Smt. G. Kalarchana

Page No.1 O.S. No.1654 of 2019

IV SCJ, CCC, HYD

IN THE COURT OF THE IV SENIOR CIVIL JUDGE,

CITY CIVIL COURTS, HYDERABAD

Dated, this the 24th day of April, 2023

PRESENT: G. KALARCHANA

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

O.S. No. 1654 of 2019

Between: Mansanpally Ananda Kumar, S/o. Sri Mansanpally Krishna Murthy aged about 53 years, Occ: Business, R/o. Flat No.B-41, Steel & Mines Complex Srinagar Colony, Hyderabad.

...Plaintiff

AND

Smit. Ladde Sunita, W/o. Sri Ladde Neernath @Nagraju Aged about 44 years, Occ: Business, R/o.Plot No.25, Sunitha Nilayam, Mahankalinagar, Shamsiguda Village, ALSO at: Mulgi in Ground Floor, Plot No. 1110, Road No. 55, Jubliee Hills, HYDERABAD.

...Defendant

This suit is coming on this day before me for final hearing in the presence of

Sri.V.Hari Haran,Counsel for the Plaintiff and of Sri.Ch.Praveen Kumar, Counsel for defendant, and the matter having stood over for consideration till this day, this

Court made the following:-

: : J U D G M E N T : :

1.This suit is filed for eviction of defendant and anyone claiming under her from suit schedule mulgi in ground floor admeasuring 630 Sq.feet in premises bearing Plot No. 1110, Road No.55, Jubilee Hills, Hyderabad handing over the

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vacant physical possession to the plaintiff (b) for recover of Rs.2,40,000/- towards past mesne profits due by the defendant (c) award mesne profits @ Rs.60,000/- per month from the date of suit till the defendant vacates and handover the vacant possession of the same and with costs.

2.The Brief averments of the plaint:-

Plaintiff is the absolute owner of mulgi of the shop on ground floor admeasuring 630 sq feet in premises bearing Plot No. 1110, Road No.55, Jubilee

Hills, Hyderabad within specific boundaries herein after called as plaint schedule property or suit premises the said mulgi was leased out to the defendant in the year 2011. Defendant has been running business of a food under the name & style "Mahaveer Sweet and Bakers". Initially rent was agreed for Rs.25,000/- per month besides electricity and water charge, payable by defendant.

3.As per the lease agreement 10% per annum of rent will be enhanced p.a on existing rents as there is mutual understanding that lease agreement will be extended from time to time on enhanced rent as per the understanding between plaintiff and defendant. The lease agreement was signed on 23.02.2018 and after that there is no consensus between parties towards extending the tenancy.

4.As per lease agreement defendant paid rent @ Rs. 40,000/- per month. In the month of November of 2018 plaintiff informed to the defendant that he does not wish to extend the tenancy beyond February 2019. At that time defendant requested

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him time to shift her business considering the defendant's request plaintiff agreed for the same.

5.Defendant had unilaterally started remitting Rs. 44,000/- from February 2019 without any agreement or consent from the plaintiff. Plaintiff vide letter dated 14.02.2019 had informed the defendant that lease is not extended defendant should vacate by February, 2019 as the agreed period is over.

6.Meanwhile defendants without any provocation filed O.S.No.689 of 2019 on the file of the Learned VII Junior Civil Judge, City Civil Court, Hyderabad with false allegations.

7.In the light of all the developments, plaintiff constrained to issue legal notice

dated 29-4-2019 to the defendant terminating the tenancy by 1st June, 2019 calling

upon the defendant to vacate and hand over vacant peaceful possession to the plaintiff. Defendant received the legal notice but fails to give reply, from 1.6.2019 defendant’s possession was treated as trespasser liable to pay damages @

Rs.60,000/- per month. Hence this suit for eviction and recovery of past and future mesne profits.

Brief Facts of written statement:-

8.Defendant appeared through his counsel filed the written statement. Denied the material allegations which are not specifically admitted and claimed to put strict

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proof of all allegations. Admitted the jural relationship between the plaintiff and defendant and the plaintiff is the absolute owner of suit schedule property. Denied that plaintiff not wish to extend the tenancy beyond February 2019. As per Para

No.4 clause (C) on mutual consent the term of the lease deed can be extended and a fresh lease shall be executed on the expiry of the present lease and defendant is paying rents regularly without any default, after expiry of lease period also, defendant requested the plaintiff to execute a fresh lease deed, but plaintiff demanded the defendant to pay the rents at an exorbitant rate of Rs.60,000/- per month as a precondition for execution of fresh lease deed for a period of 5 years.

Denied that she agreed to vacate the premises by February 2019. Denied that defendant is paying less rents compared to fair rent of the suit schedule property in the said locality defendant invested huge amount for establishing bakery business borrowed amounts and said business is only livelihood of entire family.

9.On 17.3.2019 while the negotiations were going on plaintiff and his henchmen came to suit property and created nuisance and threatened to dispossess the defendant highhandedly. That the unbearable harassment and torture of the plaintiff and demand of enhancement of monthly rent to Rs.60,000/- is illegal. Defendant preferred a suit O.S.No.686 of 2019 on the file of VII Junior Civil Judge, City Civil

Court, Hyderabad seeking relief for perpetual injunction after receiving summons plaintiff illegally issued legal Notice, even after payment of regular rents terminating the lease is illegal unreasonable. Denied that the lease agreement 23.2.2018 lapsed

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by the February 2019. Plaintiff under valued the court fee suit is not maintainable plaintiff not came to court with clean hands suppressing the facts enhancement of monthly rent @ Rs.60,000/- compared to the fair rent of the local area. As such plaintiff not entitled for any relief or eviction etc., as she is regular in payment of rents, not liable to evict from the suit schedule property and liable to pay past or future mesne profits. Hence prays to dismiss the suit.

10.Basing on the rival contentions, the learned predecessor officer in office settled the following issues for trial.

1. Whether the plaintiff is entitled for eviction of defendant as prayed for?

2. Whether the plaintiff is entitled for recovery of Rs.2,40,000/- towards past mesne profits as prayed by plaintiff?

3. Whether the plaintiff is entitled for future mesne profits @ of Rs.60,000/- per month as prayed for?

4. To what relief?

11.During the course of trial plaintiff examined himself as PW1 filed his evidence affidavit in lieu of examination in chief marked Exs.A1 to A7 even after ample opportunities defendant not turn up to adduce her evidence hence treated as no evidence and closed.

12.Heard both learned counsels both learned counsels filed written arguments taken on file.

ISSUES No.1:-

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13.As seen from the rival contentions, evidence and pleadings on record, it is an admitted fact that plaintiff is the absolute owner of suit schedule property and defendant is the tenant in suit premises. Admittedly plaintiff let out the suit premises to the defendant in the year 2011 and since then the lease agreement was extending from time to time with the consent of both parties finally lease agreement was executed in the year 2018 on 23.2.2018 for a period of 11 months which was elapsed by February 2019. After completion of lease period plaintiff was not intended to extend the lease period hence he terminated the lease by issuing legal notice under section 106 of T.P Act vide Ex.A2 legal notice dated 29.4.2019. Ex.A3 is original postal receipt even though the defendant received the legal notice but not gave any reply.

14.It is the case of the plaintiff that he is not intended to extend the lease period though plaintiff agreed to pay rents at the enhanced rent of 10% on existing rent per annum she initially paid Rs.25,000/- later at the time of filing the suit she used to deposit Rs.44,000/- per month before it expiring the lease period he intimated in the month of November 2018 to the defendant that he is not willing to extend the tenancy beyond February 2019 for that defendant admitted and requested time to shift her business.

15.Per contra learned counsel for defendant submitted that plaintiff was not entitled to vacate the defendant from suit premises and they are regularly depositing rents there is no default in payment of rents and as per the clause 4 of the agreement

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both parties with mutual consent can extended the lease agreement and they are regularly paying rents so the oral agreement is in existence issuing of legal notice vide Ex.A2 under section 106 of Transfer of Property Act is not valid.

16.Learned counsel for defendant contended that the termination notice is not valid so suit is not maintainable.

17.As seen from the rival contentions, admittedly legal notice issued vide Ex.A2 to the defendant dated 29.4.2019 calling upon her to vacate and handover the premises by 1.6.2019 otherwise treated as trespasser and liable to pay Rs.60,000/- towards damages from 1.6.2019.

18.Admittedly lease period was expired as per the agreement dated 23.2.2018 between the parties by February 2019, after that no lease agreement was executed by the parties so from the date of lapse of agreement from February 2019 the agreement of lease was oral agreement month to month lease. So as per section 106 of Transfer of Property Act for termination of oral agreement 15 days prior notice is required.

19.Learned counsel for defendant through his written arguments contended that as per clause,4 of the lease agreement plaintiff has to issue 3 months prior notice for termination. The contention is not tenable, admittedly there is no written lease agreement in existence after February 2019 the lease as on the date of filing the suit is oral so any clause through written lease agreement which ever agreed earlier between parties not applicable for termination of lease period. Admittedly the termination of tenancy notice under section 106 of Transfer of Property Act is valid

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as giving ample time to the defendant to vacate and handover the premises one month time given to the defendant which is more than as per section.106 of Transfer of property Act, hence the termination notice valid and plaintiff being landlord not willing to extend lease in favour of defendant by issuing valid quit notice terminated the lease hence plaintiff entitled to evict the defendant from suit schedule property.

20.To substantiate plaintiff case he examined himself as Pw1 filed his evidence affidavit reiterating plaint averments and marked office copy of quit notice vide

Ex.A2 which was admitted by defendant as discussed supra same is valid notice terminating the lease of defendant. During the cross examination of PW1 nothing elicited from the plaintiff with regard to payment of rents admittedly there is no dispute with regard to payment of rents @ Rs.44,000/-P.M and PW1 also admitted that as per Ex.A2 legal notice dt. 29-04-2019 he demanded future mesne profits @

Rs.60,000/- per month from 01-06-2019 if defendant fails to vacate by that date.

Admitted that since from 2019 onwards there is no written lease agreement between plaintiff and defendant and tenancy is oral agreement from 2019 onwards whenever defendant deposited the rents plaintiff received the same and not returned the rental payments.

21.Learned counsel for defendant contended that plaintiff received rents without protest so lease period is continuing not terminated even after issuing termination notice as Pw1 himself admitted that he received rents whenever deposited by defendant and not returned so the lease is not terminated. The contention is not

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tenable. Admittedly the written lease period for 11 months elapsed and termination notice issued though defendant depositing rents on month to month tenancy basis, plaintiff being landlord entitled to receive rents for use of premises by defendant though not protested or returned it is not deemed that the termination of lease is waived. So mere receiving of rents is not fatal to the plaintiff in terminating lease.

22.The learned counsel for defendant suggested some other transactions and allegations between parties with regard to refund of Rs.25,00,000/- and filing of suit by defendant’s husband before Kukatpally Court, Hyderabad for recovery of amount given for construction of the mulgis, etc., all these facts are not pleaded by the defendant in her written statement the elicitation is not germane from written statement so was not considered.

23.As seen from overall evidence admittedly plaintiff is the absolute owner and after February 2019 the lease was not extended so the lease period was oral from month to month and plaintiff terminated the lease by registered post acknowledgment due legal notice under section 106 of Transfer o Property Act dated 29.4.2019 granted ample time to vacate and handover on or before 1.6.2019 which is as per section 106 of Transfer of Property Act valid termination. Hence plaintiff entitled for eviction of defendant from suit premises. Issue no.1 answered accordingly in favour of plaintiff against defendant.

ISSUES No.2 and 3:-

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24.With regard to past and future mesne profits plaintiff not filed any calculation memo how he entitled for past mesne profits @ Rs.2,40,000/- further not filed any documentary proof to show that the rents are prevailing in said locality @ of 60,000/- P.M for premises like suit property. No oral evidence adduced by him to support his claim. During cross examination of Pw1 learned counsel for defendant elicited that plaintiff calculated past and future mesne profits @ of Rs.60,000/- P.M and defendant regular in payment of rents @ Rs.44,000/- P.m as on the date of filing suit. Though he contended that during covid period not paid regularly but no proper calculation memo filed though he filed Ex.A6 and Ex.A7 bank statement but not properly pleaded and explained by cqalculation memo. Plaintiff admitted that in his chief affidavit he mentioned about due amount is Rs.11,08,790/-. He calculated the rent at the rate of Rs.60,000/- per month. Denied the suggestion that suit premises was not located in prime and commercial locality to that extent Pw1/plaintiff submitted that nearby locality there was a school it was run in the name and style of "Threshold school", presently school name was changed he did not know the same.

Though admitted that there is a temple of goddess Peddamma, but denied the suggestion that except business out of temple there was no other business. As discussed supra though plaintiff contending that in said locality a school is running and rent @ of Rs 60,000/- prevailing in said locality like suit premises no documentary and oral evidence adduced except his oral evidence during cross examination that there is a school running so plaintiff not established past mesne

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profits with proper calculation. Plaintiff is at liberty to file separate application under order XX rule 12 CPC to ascertain prevailing rents in said locality for calculation of past and future mesne profits. With this direction issue No.2 and 3 decided accordingly.

Issue No.4: To what relief:

As per the discussion supra, in foregoing paras in issues No.1 to 3 Plaintiff deserve to the decree partly.

25.IN THE RESULT: Suit is decreed partly in favour of plaintiff along with costs against the defendant. Plaintiff is entitled for recovery of possession. Defendant directed to vacate and handover the suit premises within two months from the date of passing of Judgment and Decree, the remaining reliefs with regard to past and future mesne profits, plaintiff is at liberty to file separate petition under order XX

Rule 12 of CPC and calculate the same as per due process of law.

Dictated to the Stenographer, corrected and pronounced by me in open court,

on this the 24 th day of April, 2023.

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendants:

PW1: Mansanpally Ananda Kumar

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Exhibits marked for Plaintiff:

Ex.A1: Office copy of plaint in OS.No.689 of 2019 as received by plaintiff.

Ex.A2: Office copy of Legal Notice, dt.29-04-2019.

Ex.A3: Original Postal receipt.

Ex.A4: Receipt dated 03-09-2020 for payment of Rs.92,026/- towards GHMC property tax.

Ex.A5: Statement of account of the plaintiff with State Bank of India, Jubilee Hills, Hyderabad for the period 01-04-2019 to 14-03-2022 showing the remittances by the defendant, though unilaterally.

Ex.A6: Statement of amount received from defendant showing short remittance for the period 01-04-2020 to 31-03-2021.

Ex.A7: Statement of amount received from defendant showing short remittance for the period 01-04-2021 to 28-02-2022.

Exhibits marked for Defendant:NIL

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

Page No.1 O.S. No.676 of 2021

IV SCJ, CCC, HYD

IN THE COURT OF THE IV SENIOR CIVIL JUDGE,

CITY CIVIL COURTS, HYDERABAD

Dated, this the 10th day of November, 2022

PRESENT: G. KALARCHANA

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

O.S. No. 676 of 2021

Between: Amcor Flexibles India Private Limited Having its registered office at Level-6, Tower 3, Equinox Business Park, CTS No. 83/1-19, L.B.S Road, Kurla (W), Mumbai, Maharashtra 400 070, Rep. by its Authorised Signatory K.Shiv Kumar.

...Plaintiff

AND Sresta Natural Bioproducts Private Ltd. Having its registered office 203, Pavani Annex, Road No.2, Banjara Hills, Hyd, Telangana 500034.

...Defendant

This suit is coming on this day before me for final hearing in the presence of Sri Sai Sanjay Suraneni,Counsel for the Plaintiff and defendant remained exparte, and the matter having stood over for consideration till this day, this Court made the following:-

: : J U D G M E N T : :

1.This suit is filed for recovery of Rs.38,89,838/- (Rupees Thirty Eight lakhs Eighty Nine thousand Eight Hundred and Thirty Eight only) against the defendant along with interest @ 18% per annum from the date of suit till realization along with costs.

Brief facts of the Plaint filed in support of the Plaintiff:

2.Plaintiff is a company engaged in business of manufacturing and sale of sustainable food packaging and Defendant involved in the business of marketing

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and sale of organic food products. In the course of business, the Defendant

Company has been placing purchase orders with Plaintiff for the supply of food packaging for its food products. Defendant company issued Purchase Orders in favor of the Plaintiff between 06-12-2019 and 26-5-2020 for the supply of flexible food packaging. Plaintiff supplied packaging material to defendant under the purchase order from time to time and received invoices on demand on defendant as and when material was delivered. As agreed between the parties the invoices were to be cleared with 45 days of shipping of goods and date of invoice.

3.The orders placed by the defendant under purchase order Bearing purchase order (PO) No.1920-05162 dated 06.12.2019, PO No.1920-05619

dated 4.1.2020, PONo. 1920-06229 dated 05.2.2020, were delivered by plaintiff

and defendant received the goods without any demur and protest. The purchase order dated 25.3.2020 was inoperative due to nationwide lock-down which was imposed with effect from 25th March 2020 as no individual manpower, vehicular, or materials movements were permitted into or out of Pondicherry where the Plaintiff's factory was situated.

4.During said period Plaintiff’s Sales Manager was constantly communicating with defendant company regard to situation faced by Plaintiff.

After unlocking Plaintiff received permission to re-commence operations with 20 to 25% manpower and fulfill the Defendant’s purchase orders dated

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25.3.2020, 6.4.2020, 21.4.2020, 2.5.2020 and 26.5.2020 in view of the imposed quota on the permitted number of workers coupled with the fact that most of the workers of the Pondicherry plant reside in Cuddalore Tamilnadu, the plant was inoperative for the majority of the period in April 2020 and the Plaintiff was unable to provide clear time lines to Defendant for dispatching orders placed by defendant. Plaintiff able to delivered few orders in April 2020 till the month of

May, 2020. Plaintiff could not completely operated its factory and begin the manufacturing process which in normal process takes 3 to 4 weeks. After slight improving of situation Plaintiff was able to dispatch few of the orders on13 May 2020 and majority remaining orders by 30.5.2020 & 06-06-2020.

5.For the 1st time, in April, i.e., on 24 April 2020, Defendant raised an issue concerning in delay of delivering the goods. Thereafter also the Defendant willingly and knowingly placed orders and accepted the goods supplied by

Plaintiff. On 27.4.2020, defendant addressed a communication to Plaintiff asking to go ahead with production of material. On 26-5-2020, defendant with full knowledge over status of Plaintiff's factory placed orders to Plaintiff.

Plaintiff kept on informing status of the factory all times to defendant. On 9.6.2020 Defendant Company asked Plaintiff to abruptly stop dispatching further items, by 9.6.2020 a number of variants against Defendant company’s orders worth of Rs.17.40 lakh were under manufacturing. In the process of being manufacture orders placed by the Defendant Company raw material has been

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purchased in advance. There are communications through emails in this regard, plaintiff requested defendant to clear the dues towards the material already received by it. Despite receiving the reminders to clear the dues from Plaintiff via emails dated 09.6.2020, 10.6.2020, 18.6.2020, 06.7.2020, 13.7.2020, 21.7.2020, 28.7.2020, 11.8.2020, 13.8.2020, 24.8.2020, 25.8.2020, Defendant

Company avoided making payments.

6.Defendant responded to Plaintiff's email dated 25.8.2020 on 28.8.2020 stating that they will not clear the dues as he incurred losses due to non- supply of laminate on time and further demanded the Plaintiff to pay Rs.95,72,571/- towards damages to the Defendant Company due to pandemic situation lock- down imposed by the Government the material was ultimately received by

Defendant. Defendant still avoided making payments, Plaintiff constrained to issue a legal Notice dated 03.11.2020 demanding outstanding payments an amount of Rs.38,89.841.63 ps along with interest. Defendant Company, gave

Reply dated 02.12.2020, denying the liability in view of loss occurred to them in delayed supply of the material. Further submits that as per the terms of Purchase

Orders clearly stated that if plaintiff violates any of the terms of purchase orders or if there is delay in delivery defendant will be at liberty to cancel the purchase order or refuse delivery of the material. However defendant not only encouraged

Plaintiff to continue manufacturing but also received the material without any demur or protest. Hence liable to pay outstanding due. Hence the suit.

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7.Summons to defendant served through substitute service by publication in

Yudda Bhoomi Telugu News paper. Defendant called absent set exparte on 24.3.2022.

8.During the course of enquiry, to substantiate the claim of the plaintiff examined its employee by name, K.Shiva Kumar as PW1 who filed his evidence affidavit in lieu of chief examination which is replica of plaint, through him

Exs.A1 to A30 are marked. Exs.A1 to A9 are purchase orders on different dates from 12.6.2019 to 26.5.2020. Ex,A10 to A25 are invoices on different dates generated by the plaintiff company after delivery of material as per the purchase orders. Ex.A26 is orders of Maharastra State with regard to lock-down dated 24.3.2020. Ex.A27 are email correspondence between plaintiff and defendant

dated 23.4.2020. Ex.A28 is notice issued by plaintiff to defendant dated

3.11.2020. Ex.A29 is reply issued by defendant on 2.12.2020 and Ex.A30 is plaintiff company board resolution authorization in favour of PW1, Shiva

Kumar to give evidence dated 26.3.2021.

9. Heard learned counsel for plaintiff. Perused entire record.

10.Point for consideration

1. Whether plaintiff entitled for recovery of suit amount as claimed for?

2. To what relief?

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POINT No.1

11.As seen from oral and documentary evidence it is showing that plaintiff and defendant are private limited companies and plaintiff involved in business of manufacturing and sale of sustainable food packaging and Defendant involved in the business of marketing and sale of organic food products. Plaintiff and defendant have amicable business relationship for 10 years. Defendant used to place orders for supply of food packaging for its products.

12.It is the case of the plaintiff that in the month of December 2019, defendant placed some purchase orders under Ex.A1 to Ex.A9 out of which three of the purchase orders under Ex.A1 to A3 were complied within time by 5.2.2020 but due to National wide lock-down due to Covid-19 pandemic situation unable to supply purchase orders in time. The plaintiff company unable to manufacture material for purchase orders placed by defendant company in time as factory was situated at Pandicherry and all the laborers were coming from different states, mostly Tamilnadu State, which caused delay in manufacturing the packaging material to be supplied to the defendant and there is a delay in supply of material for the purchase orders from 25.3.2022 to 26.5.2020.

13.It is further case of plaintiff that plaintiff’s company manager constantly updating situation to defendant company through E-Mails. Initially though there is a delay in supply defendant company received material without any protest

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but when plaintiff demanded for payment of said amount raised objection that due to delay in supply of material they suffered loss and claimed damages and denied liability. So they have no alternative except to file present suit.

14.As seen from Exs.A1 to A27 clearly showing placing the purchaser orders by the defendant and deliveries of material to defendant company by generating invoices which shows the defendant received material supplied by plaintiff. As seen from Ex.A29 reply notice issued by defendant stating that though plaintiff supplied material but with delay of 2 months which caused immense loss to their business. As seen from Ex.A29 it is showing that plaintiff supplied the material.

Even though service of notice and filing the suit defendant not turn up to contest the suit and produce contra evidence to show alleged damage caused to defendant company and shifting of business unit to Gujarath to speed-up the manufacturing process. Except in Ex.A29 reply notice stated that they sustained loss of Rs.95 lakhs and odd so they are not liable to pay due amount to the plaintiff not placed any proof.

15.As rightly contended by Learned counsel for plaintiff the purchaser orders clearly showing agreement between parties with regard to supply of material subject to clause force major so it is admitted fact that during March and April 2020 due to pandemic situation all the Factories and Manufacturing units were closed or permitted to run with less manpower to avoid congestion so there is delay in Manufacturing process and plaintiff company unable to supply the

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goods so the delay is within the terms of purchase orders and agreement between parties. Further as seen from the Exs.A1 to A29 supported the supply of goods/material to the defendant though defendant company alleging delay but admitted the supply of purchase orders but defendant not produced contra evidence by entering appearance to show damage caused to him due to delayed supply of material by the plaintiff. Hence plaintiff entitled for recovery of amount for the goods already supplied to the defendant. Point No.1 answered accordingly in favour of plaintiff.

Point No.2: To what relief:-

As per the discussion supra, Plaintiff entitled for recovery of suit claim.

16.IN THE RESULT:Suit is decreed in favour of plaintiff against the defendant along with costs. Defendant liable to pay an amount of Rs.38,89,838/- along with interest @ 12% p.a from the date of suit till decree and @ 6% p.a from the date of decree till realization on outstanding due amount

Rs.38,89,838/-.

Dictated to the Stenographer, typed to my dictation on system corrected

by me on my Laptop and Pronounced by me in the Open Court , on this the 10 th day of November, 2022.

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendant: PW1: Sri K.Shiva Kumarexparte

Exhibits marked for Plaintiff:

Ex.A1: Purchase Order PO1920-05612, dt. 12-06-2019

Ex.A2: Purchase Order PO1920-05619, dt.04-01-2020.

Ex.A3:Purchase Order PO1920-06229, dt.05-02-2020

Ex.A4: Purchase Order PO1920-07488, dt.25-03-2020.

Ex.A5: Purchase Order PO2021-00089, dt.04-06-2020.

Ex.A6:Purchase Order PO2021-00746, dt.21-04-2020.

Ex.A7: Purchase Order PO2021-01049, dt.05-02-2020.

Ex.A8: Purchase Order PO2021-01051, dt.05-02-2020.

Ex.A9: Purchase Order PO2021-01681, dt.26-05-2020.

Ex.A10: Invoice No.A06002382, dt. 15-02-2020.

Ex.A11: Invoice No.A60002479, dt.24-02-2020.

Ex.A12: Invoice No.A06002480, dt.24-02-2020.

Ex.A13: Invoice No.A06002433, dt.20-02-2020.

Ex.A14: Invoice No.A06002439, dt.20-02-2020.

Ex.A15: Invoice No.A06002481, dt.24-02-2020.

Ex.A16: Invoice No.A06002482, dt.24-02-2020.

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ExA17: Invoice No.A06002811, dt.09-04-2020.

Ex.A18: Invoice No.A06003056, dt.13-05-2020.

Ex A19: Invoice No.A06003347, dt.30-05-2020.

Ex.A20: Invoice No.A06003424, dt.06-06-2020.

Ex.A21: Invoice No.A06002812, dt.09-04-2020.

Ex.A22: Invoice No.A06003272, dt.28-05-2020.

Ex.A23: Invoice No.A06003350, dt.30-05-2020.

Ex.A24: Invoice No.A06003425, dt.06-06-2020.

Ex.A25: Invoice No.A06003273, dt.28-05-2020.

Ex.A26: Order of MHA, GOI, dt.24-03-2020.

Ex.A27: Email correspondence between the plaintiff and defendant, dt.23-04-2020.

Ex.A28: Notice issued by plaintiff, dt.03-11-2020.

Ex.A29: Reply issued by defendant, dt.02-12-2020.

Ex.A30: Board Resolution of Shivkumar by plaintiff, dt.26-03-2021.

Exhibits marked for Defendant:NIL

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

Page No.1 O.S. No.107 of 2021

IV SCJ, CCC, HYD

IN THE COURT OF THE IV SENIOR CIVIL JUDGE,

CITY CIVIL COURTS, HYDERABAD

Dated, this the 13th day of April, 2023

PRESENT: G. KALARCHANA

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

O.S. No. 107 of 2021

Between: Enayat Shah Khan s/o: Late Dr. Azmat Shah Khan Aged about: 57 yrs, Occ: Account R/o: H.No.8-1-21/104, Plot No: 104 Surya Nagar Colony, Tolickowki, Hyd

...Plaintiff

AND

1. Hasnath Shah Khan, S/o: Late Dr. Azimat Shah Khan, Aged about: 49 yrs, occ:Commercial Manager. R/o H.No.8-1-21/104, Plot No: 104, Surya Nagar Colony, Tolickowki, Hyd

2. Rafat Shah Khan, S/o: Late Dr. Azmat Shah Khan, Aged about: 55 yrs, Occ: Teacher, R/o: H.No.8-1-21/104, Plot No: 104, Surya Nagar Colony, Tolickowki, Hyd

3. TaheraKausar, D/o: Late Dr. Azmat Shah Khan, Aged about: 53 yrs, Occ: House Hold. R/o: H.No.8-1-21/104, Plot No: 104, Surya Nagar Colony, Tolickowki, Hyd

4. Arfat Shah Khan, S/o: Late Dr. Azmat Shah Khan, Aged about: 47 yrs, Occ: Network Engineer, R/o: H.No.8-1-21/104, Plot No: 104, Surya Nagar Colony, Tolickowki, Hyd

...Defendants

This suit is coming on this day before me for final hearing in the presence of Mohd.Faseehuddin,Counsel for the Plaintiff and the matter having stood over for consideration till this day, this Court made the following:-

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: : J U D G M E N T : :

1.This suit is filed for partition of the suit schedule property allotting 2/9th share to the plaintiff along with meets and bounds and also hand over the separate possession of share of the plaintiff along with costs.

BRIEF FACTS OF THE PLAINT:

2.Plaintiff is the son of Late Afzal Begum and late Dr.Azmat Shah Khan,

Defendant No.1,2 and 4 are the real brothers and Defendant No 3 is the real

Sister of the Plaintiff.

3.Late Afzal Begum W/o Late Dr. Azmat Shah Khan was the absolute owner and peaceful possessor of the property bearing No.8-1-21/104 and 8-1- 21/104/1 to 5 constructed on Plot No.104, admeasuring 421 Sq.yrds situated at

Surya Nagar, Tolichowki, Hyderabad, purchased same from its lawful owner through Registered Sale Deed bearing Document No. 1724/1982 after purchasing the same mother of the Plaintiff and Defendants developed property by constructing ground and first floors. The total property comprises of, Two

Flats and Four Shops at the Ground Floor and Two Flats and a hall above the

Shops at First Floor, after developing the property into present state she enjoyed the same and died intestate on 29-11-2014 and their father pre-deceased their mother on 24-04-2014 leaving behind Plaintiff and Defendants as their only legal heirs. Since the death of their mother, plaintiff and defendants are in joint

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possession and enjoyment of the suit schedule property without any partition of the suit schedule property or dividing it by metes and bounds.

4.But all the legal heirs are already in the occupation of respective possessions of suit property which is clearly shown as schedules in plaint.

Plaintiff and Defendants 1, 2 and 4 are brothers entitled for 2/9th share.

Defendant No.3 who is their sister entitled for 1/9th share in suit schedule property as per the Muslim personal law. As such plaintiff and defendants No.1, 2 and 4 are entitled by 2/9th share each out of 421 sq.yards which comes to 93.55 sq.yards each and defendant No.3 being sister is entitled for 1/9th which comes to 46.77 sq.yards as such plaintiff approached the defendants many times with request for the partition of the suit schedule property and separate possession of his 2/9th share to which the Plaintiff is entitled. Finally plaintiff visited on 9.2.2020 and requested for partition but defendant No.1 became aggressive and refused for partition. Hence he has no other alternative except to file present suit.

5.After service of summons, defendant No.2 was not appeared before the court. Hence set exparte. Defendant No.1, 3 and 4 appeared before the court and filed written statement. Denied the material allegations which are not specifically admitted and admitted that plaintiff is the son of late Md.Afzal

Begum and defendant No.1, 2 and 4 are real brothers and defendant No.3 is real sister and their father expired on 29.4.2014 and their mother expired on

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29.11.2014 during her lifetime she purchased house property bearing No.8-1- 21/104 and 8-1-21/104/1 to 5 constructed on Plot No.104 an extent of 421 sq.yards with ground and 1st floor along with shops and 1st floor. Defendants admitted all the shares and extent of properties mentioned in plaint in their possession and also admitted that the property was derived through their mother also admitted to the extent of shares of the property entitled by the plaintiff and defendants in suit schedule property and they have no dispute with regard to partition of the property but denied that 1st defendant became aggressive and initially not agreed for partition. All the defendants except 2nd defendant submitted they have no objection for partition.

6.Basing on the rival contentions, this court settled the following issues:-

i) Whether suit schedule property liable for partition as prayed by both parties ?

ii) Whether plaintiff entitled for 2/9th share with metes and bounds

as prayed for? iii) To what relief?

7.During the course of trial to substantiate plaintiff’s claim, plaintiff examined himself as Pw1 filed his evidence affidavit in lieu of examination in chief and Marked Ex.A1 to A4. 1st defendant examined himself as Dw1 on behalf of defendants 3 and 4 and no documents marked

8.Heard learned both learned counsels and perused entire record.

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Issue No.(i and ii):

9.During the cross examination of PW1 nothing specifically elicited except that plaintiff and defendants are four brothers and one sister. Their mother expired in the year 2014. Plaintiff and his two younger brothers are in possession of suit schedule property. The two brothers by name Hasnath Shah

Khan and Rafath Shah Khan are staying in suit schedule property and all the parties have share in suit schedule property as per Muslim Law. Denied that he never demanded for partition.

10.Defendants to substantiate their claim 1st defendant examined as Dw1 filed his evidence affidavit in lieu of examination in chief reiterating written statement averments. During the cross examination DW1 admitted that himself and other siblings are residing in suit schedule properties in respective shares as shown in suit described in the plaint schedule, and Defendant no.2 refused to come forward for execution of registered partition deed as per the respective shares mentioned in the plaint. Further admitted that as Defendant no.2 refused to co-operate for execution of registered partition deed, so plaintiff filed this suit. Defendant no.2 has been in possession of Third schedule property mentioned in plaint occupying residential Flat No.B02, and a mulgi bearing no.8-1-21/104/3, Tolichowki, Hyderabad and all the defendants have no objection for partition of suit schedule properties.

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11.As seen from the admitted facts, admittedly plaintiff and Defendant No.1, 2 and 4 are brothers and defendant No.3 is sister and there is no dispute with regard to property purchased by their mother Ex.A1 sufficiently proved that suit property was purchased by their mother there is no dispute between the parties and legal heirs of late Afzal begum with regard to her ownership who died intestate leaving mathruka property of suit schedule property an extent of 421 sq.yards and their father pre-deceased their mother.

12.Further as seen from oral testimony of both witness on behalf of plaintiff and defendant evidence on record both parties admitted that all the legal heirs are in the occupation of respective possessions of suit property which is clearly shown as schedules in plaint. Plaintiff is in occupation I schedule which is Flat

No. B01, on the First Floor of the suit building and a shop bearing No.8-1- 21/104/4, admeasuring 174.32 sft. II schedule was in occupation of defendant

No.1 which is Flat No.AO1, on Ground Floor of the suit building premises and shop bearing No. 8-1-21/104/2, admeasuring 174.32 Sq. ft. III schedule was in possession of defendant No.2 which is Flat No. B02, on the First Floor of the building premises and also in occupation of the shop bearing No. 8-1-21/104/3, admeasuring 174.32 Sq. ft. V schedule is in possession of defendant No.4 which consists of plot No.A02, on the Ground Floor of the suit building premises and a shop bearing No. 8-1-21/104/1, admeasuring 174.32 Sq. ft. all the three brothers

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are already in occupation of respective flats in suit premises bearing No.8-1- 21/104, admeasuring 93.55 Sq.Yrds, each Situated at Surya Nagar, Tolichowki,

Hyderabad and also in occupation of each one shop. IV schedule is in occupation of defendant No.3, who is their sister which consists of a Hall on the

First Floor of the suit building premises bearing No. 8-1-21/104/5, undivided share of an extent of 46.77 Sq. Yards, i.e. 1111.98 Sq. ft including staircase and

Balcony.

13.So Plaintiff and Defendants 1, 2 and 4 are being sons of late Afzal begum who died intestate entitled for 2/9th share and Defendant No.3 who is daughter of late Afzal begum entitled for 1/9th share in suit schedule property as per the

Muslim personal law. As such plaintiff and defendants No.1, 2 and 4 are entitled for 2/9th share each out of 421 sq.yards which comes to 93.55 sq.yards each and defendant No.3 being sister is entitled for 1/9th share which comes to 46.77 sq.yards. As per admitted facts by both the witnessess all parties are admitted their respective shares and already in their respective shares ready to get execute partition deed but 2nd defendant not co-operated which resulted in filing this suit.

As there is no dispute between all the parties to suit property with regard to respective shares and their respective possession including 2nd defendant so plaintiff entitled for partition as prayed for. Issue no.1 answered accordingly in favour of plaintiff.

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ISSUE No.iii: To what relief:-

As per discussion supra in foregoing paras plaintiff deserves for decree as prayed for.

14.In the result, suit is decreed, preliminary decree is passed in favour of plaintiff partitioning the suit schedule property into nine parts out of which plaintiff entitled for 2/9th share. Defendants No.1, 2 & 4 also entitled for 2/9th share and defendant No.3 entitled for 1/9th share with meets and bounds.

Plaintiff also entitled for separate possession of his share of property. There is no order as to costs.

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

in the Open Court, on this the 13 th day of April, 2023.

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendant: PW1:Enayat Shah KhanDW1:Sri Hasnath Shah Khan

Exhibits marked for Plaintiff:

Ex A1: Certified copy of Document no.1724 of 1982, dated 23-01-2020.

Ex.A2 Death Certificate of mother of the parties.

Ex A3: Copy of Aadhar card of plaintiff

Ex A4: Market Value certificate of suit schedule property.

Exhibits marked for Defendant: NIL

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

Page No.1 O.S. No.721 of 2022

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IN THE COURT OF THE IV SENIOR CIVIL JUDGE,

CITY CIVIL COURTS, HYDERABAD

Dated, this the 20th day of April, 2023

PRESENT: G. KALARCHANA

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

O.S. No. 721 of 2022

Between: Sri. ASHOK K.NARANG S/o. Late Sri.Kanhaiahlal Aildas Narang, Aged: 62 years, Occ: Business, R/o. L.K.House, No.200, Road No.2, Banjara Hills, Hyderabad - 034, T.S.

...Plaintiff

AND

1. SMT.V.VIJAYA LAKSHMI W/o. Sri.Shiva Rama Krishna Prasad, Aged: Major, Occ: Business, R/o. SLN, Lumbini Springs, Villa No.6, Kondapur, Hyderabad-084, Telangana State.

2. SMT.V.BHAVANI W/o. Late Sri.Dr.Naveen Venigella, Aged: Major, Occ: Business, R/o. Flat No.103, Meenakshi's Royal Court, Municipal No. 8-2-615/1 & 8-2-615/A, Road No.11, Banjara Hills, Hyderabad – 034, Telangana State.

3. MASTER V.PRIYANSHU RAM S/o. Late Sri.Dr.Naveen Venigella, Aged: 7 years, Occ: Student, R/o. Flat No.103, Meenakshi's Royal Court, Municipal No. 8-2-615/1 & 8-2-615/A Road No.11, Banjara Hills, Hyderabad-034, Telangana State.

(Being minor is represented by his mother and Natural guardian Smt.V.Bhavani / DeNo.2)

...Defendants

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This suit is coming on this day before me for final hearing in the presence of Ch.Balamani,Counsel for the Plaintiff and defendants remained set exparte, and the matter having stood over for consideration till this day, this Court made the following:-

: : J U D G M E N T : :

1.This suit is filed for recover of an amount of Rs.34,40,000/- along with accrued interest @ 2% per month and costs.

2.The Brief averments of the plaint:-

Plaintiff is the business men and well acquainted with the Defendants.

One Dr.Naveen Venigella, the son of Defendant No.1, husband of the Defendant

No.2 and father of the Defendant No.3 requested the plaintiff for a loan amount of Rs.20,00,000/- same was given by the Plaintiff to Dr.Naveen Venigella and he executed a Registered Simple Mortgage Deed, Dated 06.11.2013 vide Doct.

No. 2172/2013, creating a Mortgage in favor of the plaintiff in respect of Flat bearing No. 103, 1st Floor, in Complex known as Meenakshi's Royal Court, admeasuring 2800 Sq. Ft., situated at Road No.11, Banjara Hills, Hyderabad, within the specific boundaries herein after referred to as Suit Schedule Property.

3.As per the simple Mortgage Deed, Dr.Naveen Venigella availed loan of

Rs.20,00,000/- from the plaintiff with a promise to repay within six months along with 18% interest p.a. He paid interest till December, 2018 thereafter

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committed default. In the month of January, 2018 Dr.Naveen Venigella requested one year time to repay principal amount along with interest, but failed to keep up his promise plaintiff learn that Dr.Naveen Venigella expired on 01.07.2019 survived by his mother, wife and a minor son, defendants herein who succeeded to his estate.

4.Late Dr.Naveen Venigella was due to pay interest amount from the month of January, 2018 onwards and the same accrued to Rs.14,40,000/- apart from the

principal amount of Rs.20,00,000/- plaintiff requested Dr.Naveen Venigella

several times to pay the amounts during his life time though he promised to pay on several occasions, but failed to keep up the promises. In view of the death of

Late Dr.Naveen Venigella, Defendants being his successors in interest and being his Class-1 Legal Heirs succeeded to his estate hence stepped into his shoes.

Plaintiff contacted defendants requested for repayment of the loan and defendant nos.1 and 2 are completely aware of the loan transaction and the mortgage.

Initially they promised to clear the loan, later failed to keep up their promise.

Plaintiff issued Legal Notice on 15.09.2022, calling upon the defendants to repay the loan amount of Rs.20,00,000/- along with accrued interest

Rs.14,40,000/-. Defendant No.1 postal cover returned with endorsement as "unclaimed" with malafide intention got returned the postal cover. Defendant

No.2 received legal notice inspite of that they not paid the amounts, but issued

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reply notice denied the liability and knowledge with regard to the loan. In the month of September 2022 defendant demanded repayment of loan but no avail defendants not come forward to repay. Hence there is no other option except to file present suit.

5.Notice and summons served to the defendant No.2 and 3 appeared through their counsel Sri.C.N.Moorthy,Advocate even after ample opportunities not filed the written statement for the best reasons known to him, hence set exparte. Defendant No.1 notice were unserved. Hence served through publication in Yuddha Bhoomi Telugu News paper on her non appearance set exparte.

6.To substantiate the claim of the plaintiff, during the course of enquiry, he filed his evidence affidavit in lieu of examination in chief and marked Exs.A1 to

A7.

7.Heard learned counsel for plaintiff and perused entire record.

8.Point for consideration:-

i) Whether plaintiff entitled for recovery of suit claim from defendants

No.1 and 3 as prayed for?

ii) To what relief?

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Point No.(i):

9.As seen from record to substantiate his claim plaintiff examined as Pw1 filed his evidence affidavit which is replica of plaint and marked Ex.A1 to A7

Ex.A1 Original simple Mortgage Deed without possession vide document no.2172/2013. Ex.A2 is Office Copy of Legal Notice, dt.15-09-2019. Ex.A3 is

Original Returned Registered Postal cover of defendant no.1. Ex.A4 is

Acknowledgment card of defendant no.2. Ex.A5 is Acknowledgment card of defendant no.3. Ex.A6 is Reply legal notice, dt.20-10-2022. Ex.A7 is Original postal receipts, dt.16-09-2022.

10.On perusal of oral and documentary evidence it is showing that defendant

No.1 is mother, defendant No.2 is wife and defendant no.3 is minor son of late

Dr.Naveen Venigella, borrowed an amount of Rs.20,00,000/-by mortgaging his flat bearing No.103, 1st Floor, in Complex known as Meenakshi's Royal Court, admeasuring 2800 Sq. Ft., situated at Road No.11, Banjara Hills, Hyderabad, executing Registered Mortgage Deed agreeing to repay within six months along with interest @18% p.a.

11.To support the contention, plaintiff filed Ex.A1 original Registered

Mortgage Deed dated 6.11.2013 which supports that late Dr. Naveen Venigella, borrowed Rs.20,00,000/- for agreed for interest @ 18% p.a by mortgaging his

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flat bearing No.103, though initially late Dr.Naveen Venigella, agreed to repay within six months but he failed to pay the same and later also he not paid from

January 2018 onwards, so Rs.14,40,000/- was out standing due towards accrued interest as on the date of filing suit.

12.Later plaintiff came to know that Dr.Naveen Venigella, expired on 1.7.2019 so he requested family members/legal heirs who acquired the assets of

Dr.Naveen Venigella, to repay the loan amount along with interest. Though initially they promised but they fails to keep up their promise so plaintiff issued legal notice dated 15.9.2018 vide Ex.A2, 1st defendant managed the postal department not to receive so her notice cover unserved returned as unclaimed original returned postal cover marked as Ex.A3. Notices received by defendants 2 and 3 Ex.A4 and A5 acknowledgment cards, Ex.A6 is replay notice issued by defendant No.2 dated 20.10.2022, Ex.A7 is postal receipts.

13.Though 2nd defendant issued reply notice, through reply at one hand denied the transaction and another hand shown her ignorance with regard to loan transaction. Even after appearance through counsel before court after service of summons defendants No.2 and 3 not filed any written statement their right to file written statement fore feted and set exparte.

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14.As can be seen from Reply notice vide Ex.A6, Defendants 2 and 3 denied their liability and alleged that as per the mortgage agreement, late Dr. Naveen

Venigella, borrowed the amount to establish 2 x 60 MW Thermal Power Project in the name style of “Dr. Ram Krishna Prasad Power Private Limited” having its Registered office at Limbini Hill Villa N.6, Kondapur, Kothegudam in this connection he mortgaged his property and borrowed Rs.20,00,000/-it is the contention of the defendant No.2 through her reply notice that the above project was set up in the name of his father Dr.Ram Krishna Prasad for said project

Smt.V.Vijaya Lakshmi defendant No.1 is the chairman who is dealing with all powers as such she is the head of the family and late Dr.Naveen Venigella, availed loan amount handed over to his mother defendant No.1 she is liable to pay amount. Defendant No.2 and 3 are not liable.

15.But the same was not contested by them by filing written statement.

Admittedly Defendant No.1 to 3 are class I legal heirs of late Dr. Naveen

Venigella, and all the assets and properties in the name of Dr. Naveen Venigella, will devolve on Class I legal heirs defendants herein as per the reply notice

Ex.A6 it is clear that defendants have knowledge about availing loan and execution of Registered Simple Mortgage Deed, 2nd defendant simply denied her and her minor son liability stating that loan availed for the purpose of 1st defendant but not contested the suit and it is not her case that no asset or

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property of her late husband devolved on her admittedly borrowers property mortgaged to plaintiff which will devolve on to the defendants as legal heirs. So all the defendants are liable to pay the borrowed amount by the Dr.Naveen

Venigella, under Ex.A1. Hence plaintiff by oral and documentary evidence established the transaction entitled for recovery of amount along with interest.

Point No.(ii): To what relief:

As per the discussion supra, Plaintiff deserve for decree.

16.IN THE RESULT: preliminarily decree is passed along with costs in favour of plaintiff against defendants No.1 to 3. Defendants No.1 and 2 jointly and severally liable to pay suit claim amount personally of Rs.34,40,000/- along with interest at the rate of 12 percent from the date of suit till decree and at the rate of 6 percent from the date of decree till realization on principal amount of

Rs.20,00,000/-, within 3 months.

If defendants fails to pay suit claim within three months plaintiff entitle for final decree to sell and realize suit claim from mortgaged property.

Dictated to the Stenographer, corrected and pronounced by me in open

court, on this the 20 th day of April, 2023.

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendants: PW1: Ashok K.NarangExparte

Exhibits marked for Plaintiff:

Ex.A1: Original simple Mortgage Deed without possession vide document no.2172/2013.

Ex.A2: Office Copy of Legal Notice, dt.15-09-2019.

Ex.A3: Original Returned Registered Postal cover of defendant no.1.

Ex.A4: Acknowledgment card of defendant no.2.

Ex.A5: Acknowledgment card of defendant no.3.

Ex.A6: Reply legal notice, dt.20-10-2022.

Ex.A7: Original postal receipts, dt.16-09-2022.

Exhibits marked for Defendant:NIL

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

Page No.1 O.S. No.1348 of 2019

IV SCJ, CCC, HYD

IN THE COURT OF THE IV SENIOR CIVIL JUDGE,

CITY CIVIL COURTS, HYDERABAD

Dated, this the 9th day of November, 2022

PRESENT: G. KALARCHANA

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

O.S. No. 1348 of 2019

Between: BANK OF INDIA, a Body Corporate, Constituted under the Banking Companies (Acquisition & Transfer of Undertaking) Act, 1970, Having its Head Office at 'Star House', Plot No.C-5, G-Block, Bandra-Kurla Complex, Bandra (East), Mumbai-400051 and one of its Sanjeevareddy Nagar (S.R.Nagar) Branch, Ground Floor, 70/A (8-3-191/93), Vengal Rao Nagar, Hyderabad-38, Telangana rep by its constituted attorney Sri Sanjay Pathak S/o Madhavrao Pathak, Age 58 years, who is authorized to Verify and sign the application on behalf the Plaintiff Bank

...Plaintiff

AND

Mr.BANAVATH SRIKANTH, S/o B. Shakru, Aged about 26 years, R/o.Plot No.415, Tirumalanagar, Sagar Complex, Almasguda, Hyderabad, Telangana State-500079.

...Defendant

This suit is coming on this day before me for final hearing in the presence of Smt.P.Susheela,Counsel for the Plaintiff and defendant remained set exparte, and the matter having stood over for consideration till this day, this Court made the following:-

: : J U D G M E N T : :

1.This suit is filed by plaintiff bank against defendant for a sum of

Rs.7,56,662.27 ps. together with future interest @ 1.50% p.a. over one year

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MCLR + 0.30% BSS presently 10.35% p.a. plus penal interest @ 2.00% pa from the date of filing of the suit till the date of final realization of the claim and for the sale of hypothecated items which are described in 'Schedule" in this suit and direct appropriation of sale proceeds towards realization of amounts and costs.

2.The Brief averments of the plaint:-

That defendant approached the Plaintiff bank for vehicle loan of

Rs.8,00,000/- for purchase of transport vehicle TOYOTA ETIOS GD (M) BSIV

Model Car, and Applied for car loan on 06-09-2019. Plaintiff Bank sanctioned the loan on 07-09-2016 for a sum of Rs.8,00,000/- under Term loan A/c no.

863772310000014. The said Vehicle loan was availed by the Defendant after executing the necessary loan documents in favour of the Plaintiff Bank. The

Defendant agreed to repay the loan amount @ Rs.13,783/- as equated monthly installments in 84 months commencing from October 2016 together with interest @ 1.50% p.a. over one year MCLR + 0.30% BSS, presently 10.35% p.a.

compounded monthly plus 2% p.a. overdue interest in case of default and on creation of charge of Hypothecation of the vehicle purchased by the defendant to secure the repayment of the loan amount. The defendant produced all necessary documents.

3.Defendant has utilized the loan amount advanced and purchased the transport vehicle TOYOTA ETIOS GD (M) BSIV Model Car, with Engine

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No.1ND1A04851 and Chassis No.MBJB49BT700137969 with Registration bearing No.TS08UB9866 dated 05.10.2016 where in it is mentioned that the vehicle is under Hypothecation of Bank of India, with all exigencies. After availing the loan defendant failed to make repayments in terms of the agreements & covenants. On repeated demands made by the Plaintiff Bank the

Defendant acknowledged the debt and executed Acknowledgment of Debt on 18-11-2017 in favour of the Plaintiff Bank. The Plaintiff bank submits that the transactions made by the Defendant and some payments made by him on different dates which is not sufficient to upgrade the account. The last payment being made on 05.12.2018 to the Plaintiff-Bank through account transfer, the said transactions were reflected in the statement of account.

4.All the repeated requests and demands made by the plaintiff end yield no result, consequently the account became NPA on 30.11.2018. Plaintiff bank issued demand Notice dated. 31.01.2019 calling up on the defendant to liquidate the entire balance outstanding in the loan account. But the defendant failed to clear the outstanding dues in respect of the above said loan account. As on 14- 08-2019 the defendant is liable to pay the principal plus interest for term loan amount of Rs.7,56,662.27 ps. Defendant having availed loan but failed to repay loan amount defendant is liable to pay this amount and this suit is filed for recovery of suit claim.

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5. Suit summons unserved, as person left. Hence, summons served through substituted service by paper publication in Velugu, Telugu Daily News Paper on 13.10.2022 by counsel for plaintiff. Defendant called absent, no representation hence set exparte on 21.10.2022.

6.To substantiate plaintiff claim its Officer examined as Pw1 filed his evidence affidavit in lieu of examination in chief and Marked Ex.A1 to A15.

7.Heard learned counsel for plaintiff and perused entire record.

8.Point for consideration:-

i) Whether plaintiff bank entitled for recovery of amount as prayed for?

ii) To what relief?

Point No.(i):

9.Plaintiff bank to substantiate its case has examined its officer by name

K.Sreekanth, who is authorized to conduct proceedings on behalf of plaintiff vide Ex.A15/Authorization letter and marked Ex.A1 to A15. Ex.A1: Application for Vehicle Loan for purchase of TOYOTA ETIOS GD (M) BSIV Model Car, dt.06-09-2016. Ex.A2: Sanction Letter issued by plaintiff bank, dt.07-09-2016.

Ex.A3: Promissory note (L-434) for Rs.8,00,000/- executed by defendant, dt.07- 09-2016. Ex.A4: Bearer letter executed by defendant, dt.07-09-2016. Ex.A5:

Request Letter to repay the amount by installment executed by defendant, dt.07-

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09-2016. Ex.A6: Hypothecation-Cum-Loan Agreement executed by the defendant in favour of the plaintiff, dt.07-09-2016. Ex.A7: Letter of Declaration (1515) executed by defendant, dt.07-09-2016.Ex.A8: An Agreement (L-516) executed by defendant undertaking in respect of promissory note for

Rs.8,00,000/- endorsed by them as continuing security and to disclose information etc., dt.07-09-2016. Ex.A9: MCLR Agreement, dt.07-09-2016.

Ex.A10: Comprehensive Letter of Declaration Undertaking and Authorities executed by the defendant, dt.07-09-2016. Ex.A11: Vehicle Registration

No.TSO8UB9866RTOIbrahimpatnam,dt.05-10-2016.Ex.A12:

Acknowledgement of Debt (L-444 c) executed by the defendant, dt.18-11-2017.

Ex.A13: Office copy of the Demand Notice, dt.31-01-2019. Ex.A14: Extracts of

Statement of Account with Certificate, dt.05-08-2019. Ex.A15: Authorization

Letter, dt.03-11-2022.

10.As seen from oral and documentary evidence, the defendant approached plaintiff bank through application under Ex.A1 dt. 06-09-2019 for grant of loan of Rs.8,00,000/- for purchase of transport vehicle. Plaintiff Bank sanctioned the loan on 07-09-2016 vide Ex.A2 sanction letter under Term loan A/c no.

863772310000014. defendant purchased TOYOTA ETIOS GD (M) BSIV Model

Car Ex.A11 is vehicle registration certificate in the name of defendantwith registration No.TS 08 UB 9866. The said Vehicle loan was availed by the

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Defendant after executing the necessary loan documents in favour of the

Plaintiff Bank. The Defendant agreed to repay the loan amount @ Rs.13,783/- as equated monthly installments in 84 months commencing from October 2016 together with interest @ 10.35% at the time of purchase of vehicle in case of default agreed for another 2% of additional interest as per terms and conditions and created charge on purchased vehicle by executing Deed of Hypothecation of the vehicle, to secure the repayment of the loan amount vide Ex.A6 further as security for loan defendant executed Ex.A3 to A10. But failed to abide by terms and conditions not paid installments regularly as agreed so plaintiff bank demanded repayment as agreed. The loan is covered by MCLR Agreement dated 7.9.2016 through Ex.A9. On repeated demands made by plaintiff, defendant acknowledged the debt and executed acknowledgment of debt on 18.11.2017 in favour of plaintiff vide Ex.A12. As seen from statement of accounts under

Ex.A14 the defendant is due for a sum of Rs.7,56,662/- hence issued legal ntice under Ex.A13 demanding repayment of outstanding due amount. As seen from

Ex.A1 to A15 showing defendant availed loan but failed to pay the loan amount as agreed hence, plaintiff bank filed the suit.

11.Ex.A1 to A15 clinchingly supporting defendant availed loan from

Plaintiff bank but failed to repay same even after requests and demands. Suit is within limitation from the date of last payment on 5.12.2018. Further Defendant

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not appeared before court to protest the plaintiff claim not contested and challenged oral and documentary evidence of plaintiff hence deemed to be admitted. Plaintiff Bank by oral and documentary evidence established its claim, hence entitled for recovery of suit claim as prayed. Point No.1 answered accordingly in favour of plaintiff bank against defendant.

Point No.(ii): To what relief:

As per the discussion supra, Plaintiff entitled for recovery of suit claim.

12.IN THE RESULT: Suit is decreed in favour of plaintiff against the defendant along with costs. Defendant liable to pay an amount of Rs.7,56,662/- along with interest @ 12% p.a from the date of suit till decree and @ 6% p.a from the date of decree till realization on outstanding due amount of

Rs.7,56,662/-.

Dictated to the Stenographer, typed to my dictation on system corrected

by me on my Laptop and Pronounced by me in the Open Court,on this the 9th day of November, 2022

Sd/-

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendant: PW1: K.SreekanthExparte

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Exhibits marked for Plaintiff:

Ex.A1: Application for Vehicle Loan for purchase of TOYOTA ETIOS GD (M) BSIV Model Car, dt.06-09-2016.

Ex.A2: Sanction Letter issued by plaintiff bank, dt.07-09-2016.

Ex.A3: Promissory note (L-434) for Rs.8,00,000/- executed by defendant, dt.07- 09-2016.

Ex.A4: Bearer letter executed by defendant, dt.07-09-2016.

Ex.A5: Request Letter to repay the amount by installment executed by defendant, dt.07-09-2016.

Ex.A6: Hypothecation-Cum-Loan Agreement executed by the defendant in favour of the plaintiff, dt.07-09-2016.

Ex.A7: Letter of Declaration (1515) executed by defendant, dt.07-09-2016.

Ex.A8: An Agreement (L-516) executed by defendant undertaking in respect of promissory note for Rs.8,00,000/- endorsed by them as continuing security and to disclose information etc., dt.07-09-2016.

Ex.A9: MCLR Agreement, dt.07-09-2016.

Ex.A10: Comprehensive Letter of Declaration Undertaking and Authorities executed by the defendant, dt.07-09-2016.

Ex.A11: Vehicle Registration No.TSO8UB9866 RTO Ibrahimpatnam, dt.05-10- 2016. Ex.A12: Acknowledgement of Debt (L-444 c) executed by the defendant, dt.18-11-2017.

Ex.A13: Office copy of the Demand Notice, dt.31-01-2019.

Ex.A14: Extracts of Statement of Account with Certificate, dt.05-08-2019.

Ex.A15: Authorization Letter, dt.03-11-2022.

Exhibits marked for Defendant:NIL

Sd/-

IV SENIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.