Sri G.Yagna Narayana

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THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE AT

VIZIANAGARAM.

Present: Sri G. YAGNA NARAYANA,

Additional Senior Civil Judge,

Vizianagaram.

Wednesday, the 27th day of March, 2024.

O.S.No.238 of 2014

Between: Kedari Krishna Ra. … Plaintiff.

And: Adari Srinuvasa Rao. … Defendant.

The suit coming before me on 09.02.2024 for final hearing in the presence of Sri K. Simhachalam, Advocate for the Plaintiff and of Sri Ch. Rambabu, Advocate for defendant having stood over for consideration till this day, this Court delivered the following

J U D G M E N T

1. This is the suit filed by the plaintiff against the defendant for recovery of suit debt amount of Rs.8,20,000/- covered under suit promissory note Dt.20.02.2011 for a sum of Rs.5,00,000/- together with interest @ 18% p.a., and costs of the suit.

2. The brief facts of the case of the plaintiff is as follows :

The defendant borrowed an amount of Rs.5,00,000/- from the plaintiff on 15.07.2011 for the purpose of his business investment on executing a promissory note in favour of the plaintiff agreeing to repay the same with an interest @ 24% p.a., to the plaintiff or to his order on demand within one year. The defendant furnished his registered sale deed bearing document No.335/2004 of S. Kota SRO, Vizianagaram

District to the plaintiff towards security to the amount borrowed by him.

Later inspite of repeated requests and demands made by the plaintiff, the defendant did not pay any amount either principal or interest and 2 used to postpone the same on one pretext or the other. The plaintiff got issued a registered legal notice dt.31.12.2013 to the defendant which was received by the defendant on 16.01.2014 but he did not give any reply, therefore plaintiff filed this suit for recovery of suit debt together with interest and costs.

3.After receipt of summons, the defendant appeared before the court filed written statement and also filed additional written statement where in the defendant denied all the plaint allegations as false. The defendant submitted that the elder brother of plaintiff got filed this suit throiugh this plaintiff and further submitted that the elder brother of the plaintiff

Kedari Ramasatyam, Mumuluri Madhu, Hanumansetty Sekhar,

Singapalli Govinda, Busala Tata Rao, Naramsetti Ramana and

Mangunaidu so also himself (defendant) used to run chit and finance business at Boddam village. While so, the brother of the plaintiff Kedari

Ramasatyam used to manage the affairs of the said finance business, while so he failed to account for the profit. The defendant further submitted that when he requested Kedari Ramasatyam to furnish the correct details of the accounts, then some disputes arose between himself and the said Kedari Ramasatyam. Therefore, the defendant came out from the said business. While so, for settlement of finance business issues, the matter was placed before Kanisetti Easwara Rao,

Kanisetti Sannibabu, Saladi Sombabu and Budiredla Ramana before whom the matter was settled. The defendant nextly submitted that in the above said settlement, he was directed to pay Rs.4,00,000/- to the brother of plaintiff Kedari Ramasatyam and the said Ramasatyam agreed to return the blank signed pronote and other documents containing his signatures which were obtained from him while he entered into the finance business with the above said partners.

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The defendant further submitted that he paid Rs.4,00,000/- to the brother of the plaintiff in the month of January, 2013 but the brother of plaintiff did not return the said blank pronote and other papers postponed the same on one pretext or the other. While so, taking advantage of the blank pronote with the brother of the plaintiff, they fabricated false document as if he obtained loan of Rs.5,00,000/- from the plaintiff got filed false suit for illegal gains. The suit filed by the plaintiff is not maintainable under law or on facts as the said pronote was not supported by any consideration. Hence prays the court to dismiss the suit with costs in the interest of justice.

4.In view of the above said pleadings of both parties, after hearing both parties, this court settled the following issues for an adjudication:

1. Whether the suit pronote is true, valid

supported by consideration and binding on

the Defendant?

2. Whether the plaintiff is entitled to decree as sought in the plaint ?

3. To what relief?

5.In order to prove the case of the plaintiff, the plaintiff himself examined as PW1 filed his chief-affidavit wherein he reiterated the entire contents of plaint averments in support of his oral evidence, got marked Ex.A1-Promissory note Dt.09.09.2015, Ex.A2-Office copy of registered legal notice dt.16.1.2014 and Ex.A3-Acknowledgment dt.23.1.2014. The plaintiff also got examined the 1st attestor of Ex.A1 pronote as PW2 who corroborated the evidence of PW1 in all material aspects. The plaintiff also filed chief-affidavit of PW3, but the said witness did not appear before the court for affirmation, hence his 4 evidence has been eschewed. The plaintiff prays the court to pass a decree and judgment in his favour and against the defendant for recovery of the suit debt of Rs.8,20,000/- with subsequent interest @ 24% p.a., from the date of suit till the date of realization and for costs of the suit.

6. On behalf of the defendant, the defendant himself examined as

DW1, filed his chief-affidavit by reiterating the entire contents of his written statement and additional written statement. In support of his oral evidence got marked Ex.B1 to B7 documents. Ex.B1 is the copy of registered sale deed dt.29.12.2006, Ex.B2 are two photographs showing the building where they run chit business, Ex.B3 is the certified copy of application for registration of firms in the name of Sai Lakshmi chits and

Finance along with declaration, Ex.B4 is the chit books in the name of Sai

Lakshmi Chits and finance pertaining to its subscriber by name Ramisetti

Durga Prasad, Ex.B5 is the chit book in the name of Sai Lakshmi Chits and finance pertaining to its subscriber by name Ramisetti Ratna Mounica. Ex.B6 is the original payment receipt issued by Sai lakshmi Chits and fiance dt.7.7.2003 to Ramisetti Durga Prasad and Ex.B7 is the original payment receipt issued by Sai lakshmi Chits and fiance dt.7.7.2003 to Ramisetti

Ratna Mounica. The defendant also got examined DW2-Hanumalasetty

Sekhar Babu, DW3-Kanisetty Easwara Rao, DW4-Saladi Sombabu,

DW5-Budiredla Ramana who are the alleged partners of the Sai

Lakshmi Chit Fund and also got DW6-Saladi Eswaramma and DW7-

Gokeda Ravi Kiran are the subscribers of Sai Lakshmi Chit Fund out of them, DW6 and DW7 corroborated the evidence of DW1 in all aspects.

The defendant/DW1 prays the court to dismiss the suit with cots as it was filed with false allegations and fabricated document for illegal gains.

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7.Heard arguments from both sides. The learned counsel for plaintiff also filed written arguments.

8.The learned counsel for the plaintiff contended that the case of the plaintiff has been proved from the evidence of PW1/plaintiff and

PW2/attestor and from the material on record. The evidence of PW1 and PW2 categorically reveals that on 15.07.2011, the defendant borrowed an amount of Rs.5,00,000/- on Ex.A1 pronote which was executed in favour of the plaintiff agreeing to repay the debt with interest @ 24% p.a., subsequently he failed to pay the same, therefore, got issued

Ex.A2 legal notice but in vain, hence filed this suit for recovery of suit debt together with interest and costs.

The counsel for plaintiff further contended that though the defendant contended that Ex.A1 pronote was taken by the brother of plaintiff namely Kedari Ramasatyam in a chit transaction where in the defendant was one of the member of the said chit was not maintained properly. Therefore, some dispute taken place. In the said dispute defenant paid Rs.4,00,000/- to the brother of the plaintiff namely Kedari

Rama Satyam, but the said Rama Satyam did not return the empty pronotes and other documents given by defendant and further contended that one of the empty promissory note was filled in the name of the plaintiff who is no other than the brother of Kedari Rama Satyam he got filed this false suit for illegal gains. The admissions of PW1 and

PW2 and the material on record and also the evidence of DW1 to DW7 reveals the said fact, hence it is liable for dismissal but the said contention is found no merits. The defendant failed to prove the said contention by adducing rebuttal evidence. Therefore, the case of the plaintiff has been proved conclusively pray the court to pass a decree 6 and judgment in favour of plaintiff against defendant with interest and costs in the interest of justice.

9.Whereas the counsel for the defendant contended that the case of the plaintiff has not been proved either from the evidence of PW1 and PW2 or from the material on record. No transaction took place between the defendant and PW1/plaintiff. Ex.A1-pronote was fabricated document created by the brother of the plaintiff namely Kedari Rama

Satyam who conducted Sai Lakshmi Chit Fund business along with defendant and others and took some empty pronotes and documents.

While so, the said chit business was not running properly, the defendant demanded for proper accounts in the presence of elders namely K.

Eswara Rao, K. Sanni Babu, Salada Sombabu and others paid an amount of Rs.4,00,000/- to take back his empty pronotes, but the brother of the plaintiff did not return the said empty pronotes.

Subsequently created Ex.A1 pronote got filed false suit for illegal gains.

The evidence of PW1 and PW2, their admissions and the evidence of

DW1 to DW7 and Ex.P1 to P7 documents reveals the said fact that it is filed for illegal gains and it is liable for dismissal.

The counsel for defendant relied upon a decision of Honourable Karnataka High Court reported in Supreme Today 2006 Part-I Between Saftarsab Appellant

Vs.

B. Allaiah @ Appappa Respondent where in it was held by the

Honourable High Court of Karnataka if evidence of witnesses in

contrary to each other about execution of document the case of the plaintiff is liable for dismissal as execution was not proved. In the said Judgment it is also further held that as per Sec.118 certain presumptions can be attached to negotiable instrument, until the contrary is proved. But before these presumptions can be drawn, the execution of the instrument, and in case of denial by the opposite side, the party basing its claim on such instrument must fully prove its execution.

The counsel for defendant also relied upon another decision of Hon’ble High Court of Andhra Pradesh reported in ALD 2004, part 1, page 269 between Manepalli Udaya Bhaskara Rao Vs. Kanuboyina Dharmaraju 7 wherein it was held by the Honouable High Court the exchange of notices would only at the most constitute a demand and refusal in writing, but the absence thereof would not either way constitute an admission. Even failure to issue a notice can not be said to be an absence of demand nor the failure to reply to such notice would amount to an admission of the claim made in the notice.

10.In view of above said contentions of both parties and in view of the facts and circumstances of this case and issue No.1 and 2 are found inter related in nature, they have been taken up together for an adjudication.

1.Whether the suit pronote is true, valid and binding on the Defendant?

2. Whether the plaintiff is entitled to decree as sought in the plaint ?

11.In view of the above said issues for an adjudication and on further scrutiny of material on record, the evidence of PW1/plaintiff and

PW2/attestor. As per their evidence (PW1 and PW2) it is categorically proved that on 15.07.2011, the defendant borrowed an amount of

Rs.5,00,000/- from the plaintiff for his business investment executed the suit pronote agreeing to repay the same with interest @ 24% p.a., subsequently failed to pay the same inspite of repeated demands even after issuance of legal notice, hence filed this suit for recovery of suit debt with costs and subsequent interest.

12.It is also nextly found by this court though the defendant contended that no transaction took place in between himself and the plaintiff, the brother of the plaintiff Kedari Rama Satyam being member of the chit fund company run by himself and others wherein the defendant is one of the partner in the said business, the said Rama

Satyam took empty pronotes and other documents at the time of its 8 formation. The defendant further contended that subsequently, the Sai

Lakshmi Chit Fund company was not run properly by the brother of the plaintiff and other members then, the defendant demanded for its accounts. Then in the presence of elders namely Kedari Easwara Rao,

K. Sanni Babu and others the said disputes were dissolved, by that time, the defendant paid Rs.4,00,000/- and asked for return of empty pronotes but they were not given by the elder brother of plaintiff Kedari

Rama Satym, subsequently filed false suit further the defendant adduced evidence of DW1 to DW7 in support of the above said contention but the defendant is found failed to rebut the case of the plaintiff by adducing any positive evidence in support of his contention in written statement as well as in evidence. It is also further found the defendant’s counsel though cross-examined PW1 and PW2 at length, nothing was elicited to disprove this transaction was not taken place as contended by the plaintiff and also further failed to prove there was a chit company run by the brother of the plaintiff and other members namely Sai Lakshmi Chit Fund company where in the said chit fund company this defendant is one of the member as contended and even failed to prove the very member ship of defendant as one of the partner gave some empty pronotes and other documents while entering into the said partner ship in chit fund company.

It is also further found by this court though the defendant further contended that the head of the chit fund company and other members failed to run the chit fund company properly and failed to submit proper accounts for its running and the defendant filed Ex.B1 to

B7 documents but where in the defendant is not found as member of the said chit fund company and also names of other members stated by him in his written statement so also in his chief-affidavit. The only one 9

Singapalli Govinda and Naramsetti Ramana are found members of the said chit fund company and also other members who run the said business whereas this defendant is found no way concerned with the said chit fund business transaction.

Further more there is no proper evidence on record to say that why the defendant paid Rs.4,00,000/- to the brother of the plaintiff in chit fund transaction when the said brother of plaintiff did not run the chit properly and did not show proper accounts not explained. If really the chit was not run properly it was mismanaged as alleged by the defendant the question of payment of Rs.4,00,000/- by the defendant to the chit fund company does not arise. Hence the very transaction under chit fund company between the brother of plaintiff and other members wherein taking of empty pronotes by the chit fund company authorities is found not nearer to the truth. Thereby the defendant failed to rebut the case of the plaintiff as contended by him.

Therefore the issue No.1 and 2 i.e. about suit pronote transaction, and its execution is proved by the plaintiff conclusively therefore the issue No.1 and 2 is answered in favour of the plaintiff and against the defendant.

13.Issue No.3: To what relief ?

In the result, the suit is decreed with costs for an amount of

Rs.8,20,000/- (Rupees eight lakhs and twenty thousand only) together with subsequent interest at the rate of 12% per annum from the date of filing of the suit till the date of decree and at the rate of 6% per annum from the date of decree till its realization on principal amount of Rs.5,00,000/- ( Rupees five lakhs only)

Typed to my dictation by the Stenographer, corrected and pronounced by me in open Court, on this the 27th day of March, 2024.

Sd/- G. Yagna Narayana

ADDITIONAL SENIOR CIVIL JUDGE,

VIZIANAGARAM.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS: PW1: Kedari Krishna Rao DW1: Adari Srinivasa Rao PW2: Mummulori Eswara Rao DW2: Hanumalasetty Sekhar Babu PW3: Janapureddy Mangunaidu DW3: Kanisetty Eswara Rao (Eschewed) DW4: Saladi Sombabu DW5: Budiredla Ramana DW6: Saladi Eswaramma DW7: Gokeda Ravi Kiran

DOCUMENTS MARKED

FOR PLAINTIFF: Ex.A1: Suit Promissory Note dt.15.07.2011 for Rs.5,00,000/- executed by the defendant in favour of plaintiff. Ex.A2: Office copy of registered lawyer’s notice dt.16.1.2014 Ex.A3: Acknowledgment dt.23.1.2014

FOR DEFENDANT : Ex.B1: Copy of registered sale deed dt.29.12.2006.

Ex.B2: Two photographs showing the building together.

Ex.B3: Certified copy of application for registration of firms in the name of Sai Lakshmi chits and Finance along with declaration.

Ex.B4: Chit books in the name of Sai Lakshmi Chits and finance and pertaining to its subscriber by name Ramisetti Durga Prasad.

Ex.B5: Chit books in the name of Sai Lakshmi Chits and finance and pertaining to its subscriber by name Ramisetti Ratna Mounica.

Ex.B6: Original payment receipt issued by Sai lakshmi Chits and finance dt.7.7.2003 to Ramisetti Durga Prasad.

Ex.B7: Original payment receipt issued by Sai lakshmi Chits and finance dt.7.7.2003 to Ramisetti Ratna Mounica.

Sd/- G. Yagna Narayana

ADDITIONAL SENIOR CIVIL JUDGE,

VIZIANAGARAM.

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THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE AT

VIZIANAGARAM.

Present: Sri G. YAGNA NARAYANA,

Additional Senior Civil Judge,

Vizianagaram

Monday, the 1st day of April, 2024.

O.S.No.286/2017

Between: Gembali Najardhana Rao … Plaintiff

A n d

Kalla Nagabhushana Rao. ...Defendant

This suit coming on 20.03.2024 for final hearing before me in the presence of Sri M.V.S.N.B. Praveen Kumar, Advocate for the plaintiff and of Sri S. Maheswara Rao, Advocate for the defendant who reported no instructions, hence arguments of defendant treated heard and having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

This is the suit filed by the plaintiff against the defendant for passing of preliminary decree in favour of the plaintiff and against the defendant for recovery of a sum of Rs.10,08,750/- (Rupees ten lakhs, eight thousand, seven hundred and fifty only) with subsequent interest @ 12% p.a., from the date of filing of the suit till the date of realization (b) in case, defendant fails to pay the suit amount with subsequent interest to order sale of the mortgaged property and to appropriate such sale proceeds to the decree amount (c) in case if the sale proceeds are not sufficient to satisfy the decree to pass a personal decree against the defenant and (d) for costs of the suit.

2. The brief facts of the case of the plaintiff is as follows:

The defendant borrowed an amount of Rs.5,00,000/- from the plaintiff by executing the suit mortgage deed dt.29.04.2014 mortgaging the plaint schedule property for development of his property and to 2 discharge sundry debts and family necessities agreeing to pay the said amount with interest @ 30% p.a., The defendant further agreed to pay the interest every month and also agreed to pay the entire amount within one year.

Subsequently, though the plaintiff demanded the defendant for repayment of debt amount so also interest, the defendant neither paid interest nor principal amount as agreed within stipulated period.

Therefore, the plaintiff got issued legal notice dt.7.3.2017 to the defendant, but no reply was given by the defendant. Hence the plaintiff filed this suit praying the court to pass a preliminary decree in his favour for Rs.10,08,750/- with subsequent interest @ 12% p.a., from the date of filing of the suit till the date of realization and in case, defendant fails to pay the suit amount with subsequent interest to order sale of the mortgaged property and to appropriate such sale proceeds to the decree amount and in case if the sale proceeds are not sufficient to satisfy the decree to pass a personal decree against the defenant and for costs of the suit.

3.After receipt of summons, the defendant appeared before the court filed his written statement where in he denied all the plaint allegations as false. The defendant further submitted that he never borrowed any amount from the plaintiff either on 29.04.2014 or any other date. The defendant also submitted that he does not know the plaintiff at any point of time and he came to know the plaintiff does not have any financial capacity to lend such a huge amount, and he further submitted that he never executed any mortgage deed the plaintiff fabricated the suit documents filed false suit for illegal gains. The defendant nextly submitted that the suit filed by the plaintiff is not maintainable either under law or or on facts and it is liable for dismissal 3 pray the court to dismiss the suit with costs in the interest of justice.

4.In view of the above said pleadings and after hearing both sides, this court settled the following issues for an adjudication.

1) Whether the suit document Dt.29.01.2016 is true, valid,

supported by consideration and binding on the defendant ?

2) Whether the plaintiff is entitled for suit amount from the defendant ?

3) Whether the plaintiff is entitled for preliminary decree

against the defendants and for final decree for sale of

mortgaged property in case defendant failed to redeem the

property ?

4) Whether the defendant is personally liable for the suit debt ?

5) To what relief ?

6.In order to prove the case of the plaintiff, the plaintiff himself examined as PW1 filed his chief-affidavit wherein he reiterated the entire contents of plaint averments in support of his oral evidence got marked Ex.A1-Registered mortgage deed, Ex.A2-Reply notice and

Ex.A3-Postal endorsement.

7.The plaintiff prays the court to pass preliminary decree for suit amount of Rs.10,08,750 in his favour and against the defendant together with subsequent interest from the date of suit till date of realization and also further prays in case the defendant fails to pay the suit amount with subsequent interest order for sale of the mortgaged property if sale proceeds are not sufficient to meet the decree amount to pass personal decree against the defendant to realize the suit debt and for costs of the suit.

8.Where as after closure of the plaintiff’s evidence, this case was posted for defendant’s side evidence, but the counsel for the 4 defendant reported no instructions, hence the evidence of defendant is closed case is posted for arguments.

9.Heard arguments from both sides.

10.In view of the facts and circumstances of this case and evidence on record and further issue No1 to 4 are found inter-related in nature they have been taken up together for an adjudication.

11.Issue No. 1 to 4:

1) Whether the suit document Dt.29.01.2016 is true, valid, supported by consideration and binding on the defendant ?

2) Whether the plaintiff is entitled for suit amount from the defendant ?

3) Whether the plaintiff is entitled for preliminary decree against the defendants and for final decree for sale of mortgaged property in case defendant failed to redeem the property ?

4) Whether the defendant is personally liable for the suit debt ?

In view of the above said issues for an adjudication on careful scrutiny the material on record and evidence, this court found that the plaintiff is examined as PW1, filed chief-affidavit where in he categorically deposed about the defendant obtaining of debt of

Rs.5,00,000/- by executing Ex.A1-mortgage deed dt.29.4.2014. The plaintiff/PW1 also further proved that the above said transaction was taken place on 29.04.2014 where in the defendant agreed to pay the debt with interest @ 30/- per annum within one year and also further agreed to pay the interest every month. The plaintiff/PW1 also further proved that the defendant did not pay either interest or principal amount as agreed in Ex.A1-mortgage deed inspite of repeated demands even after issuance of Ex.A2 legal notice, therefore, filed this suit against the defendant for a sum of Rs.10,08,750/- i.e, principal and interest.

12.Though the defendant denied the very execution of Ex.A1- 5 mortgage deed, obtaining of loan of Rs.5,00,000/- as alleged, but in order to prove the said fact, he failed to elicit anything in the evidence of plaintiff/PW1 and also failed to place any evidence before the court even he did not examine himself as a witness to prove his contention in the written statement for the reasons best known to him. Therefore, the evidence on record i.e., the evidence of plaintiff/PW1 and the material on record proved the case of the plaintiff that on 29.04.2014 defendant executed the suit document by receiving consideration of Rs.5,00,000/- and it was registered on the same day at Sub-Registrar’s Office concerned, hence the defendant is found binding for the said document and its terms and conditions. It is also further found by this court, the plaintiff is found entitled for suit amount as prayed for and also entitled for preliminary decree if the defendant fails to pay the debt within stipulated period for final decree. It is also further found the plaintiff is entitled for entire suit debt from the sale proceeds of suit property mortgage under Ex.A1 document if those sale proceeds are not sufficient to discharge his debt covered under ex.A1, the defendant is personally liable to discharge the debt. Hence issue No.1 to 4 are answered in favour of the plaintiff and against the defendant.

13.Issue No.5: To what relief ?

In the result, the suit is decreed preliminarily against the defendant with costs for a sum of Rs.10,08,750/- (Rupees ten lakhs, eight thousand, seven hundred and fifty only) with interest at 12% p.a., from the date of filing of the suit till the date of preliminary deceree and at the rate of 6% p.a., from the date of preliminary decree till realization on principal amount of Rs.5,00,000/-. In default, the plaintiff may apply for final decree of sale of plaint schedule mortgaged property and in case the sale proceeds are not sufficient, the balance 6 amount can be recovered from the defendant by applying a personal decree. The redemption period is granted for three months from the date of this decree.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open Court, this the 1st day of April, 2024.

Sd/- G. Yagna Narayana

ADDITIONAL SENIOR CIVIL JUDGE

VIZIANAGARAM

APPENDIX OF EVIDENCE

Witnesses examined

For Plaintiff: For Defendant:

PW1: Gembali Janardhana Rao - None -

Documents marked

For Plaintiff:

Ex.A1 : Registered simple Mortgage deed Dt.29.04.2014

Ex.A2 : Legal notice.

Ex.A3 : Postal acknowledgement

For Defendant:

- Nil -

Sd/- G. Yagna Narayana

ADDITIONAL SENIOR CIVIL JUDGE

VIZIANAGARAM

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THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE AT

VIZIANAGARAM.

Present: Sri G. YAGNA NARAYANA,

Additional Senior Civil Judge,

Vizianagaram

Wednesday, the 3rd day of April, 2024.

O.S.No.385/2015

Between: Adla Papa.… Plaintiff

A n d

1. Pasagada Satyalakshmi

2. Pasagada Satya Ramakrishna.

3. Pasagada Kiran Kumar

4. Pasagada Suneela

5. Pasagada Madhuri. ...Defendants

This suit coming on 25.03.2024 for final hearing before me in the presence of Sri M.V.S.N.B. Praveen Kumar, Advocate for the plaintiff and of Sri S. Maheswara Rao, Advocate for the defendants his arguments treated heard having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

This is the suit filed by the plaintiff against the defendants 1 to 5 for passing preliminary decree in favour of the plaintiff and against the defendants 1 to 5 for recovery of debt of

Rs.3,48,000/- (Three lakhs Forty Eight Thousand Rupees only) covered under the suit document I.,e simple mortgage deed

Dt.22.6.2012 together with interest and costs of the suit and in default the plaintiff be entitled to apply for a final decree for the sale of the mortgaged property shown in the plaint schedule or a sufficient part thereof and the sale proceeds deposited into court in case the sale proceeds are not found sufficient to discharge the decree debt to pass a personal decree against the defendants for the realization of balance amount due and for other reliefs.

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2. The brief averments of the case of the plaintiff is as follows:

The defendants 1 to 5 borrowed an amount of Rs.2,00,000/- from the plaintiff on 22.6.2012 by mortgaging the suit schedule house property bearing Door No.24-2/1-47A situated in

Bondilagudem village, Vizianagaram Mandal. The further case of the plaintiff is that the defendants agreed to repay the said debt @ 24% p.a., and also to pay monthly interest and further agreed to discharge the debt within 3 years. But subsequently the defendants failed to pay either the interest or principal amount inspite of repeated demands even after issuance of legal notice Dt.02.04.2013 by the plaintiff. Therefore, the plaintiff constrained to file this suit for recovery of this suit debt together with interest and costs of the suit.

He prays to pass preliminary decree as prayed for.

3.After receipt of summons, the 1st defendant filed written statement and the same is got adopted by other defendants where in the defendants denied all the plaint allegations as false. The defendants contended that they never borrowed any amount from the plaintiff by executing the suit mortgage debt Dt.22.06.2012. The said suit document is a fabricated one. The plaintiff with his henchmen fabricated the said document, filed this false suit for illegal gains. No mediations were took place between themselves and the plaintiff, and no notice was given. The defendants further contended that they are no way liable to pay the suit debt covered under the suit document.

Further, the suit is not maintainable either under law or on facts and it is barred by limitation. Hence prays the court to dismiss the suit with cost in the interest of justice.

4.In view of the above said pleadings of both parties and 3 after hearing both parties, this court settled the following issues for and adjudication.

1) Whether the plaintiff is entitled for

recovery of the suit mortgage deed debt

amount from the defendants? and

2) To what relief ?

5.In order to prove the case of the plaintiff, the plaintiff himself examined as PW1 filed his chief-affidavit wherein he reiterated the entire contents of plaint averments in support of his oral evidence got marked Ex.A1-Mortgage deed, Ex.A2-legal notice and Ex.A3-returned postal covers five in number. The plaintiff also got examined PW2 who is an attestor of Ex.A1 mortgage deed, he corroborated the evidence of PW1 in all material aspects.

6.The plaintiff pray the court to pass a preliminary decree in his favour by directing the defendants to discharge the debt covered under Ex.A1-mortgage deed or for sale of the mortgage property for recovery of debt in case of insufficiency of sale proceeds to pass personal decree against the defendants for recovery of balance amount in due under decree.

7.On behalf of the defendants, no evidence was adduced.

The defendants after closing of plaintiffs evidence did not appear

before this court and no representation was made for the defendants

inspite of repeated adjournments ever after conditional orders. Hence the evidence of defendants treated nil. Hence the arguments of defendants treated heard.

8.Heard learned counsel for plaintiff, the arguments of defendant treated heard.

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9.Issue No.1:

“Whether the plaintiff is entitled for recovery of the suit mortgage deed debt amount from the defendants?”

The learned counsel for the plaintiff contended that the case of the plaintiff has been proved from the evidence of plaintiff/PW1 and

PW2/attestor about the borrowing of amount by the defendants 1 to 5 by executing Ex.A1-mortgage deed Dt.22.6.2012 in the presence of attestors at Sub-Registrar’s Office concerned. The counsel also further contended that the passing of consideration is also proved from the evidence of PW1 and PW2, and it is also further proved from their evidence inspite of repeated demands even after issuance of

Ex.A2-legal notice, the defendants failed to discharge the debt with interest, hence filed this suit for recovery of debt of Rs.3,48,000/- and for costs of the suit. The learned counsel prays the court to pass preliminary decree in favour of the plaintiff and against the defendants by directing them to discharge the debt within the stipulated period or otherwise pass orders for final decree i.e., sale of plaint schedule property and also for personal decree against the defendants to discharge the entire debt if any.

10.The arguments of defendants treated heard.

11.In view of above said pleadings of both parties and the evidence on record on careful perusal this court found that as per evidence of plaintiff/PW1 and PW2 it is proved on 22.6.2012 the defendants borrowed an a amount of Rs.2,00,000/- executed Ex.A1 mortgage deed. It is also further proved from their evidence the defendant failed to repay the debt covered under Ex.A1 mortgage deed as agreed hence filing of this suit for recovery of debt covered under 5

Ex.A1. They also further proved issuance of Ex.A2legal notices to the defendants before filing of this suit.

12.Though the defendants filed written statement by submitting that the very transaction under Ex.A1-mortgage deed was not taken place at any point of time and no amount was borrowed under the said document Dt.22.06.2012 and defendants further contended the said document was fabricated by the plaintiff with the help of his henchmen and the suit filed by the plaintiff is not maintainable under law or on facts and it is barred by limitation and prayed the court to dismiss the suit on the above said grounds.

But the above said contention of the defendants is found not proved either in the cross-examination of PW1 and PW2 or by adducing any evidence before the court. The cross-examination of

PW1 and PW2 is found no way helpful to the defendants to prove their contention raised in written statement. Further more, they failed to come to the court to give their evidence to prove their case in pursuance of their contention in the written statement.

In the said circumstances, the evidence of PW1/plaintiff and

PW2/attestor and the material on record categorically proves that on 22.06.2012, Defendants 1 to 5 borrowed an amount of Rs.2,00,000/- from the plaintiff under Ex.A1 mortgage deed by keeping the plaint schedule property in mortgage, subsequently failed to pay the amount with interest as agreed in Ex.A1-mortgage deed. Hence this suit filed by the plaintiff for recovery of Rs.3,48,000/- is proved conclusively. Hence, issue No.1 is answered in favour of the plaintiff and against the defendant.

14.Issue No.2: To what relief ?

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In the result, this suit is decreed preliminarily against the defendants 1 to 5 with costs for a sum of Rs.3,48,000/- (Rupees three lakhs and forty eight thousand only) with interest at 12% p.a., from the date of filing of the suit till the date of preliminary deceree and at the rate of 6% p.a., from the date of preliminary decree till realization on principal amount of Rs.2,00,000/- (Rupees two lakhs only). In default, the plaintiff may apply for final decree of sale of plaint schedule mortgaged property and in case the sale proceeds are not sufficient, the balance amount can be recovered from the defendants 1 to 5 by applying for personal decree. The redemption period is granted for three months from the date of this decree.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open Court, this the 3rd day of April, 2024.

Sd/- G. Yagna Narayana

ADDITIONAL SENIOR CIVIL JUDGE

VIZIANAGARAM

APPENDIX OF EVIDENCE

Witnesses examined

For Plaintiff: For Defendants:

PW1: Adla Papa. - None - PW2: Relli Santhosh Kumar.

Documents marked

For Plaintiff:

Ex.A1 : Registered simple Mortgage Dt.22.06.2012

Ex.A2 : Office copy of legal notice Dt.13.04.2013

Ex.A3 : Returned Postal covers five in number.

For Defendants:

- Nil -

Sd/- G. Yagna Narayana

ADDITIONAL SENIOR CIVIL JUDGE

VIZIANAGARAM

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IN THE COURT OF THE SENIOR CIVIL JUDGE, BOBBILI.

Present: T. VASUDEVAN.

Senior Civil Judge, Bobbili.

Friday, this the 7 th day of January, 2022.

H.M.O.P. 16 OF 2021

Between:

1. Gongada Santhosh Kumar, S/o Apparao, aged about 30 years, Software Engineer at GGK Techologies, Gatchibouli, Hyderabad and permanent resident of besides Church, near by pass Road, Ramabhadrapuram Village and Mandal, Vizianagaram District.

2. Smt. Natti (Gongada) Bindu Anusha, W/o Gongada Santhosh Kumar, D/o Natti Ammaji Rao, Junior Telecom Officer in BSNL, permanent resident of Door No.3-121, Natti Veedhi, Galavilli village, Balijiepta Mandal, Vizianagaram District.

…Petitioners

A n d:

Nil...Respondent

This petition came on 28.12.2021 for final hearing before me in the presence of Sri G.Rama Krishna Rao and A.Ramakrishna, Advocates

for the petitioners and having stood over for consideration to this date, this

Court passed the following:

O R D E R

This is a petition filed by the petitioners 1 and 2 praying to pass a decree in their favour by granting divorce on mutual consent under Sec.13

(B) of Hindu Marriage Act, 1955 by dissolving their marriage

dated:12.02.2020.

2. 1st petitioner is the legally wedded husband of the 2nd petitioner. Their marriage was solemnized on 12.02.2020 at the house of the 1st 2 petitioner on 12.02.2020 at Ramabhadrapuram village and mandal of

Vizianagaram District, as per Hindu custom and rites. Immediately after the marriage the 2nd petitioner has joined the conjugal society of the 1st petitioner, and the 1st petitioner put up his family at Galavilli

Village and Ramabhadrapuram for shorter period and there after differences arose between the petitioners and both are not interested to live under one roof. That being the cause,both the petitioners are living separately by doing their own profession at Hyderabad and Bangalore respectively since one year to this application. Since, both the petitioners living separately, the elders intervened and settled the dispute as both the petitioners agreed to take divorce on mutual consent as they are not interested to lead conjugal life and there is no chance of reunion.

As such, there is no possibility of reunion and since 2020 both have been residing separately and the marriage between the petitioners is irretrievably broken down and there is no collusion between the petitioners in filing this petition as well as similar nature of petition was not filed by both the petitioners previously in any court of law. Hence, both prayed through this petition for granting divorce on mutual consent.

3. To prove the averments in the petition, the 1st petitioner/ husband

Gongada Santhosh Kumar himself examined as PW1 and the 2nd petitioner/Wife/Natti @ Gongada Bindu Anusha herself examined as

PW2 and got exhibited Exs.A1 to A4 through them.

4. Heard the petitioners and perused the documentary evidence as noted above.

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5.Now, the point for determination is:

Whether the petitioners are entitled for

dissolution of their marriage by mutual consent

as prayed for?

POINT:

6. Before going to consider the evidence placed on record by examining

P.Ws 1 and 2 and by producing Ex.A.1 to A.4 documents for grant of divorce on mutual consent, it is appropriate to refer the law dealing with divorce on mutual consent as provided under section 13-B of Hindu

Marriage Act 1955. Section 13-B of the Act reads as follows; 13-B. Divorce by mutual consent :_ (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have

been living separately for a period of one year or more, that they have

not been able to live together and that they have mutually agreed that

the marriage should be dissolved. 

(2) On the motion of both the parties made not earlier than six months

after the date of the presentation of the petition referred to in sub­

section (1) and not later than eighteen months after the said date, if

the petition is not withdrawn in the meantime, the Court shall, on

being satisfied, after hearing the parties and after making such inquiry

as it thinks fit, that a marriage has been solemnized and that the

averments in the petition are true, pass a decree of divorce declaring

the marriage to be dissolved with effect from the date of the decree.

7. Herein, upon considering the oral evidence of Pws.1 and 2 as well as the documents Exs.A1 to A4, it is clear that there is no possibility to restore family life in between parties and chance of 4 cohabitation is also not appearing in view of the disputes arose between both parties. Petitioners No. 1 and 2 evidence as Pws.1 and 2 further shows that there is no chance for reunion and the parties are living separately for a period of one year or more i.e., from the month of

February 2020 at Hyderabad and Bangalore respectively and that they have not been able to live together, thereby they have mutually agreed that the marriage should be dissolved.

8.In obedience to above Law, by considering the evidence of PWs.1 and 2 and the facts as well as circumstances stated in the evidence of witnesses, this court is of the considered view that there is no possibility for the parties for their reunion in the near future date as well as they are living separately for the past one and half year which is more than period required under section 13-B (1) of the Hindu Marriage Act and it also appears that there is an amicable settlement between parties to live separately and to lead their life in future. Under these circumstances, this court came to a conclusion that since the petitioners/P.W.1 and P.W.2 are Hindus and their marriage is proved through Ex.A.1 and A.2 that their marriage was solemnized as per Hindu rights and customs and they are living separately separately without consummating their marital relationship for the past one and half year as well as the statutory period of six months also elapsed from the date of this application i.e., from 22.03.2021, there are sufficient grounds to consider this application for grant of divorce by mutual consent, since the evidence placed before the court satisfying the requirements as required under section 13-B(1)(2) , it is fit and proper to allow this petition in the interest of Justice to dissolve the marriage in between the petitioners as prayed. Accordingly, this point is answered.

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9. In the result, this petition filed under section 13-B of Hindu

Marriage Act, 1955 is allowed by dissolving the marriage in between the petitioners 1 and 2 dated 12.02.2020 by granting divorce on mutual consent. No costs.

Typed to my dictation by the stenographer, corrected, signed and

pronounced by me in open court, this the 7th day of January, 2022.

Sd/- T.Vasudevan

Senior Civil Judge,

Bobbili

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PETITIONERS: FOR THE RESPONDENT: NONE

PW.1 : Gongada Santhosh Kumar

PW.2 :Natti @ Gongada Bindu Anusha

DOCUMENTS MARKED

FOR PETITIONERS:

Ex.A.1: Printed Wedding Invitation for the marriage dt.12.02.2020

Ex.A.2: Duly attested photograph of marriage

Ex.A.3: Copy of Aadhar card duly compared by the original by this office of the Court.

Ex.A.4: Photo copy of Aadhar card of the 2nd petitioner.

For Respondent: NIL

Sd/- T.Vasudevan

Senior Civil Judge,

Bobbili.

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THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE AT

VIZIANAGARAM.

Present: Sri G. YAGNA NARAYANA,

Additional Senior Civil Judge,

Vizianagaram.

Monday, the 25th day of March, 2024.

O.S.No.240 of 2018

Between: Kalyanapu Satyam. … Plaintiff.

And:

1. Pathivada Haribabu

2. Pathivada Paparao. … Defendants.

The suit coming before me on 18.03.2024 for final hearing in the presence of Sri K. Srinivasa Rao, Advocate for the Plaintiff and of Sri K.P. Naidu, Advocate for defendants having stood over for consideration till this day, this Court delivered the following

J U D G M E N T

1. This is the suit filed by the plaintiff against the defendants 1 and 2 for recovery of suit debt amount covered under suit promissory note Dt.09.09.2015 for a sum of Rs.2,00,000/- together with interest @ 18% p.a., and costs of the suit.

2. The brief facts of the case of the plaintiff is as follows :

The 1st and 2nd defendants are no other than the brothers, they borrowed an amount of Rs.2,00,000/- from the plaintiff on 09.09.2015 to discharge their sundry debts and executed the suit promissory note agreeing to repay the above said principal amount with interest @ 18% p.a., Subsequently, the plaintiff demanded the defendants for repayment of the debt amount, but the defendants postponed the same on one pretext or the other. Therefore, the plaintiff is constrained to file this 2 suit against the defendants for recovery of suit debt of Rs.3,07,400/- with subsequent interest and costs of the suit.

3.After receipt of summons, both the defendants appeared before the court. The 1st defendant filed written statement and the same was got adopted by the 2nd defendant. The defendants 1 and 2 denied all the plaint allegations in their written statement as false. The defendants 1 and 2 submitted that there are family disputes between themselves and the plaintiff. Due to the said disputes, the plaintiff fabricated false document with the help of his henchmen and filed this suit for illegal gains. No consideration was passed under the suit promissory note.

Therefore, the suit filed by the plaintiff is not maintainable either under law or on facts, it is liable for dismissal pray the court to dismiss the suit with costs in the interest of justice.

3.In view of the above said pleadings of both parties, after hearing both parties, this court settled the following issues for an adjudication:

1. Whether the suit promissory note

Dt.09.09.2015 is true, valid, supported by

consideration and binding on the

Defendants?

2. Whether the plaintiff is entitled for suit

amount from the defendants as prayed

for?

3. To what relief?

4.In order to prove the case of the plaintiff, the plaintiff himself examined as PW1 filed his chief-affidavit wherein he reiterated the entire contents of plaint averments in support of his oral evidence, got marked Ex.A1-Promissory note Dt.09.09.2015. The plaintiff also got examined its attestor as PW2 who corroborated the evidence of PW1 on 3 all material aspects. The plaintiff prays the court to pass a decree in his favour and against the defendants 1 and 2 for recovery of the suit debt together with interest and costs of the suit.

5. Where as the counsel for the defendants though filed written statement and appeared before the court and cross-examined plaintiff/PW1. Whereas at the time of cross-examination of

PW2/attestor for cross-examination reported no instructions. Hence the cross-examination of PW2 is treated nil. Plaintiff’s evidence has been closed and posted for the evidence of defendants if any and adjourned the matter to 15.03.2024. On 15.03.2024, the defendants called absent, no representation, hence the evidence of defendants is treated nil by this court and the case is posted for arguments and the arguments of defendants treated heard.

6.In view of the facts and circumstances of this case and issue

No.1 and 2 are inter related in nature, they have been taken up together for an adjudication.

1.Whether the suit promissory note Dt.09.09.2015 is true, valid, supported by consideration and binding on the Defendants ?

2. Whether the plaintiff is entitled for suit amount from the defendants as prayed for ?

In view of the above said issues for an adjudication on careful perusal the material on record and evidence, this court found the following.

As per the evidence of plaintiff/PW1 and PW2/attestor, it is proved by the plaintiff on 09.09.2015, the defendants borrowed an amount of Rs.2,00,000/- from the plaintiff for discharging their sundry debts 4 executed the suit promissory note on the even date in his favour. The evidence of plaintiff/PW1 also further proved the defendants agreed to repay the debt at 18% p.a., executed the suit promissory note, but subsequently failed to pay the said debt inspite of repeated demands and requests, hence filed this suit for suit amount and for other reliefs.

7.Though the defendants contended in their written statement there are some family disputes between themselves and the plaintiff as such with the help of his henchmen, the plaintiff fabricated false suit pronote, filed false suit for illegal gains. And further contended that the said pronote transaction not supported by consideration as alleged. But in order to prove the above said contentions raised in written statement, the defendants failed to elicit anything in the cross-examination of plaintiff/PW1. Further the defendants failed to cross-examine the attestor/PW2 for the reasons best known to them.

The defendants are also found failed to adduce any evidence in pursuance of their contention in written statement. Therefore, the evidence of plaintiff/PW1 and PW2/attestor on record is found unchallenged evidence which proves the case of the plaintiff in all material aspects. Therefore, the defendants are found liable to pay the suit debt together with interest as prayed by the plaintiff. Hence issue No.1 and 2 are answered in favour of the plaintiff and against the defendants.

8.Issue No.3: To what relief ?

In the result, the suit is decreed with costs in favour of the plaintiff against the defendants 1 and 2 for an amount of Rs.3,07,400/- 5 (Rupees three lakhs, seven thousand and four hundred only) together with subsequent interest at the rate of 12% per annum from the date of filing of the suit till the date of decree and at the rate of 6% per annum from the date of decree till its realization on principal amount of

Rs.2,00,000/- ( Rupees two lakhs only)

Typed to my dictation by the Stenographer, corrected and pronounced by me in open Court, on this the 25th day of March, 2024.

Sd/- G. Yagna Narayana

ADDITIONAL SENIOR CIVIL JUDGE,

VIZIANAGARAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS: PW1: Kalyanapu Satyam - None - PW2: Nadipena Srinu

DOCUMENTS MARKED

FOR PLAINTIFF: Ex.A1: Suit Promissory Note dt.09.09.205 for Rs.2,00,000/- executed by the defendant in favour of plaintiff.

FOR DEFENDANT S : Nil.

Sd/- G. Yagna Narayana

ADDITIONAL SENIOR CIVIL JUDGE,

VIZIANAGARAM.

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