Sri. J. Nagaseshaiah.

O.S.34 of 20121S.C.J. Court, Hindupur

IN THE COURT OF THE SENIOR CIVIL JUDGE :: HINDUPUR

Present: Sri J.Nagaseshaiah, Senior Civil Judge, Hindupur

Tuesday, the 25 th day of July, 2017

O.S.No.34 of 2012

Between : P.S.Anjineyulu, s/o Anjinappa, age 49 years, Hindu, Silk Business, Melapuram, Hindupur... Plaintif

And

Avulannagari Chowdi Reddy, s/o Korlakunta Chowdappa, aged 50 years, Hindu, cultivation, Gadrallapalli, h/o Demakethepalli,

Chilamathur Mandal... Defendant

Thissuit is coming on 24-7-2017 for final hearing before me in the presence of Sri K.Satyanarayana, Advocate for the plaintiff and of Sri K.Mallikarjuna, Advocate for the defendant, and the matter having stood over till this day for consideration, this Court delivered the following :

J U D G M E N T

1.Suit for specific performance of agreement of sale.

2.Brief facts of the plaint are as follows :

The defendant is the owner of the suit property, he offered the to sell the suit property to the plaintiff in the month of November, 2006 and there was a difference of opinion between the plaintiff and defendant regarding the sale consideration, however, hoping that the defendant will concede for the sale consideration, stamp papers were purchased for execution of agreement of sale on 4-11-2006, but the defendant did not agree to sell the suit property for Rs.3,00,000/- (Rupees Three Lakh only), as such matter was postponed, finally on mediation the plaintiff agreed to pay Rs.4,20,000/-

O.S.34 of 20122S.C.J. Court, Hindupur

(Rupees Four Lakh and Twenty Thousand only) sale consideration to the defendant and defendant agreed to sell the suit property for Rs.4,20,000/- (Rupees Four Lakh and Twenty Thousand only), received Rs.1,11,000/- (Rupees One Lakh and Eleven Thousand only) and executed agreement of sale on 2-4-2009 before the witnesses and 3 ½ months time is fixed to execute sale deed and time is not treated as essence of the contract by both parties. The plaintiff was ready and willing to pay balance consideration to the defendant to obtain sale deed, but the defendant went on postponing and evading to receive balance sale consideration to execute sale deed. The plaintiff issued notice to the defendant on 1-7-2011 to receive balance sale consideration and execute sale deed, but the defendant received notice and issued reply notice on 13-7-2011 with false allegations, therefore, the present suit is filed seeking specific performance of agreement of sale dt. 2-4-2009.

3.The defendant filed written statement and brief facts of the written statement are as follows :

The allegation that the defendant is owner of the suit property is true.

The further allegation that the defendant offered to sell the suit property to the plaintiff in the month of November, 2006 is not correct. The allegation that there was a difference of opinion between the plaintiff and defendant with regard to the sale consideration and however, hoping that the defendant will concede for the sale consideration, stamp papers were purchased for execution of the agreement of sale on 4-11-2006 are not correct. The allegation that the defendant did not agree for the sale consideration amount for Rs.3,00,000/- (Rupees Three Lakh only) and matter was postponed is also not correct. The allegation that on mediation the plaintiff agreed to pay Rs.4,20,000/- (Rupees Four Lakh and Twenty

Thousand only) sale consideration and defendant agreed to sell the suit property for Rs.4,20,000/- and since stamp papers were already purchased,

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the same were used for execution of the suit agreement which is consented by the defendant are also not correct.

The further allegation that the defendant executed agreement of sale on 2-4-2009 for Rs.4,20,000/- (Rupees Four Lakh and Twenty Thousand only) is also not correct and the allegation that the plaintiff paid Rs.1,11,000/- (Rupees One Lakh and Eleven Thousand only) advance to the defendant is also not correct. The allegation that 3 ½ months time is stipulated in the agreement by both parties is also not correct. The allegation that the plaintiff issued notice on 1-7-2011 is also not correct. The allegation that the plaintiff is always ready and willing to pay balance sale consideration is also not correct. There are ill-feeling between the plaintiff and defendant, as such suit agreement is forged and fabricated with the assistance of his men to have wrongful gain, and sought for dismissal of the suit.

4.Basing on the above said pleadings, the following issues are settled for trial by my learned predecessor :

(1) Whether the suit agreement of sale dt. 2-4-2009 is true,

valid and binding on the defendant ?

(2) Whether the suit agreement of sale dt. 2-4-2009 is forged

one ?

(3) Whether the plaintiff is entitled for specific performance

of suit agreement ?

(4) To what relief ?

5.Heard both side arguments.

6.Issue Nos.1 and 3 are clubbed together for the sake of convenience : Burden lies on the plaintiff to prove execution of the suit agreement and in order to prove the same, the plaintiff himself is examined as PW.1 and marked Ex.A.1 agreement of sale, Ex.A.2 legal notice

O.S.34 of 20124S.C.J. Court, Hindupur

dt. 1-7-2011, Ex.A.3 postal acknowledgment and Ex.A.4 reply notice

dt. 9-6-2011 (sic.13-7-2011).

7.The defendant though filed his written statement denying the execution of the suit agreement, he did not come to witness box and absolutely no evidence is put-forth by the defendant. It is settled Law that simply because the defendant did not adduce any kind of evidence, the plaintiff is not entitled for the relief ipso-facto without proving his case. The defendant denied execution of agreement of sale and when the defendant denied execution of agreement of sale, initial burden lies on the plaintiff only to prove execution of suit agreement, then only the onus shifts on the defendant to prove that it is a forged document. In order to prove the case of the plaintiff, his evidence alone is available for consideration. The case of the defendant is total denial of execution of the suit agreement and to prove the same, the plaintiff who is examined as PW.1 by filing his affidavit in chief examination stated that defendant is the owner of the suit property and negotiations were held in the month of November, 2006 and there was a difference of opinion between the plaintiff and defendant with regard to the sale consideration amount, as such the transaction was postponed and defendant did not agree to sell the suit property for Rs.3,00,000/- (Rupees

Three Lakh only), but later on, on mediation the defendant agreed to sell the suit property for Rs.4,20,000/- (Rupees Four Lakh and Twenty Thousand only), executed Ex.A.1 agreement of sale by receiving Rs.1,11,000/- (Rupees

One Lakh and Eleven Thousand only) and agreed to execute sale deed within 3 ½ months after receiving remaining balance sale consideration due under Ex.A.1. PW.1 further deposed that he is ready and willing to perform his part of contract, but the defendant did not come forward.

8.Ex.A.1 is the agreement of sale which discloses that there is a correction in the year portion mentioned in Ex.A.1. As per the case of PW.1,

Ex.A.1 was executed on 2-4-2009 and in the Ex.A.1 in the year portion, ‘9’ is

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conveniently corrected, even the same is visible to the naked eye also and at the end of the second line the date 2-4-2009 is written altogether with a different ink though it is in black in colour in brockets. Ex.A.2 is the legal notice issued by the PW.1 to the defendant and in Ex.A.2 PW.1 categorically stated that the defendant agreed to sell the suit property on 2-4-2009 for

Rs.4,20,000/- (Rupees Four Lakh and Twenty Thousand only), received advance of Rs.1,10,000/- (Rupees One Lakh and Ten Thousand only) and agreed to receive balance sale consideration within 3 ½ months.

9.PW.1 not at all whispered in Ex.A.2 notice that negotiations for the suit property were held in the month of November, 2006 as stated by him in his evidence as well as in the plaint. PW.1 simply stated in Ex.A.2 notice that on 2-4-2009 itself the defendant agreed to sell the suit property for

Rs.4,20,000/- (Rupees Four Lakh and Twenty Thousand only), received

Rs.1,10,000/- (Rupees One Lakh and Ten Thousand only) advance and there is balance sale consideration due. In the plaint, PW.1 stated that negotiations for purchasing the suit property with the defendant was held in the month of November, 2006 and defendant received Rs.1,11,000/- (Rupees One Lakh and Eleven Thousand only) advance. In Ex.A.2 he stated that defendant received Rs.1,10,000/- (Rupees One Lakh and Ten Thousand only), in the plaint in Para.5 the plaintiff stated that he paid Rs.1,11,000/- (Rupees One Lakh and Eleven Thousand only) as advance and even in the affidavit filed by the PW.1 also he categorically stated that he paid

Rs.1,11,000/- (Rupees One Lakh and Eleven Thousand only), but not

Rs.1,10,000/- (Rupees One Lakh and Ten Thousand only) as mentioned in

Ex.A.2 notice as well as in Ex.A.1 agreement of sale. Thus, the plea of the plaintiff that negotiations were held in the month of November, 2006, is not find place in Ex.A.2 notice.

10.Ex.A.2 is the first and foremost document which set litigation on motion between the plaintiff and defendant and in Ex.A.2, as already

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discussed above, nothing is whispered by PW.1 about negotiations taken place between him and defendant in the month of November, 2006. Ex.A.4 is the reply notice issued by the defendant and though the defendant totally denied transaction under Ex.A.1 in his written statement, but in Ex.A.4 notice he categorically asserted that he is the absolute owner of the of the suit property and he agreed to sell the suit property for Rs.4,20,000/- (Rupees Four Lakh and Twenty Thousand only) and negotiatioins have settled for Rs.4,20,000/- (Rupees Four Lakh and Twenty Thousand only) and he entered into an agreement of sale with the plaintiff on 2-4-2007 and he received Rs.1,10,000/- (Rupees One Lakh and Ten Thousand only) towards advance and 3 ½ months time is fixed for execution of the sale deed.

Ex.A.4 was issued by the counsel for the defendant Sri K.Mallikarjuna who filed written statement on behalf of the defendant in the suit and subsequently withdrew his vakalt when the matter is coming-up for cross- examination of PW.1. Thus, the recitals of Ex.A.4 vividly manifest that the defendant executed Ex.A.1 by receiving Rs.1,10,000/- (Rupees One Lakh and

Ten Thousand only) advance as mentioned in Ex.A.1, but subsequently failed to perform his part of contract.

11.The contention of the defendant as per Ex.A.2 is that he executed

Ex.A.1 on 2-4-2007, but not on 2-4-2009 and the plaintiff conveniently altered the date of execution of sale agreement as 2-4-2009, when admittedly the stamp papers used for Ex.A.1 was purchased under Ex.A.1 in the month of November, 2006, normally the plaintiff ought to have obtained agreement of sale in the month of November, 2006 or within the reasonable time i.e. in the year 2007 or 2006 itself and there is no need to the plaintiff to wait for about 3 years for negotiations and obtain Ex.A.1 from the defendant. No prudent man will wait for 3 years for settlement of sale consideration for the suit property. It is another significant fact to note that the recitals shown in para 4 of the plaint i.e. plaintiff purchased stamp papers for obtaining Ex.A.1 on 4-11-2006 and since negotiation was not

O.S.34 of 20127S.C.J. Court, Hindupur

settled, kept quiet for 3 years, ultimately on 2-4-2009 he obtained agreement of sale under Ex.A.1 are not at all whispered in the first and foremost document under Ex.A.2 issued by the plaintiff to the defendant. In the absence of the above said averments under Ex.A.2, it can safely be held that the said plea of the plaintiff that he kept quiet for 3 years for settlement of sale consideration amount, cannot be believed. As already discussed above, even to the naked eye also the year mentioned under

Ex.A.1 agreement of sale is conveniently altered into 2009 from 2007 and it is also specifically noted in the second line with different ink though it is in a black colour. The said discrepancy is not at all explained by the plaintiff as to why there is correction as well as incorporation of date in different ink.

Even the scribe and attestors are also not examined by the plaintiff to show that Ex.A.1 was executed on 2-4-2009. Since there is a correction in the year portion in Ex.A.1 and date is also incorporated in different ink in Ex.A.1, it can safely be held that Ex.A.1 is interpolated and as such the said document is not genuine one and materially altered. It is another significant fact to note that under Ex.A.1 PW.1 stated that he paid Rs.1,10,000/- (Rupees One Lakh and Ten Thousand only), in Ex.A.2 also stated that he paid

Rs.1,10,000/- (Rupees One Lakh and Ten Thousand only) to the defendant, and in the plaint it is stated that he paid Rs.1,11,000/- (Rupees One Lakh and Eleven Thousand only) advance before the witnesses and the said witnesses are also not examined by the PW.1 and there is discrepancy even in the quantum of advance amount paid by the plaintiff to the defendant under ex.A.1. Thus, the above said circumstances vividly manifest that the agreement of sale under Ex.A.1 is materially altered by the plaintiff and when agreement of sale under Ex.A.1 is materially altered, it can safely be held that the plaintiff did not approach the court with clean hands and in a suit for specific performance of agreement of sale who approaches the court with unclean hands by suppressing material facts and filing altered documents cannot seek equitable relief of specific performance though the

O.S.34 of 20128S.C.J. Court, Hindupur

defendant remained silent without contesting the case. Therefore, this point is answered accordingly against the plaintiff and in favour of the defendant.

12.Issue No.2 : Burden heavily lies on the defendant to prove that suit agreement under Ex.A.1 is a forged document, but he did not come to witness box though burden lies on him, but in the Ex.A.4 reply notice, the defendant categorically admitted that he executed agreement of sale under ex.A.1 on 2-4-2007, but not on 2-4-2009 and since the defendant admitted execution of Ex.A.1 though denying the year of execution, the contention of the defendant that Ex.A.1 is a forged one, has no legs to stand and thus, the defendant failed to prove the burden casted on him. Therefore, this point is answered accordingly against the defendant and in favour of the plaintiff.

13.Issue No.4 : For the reasons stated in issue Nos.1 and 3, the suit is dismissed with costs.

Dictated to Stenographer Gr.II, transcribed by him, corrected and

pronounced by me in open Court on this the 25 th day of July, 2017.

Senior Civil Judge,

Hindupur

Appendix of Evidence

Witnesses examined for

PLAINTIFF DEFENDANT

PW.1 : P.S.Anjineyulu - NIL -

Documents marked for Plaintif

Ex.A.1 : Agreement of sale dt. 2-4-2009 Ex.A.2 : Office copy of the legal notice dt. 1-7-2011 Ex.A.3 : Postal acknowledgment dt. 6-7-2011 Ex.A.4 : Reply notice dt. 9-6-2011 (sic.13-7-2011)

Documents marked for Defendant

- NIL -

S.C.J.

I.P.8 of 20081S.C.J. Court, Hindupur

IN THE COURT OF THE SENIOR CIVIL JUDGE :: HINDUPUR

Present: Sri J.Nagaseshaiah, Senior Civil Judge, Hindupur

Monday, the 24 th day of July, 2017

I.P.No.8 of 2008

Between :

1. Smt. Vamseelakshmi, d/o K.Venkatamuni Reddy, w/o V.L.N.Reddy, Hindu, aged about 45 years, Agriculturist, D.No.26-4-2966, Sri Balaji Nagar, Hindupur

2. M.Kishore, s/o M.C.Obaiah, Hindu, aged 25 years, Agriculturist, Boyapet, Hindupur… Petitioners

And

1. K.Nagaraja Rao, s/o K.Mallikarjuna Rao, Hindu, aged about 55 years, Sri Balaji Vidya Vihar, Pipeline Road, Hindupur

2. A.Sivananda, s/o A.Basavaraju, Hindu, aged about 53 years, Sri Balaji Vidya Vihar, Pipeline Road, Hindupur

3. R.R.Educational Society, by its Treasurer G.R.Sri Lakshmi, w/o G.A.Ramakrishna Prasad, Hindu, aged about 44 years, M.F.Road, Hindupur

4. R.R.Educational Society, by its President N.S.Ramanjaiah Setty, s/o Late N.Sanjeevaiah Setty, aged 80 years, R/o M.F.Road,

Hindupur, Anantapur Dist.... Respondents

Thispetition is coming on 19-7-2017 for final hearing before me in the presence of Sri K.Sreenivasulu, Advocates for the petitioners and of Sri B.Sreenivasa Rao, Advocate for the respondents 3 and 4, the respondent No.1 remained exparte, the petition against respondent No.2 is dismissed for non payment of batta, and the matter having stood over till this day for consideration, this Court delivered the following :

I.P.8 of 20082S.C.J. Court, Hindupur

O R D E R

1.Petition is filed by the creditors 1 and 2 against the debtors u/s.9 of

Provincial Insolvency Act to adjudicate R.1 and R.2 as insolvents.

2.Brief facts of the petition are as follows :

R.1 and R.2 are running educational institutions under the name and style of “Balaji Vidya Vihar” at Hindupur for several years. R.3 and R.4 are close friends and associates of R.1 and R.2. R.1 and R.2 borrowed from the petitioners for running Balaji Vidya Vihar on 30-3-2005 of Rs.4,50,000/- (Rupees Four Lakh and Fifty Thousand only) and Rs.2,00,000/- (Rupees Two

Lakh only) agreeing to repay the same with interest at 24 % per annum and executed promissory notes. R.1 and R.2 also contracted debts to the tune of

Rs.4 Crores (Rupees Four Crore only). R.1 and R.2 are owners of the petition schedule mentioned property worth about Rs.4 Crore (Rupees Four Crore only) with pacca building therein. R.1 and R.2 colluded with R.3 and R.4, created nominal sale deeds on 5-3-2008 and 6-3-2008, sold the petition schedule mentioned property to R.3 and R.4 under fictitious sale deeds by mentioning less consideration in sale deeds though the property is worth about crores and thereby committed the act of Insolvency. R.1 and R.2 colluded with R.3 and R.4 with a view to defraud the petitioners and other creditors. Hence, this petition.

3.R.1 remained exparte. Petition against R.2 is dismissed for non payment of batta on 21-10-2011. R.3 and R.4 filed counter and brief facts of the counter of R.3 and R.4 are as follows :

R.3 and R.4 are R.R. Educational Society registered under Societies

Act with Registration No.176/2008 and they are running educational institutions at Hindupur, R.3 and R.4 purchased the I.P. schedule mentioned property from R.1 and R.2 for valid consideration, took possession of the

I.P.8 of 20083S.C.J. Court, Hindupur same and they are in lawful possession and enjoyment of the petition schedule mentioned property. R.1 and R.2 sold the I.P. schedule mentioned property to R.3 and R.4 for discharging of several debts borrowed by them as well as other debts and the same is mentioned in the sale deeds. The I.P.

filed by the petitioners against R.3 and R.4 is not maintainable u/s.8 of

Provincial Insolvency Act. Subsequent to the sale of I.P. schedule mentioned property to R.3 and R.4, R.1 and R.2 created some pronotes in the name of their close friends, associates, relatives with sole intention to extract money from R.3 and R.4. The allegation that R.1 and R.2 borrowed Rs.4,50,000/- (Rupees Four Lakh and Fifty Thousand only) and Rs.2,00,000/- (Rupees Two

Lakh only) on 30-3-2005 from the petitioners 1 and 2 by executing pronotes are also not correct. Both the above said pronotes are fabricated, created and they are not genuine transactions and the said pronotes are not supported by consideration. Petitioner No.2 was aged about 20 years by 30-3-2005 and under the said circumstances, it is highly imaginary and improbable to lend Rs.4,50,000/- (Rupees Four Lakh and Fifty Thousand only) and Rs.2,00,000/- (Rupees Two Lakh only) by the 2nd petitioner to the respondents 1 and 2. The petitioners have no right to question the sale transactions entered by R.1 and R.2 in favour of R.3 and R.4, there is no cause of action for the petition, and sought for dismissal of the same.

4.Heard both sides.

5.No oral or documentary evidence is produced by either parties.

6.Now, the point for consideration is : Whether the respondents 1 and 2 have committed any act of insolvency ?

7.POINT : Burden heavily lies on the petitioners to prove that R.1 and

R.2 have committed the act of insolvency and in order to prove the same, petitioner No.1 is examined as PW.1, two more witnesses are examined as

PW.2 and PW.3, produced Exs.A.1 to A.10 documents. The respondent No.1

I.P.8 of 20084S.C.J. Court, Hindupur is remained exparte. Petition against R.2 is dismissed for non payment of batta and R.3 and R.4 though filed counter, engaged counsel, but they did not come to witness box to give evidence as well as produce any kind of evidence.

8.It is settled Law that simply because the respondents remained exparte or did not produce any kind of evidence in support of their case, petitioners are not entitled for the relief ipso-facto without proving their case by adducing cogent and convincing evidence. The petitioners 1 and 2 filed petition u/s.9 of Provincial Insolvency Act against R.1 to R.4, but as already discussed above, the petition against R.2 is dismissed for non payment of batta by the petitioners and thus it is obvious that no petition is pending against R.2 and R.2 did not commit any act of insolvency.

9.PW.1 Vamseelakshmi in her evidence deposed that R.1 and R.2 are running educational institutions under the name of style of “Balaji Vidya

Vihar” and they have borrowed amounts from herself and 2nd petitioner to the tune of Rs.4,50,000/- (Rupees Four Lakh and Fifty Thousand only) and

Rs.2,00,000/- (Rupees Two Lakh only) and herself and petitioner No.2

Kishore filed suits against R.1 and R.2 and obtained Decree and Judgment against R.1 and R.2 for realizatioin of Rs.4,50,000/- (Rupees Four Lakh and

Fifty Thousand only) and Rs.2,00,000/- (Rupees Two Lakh only) under

Exs.A.1 and A.7 and after passing Decree and Judgment under Exs.A.1, A.2,

A.6, A.7, R.1 and R.2 sold the petition schedule mentioned property to R.3 and R.4 under Exs.A.3, A.4, A.5 sale deeds and the sale deeds are nominal documents obtained by R.3, R.4 from R.1, R.2 to defraud the claim of the petitioners. PW.1 Vamseelakshmi in her evidence as well as petition categorically stated that R.1 and R.2 have contracted debts to the tune of

Rs.4,00,00,000/- (Rupees Four Crores only) and R.1 and R.2 are absolute owners of the petition schedule mentioned property worth about Rs.10

I.P.8 of 20085S.C.J. Court, Hindupur

Crores (Rupees Ten Crores) with structures thereon. PW.1 Vamseelakshmi categorically stated in the petition that the worth of the property mentioned in the I.P. schedule is about Rs.10 Crores (Rupees Ten Crores), whereas the debt due by R.1 and R.2 to the petitioners 1 and 2 under Exs.A.2 is

Rs.7,52,250/- (Rupees Seven Lakh Fifty Two Thousand Two Hundred and Fifty only) and Ex.A.7 is Rs.3,35,060/-. Thus, the total amount due under Exs.A.1 and A.7 to the petitioners 1 and 2 is only Rs.10,87,310/- (Rupees Ten Lakh

Eighty Seven Thousand Three Hundred and Ten only) only, whereas the value of the property shown in the I.P. schedule as admitted by PW.1 is about Rs.10,00,00,000/- (Rupees Ten Crores only). PW.1 categorically stated that R.1 and R.2 borrowed amounts from other persons also and thus, it is obvious that there are some other creditors of R.1 and R.2 but they are not added as parties to the present petition. Exs.A.3, A.4, A.5 are sale deeds under which R.3, R.4 purchased the I.P. schedule mentioned property from

R.1 and R.2 for Rs.3,60,000/- (Rupees Three Lakh and Sixty Thousand only) + Rs.1,68,000/- (Rupees One Lakh and Sixty Eight Thousand only) +

Rs.14,04,000/- (Rupees Fourteen Lakh only) = Rs.19,32,000/- (Rupees

Nineteen Lakh and Thirty Two Thousand only). Thus, the sale deeds under

Exs.A.3, A.4, A.5 vividly manifest that R.1 and R.2 sold the I.P. schedule mentioned property for Rs.19,32,000/- (Rupees Nineteen Lakh and Thirty

Two Thousand only) by receiving cash consideration from R.3 and R.4 and the debt due by R.1 and R.2 to the petitioners 1 and 2 as claimed by them under Exs.A.1 and A.7 is only Rs.10,87,310/- (Rupees Ten Lakh Eighty Seven

Thousand Three Hundred and Ten only). When R.1 and R.2 sold their property for value more than debts due to the petitioners 1 and 2, the contention of the petitioners that they have sold the properties to defeat their claim, cannot be sustained. As already discussed above, as per the evidence of PW.1, there are some other creditors of R.1 and R.2 and they are also not brought to the proceedings as parties.

I.P.8 of 20086S.C.J. Court, Hindupur

10.The provisions of Sec.9 of the Provincial Insolvency Act reads as follows :

“9. With intent to defeat or delay his creditors :-

Section 6 (1) (b) of the Act specifies that a debtor

commits an act of insolvency if in India or elsewhere

he makes a transfer of his property or of any part

thereof with intent to defeat or delay his creditors. In

Pydimarri Venkateswarulu Vs. Pydimarri Jalamma,

while dealing with the meaning of the expression

“intent to defeat or delay creditors”. His Lordship

Vaidya J. observed.

“Clause (b) is applicable only in cases where a

transfer is made with intent to defeat or delay the

creditors. Stress is laid on the word “Creditors”. For

the purpose of a transfer to be brought within the

provisions of Clause (b) it is necessary that it should

have been effected within intent to defeat or delay the

whole body of creditors and not a single creditor.”

In Vadamala Sanjeevi Reddy Vs. K.Ellappa Reddy,

His Lordship Gopal Rao Ekbote J. held on this aspect.

“Section 6 (b) of the Provincial Insolvency Act

applies only where a debtor transfers his property to

defeat or delay all his creditors as a whole and not one

of them alone. Therefore, when a debtor transfers his

property to any creditor of his and pays out of the sale

proceeds some of his creditors, the transfer not being

with an intent to defeat or defraud all the creditors,

I.P.8 of 20087S.C.J. Court, Hindupur

does not amount to an Act of Insolvency within the

meaning of Section 6 (b).”

11.The above said provision of Law coupled with the decision rendered between Vadamala Sanjeevi Reddy Vs. E.Ellappa Reddyreported in AIR 1967

AP 243, it is obvious that if transfer of the property is made with an intention to defraud all the creditors, but not single creditor, then only it can amounts to the Act of Insolvency committed by the debtor. Admittedly the sale consideration amount received by the R.1 and R.2 from R.3 and R.4 under

Exs.A.3, A.4, A.5 is more than the debt due to the petitioners 1 and 2 under

Exs.A.1 and A.7. When the sale consideration amount received by R.1 and

R.2 is obviously double or triple the amount due to the petitioners, there is no bar to the R.1 and R.2 to clear of the debts to the R.1 and R.2 if at all the debt under Exs.A.1 and A.7 is true, genuine as contended by the petitioners and even there is no bar to the petitioners 1 and 2 also to realize their debt amount from the sale consideration amount received by R.1 and R.2 from

R.3 and R.4 under Exs.A.3, A.4, A.5. Thus, the petitioners failed to prove that the transactions covered under Exs.A.3, A.4, A.5 made by R.1 and R.2 in favour of R.3 and R.4 are tainted with any malafides with an intention to defraud the claim of the petitioners and in the absence of any malafide intention while making transfer under Exs.A.3, A.4, A.5 to defraud the claim of the petitioners, it can safely beheld that R.1 and R.2 have not at all committed any act of insolvency. Even assuming for a moment that the debt due to the petitioners 1 and 2 under Exs.A.1 and A.7 is true and correct, and it is only Rs.10,87,310/- (Rupees Ten Lakh Eighty Seven

Thousand Three Hundred and Ten only), whereas the property possessed by

R.1 and R.2 admitedly is worth about Rs.10 Crores (Rupees Ten Crores) and even sale consideration amount received by them under Exs.A.3, A.4, A.5 is also more than the amount due under Exs.A.1 and A.7 and when the assets possessed by R.1 and R.2 are more than the debts contracted by them due to the petitioners 1 and 2, it cannot be held that R.1 and R.2 have

I.P.8 of 20088S.C.J. Court, Hindupur committed any act of insolvency. Viewed in that angle also R.1 and R.2 did not commit any act of insolvency and petitioners failed to prove that the transactions covered under Exs.A.3, A.4, A.5 are made with an intention to delay or defraud the claim of the petitioners under Exs.A.1 and A.7 only.

Therefore, this point is answered accordingly against the petitioners and in favour of the respondents.

12.For the foregoing reasons, the I.P. is dismissed with costs.

Dictated to Stenographer, transcribed by him, corrected and

pronounced by me in open Court on this the 24 th day of July, 2017.

Senior Civil Judge,

Hindupur

Appendix of Evidence

Witnesses examined for

PETITIONERS RESPONDENTS

PW.1 : Vamseelakshmi- NIL - PW.2 : M.Kishore PW.3 : C.M.Nagaraju

Exhibits Marked For Petitioners

Ex.A.1 : Certified copy of Decree in O.S.1/2008 Ex.A.2 : Certified copy of Judgment in O.S.1/2008 Ex.A.3 : Certified copy of Sale Deed dt. 5-3-2008 Ex.A.4 : Certified copy of Sale Deed dt. 6-3-2008 Ex.A.5 : Certified copy of Sale Deed dt. 6-3-2008 Ex.A.6 : Certified copy of Judgment in O.S.6/2008 Ex.A.7 : Certified copy of Decree in O.S.6/2008 Ex.A.8 : Certified copy of pronote Ex.A.9 : Certified copy of petition in I.A.12/2008 in O.S.6/2008 Ex.A.10 : Certified copy of Attachment report filed by Amin in O.S.6/2008

Exhibits marked for Respondents

- NIL -

S.C.J.

Daily Status

In the Court of :Junior Civil Judge

Case No. :STC/0000013/2013 G.V.Madhava Reddy Motor Vehicles Inspector, Hindup Vs L.Mohammad Shnee Alam

Date : 19-06-2013

Business: Accused L.Mohammad Shanee Alam appeared before the court. Copies of case documents are furnished to him as required u.s 207 Cr.P.C Accused is examined u.s 251 of Cr.P.C. for the offence u.s 194 of M.V Act contents of charge sheet are read over and exlplained to the accused in Telugu for which the accused admitted the offence pleaded guilty. Admission mad by the accused is voluntary as such the same is accepted. In view of the admission made by the accused he is found guilty for the offence under section 194 of M.V. Act and as such he is convicted for the said offence u.s 252 of Cr.P.C. Perused copy of orders passed by Honurable High Court in W.P.No.40356/2012 which is communicated to this court by ROC 52/so 5/2013 dt.22-01-2013. Heard the accused with reagard to the quantum of sentence for which the accused pleaded mercy. In view of the magnitude of the offence I am not inclined to show any lenient view to the accused as such accused is sentenced to pay fine of Rs.2000-00 and additional fine of Rs.4650-00 and further

additional fine of Rs.10040-00 and further fine of

Rs.1000-00 towards un loading the excess load. Total fine of Rs.17690-00 Rupees seventeen thousand six hundred and ninety only. In default of pauymentof total fine amount Rs.17690-00 Rupees Seventeen thousand six hundred and ninety only the accused shall under go simple imprisonement for a period of 02 months two months. Nature of Disposal: ADMISSION OF CLAIM Disposal Date: 19-06-2013 Junior Civil Judge

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Daily Status

In the Court of :Junior Civil Judge

Case No. :STC/0000045/2011 T.Sam Vs Gajanana Sivaram Bhatta

Date : 26-06-2013

Business: Complalinant and accused are present. Judgement

pronounced VSJ in open court in the result the accused is

found guilty for the offence u/s 138 of NI act. Hence accused is convicteed for the said offence u8/s 255-1 of CrPC. Accused is sentenced to suffer simple imprisonment for a period of one year and pay to compensation of Rs.16,00,000-00 Rupees Sixteen Lakhs only to the complainant u/s 357-3 of Crpc. In default of payment of compensation accused shall under go SI for a period of three months. Nature of Disposal: CONVICTED Disposal Date: 26-06-2013 Junior Civil Judge

In the Court of :Senior Civil Judge

Case No. :OS/0000051/2012 S.Gayatri Vs S.Sada Sivareddy

Date : 25-07-2017

Business: Plaintiff is called absent plaintiff did not turn up in spite of sufficient time is granted. counsel for the defendant reported ready and pressed for trail. Hence suit is dismissed for default with costs. Nature of Disposal: DISMISSED WITH COSTS Disposal Date: 25-07-2017

Senior Civil Judge