Sri G.satya Prabhakar Rao

1

HMOP 35/2009

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE

CHITTOOR.

Present :- Sri G. Satya Prabhakara Rao,

Principal Senior Civil Judge.

Wednesday, the 22nd (Twenty Second) day of April, 2015 .

H.M.O.P.No.35/2009

Between:- Sri Chirthani Harinath Reddy

... Petitioner

And:- C. Uma Devi

... Respondent

This petition coming on before me for final hearing on 13-4-2015, upon perusing the petition, counter, other material papers on record and upon hearing the arguments of Sri P. Dayasekar, learned counsel for petitioner, Sri K.P. Kumaraswamy learned counsel for respondent and having stood over for consideration till this day, this court made the following:-

O R D E R

This is a petition filed by petitioner- Husband against respondent- wife u/sec 13 of Hindu Marriage Act seeking dissolution of marriage by getting a decree of divorce.

2. Contention of petitioner- husband, in concise, is this:

Marriage between petitioner and respondent took place on 17-11-2004 at Sanjeevarayanipalle village in accordance with

Hindu rites and custom; due to their wedlock a daughter was born to them; respondent came and joined with petitioner at his residence in Giripuram, Tirupati and both of them led happy marital life only for a period of about 10 days; though the respondent hails from a small village she used to behave herself as if she is a highly advanced and civilized girl ; she used to harass the petitioner without any reason and she also used to threaten the petitioner and his parents that she will give a false complaint by inflicting self injury; she also used to harass the petitioner and his parents to transfer the house of mother of 2

HMOP 35/2009

petitioner in her name and set up a separate family; she never cared for the needs of parents of petitioner; when respondent was carrying 5th month of pregnancy, her parents and Senior paternal

Aunt came to the house of petitioner and picked up a quarrel and taken the respondent along with them for delivery; thereafter there was no action from the side of respondent and respondent did not come and join with petitioner; respondent gave birth to a female child on 2-8-2005; the petitioner also got issued a legal notice; calling upon the respondent to come and join with him; but there is no response from respondent; absolutely there is no possibility for reunion between both the parties and hence the petition for divorce.

3. Contention of respondent in precise is this; This respondent submits that in the process of driving away the respondent from matrimonial home, petitioner and his parents subjected her with cruelty; petitioner is having an illicit intimacy with another woman by name Niveditha of Tirupati; the said woman used to visit the house of petitioner; it is learnt that petitioner is having said illegal intimacy with that woman even prior to the marriage of respondent with petitioner; during the month of November 2006 respondent went to the houses of petitioner along with child; but petitioner and his family members coming to know about the arrival of respondent along with the child left their usual place of residence; respondent and kid occupied a portion of the house in the ground floor which was kept vacant to be let out to tenant and were residing in the said portion till 10-5-2007; on 10-5-2007 father of respondent came to see the respondent and child and there he died; then the respondent along with kid returned to her native place with the dead body of her father locking the house; thereafter petitioner along with their family members have broke open the lock of the house in occupation of the respondent and inducted tenants in the said portion of the house; during her stay in a portion of the 3

HMOP 35/2009

matrimonial home, neither the petitioner nor his family members visited the respondent and they did not choose to provide even the bear necessities to lead her life; petitioner is guilty of desertion and cruelty; there are no bonafides in the petition filed by petitioner and therefore the petition is liable to be dismissed with costs.

4. On behalf of petitioner, PWs1 to 3 are examined and

Exs.A1 to A5 are marked. On behalf of respondent, RWs. 1 and 2 are examined and Exs B1 to B3 are marked.

5. Heard learned counsel for both parties and perused the record.

6. The point for consideration is whether the petitioner- husband has made out a case for divorce u/sec 13 of Hindu

Marriage Act as prayed in the petition?

7. Point:

It is well to remember that marriage between persons professing Hindu religion, is not a contract and it creates a bond between two persons as wife and husband and it is expected to remain till end of their lives. So, it can be dissolved at the instance of one party against the wish of another spouse only under certain exceptional circumstances. Normally speaking it is the duty of the court to ensure that parties to a marriage are made to live together as far as possible. So, it is only when there is no alternative for court and a case is made out for dissolution of marriage then only marriage can be dissolved by a decree of dissolution of marriage.

8. Petitioner- husband has filed the present petition seeking divorce of his marriage with respondent-wife by a decree of divorce on the grounds of “ CRUELTY AND DESERTION” on the part of wife. Though serious allegations are levelled by petitioner and respondent against each other what is to be seen is 4

HMOP 35/2009

whether the petitioner is able to substantiate the allegation of “ CRUELTY AND DESERTION” on the part of wife.

9. Petitioner- husband is examined himself as PW1. PW1 speaks from his chief examination by reiterating the averments of petition to the effect that respondent did not turn up ever since the month of April 2005 to come and join with him inspite of legal notice got issued by him; right from beginning the respondent is cruel towards himself and his family members without their being any proper reason; subsequent to filing of this petition the respondent along with some anti-social elements threatened the mother of petitioner and tried to dispossess her from the house and thereby mother of petitioner filed a suit against petitioner and respondent for grant of permanent injunction and the said suit was also decreed; respondent also filed a criminal case against petitioner, his parents, his sister and brother in law in Cr .No: 12/2008 of puthalapattu police station for the alleged offences u/sec 498-A of IPC r/w sec 3 and 4 of DP

Act and therefore his marriage with respondent may be dissolved by granting a decree of divorce.

10. From the chief examination of PW1, office copy of legal notice got issued by him to respondent is marked as Ex.A1, postal receipt of said legal notice is marked as Ex.A2, returned postal cover is marked as Ex.A3, certified copy of FIR in Cr.No: 12/2008 of Puthalapattu police station is marked as Ex.A.4 and lastly certified copy of charge sheet in CC 133/2010 on the file of learned

Excise Magistrate Court, Chittoor is marked as Ex.A.5.

11. It is very pertinent to make a note herein that, the petition filed by petitioner for divorce is laggin behind on the following crucial aspects.

(a) Exact date when the respondent wife deserted the

Petitioner?

(b) Names of alleged mediators who made mediation

on behalf of petitioner to take back respondent

5

HMOP 35/2009

with him ?

(C) What efforts the petitioner has made for restitution

of Conjugal life?

12. It is vehemently urged on behalf of petitioner that though a legal notice was issued on behalf of petitioner under

Ex.A1, it was not replied by respondent, ofcourse, the defence of respondent is that she did not receive any such legal notice.

Admittedly, there is no proof on behalf of petitioner to show that

Ex.A.1 legal notice was served on respondent- wife. On the other hand, it is clear from an endorsement made on returned cover which is marked as Ex.A3 that the notice was sent to

Goduguchinta village, but during that time, respondent was residing at Tirupati. In this connection, cross examination of PW1 made on behalf of respondent goes to show that “ he does not know where respondent worked as Vidya

Volunteer at Tirupati”.

13. Further, very curiously, relief para (Para 4 ) of Ex.A1 notice got issued by petitioner reads thus; “My client therefore strongly feels that it is not

advisable to continue the marital ties any longer with you

and hence he hereby calls upon you to come and have

divorce by mutual consent within a week from the date of

receipt of this notice, failing which my client will be

constrained to take appropriate legal steps against you,

holding you responsible for all costs incidental thereto”

14. Therefore, the said notice was issued not for restitution of conjugal life and it was issued only for divorce straight away.

So in my firm view, non-issuance of any reply notice by respondent, more particularly, when the said notice is not served on respondent, is not fatal to her defence to resist the claim made by petitioner from the present petition.

15. Be that as it may, cross examination of PW1. made on behalf of respondent, on crucial points, reads thus; 6

HMOP 35/2009

“ We did not do Seemantham to her( respondent)”

“ I do not know the name of the child”

“ I do not know whether my Father-in-law died on

10-5-2007 in Giripuram bearing D.No. 4-3-412,

When he visited the respondent”

“ It is true respondent and my child filed maintenance

Case against me in Chittoor Court. I have not sent

money to the respondent or to my daughter”.

16. The said answers of PW1, more particularly his answer that till today. even after filing a maintenance case by his wife and daughter, he did not know the name of his daughter born through respondent would go to show that his main intention is only to avoid the company of his wife and daughter, and getting a divorce without there being any justifiable ground as mentioned u/sec 13 of Hindu Marriage Act. It is also clear from the cross examination of PW1 that though his wife and daughter filed a maintenance case against him, he did not make any endeavour to pay any maintenance to them for their survival. No divorce can be granted in a petition which is filed without any bonafides. At the time of considering an application for divorce, it is the bounden duty of court to observe the past conduct and future needs of both the parties.

17. Father of petitioner is examined as PW2. A glance over his evidence makes it clear that his evidence no way helpful to the contention of petitioner, and on the other hand, it creates a shadow of doubt over the very root of claim made by petitioner.

The reason for my observation is that some answers which are elicited from the cross examination of PW2 would disclose as follows; “ I do not know the name of my granddaughter

through my son, till today. I do not know the details of her

educational particulars. I do not know where my

granddaughter through my son was born and when she was

7

HMOP 35/2009

born and till today I did not see my granddaughter through

my son. I do not know the contents of my chief affidavit . I

do not know the contents of the petition and on what

ground the said petition is filed”.

“We did not perform Sreemantham function of the

respondent. We did not attend the Sreemantham function

of the respondent performed in her house. We did not

make any attempt to bring her to our family and to reunite

the couple but we issued notice for divorce. Respondent’s

father by name Jayachandra Reddy conducted the

mediation in their village and I also attended the said

mediation”

“ There is also a maintenance case pending on the file

of Hon’ble IV Addl. Judicial Magistrate Court, Chittoor. I do

not know whether my son paid any maintenance amount

ordered by the said Hon’ble Court”

18. The said answers out and out reflect that the parents of petitioner have no love and affection towards respondent and her child and their conduct towards respondent is not justified either under law or on fact.

19. Another material point for consideration is that from the cross examination of PW2, it is clear that mediation was made only at the instance of father of respondent and that it was failed without giving any result.

20. One third party is examined as PW3 on behalf of petitioner. As per his cross examination “Through father of petitioner, I came to know about the

disputes between petitioner and respondent; during that

time, I did not give any advise to him to give any legal

notice. I have no idea about the date when I made the said

mediation”.

21.”It is a right place to observe herein that, conditions 8

HMOP 35/2009

of society are such that, no wife would ever desire to break

her matrimonial home and she would rather do all that is

possible to settle her in the husband’s house, even if, she

has to suffer a much beyond her tolerance limit. Therefore

wife has always a cherished desire to settle in her

matrimonial house, unless she is either thrown out or

forced to leave the same”.

22. It is not an out of place to observe herein that either petition or evidence of PWs 1 to 3 does not contain particulars of alleged harassment and cruelty on the part of respondent-wife except general allegations.

23. On behalf of respondent, respondent has examined herself as RW1 and one third party is examined as RW2. Evidence of RWs 1 and 2 is very consistent and I find no reason to discard the validity over their evidence. Their evidence clunchingly establish the fact that respondent is no way responsible for

CRUELTY AND DSERTION.

24. From the chief examination of RW1, bunch of electricity bills are marked as Ex.B.1. Telephone bill is marked as Ex.B.2.

L.I.C demand notices are marked as Ex.B.3. The said documents would go to show that the respondent is always ready and willing to live in matrimonial home; but, petitioner and his family members on one pretext or the other avoiding the presence of respondent and her daughter.

25. So far as evidence of RW2 is concerned; it is clear that

RW1 is his wife’s elder sister’s daughter and he made an attempt to solve the matrimonial disputes between petitioner and respondent; but, his efforts were in vain.

26. The learned counsel for respondents has invited my attention to the following decisions reported in 9

HMOP 35/2009

i) AIR 2014 AP 24

Between: V.Venkateswarlu

And

V. Mamatha

In the said decision, their Lordships are pleased to hold that:

“ Mere fact that one of the spouses live separately cannot, by itself, constitute cruelty ”.

ii) 2014 (4) ALT 708(DB)

Between: Katada Baby @ Kollati Baby

And

Katadi Sri Venkata Satya Raja sekar

In the said decision, their Lordships are pleased to hold that:

“ Mere filing of criminal case u/sec 498-A IPC and a maintenance case u/sec 125 of Cr .P.C by wife against husband are by themselves are not sufficient grounds to grant a decree for divorce as amounting to cruelty unless there is other evidence to prove the acts of cruelty ” iii) 2014 (4) ALT 802 (DB)

Between: Kanda Andalu

And

Kanda Shankar

In the said decision, their Lordships are pleased to hold that:

“ Wife’s mere living separately from her husband does not in itself amount to cruelty to husband unless such act is proved to be an act of desertion ”

Iv) 2013 (6) ALT 405 (DB)

Between: Bodapati Umamaheswwari

And

Bodapati Venkateswara Rao 10

HMOP 35/2009

In the said decision, their Lordships are pleased to hold that:

“ Living separately alone for a prolonged period cannot constitute the basis to pass a decree of divorce ”

The ratio of law laid down in the said decisions is very much helpful to the defence of respondent to conclude that there is no fault what so ever on the part of respondent and that in the present set of facts and circumstances of the case, petitioner is not entitled to get any divorce.

27. To put in simple, I can conclude that, in the light of afore said discussion, petitioner- husband is not entitled to get any divorce and the petition deserves for dismissal.

28. Hence, the point is answered accordingly against petitioner and in favour of respondent.

29. In the result, petition filed by petitioner for divorce, is dismissed; but, without costs.

Dictated to Personal Assistant and after transcription by

her, corrected by me and pronounced in open court this the 22nd day of April, 2015.

Principal Senior Civil Judge,

Chittoor. Appendix of Evidence Witnesses examined :-

For Petitioner: - For respondent:-

PW1 C. Harinadha Reddy RW1 C. Uma Devi PW2 C. Balakrishna Reddy RW2 K. Ravichandra Reddy PW3 K. Venkatadri Naidu Exhibits marked

For petitioner:-

Ex.A1 Office copy of legal notice dated 5-12-2006

Ex.A2 Postal receipt.

Ex.A3 Return cover

Ex.A4 CC of FIR in Counter .No. 12/2008 of 11

HMOP 35/2009

Puthalapattu police station.

Ex.A5 Certified copy of charge sheet in CC 133/10 Of Excise court

For respondent:-

Ex.B.1 : Bunch of electricity bills Ex.B.2 : Telephone Bills Ex.B.3 : LIC demand notice.

P S C J

FAIR Order in HMOP 35/2009

Dt. 22-4-2015 PSCJC CTR

1

IN THE COURT OF THE ADDL. SENIOR CIVIL JUDGE; CHITTOOR

Present :- Sri G.Satya Prabhakara Rao, B.Sc.,L.L.M., Addl. Senior Civil Judge, Chittoor.

Saturday, the Twenty Seventh (27th) day of April, 2013.

O.S. No. 194/ 2011

Between:

P.Vasu Naidu. … Plaintiff And :

Smt K.Varalakshmi.

... Defendant

This suit is coming on 08-4-2013 before me for final hearing in the presence of Sri M.Anand, Advocate for plaintiff; Sri. P.Prakash Reddy, Advocate for defendant; and upon hearing arguments of both sides and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

This is a suit filed by plaintiff against the defendant to recover the suit amount under the foot of a promissory note besides costs of the suit.

02. The contention of the plaintiff, in concise, is this :

The defendant borrowed a sum of Rs.1,19,000/- from plaintiff on 20-7-2009 and executed a demand promissory note in favour of plaintiff on the even date undertaking to repay the said sum with interest at 12% p.a; but, in spite of several demands made by plaintiff including a legal notice, the defendant did not repay the said debt and hence, the suit.

03. The contention of defendant, in precise, is this:

The defendant submits that her daughter is the daughter- in-law of plaintiff; after marriage, the defendant executed a Gift

Settlement Deed in respect of property having an extent of Ac.2.50 2 cents in favour of her daughter towards pasupu Kumkuma; but, the plaintiff demanded his daughter-in-law and this defendant to sell away the property covered under the said Gift Settlement Deed; the said proposal was refused by defendant; thereby, the plaintiff bore grudge against this defendant and her daughter; more over, the plaintiff demanded his daughter-in-law to bring an additional dowry of

Rs.2,00,000/-; at that time a mediation was held in the house of defendant and the defendant agreed to pay an amount of

Rs.1,00,000/- towards additional dowry and during that time the defendant signed in a blank promissory note and her son signed as a witness in the said promissory note and handed over the same to plaintiff for the purpose of security; the suit promissory note is not supported by any lawful consideration; there is no cause of action to file the suit and hence, the suit is liable to be dismissed with costs.

04. Basing on the rival contentions put forth by both the parties, the following issues have been settled for trial:

I S S U E S

1 Whether the suit promissory note is true, valid and binding on the defendant?

2 Whether the suit promissory note is an out come of additional dowry demand made by plaintiff ?

3 Whether the suit promissory note is supported by valid consideration?

4 Whether there is a cause of action to file the suit?

5 Whether the plaintiff is entitled to recover the suit amount, as prayed for?

6 To what relief?

3

05. On behalf of plaintiff, PWs-1 and 2 are examined and Exs.

A-1 to A-3 are marked. On behalf of defendant, no witness is examined and no document is also marked.

06. Heard the learned counsel for both the parties and perused the record.

07. ISSUES 1 to 5:

Since these five (5) issues are interrelated in nature, they are taken up together for a just and proper adjudication of the matter.

08. In a suit like this nature in view of defence taken up by defendant, an initial burden lies on plaintiff to prove execution of suit promissory note and once this initial is discharged, then automatically burden shifts to defendant to prove his defence by adducing rebuttal evidence, if any.

09. The plaintiff in order to substantiate his claim over the suit amount has examined himself as PW-1 and 2nd attestor of suit promissory note as PW-2.

10. The plaintiff as PW-1 speaks from his chief-examination, in nutshell that “the defendant borrowed a sum of Rs.1,19,000/- from him on 20-7-2009 for her family necessities and executed the suit promissory note in his favour on the even date undertaking to repay the said sum with interest at 12% p.a.; but, in spite of several demands made by him including a legal notice, the defendant did not discharge the suit debt and therefore, he is entitled to recover the suit amount from defendant, as prayed for.”

11.From the chief-examination of PW-1, promissory note is marked as Ex.A-1, office copy of legal notice got issued by plaintiff to 4 defendant is marked as Ex.A-2 and lastly postal acknowledgment from defendant is marked as Ex.A-3.

12. It is obvious to observe herein that aforesaid evidence of

PW-1 with regard to suit transaction covered under Ex.A-1 promissory note is very much specific and consistent and it is no way impeached even in the cross examination of PW-1 made on behalf of defendant, at length.

13.On the other hand, it is clear from the cross examination of PW-1 in a way to support his contention that Ex.A-1 was executed at his house, before 8.00 A.M.; some amount he met from his savings bank account four days prior to Ex.A-1 and he met the remaining consideration from his house and he is having savings bank account in

State Bank of India, Greamspet Brach.”

14.PW-2 inter alia, speaks from his chief-examination, in brief, that “the defendant borrowed a sum of Rs.1,19,000/- from plaintiff on 20-7-2009 for her family necessities and executed a promissory note in favour of plaintiff undertaking to repay the said sum with interest at 12% p.a.; the son of defendant is 1st attestor and in their presence, plaintiff paid cash consideration of Rs.1,19,000/- to the defendant.”

15.Therefore, evidence of PW-2 is co-incide with the evidence of PW-1 in all crucial aspects like place of execution, manner of execution and passing of consideration, without any deviation.

16.In this context, cross examination of PW-2 made on behalf of defendant also amply supports the claim of plaintiff in a way that “Ex.A-1 was executed in his presence and that it was executed in between 7.00 A.M. and 8.00 AM in the house of plaintiff.” 5

17.It is very pertinent to make a note herein that though it is the specific defence of defendant from her written statement she subscribed her signature on a blank promissory note towards security with regard to an additional dowry demand made by plaintiff, the defendant, for the reasons best known to her did not make any endeavour to step into witness dock to substantiate the said defence.

18.It is a well established principle under law that where a party to the proceedings does not enter into witness dock to state his own case on oath and does not offer himself to be cross examined by other side, a presumption would arise under law that the case set up by him is not correct.

19. Therefore, non examination of defendant is a vital blow to her pleading and it leads an irrecoverable conclusion that the defence of defendant is tainted with an illegality only to escape from suit liability on some flimsy and fancy grounds, without there being any justification what so ever.

20. In the light of aforesaid discussion, I am of the considered view that the plaintiff is perfectly entitled to recover the suit amount from defendant, as prayed for

21. Hence, the point is answered in favour of plaintiff and against the defendant.

22. ISSUE No-6:

In the result, suit is decreed with costs in favour of plaintiff and against the defendant for a sum of Rs.1,42,830/- (Rupees one lakh forty two thousand eight hundred and thirty only) together with interest at 12% per annum on the principal amount of Rs. 1,19,000/- (Rupees one lakh and nineteen thousand only) from the date of suit till 6 the date of decree and at 6% per annum from the date of decree till the date of realization.

Dictated to the Personal Assistant, transcribed by her, corrected

and pronounced by me in open Court this the 27th day of April, 2013.

sd/ G.Satya Prabhakara Rao

ADDL.SENIOR CIVIL JUDGE,

CHITTOOR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF: DEFENDANTS:

PW-1: P.Vasu Naidu, –NIL- PW-2 : S.Rajendran.

EXHIBITS MARKED FOR

PLAINTIFF:

Ex.A-1 : Suit Promissory Note dated 20-7-2009 executed by defendant, Ex.A-2 : Office copy of legal notice got issued by plaintiff , Ex.A-3 : Postal acknowledgment form defendant .

DEFENDANTS:-Nil-

id/GSPR

A.S.C.J.

C.T.R.

7

1

EP 131/2014

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE,

CHITTOOR.

Present: - Sri G. Satya Prabhakara Rao

Principal Senior Civil Judge, Chittoor

Thursday, the 23rd (Twenty Third) day of April, 2015

E.P. No. 131/2014

Arb.Case No.144/2013

Between:-

M/S Shriram City Union Finance Ltd., Chittoor Branch, represented by its Authorized Signatory P.Sudhananda Reddy …. Petitioner / Decree holder. And:- M. Nagaiah

... Respondent/ 3rd judgment debtor

This petition coming on before me for final hearing on 15-4-2015, upon perusing the petition, counter of 3rd judgment debtor, other material papers on record, upon hearing the arguments of Sri C.Hari Krishna, learned counsel for petitioner /decree-holder, and Sri V.Venkatachalam, learned counsel for respondent/ 3rd judgment debtor; and having stood over for consideration till this day, this court made the following:-

O R D E R

This is an Execution petition filed by decree holder Finance

Company against third judgment under Order 21 Rule 48 of CPC to realize Execution Petition amount by way of attachment over the salary of third judgment debtor.

2. Contention of decree holder, in concise, is this:

Third judgment debtor is working as a teacher and drawing monthly salary of Rs.30,000/- PM; even though the people of Decree holder demanded the amount after award the third judgment debtor is initially evading to pay the amount on one ground or the other; third judgment debtor has no right to do so and hence execution petition to recover award amount by way of attachment over the salary of third judgment debtor.

3. Contention of third judgment debtor, in precise,is this; 2

EP 131/2014

This judgment debtor did not borrow any amount from Decree holder; he did not execute any document in favour of Decree holder; Arbitrator did not give any opportunity to this judgment debtor to defend the case filed by Decree holder; first judgment debtor is a government employee and 2nd judgment debtor is doing business; judgment debtors 1 and 2 are having capacity to discharge the debt; but, Decree holder by leaving judgment debtors 1 and 2 filed the present execution petition against this judgment debtor by colluding with judgment debtors 1 and 2; this judgment debtor is getting only a meagre salary and his aged parents, wife and three children are depending upon the income of this judgment debtor; the present Execution petition against this judgment debtor is not maintainable and therefore Execution

Petition is liable to be dismissed with costs.

4. No oral or documentary evidence has been adduced or produced on behalf of either party.

5. Heard learned counsel for both parties and perused the record.

6.The point for consideration is, whether decree holder is entitled for the Execution Petition relief under Order 21 Rule 48 of C.P.C., against third judgment debtor as prayed for?

8. POINT:

At the outset, It is obvious to observe herein that, an

Award in Arbitration Case No. 144/2013 before learned sole arbitrator was passed in favour of Decree holder as claimant and against this judgment debtor and two other persons as respondents on 8-3-2014.

9. An operation portion of the said Award reads thus:

“ 1. The Award is passed directing the respondents 1 to 3 jointly and severally to pay Rs.5,55,610-00 (Rupees five lakhs fifty five thousand six hundred and ten only) to the claimant with penal interest at 2.5% p.m. i.e., 30% p.a. as prayed in the claim statement on the due amount of Rs.2,87,000-00 (Rupees two lakhs eighty seven thousand 3

EP 131/2014

only) from the date of claim petition to a day prior to the date of this Award and subsequent interest at 18% p.a. from the date of the award till the date of realization besides Rs.2,379-00 (Rupees two thousand three hundred and seventy nine only) towards the costs of ARBITRAL proceedings.

2. The Award is for full and final settlement of the claim of the claimant referred for Arbitration under the Loan Agreement and it is binding on the parties concerned.

3. The Award is made on Non-judicial stamps worth Rs.250/- and does not require any registration under the Arbitration and Conciliation Act of 1996

4. The Award shall be enforced under the Code of Civil Procedure 1908, in the same manner as if it were a Decree of the Civil Court as per Sec. 36 of the Arbitration and Conciliation Act of 1996”.

10. As per record, the said Award is left as unsatisfied by judgment debtors. Further, there is no appeal or stay against the said Award.

11. It is well to remember that Law of Execution is mainly intended to see that the decree holder should enjoy the fruits of the decree, in toto. Further, at the time of execution of decree, the court of execution is required to see, whether terms and conditions of decree are fully satisfied or not. At the stage of execution of decree, we cannot travel beyond the scope of decree passed between both parties.

12. At this juncture, if we drive our attention to defence put forth by third judgment debtor, it is his grievance that he did not receive any consideration from decree holder company and that the present execution petition against him without working out its remedies by Decree holder against judgment debtors 1 and 2 is not maintainable under law. I find no substance in the said submissions put forth on the following grounds.

13. The expression ‘guarantee’ literally means, “an

assurance given by one person to another at the default of

some other”. It is also known as a contract of

4

EP 131/2014

‘Suretyship”. Sec.126 of the Indian Contract Act defines a

Contract of Guarantee as, “A Contract to perform the

promise or discharge the liability of a third person in case

of default.” Further, Sec.128 of the Indian Contract Act

deals with, nature and extent of surety’s liability.

According to this Section, “the liability of surety is co-

extensive with that of the principal debtor.” Therefore,

liability of surety arises, when there is a default on the

part of ‘principal debtor’.

14. Therefore, defence of third judgment debtor that the present Execution Petition is filed straight away against him is not at all maintainable is not tenable either under law or under fact.

15. However it be, as per record, so far, salary certificate of third judgment debtor is not received by this court. Another important point for consideration is that though it is the other fold of defence of third judgment debtor that he is getting only a meagre salary and that it is not sufficient for the existence of his entire family; for the reasons best known to him, he did not make any endeavour to file copy of his salary certificate.

16. In the light of aforesaid discussion, I am of the considered view that salary of third judgment debtor is liable for attachment subject to Sec. 60 of CPC.

17. Hence, the point is answered accordingly.

18. In the result, present enquiry under Order 21 R 48 of

CPC is concluded in favour of Decree holder and against third judgment debtor with a finding to attach the monthly salary of third judgment debtor, subject to Sec. 60 of CPC on payment of process by Decree Holder.

Dictated to Personal Assistant and after transcription by

him, corrected by me and pronounced in open court this the 23rd day of April, 2015.

Principal Senior Civil Judge,

Chittoor.

5

EP 131/2014

Appendix of Evidence :- -Nil-

P S C J

Fair Order in EP 131/2014 in

Arb.C.No.144/2013 dt.23-4-2015

1

HMOP 131/2014

THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE

CHITTOOR.

Present :- Sri G. Satya Prabhakara Rao,

Principal Senior Civil Judge.

Thursday, the 30th (Thirtieth) day of April, 2015

H.M.O.P.No.131/2014

Between:- Palluru Ramya

... Petitioner

And:- Kokkunur Lakshmi Prasad

... Respondent

This petition coming on before me for final hearing on 22-4-2015, upon perusing the petition, counter and other material papers on record and upon hearing the arguments of

Sri C.Subramanyam, learned counsel for petitioner and

Sri K. Murali, learned counsel for respondent and having stood over for consideration till this day, this court made the following:-

O R D E R

This is a petition filed by petitioner-wife against respondent- husband, under Sec.13 of the Hindu Marriage Act, seeking dissolution of marriage by getting a decree of divorce.

2. Contention of petitioner/wife, in concise, is this:

Marriage between petitioner and respondent was solemnized on 13-10-2013 in Padmavathi Kalyanamandapam,

Tirupati as per Hindu rites and caste custom; because of bad habits of the respondents, in the first instance,petitioner expressed her dislike for marriage; because of the force of parents of petitioner and mother of respondent petitioner agreed for the marriage; after marriage petitioner did not join the respondent for about three months; ultimately during the end of January 2014, petitioner was taken to the house of respondent; for about 10 days nobody was talking to petitioner; thereafter also respondent used to come to house in a drunken state of mind and used to beat the 2

HMOP 131/2014

petitioner; on account of continuous harassment of respondent and his family members the petitioner developed mental shock; the petitioner has also filed DVC 51/2014 on the file of III Addl.

Judicial Magistrate of I class Court, Chittoor praying for protection

order against respondent and his relatives; further, petitioner has also filed a complaint for offences u/sec 341,506,324 and 307 IPC r/w 109 IPC against the respondent and his relatives before learned judicial magistrate of first class, Pakala and thereby the court sent the complaint to SHO, Pakala for investigation and report.

3. There is no possibility for living together between petitioner and respondent and therefore the marriage between both the parties may be dissolved.

3. Contention of respondent- husband in precise, is this:

It is true petitioner is the wife of respondent; this respondent never made any harassment or cruelty on petitioner as alleged in the petition and this respondent has no objection for granting divorce to petitioner.

4. On behalf of petitioner, PW1 is examined and Ex.A1 and

A2 are marked. On behalf of respondent, no witness is examined and no document is also marked.

5. Heard the learned counsel for both parties and perused the record.

6. The point for consideration is whether the petitioner/wife has made out a case for divorce u/sec 13 of HM

Act as prayed for?

7. Point:

It is well to remember that marriage between persons professing Hindu religion, is not a contract and it created a bond between two persons as wife and husband and it is expected to remain till end of their lives. So, it can be dissolved at the instance of one party against the wish of another spouse only 3

HMOP 131/2014

under exceptional circumstances.

8. Further, normally speaking it is the duty of the court to ensure that parties to a marriage are made to live together as far as possible. So, it is only when there is no alternative for the court and a case is made out for divorce, then only the marriage can be dissolved by decree of divorce.

9. The petitioner-wife has filed the present petition seeking for dissolution of her marriage with the respondent-husband by a decree of divorce on the grounds of cruelty and desertion on the part of the husband. As per respondent- husband, he did not indict any cruelty or harassment on petitioner-wife; allegations of petition are false and that he has no objection for giving divorce.

10. Petitioner-wife has examined herself as PW1 and that she has almost reiterated averments of her petition from chief examination which is filed by way of an affidavit as contemplated under order 18 Rule 4 of CPC. Main grievance of PW1 from her chief examination is that “ respondent and his mother used to put her in a room

and used to lock the room and they did not allow her to

come out of the house; accordingly she was kept under

house arrest for a period of 9 months; she is un able to bear

the torture and harassment of respondent; left with no

option she filed a case in DVC 51/2014 on the file of

learned III Addl. Judicial Magistrate of I class, Chittoor

court praying for protection from the hands of respondent

and his family members; she developed aversion towards

respondent on account of his cruel attitude; it is not

possible for herself to live with respondent as wife and

therefore the marriage should be dissolved by granting a

decree of divorce.”

11. From the chief examination of PW1, wedding card of marriage is marked as Ex.A1 and notary attested copy of Aadhar card of petitioner is marked as Ex.A.2.

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HMOP 131/2014

12. It may be noted herein that there is no dispute with regard to marital relationship between petitioner and respondent as wife and husband.

13. An important point which requires our attention is that, from the cross examination of PW1 made on behalf of respondent, it has come out that “ respondent has no objection to give divorce “

14. Therefore, it is clear from the cross examination of

PW1 made on behalf of respondent that respondent has no objection to consider divorce in favour of petitioner.

15. Further, no evidence is reported on behalf of respondent. In the present set of facts and circumstances of the case, it is crystal clear that absolutely there is no possibility for re- union between both the parties and as such petitioner had gone up to an extent by filing Domestic Violence Case (DVC) against respondent and his family members. Thus, I am of the considered view that it is a just and proper case to dissolve the marriage between petitioner and respondent by granting a decree of divorce as prayed in the petition.

16. Hence the point is answered accordingly.

17. In the result, the petition is allowed without costs by dissolving marriage between petitioner and respondent by granting a decree of divorce.

Dictated to Personal Assistant and after transcription by her,

corrected by me and pronounced in open court this the 30th day of

April, 2015.

Principal Senior Civil Judge,

Chittoor.

Appendix of Evidence Witnesses examined :-

For Petitioner: - For respondent:-

PW1 : P. Ramya -None- 5

HMOP 131/2014

Exhibits marked

For petitioner:-

Ex.A1 Wedding Card

Ex.A2 Notary attested copy of Aadhar card.

For respondent:

Nil

P S C J

Fair Order in HMOP 1312014 Dt.30-4-2015 PSCJC CTR

SC 5/2013 1

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE,

CHITTOOR.

Present :-Sri G. Satya Prabhakara Rao,

Principal Senior Civil Judge, Chittoor.

Friday the 24th(Twenty Fourth) day of April, 2015.

S.C.No. 5/2013

Between:- M. Chengalrayan … Plaintiff.

And:- S. Munirathnam … Defendant

This suit coming on before me for final hearing on 16-4-2015 in the presence of Sri P. Ashok Anand, learned counsel for plaintiff, Sri K. Chinnaswamy Naidu, learned counsel for defendant and having stood over for consideration till this day, this court delivered the following

J U D G M E N T:

This Small Cause suit is filed by plaintiff against defendant to recover suit amount under the foot of suit promissory note with subsequent interest and costs of suit.

2. Contention of the plaintiff, in concise, is this:

Defendant borrowed a sum of Rs.7,000/- from plaintiff on 25-11-2012 and executed a demand promissory note in favour of plaintiff on the even date undertaking to repay the said sum with interest at 24 % p.a; inspite of several demands made by plaintiff including a legal notice got issued by him, the defendant did not discharge the suit debt; defendant is not entitled to get any benefits under agricultural loan relief scheme and hence the suit.

3. Contention of defendant, in precise, is this :

This defendant never borrowed any amount from plaintiff; he never executed any promissory note in favour of plaintiff; promissory note filed in this suit is a rank forged document; defendant is entitled to get benefits under agricultural debt relief acts; there is no cause of action to file the suit and therefore the suit is liable to be dismissed with costs.

SC 5/2013 2

4. In view of contention and rival contention put forth by both parties the following issues have been settled for trial.

1) Whether the suit promissory note is true, valid and binding on defendant?

2) Whether the suit promissory note is a forged document?

3) Whether the defendant is entitled for the benefits under

Agricultural Debt Relief Act?

4) Whether there is a cause of action to file the suit?

5) When the plaintiff is entitled to recover the suit amount as prayed for?

6) To what relief?

5. On behalf of plaintiff, PW1 is examined and Exs. A1 to

A3 are marked. On behalf of defendant, no witness is examined and no document is marked on behalf of defendant. .

6. Heard and perused the record.

7. Issues 1 to 5 :

Since these five issues are inter-related in nature, they are taken up together for just and proper adjudication of the matter.

8. In view of defence put forth by defendant from his written statement an initial burden lies on plaintiff to prove execution of suit promissory note and once this initial burden is discharged by plaintiff, then automatically, burden shifts to defendant to prove his defence by adducing rebuttal evidence, if any.

9. In order to substantiate his claim over suit amount, plaintiff has examined himself as PW1. His chief examination which is filed by way of an affidavit as contemplated under order 18 Rule 4 of CPC, in nut shell, discloses that “on 25-11-2012, the defendant for his family necessities

borrowed an amount of Rs.7,000/- from him and executed

a demand promissory note on the same date undertaking to

repay the said sum with interest at 24 % P.a; though a

legal notice was issued, the defendant did not repay the

SC 5/2013 3

suit debt and therefore the defendant is liable to pay the

suit amount with subsequent interest and costs of suit”.

10. From the chief examination of PW1, suit promissory note is marked as Ex.A1, office copy of legal notice got issued by plaintiff is marked as Ex.A2 and lastly postal acknowledgment from defendant is marked as Ex.A.3.

11. It is obvious to observe herein that afore said evidence of PW1 with regard to suit transaction covered by Ex.A1 promissory note is very consistent and confident and that it is no way impeached even in the cross examination made on behalf of defendant, at length.

12. On the other hand, cross examination of PW1 made on behalf of defendant, touching important points, would read thus; “I am doing cultivation” “ Ex.A1 is executed in my house at 12 noon”

“Aswadhama and Ravi (attestors of suit promissory

note) belong to Boomireddipalle which is at a distance of 4

Kms away from my village. Aswadhama brought Ravi.

8. It is very pertinent to make a note herein that though it is the defence of defendant from his pleadings that suit promissory note is a forged document, very astonishingly, defendant did not make any endeavour what so ever, to step into witness dock to substantiate the said defence.

9. It is well established principle under law that where a party to the proceedings does not enter into witness box to state his own case on oath and does not offer himself to be cross examined by other side, a presumption would arise under law that the case set up by him is not correct.

10. Therefore, non examination of defendant is a vital blow to the defence of defendant. We cannot forget that a mere perusal of Ex.A1 promissory note, indicates that it was scribed by defendant himself.

11. In the present set of facts and circumstances of the case, I am of the considered view that Ex.A1 promissory note is true, valid and enforceable against defendant and the plaintiff is

SC 5/2013 4

perfectly entitled to recover the suit amount from defendant as prayed for.

12. Hence, all these five issues are answered in favour of plaintiff and against defendant.

13. ISSUE NO: 6 :- In the result, suit is decreed with costs in favour of plaintiff and against defendant for a sum of

Rs.7,590/-( Rupees seven thousand five hundred and ninety only) together with interest at 12 % p.a. on the principal amount of

Rs.7,000/- (Rupees seven thousand only) from the date of suit till the date of decree and at 6 % p.a. from the date of decree till the date of realization.

Dictated to Personal Assistant and after transcription by her,

corrected and pronounced by me in open court this the 24th day of

April 2015.

Principal Senior Civil Judge,

Chittoor.

Appendix of Evidence Witnesses examined for :- Plaintiff:- Defendant:-

PW1 M. Chengalrayan -Nil-

Exhibits marked for Plaintiff:-

Ex.A1 Suit promissory note

Ex.A2 Office copy of legal notice got issued by him along with postal receipt

Ex.A3 Postal acknowledgment from defendant

Defendant:- -Nil-

P.S.CJ.

FAIR Judgment in SC 5/2013

Dated 24-4-2015 PSCJC Chittoor

SC 5/2013 5