SMT. G.Chandra Mowleswari

OS.391/2018, VI ASCJC/VSP

dated 20.04.2023.

IN THE COURT OF VI ADDITIONAL SENIOR CIVIL JUDGE, VISAKHAPATNAM

Present: Smt.G.Chandra Mowleswari, VI Additional Senior Civil Judge, Visakhapatnam.

Thursday, this the 20th day of April, 2023

O.S.No.391/2017

Between:-

Tirunagari Neeraja, W/o Trinadha Rao, Hindu, aged 35 years, R/o Quarter No.757, Block No.85, Type II, Port Quarters, Saligramapuram, Visakhapatnam. … Plaintif And: Mamidisetty Madhu, S/o Suryanarayana, Hindu, aged 54 years, working as Khalasi Store (Welder Grade02) Section - ORS, Engineering SErvice Management (CME) Department, Port Trust, Visakhapatnam, resident of Quarter No.706, Block No.77, Type II, Port Quarters, Saligramapuram, Visakhaapatnam. … Defendant

This suit is coming on 17.04.2023 for fnal hearing before me in the presence of Sri A.V.V.E.Radha Krishna & Smt. S.Sasikala, Advocates for the plaintif and of SriSri V.J.K.Patnaik, Advocate for the Defendant and after having stood over till this day for consideration and this Court delivered the following:

J U D G M E N T

1.This suit is fled by the plaintif against defendant prays to pass decree and judgment in favour of plaintif for a sum of Rs.7,50,666/- together with interest @ 24% p.a. on the principal sum of Rs.5,00,000/- from the date of suit till the date of realization and for costs of the suit.

2.The brief facts of the plaint are as follows:

(a) Plaintif and defendant are residing in the same area. During the course of discussions, the defendant has informed that he is in fnancial crises and requested the plaintif to arrange a sum of Rs.5,00,000/- to discharge his petty debts and to meet his family necessities, and that he will return said amount with interest as agreed. Since defendant is residing in the same locality, plaintif has agreed to lend the said amount to

OS.391/2018, VI ASCJC/VSP

dated 20.04.2023.

defendant. Thus the defendant borrowed a sum of Rs.5,00,000/- from plaintif on 10.03.2016 for the purpose of his family necessities and also to clear the sundry debts, agreeing to repay the same with interest @ 24% p.a., to plaintif or to her order as and when demanded by plaintif, having received the said cash consideration defendant executed a promissory note in favour of plaintif on the even date for said amount with the said condition.

(b)Inspite of repeated demands made by plaintif personally, defendant did not choose to pay the debt amount, but postponing the payment of amount due under the said promissory note on one pretext or other. Hence, plaintif got issued a registered lawyer’s notice dated 20.02.2018 to defendant calling him to pay the amount due under said promissory note. Defendant has received the notice and got issued a reply notice dated 14.03.2018 with full of false and untenable allegations and he has no intention to pay the debt due amount. Hence, the suit.

(c) Defendant is neither agriculturist nor agricultural labourer, and hence he is not entitled for any benefts under Act IV of 1977.

3. On the other side, defendant fled his written statement by denying material allegations of the plaint.

The brief facts of the written statement are as follows :

Plaintif is not at all known to defendant and there are no fnancial transactions between plaintif and defendant and defendant is having no necessity to borrow loan from anybody much less from plaintif as he is working with Visakhapatnam Port Trust and drawing substantial amount to meet his necessities and plaintif might have forged or fabricated the said demand promissory note alleged to have been executed in favour of plaintif to extract money from defendant, and plaintif got issued legal notice through his counsel with false and frivolous allegations with an intent

OS.391/2018, VI ASCJC/VSP

dated 20.04.2023.

to exploit the defendant. Plaintif fled this suit to gain unlawfully with forged and fabricated suit promissory note for no liability of defendant and she has no fnancial capacity to lend such a huge amount. Under said circumstances the suit is liable to be dismissed and prays to dismiss the suit with costs.

4.upon perusal of pleadings of both sides, the following issues are settled for trial.

1.Whether suit promissory note is forged and fabricated document?

2.Whether plaintif is entitled for decree and judgment against defendant, as prayed for?\

3.To what relief?

5.To establish the case of the plaintif, she herself examined as

PW1 and also got examined one third party as PW2 and Exs.A1 to A4 are marked on his behalf. On behalf of defendant, DW1 is examined and no document is marked on his behalf.

6.Heard

7. Issue No. 1&2:

To substantiate the case of plaintif, she herself examined as

PW1, her specifc evidence is that defendant borrowed a sum of

Rs.5,00,000/- on 10.03.2016 and executed a suit promissory note in favour of plaintif, agreeing to repay the same together with interest @ 24% p.a., thereafter, he failed to discharge the same. Hence the suit for recovery of amount due under promissory note.

8.To corroborate the evidence of plaintif, he got examined one third party who is 1st attestor of suit promissory note as PW2, his specifc evidence is that defendant borrowed a sum of Rs.5,00,000/- on 10.03.2016 and executed suit promissory note in favour of plaintif in the presence of two attestors and scribe, agreeing to repay the same with interest @ 24% p.a., to meet his family expenses and clearing sundry debts. He subscribed

OS.391/2018, VI ASCJC/VSP

dated 20.04.2023.

his signature on the aforesaid promissory note and after that defendant obtained his signature on the promissory note in the presence of another attestor and scribe, plaintif and defendant.

9.In order to establish the case of plaintif, he also relied on 4 documents, which are marked as Exs.A1 to A4. Ex.A1 is suit promissory note dated 10.03.2016. On perusal of Ex.A1 it is clear that defendant borrowed a sum of Rs.5,00,000/- on 10.03.2016 from the plaintif and executed a suit promissory note in favour of plaintif, agreeing to repay the same with interest @ 24% p.a. in the presence of two attestors and scribe.

It is further clear that the signature of PW2 is found as 1st attestor on

Ex.A1. Thus the recitals of Ex.A1 supports the version of plaintif. Ex.A2 is office copy of registered legal notice, dated 20.02.2018 got issued by plaintif through his advocate to defendant.Ex.A3is original acknowledgment, dated 05.03.2018. On perusal of Ex.A2&A3 it is clear that the plaintif got issued a legal notice/ Ex.A2 to defendant and defendant having received the said legal notice, he acknowledged the same under Ex.A3. So it is clear that defendant received the demand notice got issued by plaintif, wherein plaintif demanded the defendant to repay the debt due amount covered under Ex.A1 by narrating the transaction between plaintif and defendant under Ex.A1. Ex.A4 is original reply notice got issued by defendant dated 14.03.2018. On perusal of Ex.A4 it is clear that defendant received Ex.A2 notice under Ex.A3 and issued Ex.A4 reply notice to plaintif by denying the averments in Ex.A2. So, It is onus on the defendant to prove the contents of Ex.A4 since, he got issued same to plaintif.

10.As discussed supra plaintif by oral evidence of PWs.1&2 and recitals of Exs.A1 to A3, he categorically discharged the initial burden casts upon him and also initially proved the transaction covered under Ex.A1

OS.391/2018, VI ASCJC/VSP

dated 20.04.2023.

between plaintif and defendant. Once plaintif discharged the initial burden casts upon him then, the onus shifts to defendant to rebut the evidence let in by plaintif and to establish the defense pleaded by defendant in the written statement.

11.The learned counsel for defendant contended that the suit promissory note is forged and fabricated document, defendant never borrowed any amount from plaintif, no transaction held in between plaintif and defendant, defendant has no necessity to borrow amount from the plaintif as on the alleged date of Ex.A1-promissory note defendant is on duty, therefore the question of execution of promissory note does not arise under above circumstances the suit is liable to be dismissed and prays to dismiss the suit with costs.

12.To prove the above contentions of defendant, he himself examined as DW1. DW1 being a defendant, he naturally stated in the same lines of his pleadings. Therefore the defendant has to establish his defense pleaded in his written statement. Even though the defendant cross examined PWs.1&2 at length nothing is elicited to support defense of defendant. Absolutely no evidence is placed before the court, to show that suit promissory note is forged and fabricated one. It is a burden on the defendant to establish that the suit promissory note is forged and fabricated as pleaded by defendant in his written statement but he failed to establish the same.

13.The frst and foremost contest of the defendant is that the alleged signature on the suit promissory note is not belonged to defendant, it is a forged signature of defendant and the suit promissory note is a fabricated document, but to prove the same, defendant did not take any steps. If really the alleged signature of defendant on the promissory note is forged and suit promissory note is fabricated document, it is burden on the

OS.391/2018, VI ASCJC/VSP

dated 20.04.2023.

defendant to prove the alleged signature on Ex.A1 is forged signature and

Ex.A1 is fabricated document. In order to establish the forgery plea or fabricated document, defendant did not take any steps. If really the signature of defendant is forged by plaintif, what prevented the defendant to take legal criminal action against plaintif for forging his signature on

Ex.A1. So also defendant did not take any steps to send Ex.A1 to hand writing and thumb impression expert to establish the thumb impression on

Ex.A1 and also the alleged signature of defendant on Ex.A1 are not belonged to defendant. If defendant obtained opinion of Expert, it might be useful to corroborate his defense.

14.It is well settled principal that non sending of Ex.A1/ promissory note to Hand Writing Expert and Thumb Impression Expert is not a fatal since expert opinion is not a conclusive prove, the court can compare signature/ thumb on disputed document with admitted signature or thumb impression of defendants as held in M.Pentaiah Vs.

B.Parameshwar reported in 2012 0 Supreme (AP) 119; 2012 3 ALD 755; 2012 6 ALT 650 wherein the Hon'ble High Court held that – “opinion of the hand writing expert or fnger print expert or other experts is only a supporting material, which is not conclusive and binding on the court.

Sec.73 of Indian Evidence Act empowers the court to form its own opinion on comparision of the signatures or thumb impressions.“

15.When the disputed signature of defendant on Ex.A1 is compared with admitted signatures available in record, i.e., written statement, vakalat, chief affidavit of defendant they appears one and the same. Therefore, it concludes that the defendant having received the consideration under Ex.A1 and executed suit promissory note in favour of plaintif. When the disputed thumb impression of Ex.A1 is compared with thumb impression of defendant, which is obtained beneath the cross

OS.391/2018, VI ASCJC/VSP

dated 20.04.2023.

examination of DW1 at the direction of this court in the presence of both counsels in public court, they are compared under magnifying glass under

Sec.73 of Indian Evidence Act, they both appeared one and the same.

Further more it is not the case of defendant that the thumb impression on

Ex.A1 is not his thumb impression. Once plaintif discharged the initial burden by cogent and consistent and corroborative evidence, the onus shifts to defendant to establish his defense pleaded in his written statement. As discussed supra, defendant utterly failed to place any evidence to support or to prove the defense pleaded in his written statement.

16.The learned counsel for the plaintif relied on a decision in

Duggineni Seshagiri Rao Vs. Kothapalli Venkateswara Rao reported in 2001(6) ALT 95 (D.B.) held that- "it is burden on defendant to rebut the presumption under Sec.118 of Negotiable Instruments Act, if defendant pleaded forgery, the burden therefore lies on the defendant to rebut the presumption". As discussed supra plaintif by examining PW1 and by marking Exs.A1 to A3 she discharged the initial burden casts upon her, thereby the onus shifts to defendant but the defendant failed to rebut the evidence let in by plaintif and also failed to prove the plea of forgery. In absence of any evidence, the contention of defendant cannot be and never be accepted.

17.In view of foregoing discussion, plaintif has proved that defendant having received consideration amount of Rs.5,00,000/- from plaintif on 10.03.2016 and executed a suit promissory note in favour of plaintif, agreeing to repay the same with interest @ 24% p.a., in the presence of two attestors and scribe, thereafter he failed to discharge the same inspite of repeated demands made by plaintif and got issued legal notice to the defendant. Thus the plaintif has produced cogent, consistent

OS.391/2018, VI ASCJC/VSP

dated 20.04.2023.

and corroborative evidence, thereby she established her case against defendant. On the other hand defendant failed to rebut the evidence let in by plaintif and failed to establish his defense pleaded in his written statement. Therefore, without any hesitation this court held that the suit promissory note is a true, valid and binding on the defendant and further held that plaintif is entitled for the decree as prayed for. Accordingly, both issues are determined and decided in favour of plaintif and against defendant.

18.Issue No.3:To what relief?

In the result, suit is decreed with costs in favour of plaintif and against defendant for a sum of Rs.7,50,666/- with subsequent interest @ 12% p.a., from the date of the suit till the date of decree, thereafter @ 6% p.a. till realization on principal amount of Rs.5,00,000/-.

Dictated to the Stenographer Gr-I, transcribed by her, corrected and pronounced by

me in open Court this the 20th day of April, 2022.

VI Addl. Senior Civil Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT:

PW1 : Smt. T.Neeraja DW1: M.Madhu

PW2 : J.Pydanna

DOCUMENTS MARKED

FOR PLAINTIFF: Ex.A1 is suit promissory note, dated 10.03.2016

Ex.A2 is office copy of registered lawyer notice, dated 20.02.2018

Ex.A3 is original acknowledgment, dated 05.03.2018

Ex.A4 is original reply notice got issued by defendant to plaintif,

dated 20.02.2018

FOR DE FENDANT: -Nil-

VI ASCJ, VSP.

OS.391/2018, VI ASCJC/VSP

dated 20.04.2023.

1O.S.699/2017 VII ASCJ/VSP

IN THE COURT OF VII ADDL. SENIOR CIVIL JUDGE, VISAKHAPATNAM

Present: Smt.G. Chandra Mowleswari, VI Additional Senior Civil Judge, (FAC) VII Additional Senior Civil Judge, Visakhapatnam.

Friday, the 25th day November 2022

O.S.No.699/2017

BETWEEN:

Majji Pradesamma W/o. Lakshmana, 53 years, Hindu,. Cultivation, Residing at Buddivalasa Agraharam village, Padmanabham Mandal, Visakhapatnam District.

… Plaintiff AND:

Muddada Ramunaidu S/o. Late Vegalayya, 50 years, Hindu, Cultivation Residing at Jayanthivani Agraharam village, Bheemunipatnam Mandal, Visakhapatnam District.

…Defendant

This Plaint is coming on 21-11-2022 for final hearing before me in the presence of Sri S.Hari Babu, Advocate for the Plaintiff and defendant remained exparte and they having stood over for consideration till this day, this Court delivered the following:

JUDGEMENT

This suit is filed by Plaintiff against defendant prays to pass a decree in favour of plaintiff against the defendant granting specific performance of agreement of sale dated 30-07-2014 directing the defendant to execute a registered sale deed in favour of the plaintiff in terms of the agreement of sale; in case if the defendant fails to execute the registered sale deed the Honourable court may be pleased to execute the registered sale deed on behalf of the defendant; If for any reason the specific performance of agreement cannot be granted, order return of the Advance amount of Rs.4,20,000/- (Rupees Four lakhs twenty thousand only) with interest at the rate of 24% per annum from the date of the execution of the agreement of sale till the date of payment or realization; and Directing the defendant to pay to the plaintiff the costs of the suit.

The brief facts of the plaintiff as follows ;

The defendant is absolute owner of the plaint schedule property. He offered to sell the plaint schedule property to the plaintiff, and plaintiff agreed to 2O.S.699/2017 VII ASCJ/VSP purchase the same. After due negotiations on 30-07-2014 the defendant executed an agreement of sale in favour of the plaintiff agreeing to sell the plaint schedule property at that rate of Rs.8000/- per cent and at the itme of execution of agreement of sale, plaintiff paid an sum of rs.2,00,000/- towards advance sale consideration and the same was received by the defendant and he signed o the agreement of sale. The defendant agreed to receive a balance of sale consideration after measuring of the land and will execute the registered sale deed within three months from the date of execution of agreement of sale. The plaintiff agreed to bear the registration expenses and stamp dut for getting the document registered in his favour.

Subsequently on 18-8-2014 the plaintiff paid another sum of Rs.2,20,000/- to defendant as a part of sale consideration and defendant made endorsement of the back side of the agreement of sale dt. 30-7-2014. subsequent there to despite repeated demands made by plaintiff, the defendant did not come forward for measuring the land. The plaintiff is already ready with balance sale consideration and necessary amount for stamp duty and registration. The defendant is bound to execute the registered sale deed in favour of plaintiff in terms of agreement of sale dt. 30-07-2014 in respect of plaint schedule property.

Plaintiff is always ready to will to perform her part of contract and the defendant who is not coming forward to perform his part of contract.

Then the plaintiff got issued a registered lawyer’s notice dt. 10-03-2017 to the defendant demanding him to execute the sale deed in terms aforesaid agreeing of sale, upon that the defendant issued reply dt. 23-7-2017 wherein the defendant admitted the execution of agreement of sale in favour of plaintiff but, however denying the part payment made by the plaintiff. However the defendant did not come forward to register the plaint schedule property in his favour. The defendant postponing the registration of sale deed on one pretest or other. Hence this suit for specific performance of contract.

3O.S.699/2017 VII ASCJ/VSP On the other side the defendant initially filed his written statement by the denying the material allegations of the plaint, subsequently the defendant remained an exparte. The following issues are framed for trial :

1). Whether the plaintiff is ready and willing to perform his part of the contract ?

2) Whether the plaintiff is entitled for specific performance as prayed for ?

3) Whether the plaintiff is entitled for return of earnest money as alternative relief ?

4) To that relief?

PWs-1 to 3 are examined and Exs.A-1 to A-4 are marked on behalf of plaintiff. On the other hand the defendant remained exparte.

Heard,

Issues 1 to 3;

To substantial the case of the plaintiff, the plaintiff himself examined as a

PW-1, his specific evidence is that defendant is absolute owner of the plaint schedule property, who offered to sell the same to plaintiff and plaintiff agreed to purchase the same @ Rs.8,000/- per cent from defendant. Accordingly the defendant executed a agreement of sale in favour of the plaintiff in respect of plaint schedule property @8,000/- per cent by receiving an advance sale consideration of Rs.2,00,000/- fro0m the plaintiff and agreed to execute a regular registered sale deed by receiving a balance sale consideration after measuring the land within three months from the date of execution of agreement of sale.

Subsequently on 18-9-2014 the plaintiff paid another Rs.2,20,000/- to defendant as a part of balance sale consideration and made an endorsement on the back side of the agreement of sale. Despite repeated demand made by the plaintiff, the defendant did not come forward for measuring the land by showing his readiness with balance sale consideration and issued a notice dt. 10-3-2017 demanding the defendant to execute a regular sale deed in terms of aforesaid agreement of sale, the defendant having received the said notice gave a reply wherein he admitted the execution of agreement of sale and denied part payment made by the plaintiff. While so, the defendant in order to evade the 4O.S.699/2017 VII ASCJ/VSP execution of sale deed he filed a suit in OS 105/2018on the file of Principal Junior

Civil Judge’s Court, Visakhapatnam for permanent in junction against plaintiff in

respect to plaint schedule property , the same was decreed. After passing of the decree with a malafide intention to threat plaintiff from giving up the specific performance in the suit he filed EP 34/2019 against plaintiff U/o. 21 R-32 of cpc even the plaintiff did not violated the decree. While so, the defendant proposed to sell away the plaint schedule land for higher price to 3rd parties. Hence the for relief of of specific performance.

In order to collaborate the evidence of PW-1, the plaintiff got examined two 3rd parties who are 2nd attestor and 5th attestor of the said agreement of sale dt.

30-07-2014 as a PW-2 and PW-3. Naturally PW-2 and 3 are examined on behalf of plaintiff, they support the version of plaintiff. Their specific evidence is that the defendant is absolute owner of the plaint schedule property who executed a agreement of sale dt. 30-07-2014 in favour of the plaintiff for sale consideration of Rs.8,000/- per cent agreeing to execute a regular sale deed in terms of agreement of sale by receiving advance sale consideration of Rs.2,00,000/- in the presence of PW-2 and PW-3 and other witnesses, subsequently on 18-8-2014 the plaintiff paid a sum of Rs.2,20,000/- as apart of balance of sale consideration, the same is endorsed on the back side of the said agreement of sale. Subsequently in spite of repeated demands made by the plaintiff to defendant to execute a regular registered sale deed in terms of said agreement of sale by showing his readiness and willingness to perform his part of contract, but the defendant postponing the same on one pretext and other and trying to sell away the sale for higher price. Admittedly signatures of PWs-2 and 3 are found in agreement of sale as 2nd and 5th attestors. Therefore, the oral testimony of Pw-1 is corroborated by oral evidence of Pw-2 and 3.

In order to establish the4 case of plaintiff, the plaintiff also relied on four documents which are marked as Ex.A-1 to A-4. Ex.A-1 Ex.A1 is a un-registered agreement of sale executed by the defendant/Muddada Ramunaidu in favour of Majji

Paradesamma/Plaintiff, dt. dt. 30-07-2014. it is evident from the recitals of Ex.A-1 that the plaint schedule property is the absolute property of defendant, who executed 5O.S.699/2017 VII ASCJ/VSP agreement of sale in favour of plaintiff in respect to plaint schedule property for sale consideration at RS.8,000/- per cent by receiving an amount of RS.2,00,000/- as advance in the presence of PWs-2 and 3 three more witnesses and one scribe. Ex.A2 endorsement made by the defendant on the back side of the agreement of sale after receiving another sum of Rs.2.20.000/-, dt.18-8-2014. It also clear that the plaintiff is paid an amount of RS.2,20,000/- as a part of sale consideration under agreement of sale/Ex.A-1 and defendant having received the said amount he executed Ex.A-2 in favour of the plaintiff.

Ex.A3 is the office copy of registered lawyer’s notice dt. 10-03-2017 to the defendant by narrating the transaction cover under Ex.A-1 and A-2 and demanded the defendant to execute a regular sale deed in terms of Ex.A-1 by showing his readiness and willingness to perform his part of contract. Ex.A4 is the reply notice

dt. 27-03-2017 got issued by defendant to the notice of plaintiff by admitting

agreement of sale deed dt. 30-07-2014 in respect of plaint schedule property and receipt of Rs.2,00,000/- as a advance sale consideration. Wherein the defendant mentioned that the plaintiff never ready for regular sale deed and ready with the balance sale consideration and defendant denied that payment of another sum of

Rs.2,20,000/- under Ex.A-2. And further stated that the plaintiff is not erntitled for regular deed for convenience in his favour as he did not perform his part of contract within three months, therefore, the said contract automatically canceled. But to prove the recitals mentioned in Ex.A-4 , the defendant neither adduced any oral evidence nor marked any supportive document. In Ex.A-1 it is clearly mentioned that the defendant has to survey the land within three months and get registered the property in the name of plantiff within three months from the date of Ex.A-1. Soit clear that the plaintiff filed this suit within three months from the date of either Ex.A- 1 or Ex.A-2. In view of terms and conditions of Ex.A-1, the allegations mentioned by the defendant in his reply notice/Ex.A-4 is not considered.

By the oral testimony of PWs-1 to 3 coupled with recitals of Ex.A-1 to A-3, the plaintiff has discharged the initially burden casts upon him, thereby the onus shifts to the defendant. On the other hand defendant having received the summons came to the court and engaged an advocate on his behalf, thereafter 6O.S.699/2017 VII ASCJ/VSP he remained an exparte. Thus, the defendant utterly failed to challenge the evidence let in by plaintiff.

The plaintiff by oral evidence of PWs-1 to 3 categorically established that there is a valid agreement of sale in between the plaintiff and defendant, the defendant agreed to execute a regular sale deed in terms of agreement of sale/Ex.A-1, it is also established that the plaintiff is ready and willing to perform his part of contract, whereas the defendant failed to perform his part of contract in-spite of repeated demands and requested made by the plaintiff to the defendant and failed to discharge the legal obligation casts upon him.

In view of fore going discussion, the plaintiff established his case by unchallenged oral evidence of PWs-1 to 3 and recital of Ex.A-1 to A-3. Other side defendants failed to challenge the evidence let in by the plaintiff. Therefore without any hesitation this court held that the plaintiff is ready and willing to perform his part of contract, thereby he is entitled for relief of specific performance against defendant as prayed for. Accordingly issues are determined and decided in favour of plaintiff and against defendant.

To what relief ?

In the result the suit is decreed with costs in favour of plaintiff against the defendant for specific performance for agreement of sale dt.30-07-2014 directing the defendant to execute a registered sale deed in his favour in terms of agreement of sale and in case defendant fails to execute a regular registered sale deed, the plaintiff is entitled to get execute the same by this court on behalf of the defendant. The plaintiff is hereby directed to deposit balance sale consideration within one month from the date of this judgment.

Typed todictation to Typist and corrected and pronounced by me in open court this 25th day of November, 2022.

Sd/- G. Chandra Mouleswari.

VI Addl. Senior Civil Judge, (FAC) VII Addl. Senior Civil Judge, Visakhapatnam.

7O.S.699/2017 VII ASCJ/VSP

APPENDIX OF EVIDENCE

For Plaintiff:

P.W.1: Majji Paradesamma P.W.2: Revalla Suribabu PW.3 : Sunkari Guruvulu

For Defendants : Nil

DOCUMENTS MARKED

For Plaintiff:

Ex.A1 : Un-registered agreement of sale executed by the defendant/Muddada Ramunaidu in favour of Majji Paradesamma/Plaintiff, dt. dt. 30-07-2014. Ex.A2 : Endorsement made by the defendant on the back side of the agreement of sale after receiving another sum of Rs.2.20.000/-, dt. 18-8-2014

Ex.A3 : Office copy of registered lawyer’s notice dt. 10-03-2017 Ex.A4 : Reply notice dt. 27-03-2017

For Defendants : Nil

Sd/- G. Chandra Mouleswari.

VI Addl. Senior Civil Judge, (FAC) VII Addl. Senior Civil Judge, Visakhapatnam.

1O.S.699/2017 VII ASCJ/VSP

IN THE COURT OF VII ADDL. SENIOR CIVIL JUDGE, VISAKHAPATNAM

Present: Smt.G. Chandra Mowleswari, VI Additional Senior Civil Judge, (FAC) VII Additional Senior Civil Judge, Visakhapatnam.

Friday, the 25th day November 2022

O.S.No.699/2017

BETWEEN:

Majji Pradesamma W/o. Lakshmana, 53 years, Hindu,. Cultivation, Residing at Buddivalasa Agraharam village, Padmanabham Mandal, Visakhapatnam District.

… Plaintiff AND:

Muddada Ramunaidu S/o. Late Vegalayya, 50 years, Hindu, Cultivation Residing at Jayanthivani Agraharam village, Bheemunipatnam Mandal, Visakhapatnam District.

…Defendant

This Plaint is coming on 21-11-2022 for final hearing before me in the presence of Sri S.Hari Babu, Advocate for the Plaintiff and defendant remained exparte and they having stood over for consideration till this day, this Court delivered the following:

JUDGEMENT

This suit is filed by Plaintiff against defendant prays to pass a decree in favour of plaintiff against the defendant granting specific performance of agreement of sale dated 30-07-2014 directing the defendant to execute a registered sale deed in favour of the plaintiff in terms of the agreement of sale; in case if the defendant fails to execute the registered sale deed the Honourable court may be pleased to execute the registered sale deed on behalf of the defendant; If for any reason the specific performance of agreement cannot be granted, order return of the Advance amount of Rs.4,20,000/- (Rupees Four lakhs twenty thousand only) with interest at the rate of 24% per annum from the date of the execution of the agreement of sale till the date of payment or realization; and Directing the defendant to pay to the plaintiff the costs of the suit.

The brief facts of the plaintiff as follows ;

The defendant is absolute owner of the plaint schedule property. He offered to sell the plaint schedule property to the plaintiff, and plaintiff agreed to 2O.S.699/2017 VII ASCJ/VSP purchase the same. After due negotiations on 30-07-2014 the defendant executed an agreement of sale in favour of the plaintiff agreeing to sell the plaint schedule property at that rate of Rs.8000/- per cent and at the itme of execution of agreement of sale, plaintiff paid an sum of rs.2,00,000/- towards advance sale consideration and the same was received by the defendant and he signed o the agreement of sale. The defendant agreed to receive a balance of sale consideration after measuring of the land and will execute the registered sale deed within three months from the date of execution of agreement of sale. The plaintiff agreed to bear the registration expenses and stamp dut for getting the document registered in his favour.

Subsequently on 18-8-2014 the plaintiff paid another sum of Rs.2,20,000/- to defendant as a part of sale consideration and defendant made endorsement of the back side of the agreement of sale dt. 30-7-2014. subsequent there to despite repeated demands made by plaintiff, the defendant did not come forward for measuring the land. The plaintiff is already ready with balance sale consideration and necessary amount for stamp duty and registration. The defendant is bound to execute the registered sale deed in favour of plaintiff in terms of agreement of sale dt. 30-07-2014 in respect of plaint schedule property.

Plaintiff is always ready to will to perform her part of contract and the defendant who is not coming forward to perform his part of contract.

Then the plaintiff got issued a registered lawyer’s notice dt. 10-03-2017 to the defendant demanding him to execute the sale deed in terms aforesaid agreeing of sale, upon that the defendant issued reply dt. 23-7-2017 wherein the defendant admitted the execution of agreement of sale in favour of plaintiff but, however denying the part payment made by the plaintiff. However the defendant did not come forward to register the plaint schedule property in his favour. The defendant postponing the registration of sale deed on one pretest or other. Hence this suit for specific performance of contract.

3O.S.699/2017 VII ASCJ/VSP On the other side the defendant initially filed his written statement by the denying the material allegations of the plaint, subsequently the defendant remained an exparte. The following issues are framed for trial :

1). Whether the plaintiff is ready and willing to perform his part of the contract ?

2) Whether the plaintiff is entitled for specific performance as prayed for ?

3) Whether the plaintiff is entitled for return of earnest money as alternative relief ?

4) To that relief?

PWs-1 to 3 are examined and Exs.A-1 to A-4 are marked on behalf of plaintiff. On the other hand the defendant remained exparte.

Heard,

Issues 1 to 3;

To substantial the case of the plaintiff, the plaintiff himself examined as a

PW-1, his specific evidence is that defendant is absolute owner of the plaint schedule property, who offered to sell the same to plaintiff and plaintiff agreed to purchase the same @ Rs.8,000/- per cent from defendant. Accordingly the defendant executed a agreement of sale in favour of the plaintiff in respect of plaint schedule property @8,000/- per cent by receiving an advance sale consideration of Rs.2,00,000/- fro0m the plaintiff and agreed to execute a regular registered sale deed by receiving a balance sale consideration after measuring the land within three months from the date of execution of agreement of sale.

Subsequently on 18-9-2014 the plaintiff paid another Rs.2,20,000/- to defendant as a part of balance sale consideration and made an endorsement on the back side of the agreement of sale. Despite repeated demand made by the plaintiff, the defendant did not come forward for measuring the land by showing his readiness with balance sale consideration and issued a notice dt. 10-3-2017 demanding the defendant to execute a regular sale deed in terms of aforesaid agreement of sale, the defendant having received the said notice gave a reply wherein he admitted the execution of agreement of sale and denied part payment made by the plaintiff. While so, the defendant in order to evade the 4O.S.699/2017 VII ASCJ/VSP execution of sale deed he filed a suit in OS 105/2018on the file of Principal Junior

Civil Judge’s Court, Visakhapatnam for permanent in junction against plaintiff in

respect to plaint schedule property , the same was decreed. After passing of the decree with a malafide intention to threat plaintiff from giving up the specific performance in the suit he filed EP 34/2019 against plaintiff U/o. 21 R-32 of cpc even the plaintiff did not violated the decree. While so, the defendant proposed to sell away the plaint schedule land for higher price to 3rd parties. Hence the for relief of of specific performance.

In order to collaborate the evidence of PW-1, the plaintiff got examined two 3rd parties who are 2nd attestor and 5th attestor of the said agreement of sale dt.

30-07-2014 as a PW-2 and PW-3. Naturally PW-2 and 3 are examined on behalf of plaintiff, they support the version of plaintiff. Their specific evidence is that the defendant is absolute owner of the plaint schedule property who executed a agreement of sale dt. 30-07-2014 in favour of the plaintiff for sale consideration of Rs.8,000/- per cent agreeing to execute a regular sale deed in terms of agreement of sale by receiving advance sale consideration of Rs.2,00,000/- in the presence of PW-2 and PW-3 and other witnesses, subsequently on 18-8-2014 the plaintiff paid a sum of Rs.2,20,000/- as apart of balance of sale consideration, the same is endorsed on the back side of the said agreement of sale. Subsequently in spite of repeated demands made by the plaintiff to defendant to execute a regular registered sale deed in terms of said agreement of sale by showing his readiness and willingness to perform his part of contract, but the defendant postponing the same on one pretext and other and trying to sell away the sale for higher price. Admittedly signatures of PWs-2 and 3 are found in agreement of sale as 2nd and 5th attestors. Therefore, the oral testimony of Pw-1 is corroborated by oral evidence of Pw-2 and 3.

In order to establish the4 case of plaintiff, the plaintiff also relied on four documents which are marked as Ex.A-1 to A-4. Ex.A-1 Ex.A1 is a un-registered agreement of sale executed by the defendant/Muddada Ramunaidu in favour of Majji

Paradesamma/Plaintiff, dt. dt. 30-07-2014. it is evident from the recitals of Ex.A-1 that the plaint schedule property is the absolute property of defendant, who executed 5O.S.699/2017 VII ASCJ/VSP agreement of sale in favour of plaintiff in respect to plaint schedule property for sale consideration at RS.8,000/- per cent by receiving an amount of RS.2,00,000/- as advance in the presence of PWs-2 and 3 three more witnesses and one scribe. Ex.A2 endorsement made by the defendant on the back side of the agreement of sale after receiving another sum of Rs.2.20.000/-, dt.18-8-2014. It also clear that the plaintiff is paid an amount of RS.2,20,000/- as a part of sale consideration under agreement of sale/Ex.A-1 and defendant having received the said amount he executed Ex.A-2 in favour of the plaintiff.

Ex.A3 is the office copy of registered lawyer’s notice dt. 10-03-2017 to the defendant by narrating the transaction cover under Ex.A-1 and A-2 and demanded the defendant to execute a regular sale deed in terms of Ex.A-1 by showing his readiness and willingness to perform his part of contract. Ex.A4 is the reply notice

dt. 27-03-2017 got issued by defendant to the notice of plaintiff by admitting

agreement of sale deed dt. 30-07-2014 in respect of plaint schedule property and receipt of Rs.2,00,000/- as a advance sale consideration. Wherein the defendant mentioned that the plaintiff never ready for regular sale deed and ready with the balance sale consideration and defendant denied that payment of another sum of

Rs.2,20,000/- under Ex.A-2. And further stated that the plaintiff is not erntitled for regular deed for convenience in his favour as he did not perform his part of contract within three months, therefore, the said contract automatically canceled. But to prove the recitals mentioned in Ex.A-4 , the defendant neither adduced any oral evidence nor marked any supportive document. In Ex.A-1 it is clearly mentioned that the defendant has to survey the land within three months and get registered the property in the name of plantiff within three months from the date of Ex.A-1. Soit clear that the plaintiff filed this suit within three months from the date of either Ex.A- 1 or Ex.A-2. In view of terms and conditions of Ex.A-1, the allegations mentioned by the defendant in his reply notice/Ex.A-4 is not considered.

By the oral testimony of PWs-1 to 3 coupled with recitals of Ex.A-1 to A-3, the plaintiff has discharged the initially burden casts upon him, thereby the onus shifts to the defendant. On the other hand defendant having received the summons came to the court and engaged an advocate on his behalf, thereafter 6O.S.699/2017 VII ASCJ/VSP he remained an exparte. Thus, the defendant utterly failed to challenge the evidence let in by plaintiff.

The plaintiff by oral evidence of PWs-1 to 3 categorically established that there is a valid agreement of sale in between the plaintiff and defendant, the defendant agreed to execute a regular sale deed in terms of agreement of sale/Ex.A-1, it is also established that the plaintiff is ready and willing to perform his part of contract, whereas the defendant failed to perform his part of contract in-spite of repeated demands and requested made by the plaintiff to the defendant and failed to discharge the legal obligation casts upon him.

In view of fore going discussion, the plaintiff established his case by unchallenged oral evidence of PWs-1 to 3 and recital of Ex.A-1 to A-3. Other side defendants failed to challenge the evidence let in by the plaintiff. Therefore without any hesitation this court held that the plaintiff is ready and willing to perform his part of contract, thereby he is entitled for relief of specific performance against defendant as prayed for. Accordingly issues are determined and decided in favour of plaintiff and against defendant.

To what relief ?

In the result the suit is decreed with costs in favour of plaintiff against the defendant for specific performance for agreement of sale dt.30-07-2014 directing the defendant to execute a registered sale deed in his favour in terms of agreement of sale and in case defendant fails to execute a regular registered sale deed, the plaintiff is entitled to get execute the same by this court on behalf of the defendant. The plaintiff is hereby directed to deposit balance sale consideration within one month from the date of this judgment.

Typed todictation to Typist and corrected and pronounced by me in open court this 25th day of November, 2022.

Sd/- G. Chandra Mouleswari.

VI Addl. Senior Civil Judge, (FAC) VII Addl. Senior Civil Judge, Visakhapatnam.

7O.S.699/2017 VII ASCJ/VSP

APPENDIX OF EVIDENCE

For Plaintiff:

P.W.1: Majji Paradesamma P.W.2: Revalla Suribabu PW.3 : Sunkari Guruvulu

For Defendants : Nil

DOCUMENTS MARKED

For Plaintiff:

Ex.A1 : Un-registered agreement of sale executed by the defendant/Muddada Ramunaidu in favour of Majji Paradesamma/Plaintiff, dt. dt. 30-07-2014. Ex.A2 : Endorsement made by the defendant on the back side of the agreement of sale after receiving another sum of Rs.2.20.000/-, dt. 18-8-2014

Ex.A3 : Office copy of registered lawyer’s notice dt. 10-03-2017 Ex.A4 : Reply notice dt. 27-03-2017

For Defendants : Nil

Sd/- G. Chandra Mouleswari.

VI Addl. Senior Civil Judge, (FAC) VII Addl. Senior Civil Judge, Visakhapatnam.

1O.S.699/2017 VII ASCJ/VSP

IN THE COURT OF VII ADDL. SENIOR CIVIL JUDGE, VISAKHAPATNAM

Present: Smt.G. Chandra Mowleswari, VI Additional Senior Civil Judge, (FAC) VII Additional Senior Civil Judge, Visakhapatnam.

Friday, the 25th day November 2022

O.S.No.699/2017

BETWEEN:

Majji Pradesamma W/o. Lakshmana, 53 years, Hindu,. Cultivation, Residing at Buddivalasa Agraharam village, Padmanabham Mandal, Visakhapatnam District.

… Plaintiff AND:

Muddada Ramunaidu S/o. Late Vegalayya, 50 years, Hindu, Cultivation Residing at Jayanthivani Agraharam village, Bheemunipatnam Mandal, Visakhapatnam District.

…Defendant

This Plaint is coming on 21-11-2022 for final hearing before me in the presence of Sri S.Hari Babu, Advocate for the Plaintiff and defendant remained exparte and they having stood over for consideration till this day, this Court delivered the following:

JUDGEMENT

This suit is filed by Plaintiff against defendant prays to pass a decree in favour of plaintiff against the defendant granting specific performance of agreement of sale dated 30-07-2014 directing the defendant to execute a registered sale deed in favour of the plaintiff in terms of the agreement of sale; in case if the defendant fails to execute the registered sale deed the Honourable court may be pleased to execute the registered sale deed on behalf of the defendant; If for any reason the specific performance of agreement cannot be granted, order return of the Advance amount of Rs.4,20,000/- (Rupees Four lakhs twenty thousand only) with interest at the rate of 24% per annum from the date of the execution of the agreement of sale till the date of payment or realization; and Directing the defendant to pay to the plaintiff the costs of the suit.

The brief facts of the plaintiff as follows ;

The defendant is absolute owner of the plaint schedule property. He offered to sell the plaint schedule property to the plaintiff, and plaintiff agreed to 2O.S.699/2017 VII ASCJ/VSP purchase the same. After due negotiations on 30-07-2014 the defendant executed an agreement of sale in favour of the plaintiff agreeing to sell the plaint schedule property at that rate of Rs.8000/- per cent and at the itme of execution of agreement of sale, plaintiff paid an sum of rs.2,00,000/- towards advance sale consideration and the same was received by the defendant and he signed o the agreement of sale. The defendant agreed to receive a balance of sale consideration after measuring of the land and will execute the registered sale deed within three months from the date of execution of agreement of sale. The plaintiff agreed to bear the registration expenses and stamp dut for getting the document registered in his favour.

Subsequently on 18-8-2014 the plaintiff paid another sum of Rs.2,20,000/- to defendant as a part of sale consideration and defendant made endorsement of the back side of the agreement of sale dt. 30-7-2014. subsequent there to despite repeated demands made by plaintiff, the defendant did not come forward for measuring the land. The plaintiff is already ready with balance sale consideration and necessary amount for stamp duty and registration. The defendant is bound to execute the registered sale deed in favour of plaintiff in terms of agreement of sale dt. 30-07-2014 in respect of plaint schedule property.

Plaintiff is always ready to will to perform her part of contract and the defendant who is not coming forward to perform his part of contract.

Then the plaintiff got issued a registered lawyer’s notice dt. 10-03-2017 to the defendant demanding him to execute the sale deed in terms aforesaid agreeing of sale, upon that the defendant issued reply dt. 23-7-2017 wherein the defendant admitted the execution of agreement of sale in favour of plaintiff but, however denying the part payment made by the plaintiff. However the defendant did not come forward to register the plaint schedule property in his favour. The defendant postponing the registration of sale deed on one pretest or other. Hence this suit for specific performance of contract.

3O.S.699/2017 VII ASCJ/VSP On the other side the defendant initially filed his written statement by the denying the material allegations of the plaint, subsequently the defendant remained an exparte. The following issues are framed for trial :

1). Whether the plaintiff is ready and willing to perform his part of the contract ?

2) Whether the plaintiff is entitled for specific performance as prayed for ?

3) Whether the plaintiff is entitled for return of earnest money as alternative relief ?

4) To that relief?

PWs-1 to 3 are examined and Exs.A-1 to A-4 are marked on behalf of plaintiff. On the other hand the defendant remained exparte.

Heard,

Issues 1 to 3;

To substantial the case of the plaintiff, the plaintiff himself examined as a

PW-1, his specific evidence is that defendant is absolute owner of the plaint schedule property, who offered to sell the same to plaintiff and plaintiff agreed to purchase the same @ Rs.8,000/- per cent from defendant. Accordingly the defendant executed a agreement of sale in favour of the plaintiff in respect of plaint schedule property @8,000/- per cent by receiving an advance sale consideration of Rs.2,00,000/- fro0m the plaintiff and agreed to execute a regular registered sale deed by receiving a balance sale consideration after measuring the land within three months from the date of execution of agreement of sale.

Subsequently on 18-9-2014 the plaintiff paid another Rs.2,20,000/- to defendant as a part of balance sale consideration and made an endorsement on the back side of the agreement of sale. Despite repeated demand made by the plaintiff, the defendant did not come forward for measuring the land by showing his readiness with balance sale consideration and issued a notice dt. 10-3-2017 demanding the defendant to execute a regular sale deed in terms of aforesaid agreement of sale, the defendant having received the said notice gave a reply wherein he admitted the execution of agreement of sale and denied part payment made by the plaintiff. While so, the defendant in order to evade the 4O.S.699/2017 VII ASCJ/VSP execution of sale deed he filed a suit in OS 105/2018on the file of Principal Junior

Civil Judge’s Court, Visakhapatnam for permanent in junction against plaintiff in

respect to plaint schedule property , the same was decreed. After passing of the decree with a malafide intention to threat plaintiff from giving up the specific performance in the suit he filed EP 34/2019 against plaintiff U/o. 21 R-32 of cpc even the plaintiff did not violated the decree. While so, the defendant proposed to sell away the plaint schedule land for higher price to 3rd parties. Hence the for relief of of specific performance.

In order to collaborate the evidence of PW-1, the plaintiff got examined two 3rd parties who are 2nd attestor and 5th attestor of the said agreement of sale dt.

30-07-2014 as a PW-2 and PW-3. Naturally PW-2 and 3 are examined on behalf of plaintiff, they support the version of plaintiff. Their specific evidence is that the defendant is absolute owner of the plaint schedule property who executed a agreement of sale dt. 30-07-2014 in favour of the plaintiff for sale consideration of Rs.8,000/- per cent agreeing to execute a regular sale deed in terms of agreement of sale by receiving advance sale consideration of Rs.2,00,000/- in the presence of PW-2 and PW-3 and other witnesses, subsequently on 18-8-2014 the plaintiff paid a sum of Rs.2,20,000/- as apart of balance of sale consideration, the same is endorsed on the back side of the said agreement of sale. Subsequently in spite of repeated demands made by the plaintiff to defendant to execute a regular registered sale deed in terms of said agreement of sale by showing his readiness and willingness to perform his part of contract, but the defendant postponing the same on one pretext and other and trying to sell away the sale for higher price. Admittedly signatures of PWs-2 and 3 are found in agreement of sale as 2nd and 5th attestors. Therefore, the oral testimony of Pw-1 is corroborated by oral evidence of Pw-2 and 3.

In order to establish the4 case of plaintiff, the plaintiff also relied on four documents which are marked as Ex.A-1 to A-4. Ex.A-1 Ex.A1 is a un-registered agreement of sale executed by the defendant/Muddada Ramunaidu in favour of Majji

Paradesamma/Plaintiff, dt. dt. 30-07-2014. it is evident from the recitals of Ex.A-1 that the plaint schedule property is the absolute property of defendant, who executed 5O.S.699/2017 VII ASCJ/VSP agreement of sale in favour of plaintiff in respect to plaint schedule property for sale consideration at RS.8,000/- per cent by receiving an amount of RS.2,00,000/- as advance in the presence of PWs-2 and 3 three more witnesses and one scribe. Ex.A2 endorsement made by the defendant on the back side of the agreement of sale after receiving another sum of Rs.2.20.000/-, dt.18-8-2014. It also clear that the plaintiff is paid an amount of RS.2,20,000/- as a part of sale consideration under agreement of sale/Ex.A-1 and defendant having received the said amount he executed Ex.A-2 in favour of the plaintiff.

Ex.A3 is the office copy of registered lawyer’s notice dt. 10-03-2017 to the defendant by narrating the transaction cover under Ex.A-1 and A-2 and demanded the defendant to execute a regular sale deed in terms of Ex.A-1 by showing his readiness and willingness to perform his part of contract. Ex.A4 is the reply notice

dt. 27-03-2017 got issued by defendant to the notice of plaintiff by admitting

agreement of sale deed dt. 30-07-2014 in respect of plaint schedule property and receipt of Rs.2,00,000/- as a advance sale consideration. Wherein the defendant mentioned that the plaintiff never ready for regular sale deed and ready with the balance sale consideration and defendant denied that payment of another sum of

Rs.2,20,000/- under Ex.A-2. And further stated that the plaintiff is not erntitled for regular deed for convenience in his favour as he did not perform his part of contract within three months, therefore, the said contract automatically canceled. But to prove the recitals mentioned in Ex.A-4 , the defendant neither adduced any oral evidence nor marked any supportive document. In Ex.A-1 it is clearly mentioned that the defendant has to survey the land within three months and get registered the property in the name of plantiff within three months from the date of Ex.A-1. Soit clear that the plaintiff filed this suit within three months from the date of either Ex.A- 1 or Ex.A-2. In view of terms and conditions of Ex.A-1, the allegations mentioned by the defendant in his reply notice/Ex.A-4 is not considered.

By the oral testimony of PWs-1 to 3 coupled with recitals of Ex.A-1 to A-3, the plaintiff has discharged the initially burden casts upon him, thereby the onus shifts to the defendant. On the other hand defendant having received the summons came to the court and engaged an advocate on his behalf, thereafter 6O.S.699/2017 VII ASCJ/VSP he remained an exparte. Thus, the defendant utterly failed to challenge the evidence let in by plaintiff.

The plaintiff by oral evidence of PWs-1 to 3 categorically established that there is a valid agreement of sale in between the plaintiff and defendant, the defendant agreed to execute a regular sale deed in terms of agreement of sale/Ex.A-1, it is also established that the plaintiff is ready and willing to perform his part of contract, whereas the defendant failed to perform his part of contract in-spite of repeated demands and requested made by the plaintiff to the defendant and failed to discharge the legal obligation casts upon him.

In view of fore going discussion, the plaintiff established his case by unchallenged oral evidence of PWs-1 to 3 and recital of Ex.A-1 to A-3. Other side defendants failed to challenge the evidence let in by the plaintiff. Therefore without any hesitation this court held that the plaintiff is ready and willing to perform his part of contract, thereby he is entitled for relief of specific performance against defendant as prayed for. Accordingly issues are determined and decided in favour of plaintiff and against defendant.

To what relief ?

In the result the suit is decreed with costs in favour of plaintiff against the defendant for specific performance for agreement of sale dt.30-07-2014 directing the defendant to execute a registered sale deed in his favour in terms of agreement of sale and in case defendant fails to execute a regular registered sale deed, the plaintiff is entitled to get execute the same by this court on behalf of the defendant. The plaintiff is hereby directed to deposit balance sale consideration within one month from the date of this judgment.

Typed todictation to Typist and corrected and pronounced by me in open court this 25th day of November, 2022.

Sd/- G. Chandra Mouleswari.

VI Addl. Senior Civil Judge, (FAC) VII Addl. Senior Civil Judge, Visakhapatnam.

7O.S.699/2017 VII ASCJ/VSP

APPENDIX OF EVIDENCE

For Plaintiff:

P.W.1: Majji Paradesamma P.W.2: Revalla Suribabu PW.3 : Sunkari Guruvulu

For Defendants : Nil

DOCUMENTS MARKED

For Plaintiff:

Ex.A1 : Un-registered agreement of sale executed by the defendant/Muddada Ramunaidu in favour of Majji Paradesamma/Plaintiff, dt. dt. 30-07-2014. Ex.A2 : Endorsement made by the defendant on the back side of the agreement of sale after receiving another sum of Rs.2.20.000/-, dt. 18-8-2014

Ex.A3 : Office copy of registered lawyer’s notice dt. 10-03-2017 Ex.A4 : Reply notice dt. 27-03-2017

For Defendants : Nil

Sd/- G. Chandra Mouleswari.

VI Addl. Senior Civil Judge, (FAC) VII Addl. Senior Civil Judge, Visakhapatnam.

OS.969/2018, VI ASCJC/VSP

dated 20.04.2023.

IN THE COURT OF VI ADDITIONAL SENIOR CIVIL JUDGE, VISAKHAPATNAM

Present: Smt.G.Chandra Mowleswari, VI Additional Senior Civil Judge, Visakhapatnam.

Thursday, this the 20th day of April, 2023

O.S.No.969/2018

Between:-

Kodugula Mulayya, S/o Mallunaidu, aged 62 years, Lorry Driver, R/o Saripalli village, Pendurthi Mandal, Visakhapatnam. … Plaintif And: Mudapaka Narayana Rao, S/o Lachanna, working in GVMC, aged 45 years, R/o Tadivanipalem, Kothavalasa Mandal, Vizianagaram. … Defendant

This suit is coming on 18.04.2023 for fnal hearing before me in the presence of Sri P.Gangamma, Advocate for the plaintif and of Sri Ch.R.Ch.Prasad & J.Srinu, Advocates for the Defendant and after having stood over till this day for consideration and this Court delivered the following:

J U D G M E N T

1.This suit is fled by the plaintif against defendant prays to pass decree and judgment in his favour directing the defendant to pay a sum of

Rs.4,80,000/- with subsequent from the date of institution of suit till the date of realization and for costs of the suit.

2.The brief facts of the plaint are as follows:

(a) Defendant borrowed an amount of Rs.3,00,000/- from plaintif on 15.01.2016 for the purpose of his family expenses and for clearing sundry debts, after receipt of consideration defendant executed a demand promissory note in favour of plaintif on the even date, agreeing to repay the same with interest @ 24% p.a., either to plaintif or to his order on demand.

OS.969/2018, VI ASCJC/VSP

dated 20.04.2023.

(b)Subsequently, inspite of repeated demands and requests made by plaintif, defendant did not choose to pay neither principal amount nor interest amount due under promissory note and postponing the same on one pretext or other. Having no other alternative, plaintif fled this suit.

(c)Defendant is not agriculturist, hence he is not exempted under

Act 4 of 1938 or Act 7 of 1977. Hence the suit for recovery of amount.

3. On the other side, defendant fled his written statement by denying material allegations of the plaint.

The brief facts of the written statement are as follows :

(i)Defendant has not aware of scribe and attestors of suit promissory note. One Gampa Jayalakshmi @ Jayamma wife of

Venkataramana of Saripalli village and defendant is having fnancial disputes and she got issued registered lawyer notice on 06.04.2018 stating this defendant borrowed Rs.5,00,000/- on 30.06.2015 with false allegations and after receiving the said lawyer notice defendant raised mediation

before elders and the elders warned her and kept quiet. Said Jayalakshmi

got the suit fled by this defendant by creating the suit promissory note and

Jayalakshmi, plaintif, scribe and attestors colluded together and got fled this suit with a view to harass the defendant and grab money from him.

The signature on alleged promissory note dated 15.01.2016 is not that defendant. There is no relationship between plaintif and defendant as creditor and debtor, he never issued and legal notice. There is no cause of action for the plaintif to fle this suit and alleged cause of action mentioned in the plaint is not correct. Therefore, the suit is liable to be dismissed and prays to dismiss the suit with costs.

4.upon perusal of pleadings of both sides, the following issues are settled for trial.

1.Whether the plaintif is entitled for decree for recovery of suit amount as prayed for?

OS.969/2018, VI ASCJC/VSP

dated 20.04.2023.

2.To what relief?

5.To establish the case of the plaintif, he himself examined as

PW1 and Ex.A1 is marked on his behalf. On behalf of defendant, DWs.1&2 are examined and Ex.B1 is marked on his behalf.

6.Heard.

7. Issue No. 1:

To substantiate the case of plaintif, he himself examined as

PW1, his specifc evidence is that defendant borrowed a sum of

Rs.3,00,000/- on 15.01.2016 and executed a suit promissory note in the presence of two attestors and scribe in favour of plaintif, agreeing to repay the same together with interest @ 24% p.a., thereafter, he failed to discharge the same. Hence the suit for recovery of amount due under promissory note.

8.In order to establish his case of plaintif, he also relied on one document, which is marked as Ex.A1. Ex.A1 is suit promissory note

dated 15.01.2016. On perusal of Ex.A1 it is clear that defendant borrowed

a sum of Rs.3,00,000/- on 15.01.2016 from the plaintif and executed a suit promissory note in favour of plaintif, agreeing to repay the same with interest @24% p.a. in the presence of two attestors and scribe. Thus the recitals of Ex.A1 supports the version of plaintif

9.As discussed supra plaintif by oral evidence of PW1 and recitals of Ex.A1, he categorically discharged the initial burden casts upon him and also initially proved the transaction covered under Ex.A1 between plaintif and defendant. Once plaintif discharged the initial burden casts upon him then, the onus shifts to defendant to rebut the evidence let in by plaintif and to establish the defense pleaded by defendant in the written statement.

OS.969/2018, VI ASCJC/VSP

dated 20.04.2023.

10.The learned defense counsel contended that he never borrowed any amount, never executed suit promissory note in favour of plaintif and he has no necessity to borrow such amount from plaintif, no consideration was passed under suit promissory note and the suit promissory note is rank forged one, brought into existence for the purpose of fling of the suit with a view to get wrongful gain and thereby cause wrongful loss to defendant and also contended that one Jayalakshmi @

Jayamma W/o Venkata Rao of Saripalli village, he is having fnancial disputes with her, she got issued a legal notice on 06.04.2018 stating that she borrowed an amount of Rs.5,00,000/- on 30.06.2015 with false allegations, and after receiving said legal notice defendant raised mediation

before elders, the elders warned her. Thereafter said Jayamma got fled this

suit through plaintif by creating suit promissory note with her henchmen to grab the amount from the defendant and the alleged signature of suit promissory note is not belonged to defendant, under said circumstances the suit is liable to be dismissed and prays to dismiss the suit with costs.

11.To prove the above contentions, defendant himself examined as DW1 and got examined one third party as DW2 and marked one document as Ex.B1. though the DWs.1&2 stated on the same lines of

Pleadings of the defendant but it is onus on the defendant to prove the contents therein. Defendant also relied on Ex.B1 i.e., registered lawyer notice dated 06.04.2018. On perusal of Ex.B1 it is clear that it was got issued by one Jayamma to defendant in respect to money transaction dated 30.06.2015 in between them. But it is onus on the defendant to prove that the transaction covered under Ex.B1 and the transaction covered under

Ex.A1 are one and the same. As per the record it is clear that Ex.A1 is pertaining to the transaction in between plaintif and defendant dated 15.01.2016, where as Ex.B1 was got issued by one Gampa Jayalakshmi to

OS.969/2018, VI ASCJC/VSP

dated 20.04.2023.

defendant in respect to money transaction dated 30.06.2015. Therefore, it is clear that Ex.B1 is no way related to the transaction covered under Ex.A1.

Absolutely no evidence is placed by defendant to establish that said

Jayalakshmi @ Jayamma got fled this suit against defendant through plaintif for getting wrongful gain.

12.When the disputed signature of defendant is compared with the admitted signatures of defendant available in record i.e., summons, written statement, the signature of chief afdavit of DW1 under Sec.73 of

Indian Evidence Act they appeared one and the same. More over DW1 in his cross examination he admitted that the signature which is beneath the stamp afxed on Ex.A1 is his signature. When the alleged signature of the defendant found on stamp afxed on Ex.A1 with the signature found beneath stamp afxed on Ex.A1 they appeared as one and the same to the naked eye. Therefore, it is clear that defendant having received the consideration amount from the plaintif and executed suit promissory note in favour of plaintif in the presence of attestors and scribe. PW1 in his cross examination he deposed that he do not know the money transaction in between the defendant and Jayamma; the transaction under Ex.A1 is held in the presence of one B.Ganapathi who is scribe of promissory note and in the presence of one G.V.Ramana & G.Chinnikrishna who are 1st and 2nd attestors respectively to the said promissory note in between plaintif and defendant. Once the defendant admitted one of his signatures i.e., the his disputed signature on a stamp and his signature beneath the stamp on disputed document, his entire burden on the defendant to establish that disputed signature of defendant found on stamp afxed on Ex.A1 is not belong to him. When two signatures of defendant found on the stamp and beneath the stamp compared they appeared one and the same, so the entire burden on the defendant that the signature on the stamp is not

OS.969/2018, VI ASCJC/VSP

dated 20.04.2023.

belong to his signature. But, absolutely no step has taken by the defendant to establish that disputed signature of defendant on stamp afxed on

Ex.A1 is not belong to his signture. So also the entire burden is on the defendant that the suit promissory note is fabricated and created document, the same is fabricated with the help of henchmen of Jayamma, at the instance of said Jayamma, the plaintif fled the suit against defendant, but the defendant did not place any cogent and consistent and corroborative evidence to establish above contentions pleaded in her written statement. Mere examining any witness on his behalf is not sufcient to establish his defense. Defendant has to establish his defense as pleaded in his written statement with cogent and consistent and strong evidence but defendant utterly failed to place any such evidence to prove his defense pleaded in his written statement and also to rebut the evidence let in by plaintif. In the absence of any evidence the above contentions of defendant cannot be and never be accepted.

13.In view of foregoing discussion, plaintif has proved the transaction covered under Ex.A1 in between plaintif and defendant, defendant having received the consideration amount form the plaintif and executed suti promissory note in favour of plaintif agreeing to repay the same with interest, but the defendant feld to discharge the said due amount covered under Ex.A1 to plaintif. Therefore, without any hesitation this court held that plaintif is entitled for the decree for recovery of suit amount as prayed for. Accordingly, this issue is answered in favour of plaintif and against defendant.

14.Issue No.3:To what relief?

In the result, suit is decreed with costs in favour of plaintif and against defendant with subsequent interest on Rs.4,80,000/- @ 12% p.a.,

OS.969/2018, VI ASCJC/VSP

dated 20.04.2023.

from the date of suit till the date of decree thereafter @ 6% p.a., on the

principal amount of Rs.3,00,000/-

Dictated to the Stenographer Gr-I, transcribed by her, corrected and

pronounced by me in open Court this the 20th day of April, 2022.

VI Addl. Senior Civil Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:

PW1 : K.Mulayya

FOR DEFENDANT:

DW1: M.Narayana Rao

DW2: B.Gowri

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A1 is suit promissory note, dated 15.01.2016

FOR DE FENDANT: Ex.B1 is served registered lawyer’s notice on behalf of Gampa Jayalakshmi, with postal cover dated 06.04.2018.

VI Addl. Senior Civil Judge, Visakhapatnam.

OS.969/2018, VI ASCJC/VSP

dated 20.04.2023.