf and againft the Refpondentf 2 to 6 and 8, permitting the

Petitionerf to get the Regiftered Sale Deed executed through Court, on

behalf of the Refpondentf with the expenfef of the Petitionerf af

prayed for. The Refpondentf 1 and 7 are died.

Dictated to the Stenographer, transcribed by her, corrected and pronounced

by me in the open Court, this the 06th day of November, 2023.

II Addl. Senior Civil Judge, Visakhapatnam.

Appendix of evidence

No oral or documentary evidence is adduced on either side.

II Addl.Sr.C.J:VSP

Order - Fair