Smt J.sree Seeta

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IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE-cum-

II ADDL METROPOLITAN MAGISTRATE

VISAKHAPATNAM.

PRESENT: Smt. J. Sri Seeta,

II Additional Junior Civil Judge cum II Addl Metropolitan Magistrate Visakhapatnam.

Tuesday, the 20th day of April, 2021

O.S. No.156/2017

Between:- Smt. Chittiboyena Narayanamma, W/o late Pentayya, Hindu, aged 75 years, House wife, R/o D.No. 20-109-3/1, Kotha Agrahram, Chengalraopeta, Visakhapatnam-1

...Plaintiff

AND

1. Sri Chittiboyena Arjuna, S/o late Pentayya, Hindu, aged about 40 years, D.No. 27-18-124, Kallun Pakalu, Durgalamma Temple, Purnamarket, Visakhapatnam-1

2. Sri Chittiboyena Rama Krishna, S/o late Pentayya, Hindu, aged 41 years D.No. 27-18-124, Kallun Pakalu, Durgalamma Temple, Purnamarket, Visakhapatnam-1

3. Sri Chittiboyena Eswara Rao, S/o late Pentayya, Hindu, aged 38 years D.No. 27-18-124, Kallun Pakalu, Durgalamma Temple, Purnamarket, Visakhapatnam-1.

4. Smt Chittiboyena Chinathalli, S/o late Pentayya, Hindu, aged 72 years D.No. 27-18-124, Kallun Pakalu, Durgalamma Temple, Purnamarket, Visakhapatnam-1.

...Defendants

This suit is coming before me on 22-03-2021 for final hearing in the presence of Sri J.V.Jagadeswara Rao and Sri B.Y.Naidu, learned counsel for Plaintiff and ofSmt. P.G.Bhavani, learned counsel for Defendants, and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.This Suit is filed by the plaintiff against defendants to grant permanent injunction restraining the defendants their men, agents, from enter into the peaceful possession and enjoyment of the schedule property and for costs of suit.

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2. The brief averments of the petition affidavit are as follows: a.It is the case of the plaintiff that she is the absolute owner of the property house (G+1) bearing D.No. 20–109-31, situated at Kotha

Agraharam, Chengalraopeta, Visakhapatnam which is purchased by the plaintiff under vide document No. 10657/81 dated 10-12-1981 from her vendor one Nookala Rao, S/o late Lakshmana Sastry one payment of valid consideration as such, the plaintiff and her family have been in possession and enjoyment from the date of purchase to till date.

b.Plaintiff further submits that while so, the defendants 1 to 3 are claiming them selles as children of 4th defendant/mother/second wife of the plaintiff’s husband and conspired each other and making hectic steps and improper litigation in order to grab the plaintiff’s plaint schedule property by hock and crook. Fro the fear of defendants dire attempts, the plaintiff apprehending danger executed a Will dated 03- 06-2011 in favour of plaintiff’s son by name Srinivasa rao @ Chepala

Srinu one who is working as Police Constable as he is looking after welfare of the plaintiff as well as living in the up stair of the plaintiff house.

c.Plaintiff further submits that since then, the 1st defendant being a rowdy and rude mentality and having intimacy with rowdy elements around the area not only making threats and creating false complaints to the police commissioner on 17-04-2015, which is referred to the

District Legal Service Authority at Visakhapatnam, in spite of authorities found guilty in the complaints but, the 1st defendant is continuing bad propaganda against the son of the plaintiff without any

Page No: 3 //Fair// II AJCJ/Vsp. OS 156/2017 fault on part of him. While the matter stood thus, the plaintiff on 23- 02-2017 served a notice to the defendants on receipt of notices, the all the defendants rushed to the plaint schedule property warned the plaintiff to dispossess from the suit schedule property at any point of time. Hence, plaintiff is constrained to file this suit for permanent injunction. Hence this suit.

3. Defendants filed their written statement and vehemently denied material allegations each para in the plaint, contended that the suit is not maintainable either under law or on facts and hence it is to be dismissed in limine. The defendants further contended that they having exclusive right and title over the terrace of the suit schedule property. There is no cause of action in this suit. Defendants further contended that in the light of the factual circumstances explained above, it is very clear that the plaintiff approached this Court by suppressing the material facts and as such, she is not entitled to seek any sort of reliefs as prayed for. There are no bonafides in this suit, hence prays to dismiss this suit with costs.

4.After, perusing the pleadings and documents on record, the fol- lowing issues are framed for trial, by my learned predecessor :

1. Whether the plaintiff entitled for permanent injunc- tion as prayed ?

2. To What relief?

5.On behalf of the plaintiff, She herself was examined as PW1 and

Ex.A1 to A7 were marked in support of her case one third party Smt

Mylapilli Laxmamma examined as PW2 and Mylapilli Nookalamma ex- amined as PW3. On behalf of the defendants, 1st defendant exam- ined himself as DW1, he got marked Ex.B1 (a & b ) to B4, in support of

Page No: 4 //Fair// II AJCJ/Vsp. OS 156/2017 his case third parties by name Smt N.Nagamani examined as DW2 and Sri.Simma Krishna examined as DW3 and Sri Garikina Sathi Raju examined as DW4 and no documents were marked.

6.Both sides submitted the arguments orally. The defendants filed written arguments also.

ISSUE No.1:

7.This is a suit filed by the plaintiff for simple injunction in which the plaintiff has to establish the possession and enjoyment in the plaint schedule property as on the date of filing of the suit and the defendant has interfered with the peaceful possession and enjoyment of the plaintiff in the schedule property.

8.The case of plaintiff is that she is the absolute owner of the plaint schedule property purchased by her from her vendor one Nookala

Ramarao, S/o. Late Lakshmana Sastry, vide document No.10657/81 dt.10.12.1981 for a valid consideration and as such her family has been in peaceful possession and enjoyment of the plaint schedule property. Ex.A1 is the registered sale deed dt.10.12.1981. The plaintiff also mutated her name in the municipal records and obtained door number and the electricity department allotted service connection in her name. The demand notices and tax receipts and the electricity bills were marked as Exs.A2 and A3 respectively. While so the defendants are claiming themselves as children of 4th defendant who is their mother and the second wife of plaintiff’s husband and they are making hectic efforts and improper litigation in order to grab the plaintiff’s plaint schedule property and due to the fear of the same, the plaintiff apprehending danger, executed a Will dt.3.6.2011 in favour of her son by name Srinivasarao @ Chepala Srinu who is working as

Page No: 5 //Fair// II AJCJ/Vsp. OS 156/2017 police constable and is looking after the welfare of the plaintiff as well as living in the upstairs of the plaintiff’s house. The compared copy of the Will dt.3.6.2011 was marked as Ex.A6. Since then the defendant

No.1 has been making threats and creating false complaints to the police commissioner on 17.4.2015 which was referred to DLSA at

Visakhapatnam and in spite of authorities found guilty in the complaints but the first defendant is continuing bad propagandas against the son of plaintiff without any fault on his part. The plaintiff got issued legal notice tot he defendants on 23.2.2017 to the defendants and on receipt of the said notices the defendants warned the plaintiff to dispossess from the plaint schedule property. The office copy of legal notice was marked as Ex.A4 and the acknowledgment was marked as Ex.A5. The aadhar card and the ration card of plaintiff (compared copies) was marked as Ex.A7.

9.On the other hand, the case of the defendants is that they are having exclusive right and title over the terrace of the schedule property.

10.In order to establish the possession and enjoyment in the plaint schedule property, the plaintiff herself was examined as Pw.1. Her chief affidavit is nothing but the replica of her plaint. She got marked

Exs.A1 to A7 on her behalf. During the cross examination, Pw.1 deposed that her husband purchased 250 sq. yards from one Satyam and the said property has been acquired by the government for money and with the said money they purchased a house which is nearby the said 250 sq.yards. She also deposed that she has executed a Will in the name of Srinivasarao who is her son as he is looking after her. She denied the suggestion that the 4th defendant also gave gold for the

Page No: 6 //Fair// II AJCJ/Vsp. OS 156/2017 purchase of the house and she and her son Srinivasarao who is a police constable drove away D4 fro the house at the time of repairs of the house in the year 2008.

11.In support of her case, she also got examined Pws. 2 and 3 who are the neighbours of Pw.1. Pw.2 deposed that she resided in the house of Pw.1 for rent for about 15 years but the said fact was not mentioned in her chief examination affidavit. She deposed that she does not know for how long period Pw.1 has been residing in the schedule property house and she does not know D1 to D4. Coming to the evidence of Pw.3, she deposed that she knows Pw. 1 and D4 but she does not know the relationship between them but after expiry of the husband of Pw.1, D4 left the schedule property. In the year 1995

Pentayya i.e., the husband of Pw.1 was died and D1 to D3 along with

D4 used to reside in the schedule property during childhood of D1 to

D3. He identified Pw.1 and D4 along with her husband Pentayya in the photograph confronted to him, and the same was marked as Ex.B1. At present Srinivasarao who is one of the sons of Pw.1 is residing in the upstairs of schedule property. He denied the suggestion that he is doing chit business and defaulted in payment of the same and on which criminal cases were pending against him and for the said criminal cases, the said Srinivasarao helping him.

12.Coming to the defendants case, in support of their defence, the first defendant was examined as Dw.1. He got marked Exs.B1 to B.3.

Ex.B1 is the docket order dt.28.7.201 in PLC No.428/2015, ExB2 is the 4 photographs and Ex.B3 is the marriage invitation card. In the chief examination of Dw.1, it was mentioned that originally the schedule property was purchased by his father with the help of his mother by

Page No: 7 //Fair// II AJCJ/Vsp. OS 156/2017 selling away her gold ornaments and his grandfather also provided some amounts for the said purpose and subsequently, his father fell sick and at that time their mother looked after their entire welfare and also taken entire care of his father’s health and his marriage was also performed int eh same premises and after the demise of their father the plaintiff along with his son who is working in police department by influencing with high handed acts and he got exclusive right and title over the terrace of he schedule premises. The above said facts were not mentioned in the written statement of the defendant for the reasons best known to them.

13.During the cross examination, he admitted that the plaintiff filed this suit when they trespassed into the plaint schedule property house which was purchased by his father during his life time. He approached four times to the police station to give report and the police referred the case to Lok adalath and his brother by name Chittiboina Srinivas who is a police accepted before the Lok adalath to handover the schedule property to him and also accepted that they are the children of the 2nd wife of his father but he did not handover the same and also not provided shelter to their mother. He does not know the contents of

Ex.B1 but he had obtained the same from DLSA and he does not know whether it was mentioned in Ex.B1 that if they have any right over the schedule property and were advised to file civil suit for redressal. He further deposed that at first they do not know that the schedule property is in the name of plaintiff but now i.e., in the year 2008 to 2009 they came to know that the schedule property is in the name of plaintiff. By the year 1981 they are children as such they do not know about Ex.A1. He does not know from the year 1981 itself the schedule

Page No: 8 //Fair// II AJCJ/Vsp. OS 156/2017 property is in the name of plaintiff and she has been paying the house taxes and also the electricity bills. He has not filed any civil suit seeking cancellation of Ex.A1. He identified the schedule property and the two photographs were marked as Ex.B4. He further deposed that since the year 2010 he was residing in a rental house bearing D.No.27- 18-124, Durgamma temple, Poorna Market and from 2017 he is residing in another house which belongs to one Subadramma. He denied the suggestion that he has been residing in his own house i.e.,

D.No.27-18-124 but not in the rented house. He denied the suggestion that the averments in Para 10 and 11 of his chief affidavit were not mentioned in the written statement. He admitted that Ex.B4 does not contain the name and printers and its address. He denied the suggestion that the name of the husband of her mother is one Karaka

Achibabu. He deposed that he does not know who pasted the wall posters by showing the photo of plaintiff and Srinivas throwing away them from the schedule property.

14.During his further cross examination he denied the suggestion that no one can mention the names of his two wives in the wedding card of his children and also denied that if he printer name was mentioned in the wedding card the truth will come out and therefore the printer name and address particulars were not printed in his wedding card. He further deposed that one Pentayya died in the year 1995 and he voluntarily deposed that he was necked out from the schedule property in the year 2006 or 2008 and denied that he was necked out in the year 1995. He admitted that in Ex.B1 it was mentioned that as the respondent is not intended to settle the dispute the petitioner i.e., Dw.1 is advised to file civil suit. He voluntarily

Page No: 9 //Fair// II AJCJ/Vsp. OS 156/2017 stated that he again approached the police and as per their advice he came to plaint schedule property and used to reside therein but at the plaintiff filed the suit and obtained injunction orders he was necked out from the schedule property and at present he is residing in

Purnamarket Kallupaka on rental basis since 2009. He admitted that the plaintiff got the plaint schedule property by virtue of Ex.A1 sale deed and voluntarily stated that his father Pentayya purchased the same in the name of plaintiff and he does not know that Ex.A1 is in the name of plaintiff. He does not know in whose name the house tax and electricity bills and water tax are but as they resided jointly in the plaint schedule property they all collectively paid the said taxes. He admitted that he has not filed any tax receipts before the court. Till today (i.e., on the date of his giving evidence ) he does not know that

Ex.A1 is in the name of the plaintiff. He also admitted that if any grievance is there he has to approach the court and get the relief through process of law but he has no right to proceed against the plaintiff. He does not know whether CMA was preferred against the orders passed in I.A.No.90/2017. He does not know whether the statements deposed by him were covered in his written statement or not.

15.In support of his case, he also got examined Dws. 2 to 4. Dw.2 is a third party to the suit who was acquainted with both plaintiff and defendants. In her chief examination she deposed that late Riksha

Pentayya is the CPI party leader and he purchased the house from her elder brother in law by selling away his site situated at Minerwa

Talkies, near beach road, Visakhapatnam besides that he also sold away the gold ornaments of 4th defendant and the plaintiff and the 4th

Page No: 10 //Fair// II AJCJ/Vsp. OS 156/2017 defendant’s father also gave some amounts to said Pentayya. During her cross examination, she deposed that she has been residing in

Pineapple colony for the last 20 years and about 20 years back she used to reside at Chengalaraopet near to the suit schedule property.

Her brother in law sold away the suit schedule property to Riksha

Pentayya during the year 1981 to 1982 and she was not present at the time of registration of the said property as it is not her share of property. She admitted that she does not know about the suit schedule property affairs since she has been residing in pineapple colony for the last 20 years. The first defendant has been residing at purna market. She also admitted that as she was not present at the time of registration of suit schedule property she has no knowledge as to who gave money and who received the said money at the time of registration. She deposed that at present the plaintiff has been residing in the plaint schedule property.

16.Dw.3 deposed that he is the secretary of Ramalayam situated at

Chengalaraopet, Gollaveedhi and one of the elders of that locality. He has been residing near the suit schedule property since his childhood.

He has no knowledge about the dispute pertaining to the suit schedule property and at present the plaintiff has been residing in the plaint schedule property. He does not know her right over the plaint schedule property and how she got rights over the schedule property.

Initially the plaintiff, 4th defendant and Pentayya and their children used to reside in the same portion of plaint schedule property jointly and after the death of Pentayya the defendants have been residing away from the suit schedule property. He does not know when

Pentayya died and he died about 15 years back. He admitted that

Page No: 11 //Fair// II AJCJ/Vsp. OS 156/2017 when the defendants came to the schedule property the police came there. As the plaintiff has been residing along with Pentayya from the beginning they presumed that she is the first wife and Chinnatalli as 2nd wife. The first defendant and himself belongs to same caste and the first defendant requested him to come to the court and give evidence. Except the present dispute he does not know the details of the disputes pending before the legal services authority and commissioner of police between the parties. The plaint schedule property is not visible from his house and he admitted that except through some one it is not possible for his to know personally about the affairs of plaint schedule property.

17.Dw4 deposed that the present suit is filed by Arjuna (the first defendant herein )against his brother Srinu (one of the sons of plaintiff). He does not know when the suit schedule property was purchased and by whom it was purchased. The plaintiff alone has been residing in the plaint schedule property from the last 6 years and about 25 years back some dispute took place at the suit schedule property between two families of Pentayya and the police also came there. He does not know whether the 1st defendant and his family members came to the schedule property before filing of the sit and subsequent to the filing of the suit and made galata and at that time police came there and referred the matter to legal services authority.

He is aware that the schedule property originally belongs to one

Brahmin community place and it was purchased by some people but he does not know who purchased the plaint schedule property. He admitted that the plaint schedule property originally belongs to one

Nookala Ramarao s/o. Late Lakshmana Sastry. He does not know

Page No: 12 //Fair// II AJCJ/Vsp. OS 156/2017 whether the plaintiff purchased the suit schedule property from said

Nookala Rama rao on 10.12.1981 under registered sale deed I.e, Ex.A1 and she does not know that since the date of purchase the plaintiff has been paying the taxes.

18.Admittedly, the 4th defendant and the plaintiff are the wives of one Riksha Pentayya and the defendants 1 to 3 are the children of 4th defendant I.e, the second wife of Pentayya. The husband of Pw.1 and 4th defendant died 25 years ago in the year 1995. It is also not in dispute that the plaintiff has been in possession and enjoyment of the plaint schedule house property as on the date of filing of the suit.

According to 1st defendant he got exclusive rights and title over the terrace of the plaint schedule property. But as per the plaintiff she has purchased the schedule property under Ex.A1 registered sale deed and due to the threates and illegal attempts of defendants to occupy the plaint schedule property, she got executed registered Will under Ex.A6 bequeathing the schedule property in favour of her one of the sons

Srinivas.

19.From the evidence of Pws. 1 to 3 and even from the evidence of

Dws. 1 to 4 also the plaintiff’s possession in the plaint schedule property is not denied. All of them deposed that at present the plaintiff has been residing in the plaint schedule property. But, the 1st defendant has been contending that they also jointly resided in the schedule property and his marriage was performed in the said house and after the death of Pentayya he was necked out from the plaint schedule property in the year 2006 and 2008. Ex.A1 is dated 10.12.1981 executed by one Nookala Ramarao in favour of plaintiff.

Admittedly, the statements given by Dw1 in his entire evidence were

Page No: 13 //Fair// II AJCJ/Vsp. OS 156/2017 not mentioned in the written statement. Therefore, without there being any pleading in the written statement the evidence of Dw.1 cannot be taken into consideration. Ex.B1 photograph were. But agai9n the docket order was marked as Ex.B1. Therefore, the numbers given to Ex.B1 (a) & Ex.B1 (b).

20.Even for discussion sake, as per the 1st defendant he does not know about Ex.A1 till the date of filing of the suit and he did not take any steps for cancellation of Ex.A1. A perusal of Ex.B1(b) the docket order in PLC 428/2015 shows that the petitioner i.e., the 4th defendant herein was advised to file civil suit for redressal of her grievance and returned the complaint to the concerned police station. But she did not file any suit against the plaintiff and her son Srinivas. She was also not examined as a witness on behalf of the first defendant. Dws.2 to 4 are the third parties to the suit and as per the admissions of Dw.2 she was not present at the time of registration of Ex.A1 sale deed and who gave money and who received the money and she also does not know the suit schedule property affairs since she has been residing in

Pineapple colony for the last 20 years. As per Dw.3 he has no knowledge about the dispute pertaining to the suit schedule property and the plaint schedule property is not visible from his house and except through some one it is not possible for him to know personally about the affairs of plaint schedule property. According to Dw.4 he does not know who filed the suit against whom and he does not know about the case facts. Therefore, the evidence of Dws. 3 to 4 is not helpful to the case of the first defendant. Therefore, the evidence of

Dws. 1 to 4 cannot be taken into consideration in the absence of any pleadings in the written statement. The defendants also did not take

Page No: 14 //Fair// II AJCJ/Vsp. OS 156/2017 any steps to file any additional written statement in this case.

21.The evidence of Pws. 1 to 3 and Exs.A1 to A7 shows that the plaintiff has been in possession and enjoyment of the plaint schedule property and has been paying the taxes and electricity consumption charges to the concerned authorities. Coming to Ex.A6 Will there is no averment in the written statement disputing the execution of the said

Will and its genuinity by the defendants. Moreover, this being the suit filed for injunction simplicitor much discussion is not necessary on

Ex.A6.

22.In view of the above discussion and from the evidence of Pws. 1 to 3 coupled with Exs.A1 to A5 and A7, the plaintiff’s possession and enjoyment in the plaint schedule property is established. Coming to the aspect of interference of the defendants, the first defendant during his cross examination has admitted that the plaintiff filed this suit when they trespassed into the plaint schedule property house.

Further, he approached four times to the police station to give report and the police referred the case to Lok adalath and his brother by name Chittiboina Srinivas who is a police accepted before the Lok adalath to handover the schedule property to him and also accepted that they are the children of the 2nd wife of his father but he did not handover the same and also not provided shelter to their mother. In support of the said contention he did not file any proof before the court and as discussed supra, he did not file any civil suit against the plaintiff for redressal as directed by Lok Adalath authorities and he also even did not take any steps for cancellation of Ex.A1 sale deed.

Therefore, the interference by the defendants was also admitted by the first defendant himself and as such, the plaintiff’s possession in the

Page No: 15 //Fair// II AJCJ/Vsp. OS 156/2017 plaint schedule property is to be protected by way of injunction.

Accordingly, this issue is answered in favour of the plaintiff and against the defendants.

ISSUE NO.2:-

23.In the result, the suit is decreed without costs granting permanent injunction in favour of the plaintiff restraining the defendants and their men etc., from ever interfering with the peaceful possession and enjoyment of the plaintiff’s plaint schedule property.

Typed to my dictation directly at bench in open court, this the 20th day of April -2021.

II ADDL. JUNIOR CIVIL JUDGE CUM

II ADDL METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff For Defendant

P.W.1 :Smt Chittiboyena Narayanamma DW1:Mohammad Nazo Begum

P.W.2 :Smt M.Laxmamma DW:2:Smt N.Nagamani

P.W.3 : Smt M.Nookalamma D.W.3:Sri Simma Krishna

D.W.4: Sri G.Sathi Raju

DOCUMENTS MARKED

For Plaintiff:

Ex.A.1 is the original registered sale deed of the plaintiff dt. 10-12- 1981

Ex.A2 is the Original demand notices and tax receipts by GVMC, 6 in nos.

Ex.A3 is the Original recent electrical bills 3 in nos.

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Ex.A4 is the office copy of Lawyer’s notice, dt. 23-02-2017

Ex.A5 is the Original Postal acknowledgment cards dt. 24-02-2017

Ex.A6 is the copy of registered will in favour of plaintiff’s son dt. 03-06- 2011(compared with original)

Ex.A7 is the Adaar card & Ration card of the plaintiff (compared with original)

For Defendant:

Ex.B1 (a) is the 1 photograph (Marked as at the time cross examination of PW3)

Ex.B1 (b) is the Docket Order dated 28-07-2015 in PLC 428/2015.

Ex.B2 is the Original 4 photographs

Ex.B3 is the Marriage invitation card

Ex.B4 is the 2 photographs

II Addl Junior Civil Judge-cum- II Addl Metropolitan Magistrate, Visakhapatnam..

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Suit for Permanent Injunction

Date of Presentation :13-03-2017 Date of Filing :13-03-2017

IN THE COURT OF THE II ADDL. JUNIOR CIVIL JUDGE CUM

II ADDL METROPOLITAN MAGISTRATE AT VISAKHAPATNAM.

PRESENT:Smt J. Sri Seeta ,

II Addl. Junior Civil Jude-cum-

II Addl Metropolitan Magistrate

Visakhapatnam.

Tuesday, the 20th day of April, 2021

O.S. No.156/2017

Between:-

Smt. Chittiboyena Narayanamma, W/o late Pentayya, Hindu, aged 75 years, House wife, R/o D.No. 20-109-3/1, Kotha Agrahram, Chengalraopeta, Visakhapatnam-1

...Plaintiff

AND

1. Sri Chittiboyena Arjuna, S/o late Pentayya, Hindu, aged about 40 years, D.No. 27-18-124, Kallun Pakalu, Durgalamma Temple, Purnamarket, Visakhapatnam-1

2. Sri Chittiboyena Rama Krishna, S/o late Pentayya, Hindu, aged 41 years D.No. 27-18-124, Kallun Pakalu, Durgalamma Temple, Purnamarket, Visakhapatnam-1

3. Sri Chittiboyena Eswara Rao, S/o late Pentayya, Hindu, aged 38 years D.No. 27-18-124, Kallun Pakalu, Durgalamma Temple, Purnamarket, Visakhapatnam-1.

4. Smt Chittiboyena Chinathalli, S/o late Pentayya, Hindu, aged 72 years D.No. 27-18-124, Kallun Pakalu, Durgalamma Temple, Purnamarket, Visakhapatnam-1.

...Defendants

This Suit is filed by the plaintiff against defendants to grant permanent injunction restraining the defendants their men, agents, from enter into the peaceful possession and enjoyment of the schedule property and for costs of suit.

Value of the suit for the purpose of Court fee and jurisdiction is Rs.1,00,000/- and a Court Fee of Rs.3,426/- is paid under Section 20, Schedule I Article 1(b) of APCF and SV Act.

This suit is coming before me on 22-03-2021 for final hearing in the presence of Sri J.V.Jagadeswara Rao and Sri B.Y.Naidu, learned counsel for Plaintiff and ofSmt. P.G.Bhavani, learned counsel for Defendants, and having stood over for consideration till this day, this court doth order; and

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D E C R E E

1. that the suit be and the same is hereby decreed granting permanent injunction in favour of the plaintiff, restraining the defendants and their men etc., from ever interfering with the peaceful possession and enjoyment of the plaintiff’s plaint schedule property;

and

2. that there be no costs.

(Copy of plaint schedule is here to attached) th Given under my hand and the seal of the court, this the 20 day of April,2021.

II Addl Junior Civil Judge-cum- II Addl Metropolitan Magistrate, Visakhapatnam.

MEMORANDUM OF COSTS

For Plaintiff For Defendant

Stamps on Vakalat: 2-00 No costs memo is filed Stamps on Plaint: 3,426-00 Stamps on Process : 100-00 -------------- Costs Instituted Rs.3,528-00 --------------

II Addl Junior Civil Judge-cum- II Addl Metropolitan Magistrate, Visakhapatnam.

Verified by CMO:

Page No: 19 //Fair// II AJCJ/Vsp. OS 156/2017

1

IN THE COURT OF V ADDITIONAL JUNIOR CIVIL JUDGE AT

VISAKHAPATNAM

PRESENT: Smt. J.Sri Seeta II Additional Junior Civil Judge-cum II Metropolitan Magistrate, FAC V Additional Junior Civil Judge, Visakhapatnam.

Monday, the 12th day of April, 2021

O.S.No.33/2019

Between:

M/s Sowparnika Avenues (India) Private Ltd., rep. By its Chairman and Managing Director, Sri annamneedi Ramesh Babu, S/o Satyanarayana, aged 54 years, having its ofce at Flat No.403, D.No.16-1-29/17, Animishai Pearl, Maharanipeta, Visakhapatnam-530002. ......Plaintif And:

1.Mr Gudala Kumar Raju, S/o Late Tammi Raju, aged about 55 years, Asst. Manager LIC, R/o D.No.58-27-17/1, Reddy Street, Butchirajupalem, Visakhapatnam-530027.

2.Union Bank of India, Rep by its Branch Manager, Siripuram Branch, D.No.10-50-14/3 (3), 100 feet Road, Waltair Main Road, Visakhapatnam-530003.

3.Mr Gallidevara Lakshmipathi Rao, S/o Sri Janai Ramayya, aged about 44 years, R/o D.No.2-91/A, Main Road, I.Polavaram, G.Vemavaram, Guttinadeevi, East Godavari-533464.

.....Defendants

This suit is coming on 15-03-2021 for fnal hearing before me in the presence of Duppala Apparao and Sri Runkana Srikanth, Advocates for the Plaintif, and the defendants are set exparte and upon hearing having stood over for consideration to this day, this court delivered the following:-

J U D G M E N T

1.This suit is fled by the plaintif against the defendants for recovery of a sum of Rs.11,35,750/- (Rupees Eleven Lakhs Thirty

Five Thousand Seven Hundred and Fifty only) with subsequent interest @ 6% P.A from the date of the suit till the date of realization and for costs the suit.

2

2.The brief averments of the plaint, are as follows :

The plaintif is a private limited company registered under

Companies Act in the name and style of Sowparnika Avenues (India)

Private Ltd., having its ofce at Flat No.403, D.No.16-1-29/17, Animishai

Pearl, Maharnaipeta, Visakhapatnam. The plaintif is fling the above suit with reference to the Agreement to Sell dated 25.062014 executed by the plaintif on its own behalf of the capacity of builder and also on behalf of one Gudala Krishna Murthy who is the site owner in favour of

Gudla Kumar Raju, S/o Late Tammi Raju, i.e the 1st defendant in respect of Flat No.504 of the combined built up area of 1315 Sft., in fourth foor of the building of Apartments “G.K.Sowparnika Castel” which the plaintif undertook to construct the building in terms of the Registered

Development Agreement with General Power of Attorney (DAGPA) dated 27.08.20212 (Doc.No.2781/2012) executed by the said Gudala Krishna

Murthy in its favour in respect of site of measuring for an extent of 800

Sq.yds., covered by Plot No.14, Journalist Colony, S.No.106/3, of

Marripalem Village, GVMC Limits, Visakhapatnam and the said Gudla

Krishna Murthy executed a supplementary development agreement bearing Doc.No.6880/20213 dt.14-11-2013. The plaintif had executed an agreement in respect of construction of fat dt.26.09.20214, in favour of the 1st defendant. The plaintif had executed an additional agreement for fat dt.25.06.2014 in favour of the 1st defendant with respect to provide additional amenities subject to fat No.504. As per the said registered DAGPA dated 27.08.2012, the fat No.504 and some other fats were fell into the share of the plaintif with absolute rights of sale.

Therefore, under the said agreement to Sell dated 25.06.2014, the plaintif agreed to sell the fat No.504 to the 1st defendant along with a 3 combined undivided share of 43 Sq. yards., in the said right of 800

Sq. yards for a total sum of Rs.32,87,500/- (Rupees Thirty Two

Lakhs Eighty Seven Thousand Five Hundred only) towards sale consideration, out of which the 1st defendant had paid a sum of

Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand only) by way of cheque bearing No.308087 dt.17.08.2014 drawn on Indian Bank,

Pendurthi, Visakhapatnam, towards part payment which was acknowledged. On the strength of the said Agreement to sell dated 25.06.2014, the 2nd defendant sanctioned a housing loan to the 1st defendant for the remaining sum of Rs.28,37,500/- (Rupees Twenty

Eight Lakhs Thirty Seven Thousand Five Hundred only) payable by the 1st defendant to the plaintif as per the said Agreement to sell.

Subsequently, in view of the said housing loan of Rs.28,37,500/- (Rupees Twenty Eight Lakhs Thirty Seven Thousand Five Hundred only), the following documents have been executed in favour of the 1st defendant and the 2nd defendant which was paid the following amounts directly to the plaintif by way of partial disbursements of the said housing loan. The originals of all the aforementioned four documents including the agreement to sell dated 25.06.2014 are in the custody and possession of the 2nd defendant. The certifed copy of the Registered DAGPA dated 27.08.20212 is also available with the 2nd defendant together with other usual requisite documents like link documents, E.C., etc., At this juncture on 23.06.2017, a cash payment of Rs.13,900/- and on 24.06.2017 a cash payment of

Rs.7,100/- is purported to have been made to the plaintif in 4 respect of the fat No.504, but the same was towards certain minor extra works and alterations and therefore the entire liability of the 2nd defendant to make good and the said entire balance loan amount of Rs.9,62,000/- still subsists along with interest payable for the delay in paying the same to the plaintif as no part of the same has so far been paid to the plaintif till now, even though the plaintif had completed the construction two years ago as per the said construction agreement dated 26.09.2014 and the Additional

Agreement dated 25.06.2014. While so, without furnishing any information or intimation to the plaintif in any manner whatsoever till now, the 2nd defendant behind the plaintiffs back is purported to have classifed the said housing loan account of the 1st defendant (Flat Purchaser) as NPA and invoked the provisions of

SARFAESI Act and is also purported to have sold both the said fats bearing Nos.503 and 504 through the combined “E-Auction” dated 24.09.2018 conducted by the 2nd defendant in pursuance of the notifcation of E-Auction published in Newspapers and purported to have sold the same to the 3rd defendant. In the said notifcation, the outstanding liability of the 1st defendant to the 2nd defendant was mentioned as Rs.15,55,473.83/- (Rupees Fifteen Lakhs Fifty

Five Thousand and Four Hundred and Seventy Three and Eighty

Three Paisa only) for fat No.503 and Rs.20,31,143.80/- (Rupees

Twenty Lakhs Thirty One Thousand One Hundred and Forty Three and Eighty Paisa only) for fat No.504 in total Rs.35,86,617.63/- (Rupees Thirty Five Lakhs Eighty Six Thousand Six Hundred and 5

Seventeen and Sixty Three Paisa Only) proportionately but the reserve price was mentioned as Rs.24,36,000/- (Rupees Twenty

Four Lakhs Thirty Six Thousand only) for fat No.503 and

Rs.31,56,000/- (Rupees Thirty One Lakhs Fifty Six Thousand only) for fat No.504 i.e in total Rs.55,92,000/- (Rupees Fifty Five Lakhs

Ninety Two Thousand only) and the auction was knocked down in favour of the 3rd defendant at Rs.56,32,000/- (Rupees Fifty Six

Lakhs Thirty Two Thousand only). It is obvious that it is only because the plaintif constructed the said fat as per the specifcations mentioned in the said construction agreement dated 26.09.2014 and the said additional agreement dated 25.06.2014 referred to above, the minimum value of the said property was evaluated at the said sum of Rs.56,32,000/- The 2nd defendant published sale notice dt.17.08.2018 under section 13(4) of

SARFAESI Act inviting the general public for conducting E-Auction of the Flat No.504 directing the public to submit bids on or before 24.09.2018. The 3rd defendant participated in the E-auction and being a successful bidder with a bid amount of Rs.31,78,575/- (Rupees Thirty One Lakhs Seventy Eight Thousand Five Hundred and Seventy Five only). The 3rd defendant deposited 1/4th of the total bid amount i.e Rs.7,95,321/- (Rupees Seven Lakhs Ninety Five

Thousand Three Hundred and Twenty One only) on 25.09.2018 and the same was acknowledged by the 2nd defendant vide a letter dt.25.09.2018. Later the 3rd defendant paid the remaining bid amount. On receiving the total bid amount from the 3rd defendant, 6 the 2nd defendant issued a sale certifcate reference SIR:Sale

Certifcate102:2018-19,dt.27.12.2018confrmingand acknowledging the receipt of the total bid amount from the 3rd defendant. By the date of E-auction notice, the defendant No.1 has an outstanding balance of Rs.20,31,143/- (Rupees Twenty Lakhs

Thirty One Thousand One Hundred and Forty Three only) is lying in the hands of the 2nd defendant. Out of the same, the plaintif is entitled an amount of Rs.9,62,500/- + Rs.1,73,250/- (interest) totaling to Rs.11,35,750/- together with subsequent interest, costs and ancillary expenses. The plaintif had issued a legal notice to all the defendants on 24.12.2018 and the same was received by the defendants 2 and 3 and on 24.12.2018 the plaintif had personally served a notice to the 2nd defendant bank ofcials and the same was acknowledged on the copy of the said notice, but they did not gave any reply nor made any payment to the plaintif. Thus, the said fat and the respective car parking spaces relating to the same, measuring 80 Sft., is still remaining in the physical possession, custody and control of the plaintif, even though the construction was completed long time ago. On account of which, the plaintif is sufering loss under various heads including interest on amount due, maintenance and upkeep of the fats watch and ward charges, electricity charges etc., Therefore the plaintif is entitled the outstanding balance amount of Rs.9,62,500/- (Rupees

Nine Lakhs Sixty Two Thousand Five Hundred only) in respect of the fat No.504 together with interest at the reasonable rate of 18% 7 p.a. The 2nd and 3rd defendants are jointly and severally liable to pay the same to the plaintif. Hence, the suit

3.The defendants were called absent and there was no representation for the defendants. Defendants though appeared in person have not engaged counsel and not fled written statement. The right of defendants to fle written statement was forfeited since the defendants failed to fle written statement within 90 days and the defendants were set exparte.

4.On behalf of the plaintif, its Chairman-Managing Director of M/s

Sowparnika Avenues (India) Pvt. Ltd., was examined as P.W.1 and got marked Exs.A1 to A18.

5.Heard the learned counsel for the plaintif.

6.Now, the point for consideration is :

“Whether the plaintif is entitled to recover the suit amount from the defendants as prayed for?

7.POINT :-

In support of the case of plaintif its Managing Director was examined as Pw1. He fled his chief examination afdavit by reiterating the same facts which were stated in the plaint. He got marked Exs.A1 to

A18 on behalf of the plaintif.

It is the case of plaintif that it undertook to construct the building in terms of the Registered Development Agreement with General Power of Attorney (DAGPA) dated 27.08.2021 (Doc.No.2781/2012) i.e., Ex.A4 executed by the said Gudala Krishna Murthy in its favour in respect of site of measuring for an extent of 800 Sq.yds., covered by Plot No.14,

Journalist Colony, S.No.106/3, of Marripalem Village, GVMC Limits,

Visakhapatnam and the said Gudla Krishna Murthy executed a 8 supplementary development agreement bearing Doc.No.6880/20213 dt.14-11-2013. Ex.A5 is the supplementary development agreement. The plaintif executed an agreement in respect of construction of fat dt.26.09.2014 and also executed additional agreement dt.25.6.2014 i.e.,

Ex.A6 in favour of the 1st defendant to provide additional amenities subject to fat No.504. As per the said registered DAGPA dated 27.08.2012, the fat No.504 and some other fats were fell into the share of the plaintif with absolute rights of sale and as such, the plaintif agreed to sell fat No.504 to the 1st defendant along with a combined undivided share of 43 Sq. yards., in the said right of 800 Sq. yards for a total sum of Rs.32,87,500/- (Rupees Thirty Two Lakhs Eighty

Seven Thousand Five Hundred only) towards sale consideration.

The 1st defendant paid Rs.4,50,000/- (Rupees Four Lakhs Fifty

Thousand only) by way of cheque bearing No.308087 dt.17.08.2014 drawn on Indian Bank, Pendurthi, Visakhapatnam, towards part payment which was acknowledged.

Pw.1 further deposed that on the strength of the said

Agreement to sell dated 25.06.2014, the 2nd defendant sanctioned housing loan to 1st defendant for the remaining amount of

Rs.28,37,500/- (Rupees Twenty Eight Lakhs Thirty Seven Thousand

Five Hundred only) payable by the 1st defendant to the plaintif as per the said Agreement to sell. The original four documents including the agreement to sell dated 25.06.2014 are in the custody and possession of the 2nd defendant. The certifed copy of the Registered DAGPA dated 27.08.20212 is also available with the 9 2nd defendant together with other usual requisite documents like link documents, E.C., etc., At this juncture on 23.06.2017, a cash payment of Rs.13,900/- and on 24.06.2017 a cash payment of

Rs.7,100/- is purported to have been made to the plaintif in respect of the fat No.504, but the same was towards certain minor extra works and alterations and therefore the entire liability of the 2nd defendant to make good and the said entire balance loan amount of Rs.9,62,000/- still subsists along with interest payable for the delay in paying the same to the plaintif as no part of the same has so far been paid to the plaintif till now, even though the plaintif had completed the construction two years ago as per the said construction agreement dated 26.09.2014 and the Additional

Agreement dated 25.06.2014. While so, without furnishing any information or intimation to the plaintif in any manner whatsoever till now, the 2nd defendant behind the plaintiffs back is purported to have classifed the said housing loan account of the 1st defendant (Flat Purchaser) as NPA and invoked the provisions of

SARFAESI Act and is also purported to have sold both the said fats bearing Nos.503 and 504 through the combined “E-Auction” dated 24.09.2018 conducted by the 2nd defendant in pursuance of the notifcation of E-Auction published in Newspapers and purported to have sold the same to the 3rd defendant. Ex.A11 is the publication.

In the said notifcation, the outstanding liability of the 1st defendant to the 2nd defendant was mentioned as Rs.15,55,473.83/- (Rupees

Fifteen Lakhs Fifty Five Thousand and Four Hundred and Seventy 10

Three and Eighty Three Paisa only) for fat No.503 and

Rs.20,31,143.80/- (Rupees Twenty Lakhs Thirty One Thousand One

Hundred and Forty Three and Eighty Paisa only) for fat No.504 in total Rs.35,86,617.63/- (Rupees Thirty Five Lakhs Eighty Six

Thousand Six Hundred and Seventeen and Sixty Three Paisa Only) proportionately but the reserve price was mentioned as

Rs.24,36,000/- (Rupees Twenty Four Lakhs Thirty Six Thousand only) for fat No.503 and Rs.31,56,000/- (Rupees Thirty One Lakhs

Fifty Six Thousand only) for fat No.504 i.e in total Rs.55,92,000/- (Rupees Fifty Five Lakhs Ninety Two Thousand only) and the auction was knocked down in favour of the 3rd defendant at

Rs.56,32,000/- (Rupees Fifty Six Lakhs Thirty Two Thousand only). It is obvious that it is only because the plaintif constructed the said fat as per the specifcations mentioned in the said construction agreement dated 26.09.2014 and the said additional agreement

dated 25.06.2014 referred to above, the minimum value of the said

property was evaluated at the said sum of Rs.56,32,000/- The 2nd defendant published sale notice dt.17.08.2018 under section 13(4) of SARFAESI Act inviting the general public for conducting E-

Auction of the Flat No.504 directing the public to submit bids on or

before 24.09.2018. The 3rd defendant participated in the E-auction

and being a successful bidder with a bid amount of Rs.31,78,575/- (Rupees Thirty One Lakhs Seventy Eight Thousand Five Hundred and Seventy Five only). The 3rd defendant deposited 1/4th of the total bid amount i.e Rs.7,95,321/- (Rupees Seven Lakhs Ninety Five 11

Thousand Three Hundred and Twenty One only) on 25.09.2018 and the same was acknowledged by the 2nd defendant vide a letter dt.25.09.2018. Later the 3rd defendant paid the remaining bid amount. On receiving the total bid amount from the 3rd defendant, the 2nd defendant issued a sale certifcate reference SIR:Sale

Certifcate102:2018-19,dt.27.12.2018confrmingand acknowledging the receipt of the total bid amount from the 3rd defendant. By the date of E-auction notice, the defendant No.1 has an outstanding balance of Rs.20,31,143/- (Rupees Twenty Lakhs

Thirty One Thousand One Hundred and Forty Three only) is lying in the hands of the 2nd defendant. Out of the same, the plaintif is entitled an amount of Rs.9,62,500/- + Rs.1,73,250/- (interest) totaling to Rs.11,35,750/- together with subsequent interest, costs and ancillary expenses. The plaintif had issued a legal notice to all the defendants on 24.12.2018 under Ex.A13 and the same was received by the defendants 2 and 3 and on 24.12.2018 the plaintif had personally served a notice to the 2nd defendant bank ofcials and the same was acknowledged on the copy of the said notice, but they did not gave any reply nor made any payment to the plaintif. Thus, the said fat and the respective car parking spaces relating to the same, measuring 80 Sft., is still remaining in the physical possession, custody and control of the plaintif, even though the construction was completed long time ago. On account of which, the plaintif is sufering loss under various heads including interest on amount due, maintenance and upkeep of the 12 fats watch and ward charges, electricity charges etc., Therefore the plaintif is entitled the outstanding balance amount of

Rs.9,62,500/- (Rupees Nine Lakhs Sixty Two Thousand Five

Hundred only) in respect of the fat No.504 together with interest at the reasonable rate of 18% p.a. The 2nd and 3rd defendants are jointly and severally liable to pay the same to the plaintif.

8.A perusal of the documents fled by Pw.1 ie., Exs.A4 to A13 established the case of the plaintif. The evidence of P.W.1 remained unchallenged and unrebutted as the defendants were set ex parte.

Therefore, basing on the evidence of PW.1 coupled with Exs.A1 to A18 this Court is of the opinion that the suit claim is proved and the plaintif is entitled for the recovery of suit amount as prayed for together with interest. Accordingly, this point is answered in favour of the plaintif.

10.In the result, the suit is decreed with costs against defendants infavour of plaintif for a sum of Rs.11,35,750/- (Rupees Eleven Lakhs

Thirty Five Thousand Seven Hundred and Fifty only) together with interest @ 6% p.a from the date of the suit till the date of realization.

Typed to my Dictation, corrected and pronounced by me in open Court, this the 12thday of April, 2021.

II Addl Junior Civil Judge-cum II Addl Metropolitan Magistrate, FAC V Addl. Junior Civil Judge, Visakhapatnam.

APPENDIX OF EVIDENCE

Witnesses examined

For plaintif: For Defendants

P.W.1 : Annamneedi Ramesh Babu NIL 13

Documents marked

For plaintif:

Ex.A1 is (Original) certifcate of Incorporation of the plaintif company dated 09.12.2011.

Ex.A2 is (Original) Memorandum of Association and Articles of Association of the plaintif dated. 08.12.2011.

Ex.A3 is (Certifed copy) Board resolution passed by the plaintif in favour of Sri Annamneedi Ramesh Babu, S/o Satyanarayana, Chairman and Managing Director of the plaintif to represent the plaintif dated 20.05.2016.

Ex.A4 is (Mee-seva) Regd. Development agreement with general Power of attorney bearing Doc.No.2781/2012 executed by Mr.Gudla Krishna Murty in favour of the plaintif dated 27.08.2012.

Ex.A5 is (Mee-Seva) Regd. Supplementary development agreement bearing Doc.No.2934/2013 executed by Mr.Gudla Krishna Murthy in favour of the plaintif dated 14.11.2013.

Ex.A6 is (Attested true copy) Agreement to sell executed by Mr.Gudla Krishna Murthy rep by his GPA Holder the plaintif herein in favour of 1st defendant dated. 25.06.2014.

Ex.A7 is (Attested True copy) Addl. Agreement for fat executed by the plaintif in favour of the 1st defendant herein dated 25.06.2014.

Ex.A8 is (Attested true copy) Agreement in respect of fat construction execution by the plaintif in favour of the 1st defendant dated 26.09.2014.

Ex.A9 is (Certifed Extract) Regd. Sale bearing Doc.No.3590/2014 executed by Mr.Gudla Krishna Murthy rep by his GPA Holder the plaintif in favour of 1st defendant.

Ex.A10 is (Ofce copy) Ledger Account of 1st defendant with respect to Flat No.504 from 01.04.2013 to 24.06.2017 dated 28.09.2014.

Ex.A11 is (Copy) Notice under SARFAESI Act published by the 2nd defendant in Eenadu Visakhapatnam edition dated 17.08.2018.

Ex.A12 is (Copy) Letter addressed by the 2nd defendant to the 3rd defendant with respect to the initial payment and registration of property under bid held on 24.09.2018.

Ex.A13 is (Ofce Copy) Legal notice got issued by the plaintif to the defendant

dated 24.12.2018.

Ex.A14 is (Originals) Regd. Postal Receipts 3 numbers dated 24.12.2018.

Ex.A15 is (Computer Printout) Indian Post Web Track report for the 1st defendant dated 26.12.2018.

Ex.A16 is(Computer Printout) Indian Post Web Track report for the 2nd defendant dated 27.12.2018

Ex.A17 is(Computer Printout) Indian Post Web Track report for the 3rd defendant dated 26.12.2018 14

Ex.A18 is (Copy) Sale Certifcate :102:2018-19 issued by the 2nd defendant in favour of the 3rd defendant dated 27.12.2018.

For Defendants : Nil.

II AJCJ cum II AMM/ FAC V AJCJ/VSP 15

Date of Presentation : 04-01-2019 Date of Filing : 04-01-2019

IN THE COURT OF V ADDITIONAL JUNIOR CIVIL JUDGE AT

VISAKHAPATNAM

PRESENT: Smt. J.Sri Seeta II Additional Junior Civil Judge-cum II Metropolitan Magistrate, FAC V Additional Junior Civil Judge, Visakhapatnam.

Monday, the 12th day of April, 2021

O.S.No.33/2019

Between:

M/s Sowparnika Avenues (India) Private Ltd., rep. By its Chairman and Managing Director, Sri annamneedi Ramesh Babu, S/o Satyanarayana, aged 54 years, having its ofce at Flat No.403, D.No.16-1-29/17, Animishai Pearl, Maharanipeta, Visakhapatnam-530002. ......Plaintif And:

1.Mr Gudala Kumar Raju, S/o Late Tammi Raju, aged about 55 years, Asst. Manager LIC, R/o D.No.58-27-17/1, Reddy Street, Butchirajupalem, Visakhapatnam-530027.

2.Union Bank of India, Rep by its Branch Manager, Siripuram Branch, D.No.10-50-14/3 (3), 100 feet Road, Waltair Main Road, Visakhapatnam-530003.

3.Mr Gallidevara Lakshmipathi Rao, S/o Sri Janai Ramayya, aged about 44 years, R/o D.No.2-91/A, Main Road, I.Polavaram, G.Vemavaram, Guttinadeevi, East Godavari-533464.

.....Defendants

This suit is fled by the plaintif against the defendants for recovery of a sum of Rs.11,35,750/- (Rupees Eleven Lakhs Thirty Five Thousand Seven Hundred and Fifty only) with subsequent interest @ 6% P.A from the date of the suit till the date of realization and for costs the suit.

Value of the suit for the purpose of Court fee and jurisdiction is value of Rs.11,35,7350/- (Rupees Eleven Lakhs Thirty Five Thousand Seven Hundred and Fifty only) and Court fee of Rs.13,826/- (Rupees Thirteen Thousand Eight Hundred Twenty Six only) is paid thereon under section 20 r/w Article-I (c) Schedule-I of A.P.C.F and S.V.Act.

This suit is coming on 15-03-2021 for fnal hearing before me in the presence of Sri Duppala Appara and Sri Runkana Srikanth, Advocates for the plaintif and the defendants are set exparte and upon hearing having stood over for consideration to this day, this Court doth order; and 16

D E C R E E

1. that the defendants do pay to the plaintif a sum of Rs.11,35,750/- (Rupees Eleven Lakhs Thirty Five Thousand Seven Hundred and Fifty only) together with interest 6 percent p.a from the date of the suit till the date of realization and

2. that the defendant do also pay to the plaintif a sum of Rs.36,119/- (Rupees Thirty Six Thousand One Hundred and Nineteen Only) towards costs of the suit.

Given under my hand and the seal of this Court, this the 12th day of April, 2021.

II Addl Junior Civil Judge, FAC V Addl Junior Civil Judge, Visakhapatnam.

MEMORANDUM OF COSTS

* * *

For Plaintif: For Defendant:

Stamp on Vakalat : 2-00 No costs memo is fled

Stamp on Plaint : 11,926-00

Stamps on Process : 240-00

Stamps on petitions : 2-00

Advocate Fee : 17,887-00

Jr. Advocate Fee : 5,962-00

Typing Charges : 100-00 ------------------- Costs Allowed 36,119-00 ------------------

II AJCJ/VSP FAC V AJCJ/VSP

//FAIR COPY// 1

IN THE COURT OF THE V ADDL. JUNIOR CIVIL JUDGE-CUM-V ADDL.

METROPOLITAN MAGISTRATE, VISAKHAPATNAM.

Present: Smt. J.Sri Seeta, , II Addl. Junior Civil Judge-Cum II Metropolitan Magistrate FAC. V Addl. Junior Civil Judge-Cum- V Addl. Metropolitan Magistrate, VSP

Friday, this the 16th day of July, 2021.

C.C.No.75/2018

Between:

State represented by the Station House Officer, Airport Port Police Station, Visakhapatnam City

….Complainant

And:

Kothapalli Rambabu, S/o Subbarao, aged 47 years, Resident of D.No.5-15, Dudukuru, Devarapalli, Visakhapatnam Driver of Lorry AP 16 TX 7716. ….Accused

This case coming on 03-05-2021 for fnal hearing before me in the presence of Learned A.P.P, Advocate for the complainant and of Sri K.S.N.Varaprasad, Advocate for Accused and the same having stood over for consideration and this Court delivered the following:-

J U D G M E N T

1.This case is fled by the SHO, Air Port Police Station U/s. 304-A IPC against the accused in Cr.No.88/2016 alleging as follows:

2.On 3.5.2016 at about 10.45 hrs., while the deceased Manepalli Eswara

Satyanarayana was proceeding on Mahendra moped bearing No.AP 31 BE 690 to attend bank at Birla Junction, the accused being the driver of crime vehicle lorry bearing No.AP 16 TX 7716 coming from Tatichetlapalem and proceeding towards NAD drove the same in a rash and negligent manner and dashed the moped driven by the deceased resulting in which the deceased fell down on the road and at the same time the front tire of the lorry ran over on the deceased and the deceased died instantaneous. Basing on the report of Lw.1, Lw.14 the Inspector of Police, Kancharapalem police station registered the same as a case in Cr.No.88/2016 for the ofence U/s. 304 of //FAIR COPY// 2

IPC and endorsed to Lw.15 for investigation who recorded the statements of witnesses, observed the scene of ofence and drafted occurrence report and took photographs of the scene and conducted inquest over the dead body of the deceased, arrested the accused. After completion of investigation,

Lw.16 the SI of police Air port police station fled charge sheet against the accused. Therefore, the accused is liable for punishment U/s.304-A IPC.

3. Upon fling of the charge sheet the case was taken on fle for the ofence U/Sec. 304-A and copies of the case record were furnished to the accused as required U/sec.207 of Cr.P.C.

4. The accused was examined U/sec. 251 of Cr.P.C and the accusation 304-A IPC is read over and explained to the accused in Telugu for which he pleaded not guilty and claimed to be tried.

5.In support of its case the prosecution has examined PWs.1 to PW.13 and marked Ex.P.1 to P.8.

6.After closure of the prosecution side evidence the accused was examined U/sec. 313 Cr.P.C and he denied the incriminating evidence on record. However he did not choose to adduce any evidence on his behalf.

7. Heard. Written arguments fled by the accused.

8.Now the point for consideration is:

“Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt.?” POINT:

9. In order to bring home the guilt of the accused the prosecution has examined as many as 13 witnesses as Pws. 1 to 13. Among them, Pw.1 is the defacto complainant and he is the son of the deceased Manepalli Eswara

Satyanarayana. He deposed that on 3.5.2016 while he was working in the office in J.K.Power solutions, he received a call from Traffic constable from

Birla Junction, Visakhapatnam, immediately he rushed to Birla junction and he was informed that his father died and was taken to hospital. Ex.P1 is the report given by him and FIR was registered based on his report and after //FAIR COPY// 3 giving report he went to KGH hospital to receive the body of the deceased.

His father was working as Appriser in Murali Nagar, Andhra bank,

Visakhapatnam,. his father used to go to his duties at around 10.30 a.m., He was told by the traffic constable that his father was hit by Bharat Heavy

Motor Vehicles ltd., lorry from behind and the vehicle ran over his father.

During the cross examination, he deposed that he mentioned in Ex.P1 that his father was run over by a lorry but not BMPS lorry and he added that he subsequently came to know that it was BMPS lorry. The said statement was marked as Ex.D1. He does not know whether it was right or left front tyre of the lorry which went over his father. He denied the suggestion that his father was diabetic and sugar patient on the date of accident. He admitted that he was not the direct witness to the accident of his father. Three days after that day of occurrence one Deepak and Sagar were introduced to him in the police station as witnesses to the accident.

10.Pws. 2 and 3 were shown as direct witnesses to the occurrence. Both of them turned hostile to the case of prosecution.

11.Pw.4 is the then traffic constable who was on duty at Birla Junction on 3.5.2016. He deposed that he was constable in Kancharapalem Traffic PS at 11.10 a.m, two vehicles one scooty and behind it another lorry were coming towards Birla Junction from Burma Junction in one direction. The lorry coming from behind collided with the scooty and the front wheel of lorry went over the abdomen of the rider of the scooty and after that dragged the scooty for some distance. The rider of the scooty died on the spot and the lorry number is AP 16 TX 7716. The scooty number is AP 31 BH 690 and he intimated the SI and CI about the accident. The accused is present in the court. After clearing the traffic the vehicles were shifted to police stated and the body was shifted to KGH. During the cross examination he deposed that at the time of recording his statement, the police did not record the statement of any other witnesses, his duty was between 7.00 a.m, to 11.00 //FAIR COPY// 4 a.m.. He does not remember the name of his reliever and his reliever came 15 minutes late to the duty and the distance between him and the place of accident was around 10 feet. He was not present when the rough sketch was prepared. He further deposed that the place of ofence is a busy traffic area and he does not know whether the police took photos of scene of ofence after the accident and that the load carried by the lorry involved in the accident. He was shown the photos fled by the police along with charge sheet and he deposed that there are no lorries in the photos fled by the police. He deposed that the photos of crime lorry, scooty and the dead body at the place of scene of ofence were not taken by police in his presence.

12.During his further cross examination, he stated that he did not state

before police in his 161 statement that the crime vehicle dragged scooty for

some distance after going over the abdomen of deceased person. He came to know about the name of deceased as Manepalle Eswara Satyanarayana after verifcation of his pockets and he does not know who verifed the pockets of deceased for his identifcation. He stated that before shifting the body to KGH, the relatives of deceased did not come to the place of ofence.

13.Pw.5 is the brother of the deceased and he deposed that he received phone call from the third son of the deceased that his brother met with accident at Birla junction and by the time he went to KGH his father was found dead and he was present at the time of inquest. During the cross examination, he deposed that the inquest took place at KGH at around 2.00 pm.

14.Pw.6 is another inquest panchayatdar and he deposed that on inquest it was found that the deceased died in accident caused by a lorry which went on his stomach. The inquest report was marked as Ex.P2. During cross examination he deposed that the inquest took place at around 4.00 p.m., in

KGH.

//FAIR COPY// 5

15.Pw.7 deposed that on 3.5.2016 at about 10.30 a.m., to 11.30 a.m.,

Kancharapalem police intimated him to come to Kancharapalem police station and he was present at the time of accident in Birla Junction, police prepared rough sketch of scene of ofence in his presence. The accident took place on highway near Birla junction leading towards NAD junction near

Lakshmi Honda Car show room which is land ark. Police took photos. Ex.P3 is the scene observation report. During the cross examination, he deposed that he was going towards NAD junction and he cannot say in which direction it was. Airport police requested him to sign on Ex.P3. He cannot say the number of the wheels of vehicle and whether the said vehicle was loaded or unloaded at the time of accident . The vehicles travel at high speed on the right side of the road. He cannot say the distance between the zebra crossing and place of accident, he did not notice whether the near by foot path or any other property was damaged in the accident. He has not mentioned the time in ExP3. He denied the suggestion that he was not present at the time of accident and did not witness any accident and he signed at the request of police in Ex.P3 without knowing the contents of

Ex.P3. He deposed that he does not know whether the deceased fell under the front or back tyre of crime vehicle and he cannot say whether the vehicle of deceased was at the front wheel or the back wheel of crime vehicle at the time of preparation of Ex.P3.

16.Pw.8 is another panchayatdar for scene observation report Ex.P3. He deposed that on 3.5.2016 when he was going to NAD from Kancharapalem, accident took place and when he went to help police requested him to act as mediator for scene observation report. Ex.P3 carries his signature. During the cross examination, he deposed that he put his signature on ExP3 at around 11.00 a.m. and the time was not mentioned under his signature in

Ex.P3. He was going from NAD to Kancharapalem, but he cannot say the direction. He was a direct witness to the scene. He has not seen whether //FAIR COPY// 6 the deceased fell under front or back wheels of crime vehicle. The crime vehicle was a transport lorry and he cannot say the number of wheels of crime vehicle and he has not observed whether it is loaded or unloaded. The crime vehicle did not hit any foot path or any signal point at the time of accident and he cannot say the distance between the place of accident and zebra lines.

17.Pw.9 is the MV inspector. She deposed that on the requisition of

Kancharapalem Traffic PS dt.4.5.2016 she inspected the goods carriage, HMV

Ashol Leyland model 2008 vehicle bearing registration number AP 16TX 7716. She examined the vehicle on 4.5.2016 at Kancharapalem traffic police station and found no damages on vehicle and she conducted road test. She found that brakes were intact even in action and efficient, accordingly, she issued MVI report opining that the accident was not due to any mechanical defect of vehicle. Ex.P4 is the MVI report. During the cross examination, she deposed that Ex.P4 does not carry date. The crime vehicle has air brakes and Ex.P4 is silent about air brakes. The vehicle is a goods carriage and it is a heavy vehicle and it has ten tyres. She has verifed the driving license and he has senior driving license. There are safe guards from front axle to the rear axle on both sides. There are no accident marks on the vehicle and no blood stains. The vehicle had ordinary steering. She has not noticed any skid marks on the tyres. The vehicle was unloaded. The gross weight of the vehicle is 25 tonnes. She too the vehicle for test ride from

Kancharapalem police station to NAD Kotha road i.e., for two kilometers.

Ex.P4 is silent about the safe guards.

18.Pw.10 is the doctor who conducted postmortem examination over the dead body of the deceased. He deposed that he received requisition from

SHO, Kancharapalem Traffic polices station, Visakhapatnam on 3.5.2016 at 4.00 p.m. to conduct postmortem examination over dead body of deceased/

Manepalli Eswara Satyanarayana aged 62 years and accordingly, he started //FAIR COPY// 7 the postmortem examination at 4.10 p.m. on the same day and completed at 5.30 p.m.. To his knowledge and belief, the cause of death was due to crush injury of trunk. Time since death was about 12.00 hours to the postmortem examination. There are tyre marks abrasions on the body. He issued postmortem report on same day. Ex.P5 is the Postmortem report. During the cross examination, he deposed that the death might have taken place around 12.00 hours prior to postmortem examination.

19.Pw.11 is the then SI of police who took up investigation in this case and he deposed about the recording of the statement of Pw.1, visiting the scene of ofence, preparing of rough sketch and scene observation report . He took photographs of the scene of ofence which were marked as Ex.P7. Ex.P6 is the rough sketch. He conducted inquest over the dead body of deceased in the presence of Pw.6 and Lw8 and blood relatives and drafted inquest report, he addressed a letter to head of Forensic department, KGH to conduct postmortem over the dead body and he examined Pws. 2 to 4. On the next day he served Sec.41-A Cr.P.C. notice to accused, obtained license and other documents concerning the crime vehicle and addressed a letter to Pw.9 to inspect the crime vehicle and on the instruction s of Commissioner of Police the cases were transferred to law and order police and further investigation was done by Law and Order police. During the cross examination, he deposed that the accident took place after 35 feet from crossing the signal by deceased and the speed of the vehicle at 35 feet from crossing the signal varies depending upon the circumstances. The vehicle was in running mode at the time of accident. No other vehicle sustained damages in the accident and no constructions in the vicinity of the accident place were damaged. The deceased was crossing the vehicle from the highway but not from service road. He did not notice whether the crime vehicle had safety guards and he has not collected any documents from the deceased.

//FAIR COPY// 8

20.Pw.12 is the then Inspector of police who deposed about the registration of report of Pw.1 as FIR in Cr.No.88/2016 under Sec.304-A of IPC of Kancharapalem Traffic Police station. He endorsed the case for investigation to Pw.11. Ex.P8 is the printed FIR. During the cross examination, he deposed that he cannot say on the basis of Ex.P1 whether or not Pw.1 is a direct witness to the incident. The name of accused and his father’s name are given in the report under Ex.P1. He admitted that Ex.P8 is silent about physical features of accused and that it does not contain the signature of defacto complainant/Pw.1.

21.Pw.13 is another investigation officer who conducted further investigation in this case and fled charge sheet. During the cross examination he deposed that the charge sheet is silent about which of the two front two tyres under which the deceased fell . He deposed that he fled charge sheet and not played any other role in the investigation. As per charge sheet the crime vehicle did not hit any other vehicle.

22.As could be seen from the evidence of Pws. 1 to 13, though it is clear that the deceased died as a result of accident, except Pw.4 there are no direct witnesses to the accident. The other eye witnesses Pws. 2 and 3 turned hostile. The evidence of Pw.1 did not state the name of the accused as the driver of crime vehicle and his evidence is silent about the details of the accused. Pw.4 deposed that the accused is present in the court. He was very much present at 10 feet to the place of incident, but he did not caught hold of the driver of the vehicle at the place of incident. He clearly stated that the photographs does not contain the crime vehicle and the photographs were not taken in his presence. He even did not state in his 161 statement as in Ex.D1. Except stating that the accused is present in the court hall, he did not state anything about the details as to the rash or negligent driving of the accused at the time of accident.

//FAIR COPY// 9

23.Pws. 5 and 6 are inquest panchayatdars. Pws. 7 and 8 are mediators in whose presence the scene observation report was prepared. According to

Pw.7 he cannot say where the deceased fell i.e., front tyre or back side. Pw.8 deposed that he signed on Ex.P3 at around 11.00 a.m., but the accident took place at 11.10 a.m. as per the records. Both these witnesses also not deposed about the particulars of the accused or the driver of the crime vehicle.

24.Pw.9 the Motor Vehicle Inspector drove the vehicle for 2 kms., and according to her the crime vehicle is 10 tyre vehicle and it is having ordinary steering. It is the argument of the learned counsel for the accused that one cannot drive the heavy vehicle with ordinary steering. As per the evidence of Pw.9 the weight of the vehicle is 25 tonnes and it is carrying with load. But all the other records are silent that the crime vehicle is carrying load at the time of incident. Moreover, as per the evidence of this witness there were no skid marks or accident marks to the crime vehicle. As rightly argued by the learned Counsel for the accused, it is doubtful that how the heavy vehicle with ten tyres can have an ordinary steering rather than power steering nowadays and when there were no skid marks or accident marks to the crime vehicle, the evidence of this witness is also cannot be taken into consideration.

25.Coming to the evidence of Pw.11 the investigation officer, the accused was served 41a Cr.P.C. notice on the next day i.e., 4.5.2016, but the accused was arrested on the same day evening and released on station bail i.e., on 3.5.2016 itself. Further, according to him the crime vehicle is unloaded vehicle whereas according to Pw.9, the weight of the vehicle is 25 tonnes i.e., loaded vehicle. Therefore, there are contradictions between the evidence of these witnesses. Further, he did not collect the records of deceased vehicle. Pw.12 is another investigation officer according to him the

FIR is silent regarding the data of the accused or crime vehicle. From the //FAIR COPY// 10 evidence of all the prosecution witnesses, it is clear that none of them deposed about the rash and negligent driving of the accused which is the main ingredient that has to be established by prosecution in this case. In fact, the investigation officers failed to produce any document either to show that the accused is the owner of the crime vehicle or was the driver of it at the time of the accident. Further, according to Pw.10 the Doctor who conducted postmortem over the dead body of the deceased and issued

Ex.P5 postmortem report, the death might have taken place around 12.00 hours prior to postmortem examination i.e., the death might have taken place at around 4.00 a.m., on the said date of incident. Moreover Ex.P7 photographs did not show the crime vehicle. There is no explanation from the prosecution as to why the photographs of crime vehicle were not take at the scene of ofence. All the these circumstances raises doubts about the prosecution case. Therefore, there is nothing to link the accused to this crime. In view of the above discussion, I am of the opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and the accused is entitled for the beneft of doubt.

Accordingly, this point is answered in favour of the accused.

26. In the result, the accused is found not guilty for the ofence U/s.304-A of IPC and accordingly, he is acquitted U/s.255(1) Cr.P.C. His bail bonds shall stands canceled after expiry of appeal time.

Typed to my dictation to the typist, corrected and pronounced by me in open court, this the 16th day of July, 2021.

II ADDL. JUNIOR CIVIL JUDGE-CUM-

II ADDL. METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

FAC. V ADDL. METROPOLITAN MAGISTRATE

VISAKHAPATNAM.

Appendix of evidence

witnesses examined.

For complainant: For accused.

//FAIR COPY// 11

PW1 : Manepalli Diwakar Atchari (LW1)

PW2 : Yasalapu Mutyala Naidu (LW2) (Hostile)

PW3 : Thalasa Madhan Sekhar (LW3)

PW4 : Kanithi Suresh (LW4)

PW5 : Manepalli Srinivasa Rao (LW5)

PW6 : Talabattula Venkata Krishna Rao (LW7)

PW7 : Doddi Vidya Sagar (LW10)

PW8 : Bapala Deepak Kumar (LW11)

PW9 : I.Madhavi (LW12)

PW10: Dr. P.Venkatarao (LW13)

PW11: M.Srinivasa (LW15)

PW12: M.Seshu (LW14)

PW13: G.Sankara Rao (LW16)

Documents marked.

For complainant:

Ex.P1 is the report given by PW1 and as FIR was registered based on PW1.

Ex.P2 is the inquest report.

Ex.P3 is the Scene observation report.

Ex.P4 is the M.V.I Report.

Ex.P5 is the Postmortem report.

Ex.P6 is the rough sketch.

Ex.P7 is the 10 photos & CD.

Ex.P8 is the FIR

Documents marked for defence:

Ex.D1 is the Statement.

II AMM/VSP FAC V AMM/VSP //FAIR COPY// 12

CALENDAR AND JUDGMENT

IN THE COURT OF THE V Additional Metropolitan Magistrate, AT VISAKHPATNAM.

C.C.No. 75/2018 (old C.C No.511/2016) Date of offence 03-05-2016 Date of filing31-10-2016 Date of apprehension of accused12-09-2017 Date of release on bail------- Date of commencement of trial13-06-2018 Date of Closure of trial21-12-2020 Date of Judgment 16-07-2021 Quantum of sentenced on 16-07-2021

R E M A R K S -

Complainant :State represented by the Station House Ofcer, Airport Port Police Station, Visakhapatnam City. Accused Kothapalli Rambabu, S/o Subbarao, aged 47 years, resident of D.No.5-15, Dudukuru, Devarapalli, Visakhapatnam Driver of Lorry AP 16 TX 7716. Offence Under section 304-A IPC FindingIn the result, the accused is found not guilty for the ofence U/s.304-A of IPC and accordingly, he is acquitted U/s.255(1) Cr.P.C. His bail bonds shall stands canceled after expiry of appeal time.

II Additional Metropolitan Magistrate, FAC V Additional Metropolitan Magistrate, Visakhapatnam

Copy to : The Hon’ble Chief Metropolitan Magistrate, Visakhapatnam.

1 O.S.133/16 I AJCJ/VSP

IN THE COURT OF THE I ADDl. JUNIOR CIVIL JUDGE :: VISAKHAPATNAM.

PRESENT: Smt.J.Sri Seeta, II Addl. Junior Civil Judge, (FAC) I Addl. Junior Civil Judge, Visakhapatnam.

Friday, this the 22nd day of March, 2019.

ORIGINAL SUIT NO.133/2016.

Between:-

Bohra Sikhidevi Jain, W/o Chunilal jain, aged 75 years, rep. by its GPA Holder Bohra Ramesh Kumar Jain, S/o Chunilal Jains, aged 48 years, R/at D.No.49-18-18, Lalitha Nagar, Near Ganesh Temple, Visakhapatnam. ... Plaintif A N D

1. Smt Kosana Jaya Lakshmi, W/o late Siva Narayana Murthy, Hindu, aged about 55 years, R/at D.No.52-10-1, Flat No.401, 4th Floor, Chalamala Resapu Garden (Apartment), Near Swarna Bharati Indoor Stadium, Opposite State Bank of India, Besides, AUDI Visakhapatnam Car Show Room, Resapuvanipalem, Visakhapatnam.

2. Kosana Bhavya, D/o late Siva Narayana Murthy, Hindu, aged about 22 years, R/at -Rest do-

3. Kosana Divya, D/o late Siva Narayana Murthy, Hindu, aged about 20 years, R/at -Rest do- … Defendants This suit is coming on today i.e on 14-03-2019 for hearing before me in the presence of Sri Lanka Jagannadham, Advocate for the plaintif and Sri K.Krishna Mohan and Sri K.Sagar, Advocates for the defendants and having stood over for consideration to this day, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintif against the defendants for recovery of an amount of Rs.2,07,500/- being the principal and interest due under a promissory note dt:21.02.2013 said to be executed by defendant in favour of the plaintif for Rs.1,00,000/- agreeing to repay the same with interest @ 36% p.a. and for costs of the suit.

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

The plaintif submits that the 1st defendant is the wife and defendants 2 and 3 are daughter of one late Kosana Siva Narayana Murthy, S/o lat Kosana Mutyala Rao. The 1st defendant and said Kosana Siva Narayana

Murthy are well known to the plaintif and they were having neighbouring shops 2 O.S.133/16 I AJCJ/VSP near Kurupam Market and well acquainted with each other since more than 25 years, who is running a gold business under the name and style “Kosana

Jewellers” basing on the said acquaintance, during his life time the said Kosana

Siva Narayana Murthy and 1st defendant approached the plaintif and jointly borrowed an amount of Rs.1,00,000/- from the plaintif on 21.02.2013 for the purpose of their business requirements as well as their personal home needs and having received the consideration, the Kosana Siva Narayana Murthy and 1st defendant jointly executed a demand promissory note in favour of the plaintif on the even date agreeing to repay the same with interest at 36% p.a. either to the plaintif or to his order on demand. At the time of execution of promissory note, the 1st defendant scribed the said promissory note.

The plaintif submits that subsequently, the said Kosana Siva

Narayana Murthy and 1st defendant failed to repay any amount either principal or interest and after repeated demands made by the plaintif, the said Kosana

Siva Narayana Murthy issued a cheque for Rs.1,00,000/- vide cheque bearing

No.050507 dated 21-08-2013 drawn on Allahabad bank, Surya bagh Branch,

Visakhapatnam towards part payment due under the above promissory note.

The plaintif presented the said cheque in her banker for collection by the said cheque was returned on 22-08-2013 with an endorsement “Insufficient funds”.

The plaintif got issued a registered notice dated 18.09.2013 demanding them to pay the said cheque amount within 15 days and the said notice was received by the them on 25-09-2013, but neither paid any amount nor sent any reply. As such the plaintif filed a criminal complaint against the said Kosana Siva Narayana Murthy and 1st defendant under 138 of N.I.Act in

C.C.No.1078/2015 and the same is pending.

Subsequently, the plaintif came to know that the said Kosana Siva

Narayana Murthy was died in the year 2014 intestate leaving behind him the defendants 1 to 3 as his legal heirs and the estate. After his death, the plaintif approached the defendants and demanded to clear the debt, the defendants 3 O.S.133/16 I AJCJ/VSP admitted their liability and issued undertaking executed by the 1st defendant on 15-08-2014 and requested short span of time, the 2nd defendant witnessed on the undertaking letter, but the defendants did not pay any amount either principle or interest and simple postponing the same and hence this suit.

3. The defendant-1 filed written statement denying the averments of the plaint and defendants 2 & 3 filed memo adopting the written statement of defendant-1.

The 1st defendant contended that she neither executed any promissory note nor executed an undertaking letter in favour of the plaintif as alleged in the plaint, which must have been rank forged instruments created by the plaintif with the help of his henchmen. The defendant being a house wife, has no acquaintance or family friendship with the plaintif, she neither borrowed nor involved herself in any financial transaction of her husband and she did not issued any cheque and prayed to dismiss the suit.

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

1) Whether the 1st defendant borrowed an amount of Rs.1,00,000/- along with deceased husband on executing suit promissory note or not?

2) Whether the signatures of the 2nd defendant forged or fabricated by the plaintiff or not?

3) Whether there is any estate belongs to the defendant Kosana Siva Narayana Murthy in the hands of the defendants No.1 to 3 or not?

4) Whether the plaintiff is entitled to recover the suit amount against 1st defendant or not?

5) To what relief?

5.On behalf of the plaintiff, P.Ws.1 and 2 were examined and Ex-A.1 to A.4 were marked. C.W.1 is examined as a Court witness and Ex-X.1 was marked. On behalf of the defendant, D.W.1 was examined and no documents are marked on her behalf and Ex-C.1 to C.3 are marked in her cross examination.

6.Heard both sides

7.Issues 1 to 3:

Since all the three issues are interlinked, they are discussed together.

4 O.S.133/16 I AJCJ/VSP

It is the case of the plaintif that the defendant along with her deceased husband K.Siva Narayana Murthy, jointly borrowed an amount of Rs.1,00,000/- on 21-02-2013 and executed a promissory note in his favour on the same day agreeing to repay the same with interest @ 36% p.a. and thereafter in spite of repeated demands made by plaintif, the deceased Kosana Siva Narayana Murthy got issued a cheque bearing No.050507 for Rs.1,00,000/- but the said cheque was returned dishonoured on 22.08.2013 with an endorsement “insufficient funds”. The plaintif got issued legal notice to deceased and 1st defendant on 18.09.2013 and they received the said notices on 25.09.2013 but failed to pay any amount. The plaintif filed complaint in

C.C.No.1078/2015 against the deceased and 1st defendant. The defendants admitted their liability after the death of deceased and issued an undertaking executed by D1 on 15.08.2014, but later failed to pay either principal or interest.

8.Per contra, the case of defendants is that the suit promissory note is a rank forged document. D1 has no acquaintance or family friendship with the plaintif. The 1st defendant neither borrowed nor involved herself in any financial transactions of either lending or borrowing of her husband and as such the suit promissory note transaction with plaintif at any time not within her knowledge. She did not execute any document either in the nature of promissory note or in the name of undertaking utter in favour of the plaintif .

This defendant did not issue any cheque in favour of plaintif in connection with the suit.

9.As the 1st defendant has took the plea of forgery of suit promissory note by stating that she did not borrow any amount along with her deceased husband and she has no involvement in any financial transactions of her husband, the initial burden lies on the plaintif to prove that the suit promissory note was executed by the deceased Kosana Siva Narayana Murthy and D1 jointly. In order to establish the same, the plaintif himself was examined as

P.W.1. He got marked Ex-A.1 to A.4. Ex-A.1 is GPA executed by the plaintif in favour of B.Ramesh Kumar Jain, dt:15.02.2016, Ex-A.2 is demand promissory 5 O.S.133/16 I AJCJ/VSP note executed by deceased Kosana Siva Narayana Murthy and D1,

dt:21.02.2013, Ex-A.3 is the cheque dt:21.08.2013. Ex-A.4 is O/c of registered

notice issued by plaintif to defendant dt:18.09.2013. P.W.1 got filed his chief examination affidavit by reiterating the same facts which were stated in the plaint. During the cross examination he deposed that he knew the husband of defendant for the last 20 years since his shop and the husband of defendant shop are side by side. At the time of transaction which was held in his shop premises, his father and two younger brothers were present and he ws present in his house at the time of transaction. He further deposed that on the date of transaction total 3 lakhs amount was transacted under three separate promissory notes. He deposed that the 1st defendant is a house wife and he voluntarily stated that she is also doing gold business. During his entire cross examination nothing was elicited which is contrary to his pleadings.

10.In support of his case he got examined his mother as P.W.2. There are minor contradictions in the evidence of P.W.2 about the presence of his mother i.e. 1st defendant at the time of transaction. In this connection, the learned counsel for the defendants argued that the 1st defendant is not present at the time of transaction and P.W.2 admitted the same in his evidence. It is true that P.W.2 has admitted that at the time of transaction his mother was not present, but he deposed twice that at the time of transaction himself, P.W.1, his brother, father defendant and her husband were present. He pleaded ignorance about the filing of cheque case by P.W.1 against defendant and the defendant was acquitted. He deposed that on 15.8.2014 the defendant executed letter of undertaking in favour of plaintif. The defendant has contended that there is conflictuer of page 32 & 33 of Civil Rules of Practice as P.W.1 i.e. B.Ramesh

Kumar Jain is not legally authorized agent of plaintif. P.W.1 got filed the GPA

dt:15.02.2016 executed by plaintif in his favour and at the time of filing of suit

a petition was filed U/R 32 of Civil Rules of practice along with GPA given in favour of the P.W.1 by plaintif and the said petition was allowed. Moreover 6 O.S.133/16 I AJCJ/VSP

P.W.1, is no other than the son of plaintif. Therefore, the contention of defendant no force.

11The main contention of defendant is that she did not execute Ex-A.2 jointly along with her deceased husband and Ex-A.2 is a forged document. A perusal of Ex-A.2 shows that the 1st defendant herself is the scribe of said document and Ex-A.2 contains the signature of the 1st defendant also. As the 1st defendant contended that her signature was forged, the plaintif took steps to send Ex-A.2 to the handwriting expert for comparison and opinion. The handwriting expert by name Smt P.Rajini was examined as C.W.1. During chief examination she deposed that she has got 19 years of experience and she has undergone training in government examiner of questioned documents,

Ramanthapur, Hyderabad. Their office had received a letter from the court for comparison of signatures is O.S.133/16, 134/16 and 135/16 and after careful examination and comparison of the documents containing the questioned signatures and the signatures of K. Jjayalakshmi. She has given her opinion, opining that the person who write the signature marked as S1 to S29 also wrote the signatures marked as “Q” Ex-X.1 is the opinion of C.W.1. In this case the defendant though denied the signatures on Ex-A.2 and stated that her signature was forged on Ex-A.2, she did not take any steps, in support of her contention.

The plaintif has taken steps for sending the disputed document to handwriting expert, to discover the contention of defednant that her signature on Ex-A.2 is forged. Moreover, the defendant failed to cross examine C.W.1 in this case. No doubt, the opinion of handwriting expert is not the conclusive proof of evidence.

But, in this case her evidence is corroborating with the case of plaintif.

12.In support of the case of defendants, the 1st defendant herself was examined as D.W.1. She filed her evidence affidavit be reiterating the same facts which were stated in the written statement. During the cross examination

D.W.1 she admitted her signature on her written statement. She deposed that she does not know who were examined on behalf of plaintif. She deposed that 7 O.S.133/16 I AJCJ/VSP she knows to write telugu and the suit summons confronted to her were marked as Ex-C.1 to C.3. She denied her signature on vakalat as 1st defendant. She admitted the signature of her husband on suit promissory note, but denied her signature. She denied the specific suggestion given by the counsel for plaintif that the questioned signatures marked as ‘Q’ and ‘S1 to S29’ are signed by me and the same person and the same was deposed by handwriting expert before the court. She pleaded ignorance that whether the handwriting expert had sent

Ex-X.1 report to the court. She also pleaded ignorance about the business of her husband when specifically asked by the counsel for plaintif. As she deposed that she does not know the plaintif, the counsel for plaintif asked her a question that in her evidence affidavit she has stated that plaintif is an old lady who is an educated woman and hence, she knows her, for which she deposed that she know, the plaintif after receiving money and prior to that she does not know the plaintif. During her further cross examination, she deposed that after the death of her husband she along with her two daughters are only legal heirs of her husband and his property was devolved on them. She deposed that she has not filed any documents which were mentioned in her evidence affidavit. She also admitted that the case under section 138 of N.I.Act was dismissed as the cheques were not issued by her.

13.From the entire evidence of D.W.1 it was clear that she admitted her signatures on the written statement but denied on vakalat. This shows that she has intentionally denied the said signatures. Except the sole testimony of

D.W.1, no other person was examined on her behalf and did not file any document in support of her contentions raised in her written statement.

Moreover, a perusal of record shows that the defendant has given undertaking letter on 15.08.2014. But the said document was not marked since it is a photocopy. Leaving the said document also, from the evidence of P.W.1 & 2,

D.W.1, C.W.1 and the documents filed by plaintif and Ex-X.1 opinion of C.W.1 clearly established the case of plaintif. It is true a criminal case filed by plaintif 8 O.S.133/16 I AJCJ/VSP u/sec.138 of N.I.Act was dismissed, since the cheques were not issued by the 1st defendant. From the above discussion, it can be safely concluded that the 1st defendant also jointly borrowed the amount and executed the suit promissory note jointly along with her husband and it was also established that the estate of deceased in the hands of defendants 1 to 3. Moreover, it was also elicited that after the death of her husband the defendant is looking after the business afairs of her husband. Therefore, the 3 issues are answered in favour of the plaintif and against the defendants.

Issue No.4:

14.In view of the discussion in issues 1 to 3, the plaintif is entitled to recover the suit amount from the 1st defendant. Accordingly, this issue is also answered in favour of the plaintif and against the defendants.

Issue No.5.

15.In the result, the suit is decreed with costs in favour of the plaintif and against the D1 personally and against the estate of the deceased Kosana

Siva Narayana Murthy, which is in the hands of the defendants 1 to 3 for a sum of Rs.2,07,500/- (Rupees two lakhs seven thousand and five hundred only) with subsequent interest @ 6% p.a. from the date of suit till the date of realization on the principal amount of Rs.1,00,000/- (Rupees one lakh only).

Typed to my dictation, corrected and pronounced by me in the open Court, on this the 22nd day of March, 2019.

II ADDL., JUNIOR CIVIL JUDGE,

(FAC)I ADDL. JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF: DEFENDANT:

P.W.1 – Bohra Ramesh Kumar Jain D.W.1 – Kosana Jayalakshmi

P.W.2 – Bohra Chagan Lal Jain

Court Witness

C.W.1 - Smt P.Rajani 9 O.S.133/16 I AJCJ/VSP

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex-A.1 is GPA executed by the plaintif in favour of B.Ramesh Kumar Jain,

dt:15.02.2016,

Ex-A.2 is demand promissory note executed by deceased Kosana Siva Narayana Murthy and D1, dt:21.02.2013,

Ex-A.3 is the cheque dt:21.08.2013.

Ex-A.4 is O/c of registered notice issued by plaintif to defendant dt:18.09.2013.

FOR DEFENDANTS: NIL “ X” Series:

Ex-X.1 is the Opinion of hand writing expert “ C” Series:

Ex-C.1 to C.3 are suit summons

II AJCJ/VSP (FAC)I AJCJ/VSP 10 O.S.133/16 I AJCJ/VSP

Date of Presentation: 16.07.2018 Date of Filing: 22.09.2018

IN THE COURT OF THE I ADDl. JUNIOR CIVIL JUDGE :: VISAKHAPATNAM.

PRESENT: Smt.J.Sri Seeta, II Addl. Junior Civil Judge, (FAC) I Addl. Junior Civil Judge, Visakhapatnam.

Monday, this the 18th day of February, 2019.

11 O.S.133/16 I AJCJ/VSP

ORIGINAL SUIT NO.527/2018.

Between:-

Juvvai Tatalu, S/o late Parusuramulu, Hindu, aged 64 years, R/o D.No.31-17-15/15, Kantam vari Veedhi, Bangaramma Metta, Allipuram, Visakhapatnam. ... Plaintif A N D

Palla Satyanarayana, S/o late Seethanna, Hindu, aged 46 years, R/o D.No.56-28-1, Golla Kancharapalem, Visakhapatnam and working in Food Corporation of India, vide Token No.NTMCL-51, BSC, Samalkot-533440, East Godavari District. … Defendant This suit is filed by the plaintif for recovery of an amount of Rs.1,55,133/- being the principal and interest amount due on a pronote dated 28.03.2016 said to be executed by defendant in favour of the plaintif agreeing to repay the same with interest @ 24% p.a. from the date of the suit till the date of realization and for costs of the suit.

Value of the suit for the purpose of Court fee and jurisdiction is Rs.1,55,133/- and a Court fee of Rs.4,026/- is paid under section 20 Art.1 (b) & (c) Sch-I of A.P.C.F and S.V.Act.

This suit is coming on today i.e on 15-02-2019 for consideration in the presence of Sri Gudla Ramesh, Advocate for plaintif and the defendant is set exparte and having stood over for consideration to this day, this Court doth Order; and

D E C R E E

1. that the defendant do pay to the plaintif a sum of Rs.1,55,133/- (Rupees One lakh fifty five thousand one hundred and thirty three only) with subsequent interest @ 12% p.a from the date of suit till the date of realization on the principal amount of Rs.1,50,000/- (Rupees

One Lakh fifty thousand only); and

2. that the defendant do also pay to the plaintif a sum of Rs.8,302/- (Rupees Eight thousand three hundred and two only) towards costs of the suit. Given under my hand and the seal of the Court, this the 18th day of February, 2019.

II ADDL., JUNIOR CIVIL JUDGE,

(FAC)I ADDL. JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

MEMORANDUM OF COSTS

For Plaintif: For Defendant:

12 O.S.133/16 I AJCJ/VSP

Stamp on plaint- 4026-00No costs memo filed Stamp on vakalat- 2-00 Stamp on Batta- 38-00 Advocate fee- 3177-00 Jr. Advocate fee - 1059-00 ------------ Costs allowed 8302-00 ------------

II AJCJ/VSP (FAC)I AJCJ/VSP 13 O.S.133/16 I AJCJ/VSP

Ex-A.1 is the GPA dt:15.02.2016. Ex-A.2 is the promissory note executed by deceased Kosana Siva Narayana Murthy and D1. Ex-A.3 is the cheque bearing

No.050507 dt:

1 O.S.135/16 I AJCJ/VSP

IN THE COURT OF THE I ADDl. JUNIOR CIVIL JUDGE :: VISAKHAPATNAM.

PRESENT: Smt.J.Sri Seeta, II Addl. Junior Civil Judge, (FAC) I Addl. Junior Civil Judge, Visakhapatnam.

Friday, this the 22nd day of March, 2019.

ORIGINAL SUIT NO.135/2016.

Between:-

Bohra Chunilal jain, S/o late Hastimalji, aged 79 years, rep. by its GPA Holder Bohra Ramesh Kumar Jain, S/o Chunilal Jains, aged 48 years, R/at D.No.49-18-18, Lalitha Nagar, Near Ganesh Temple, Visakhapatnam. ... Plaintif A N D

1. Smt Kosana Jaya Lakshmi, W/o late Siva Narayana Murthy, Hindu, aged about 55 years, R/at D.No.52-10-1, Flat No.401, 4th Floor, Chalamala Resapu Garden (Apartment), Near Swarna Bharati Indoor Stadium, Opposite State Bank of India, Besides, AUDI Visakhapatnam Car Show Room, Resapuvanipalem, Visakhapatnam.

2. Kosana Bhavya, D/o late Siva Narayana Murthy, Hindu, aged about 22 years, R/at -Rest do-

3. Kosana Divya, D/o late Siva Narayana Murthy, Hindu, aged about 20 years, R/at -Rest do- … Defendants This suit is coming on today i.e on 14-03-2019 for hearing before me in the presence of Sri Lanka Jagannadham, Advocate for the plaintif and Sri K.Krishna Mohan and Sri K.Sagar, Advocates for the defendants and having stood over for consideration to this day, this Court delivered the following:

J U D G M E N T

This suit is filed by the plaintif against the defendants for recovery of an amount of Rs.2,07,500/- being the principal and interest due under a promissory note dt:21.02.2013 said to be executed by defendant in favour of the plaintif for Rs.1,00,000/- agreeing to repay the same with interest @ 36% p.a. and for costs of the suit.

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

The plaintif submits that the 1st defendant is the wife and defendants 2 and 3 are daughter of one late Kosana Siva Narayana Murthy, S/o lat Kosana Mutyala Rao. The 1st defendant and said Kosana Siva Narayana 2 O.S.135/16 I AJCJ/VSP

Murthy are well known to the plaintif and they were having neighbouring shops near Kurupam Market and well acquainted with each other since more than 25 years, who is running a gold business under the name and style “Kosana

Jewellers” basing on the said acquaintance, during his life time the said Kosana

Siva Narayana Murthy and 1st defendant approached the plaintif and jointly borrowed an amount of Rs.1,00,000/- from the plaintif on 21.02.2013 for the purpose of their business requirements as well as their personal home needs and having received the consideration, the Kosana Siva Narayana Murthy and 1st defendant jointly executed a demand promissory note in favour of the plaintif on the even date agreeing to repay the same with interest at 36% p.a. either to the plaintif or to his order on demand. At the time of execution of promissory note, the 1st defendant scribed the said promissory note.

The plaintif submits that subsequently, the said Kosana Siva

Narayana Murthy and 1st defendant failed to repay any amount either principal or interest and after repeated demands made by the plaintif, the said Kosana

Siva Narayana Murthy issued a cheque for Rs.1,00,000/- vide cheque bearing

No.050505 dated 21-08-2013 drawn on Allahabad bank, Surya bagh Branch,

Visakhapatnam towards part payment due under the above promissory note.

The plaintif presented the said cheque in her banker for collection by the said cheque was returned on 22-08-2013 with an endorsement “Insufficient funds”.

The plaintif got issued a registered notice dated 18.09.2013 demanding them to pay the said cheque amount within 15 days and the said notice was received by the them on 25-09-2013, but neither paid any amount nor sent any reply. As such the plaintif filed a criminal complaint against the said Kosana Siva Narayana Murthy and 1st defendant under 138 of N.I.Act in

C.C.No.1015/2015 and the same is pending.

Subsequently, the plaintif came to know that the said Kosana Siva

Narayana Murthy was died in the year 2014 intestate leaving behind him the defendants 1 to 3 as his legal heirs and the estate. After his death, the plaintif 3 O.S.135/16 I AJCJ/VSP approached the defendants and demanded to clear the debt, the defendants admitted their liability and issued undertaking executed by the 1st defendant on 15-08-2014 and requested short span of time, the 2nd defendant witnessed on the undertaking letter, but the defendants did not pay any amount either principle or interest and simple postponing the same and hence this suit.

3. The defendant-1 filed written statement denying the averments of the plaint and defendants 2 & 3 filed memo adopting the written statement of defendant-1.

The 1st defendant contended that she neither executed any promissory note nor executed an undertaking letter in favour of the plaintif as alleged in the plaint, which must have been rank forged instruments created by the plaintif with the help of his henchmen. The defendant being a house wife, has no acquaintance or family friendship with the plaintif, she neither borrowed nor involved herself in any financial transaction of her husband and she did not issued any cheque and prayed to dismiss the suit.

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

1) Whether the 1st defendant borrowed an amount of Rs.1,00,000/- along with deceased husband on executing suit promissory note or not?

2) Whether the signatures of the 2nd defendant forged or fabricated by the plaintiff or not?

3) Whether there is any estate belongs to the defendant Kosana Siva Narayana Murthy in the hands of the defendants No.1 to 3 or not?

4) Whether the plaintiff is entitled to recover the suit amount against 1st defendant or not?

5) To what relief?

5.On behalf of the plaintiff, P.Ws.1 and 2 were examined and Ex-A.1 to A.4 were marked. C.W.1 is examined as a Court witness and Ex-X.1 was marked. On behalf of the defendant, D.W.1 was examined and no documents are marked on her behalf and Ex-C.1 to C.3 are marked in her cross examination.

6.Heard both sides.

4 O.S.135/16 I AJCJ/VSP

7.Issues 1 to 3:

Since all the three issues are interlinked, they are discussed together.

It is the case of the plaintif that the defendant along with her deceased husband K.Siva Narayana Murthy, jointly borrowed an amount of Rs.1,00,000/- on 21-02-2013 and executed a promissory note in his favour on the same day agreeing to repay the same with interest @ 36% p.a. and thereafter in spite of repeated demands made by plaintif, the deceased Kosana Siva Narayana Murthy got issued a cheque bearing No.050507 for Rs.1,00,000/- but the said cheque was returned dishonoured on 22.08.2013 with an endorsement “insufficient funds”. The plaintif got issued legal notice to deceased and 1st defendant on 18.09.2013 and they received the said notices on 25.09.2013 but failed to pay any amount. The plaintif filed complaint in

C.C.No.1015/2015 against the deceased and 1st defendant. The defendants admitted their liability after the death of deceased and issued an undertaking executed by D1 on 15.08.2014, but later failed to pay either principal or interest.

8.Per contra, the case of defendants is that the suit promissory note is a rank forged document. D1 has no acquaintance or family friendship with the plaintif. The 1st defendant neither borrowed nor involved herself in any financial transactions of either lending or borrowing of her husband and as such the suit promissory note transaction with plaintif at any time not within her knowledge. She did not execute any document either in the nature of promissory note or in the name of undertaking utter in favour of the plaintif .

This defendant did not issue any cheque in favour of plaintif in connection with the suit.

9.As the 1st defendant has took the plea of forgery of suit promissory note by stating that she did not borrow any amount along with her deceased husband and she has no involvement in any financial transactions of her husband, the initial burden lies on the plaintif to prove that the suit promissory note was executed by the deceased Kosana Siva Narayana Murthy and D1 jointly. In order to establish the same, the plaintif himself was examined as 5 O.S.135/16 I AJCJ/VSP

P.W.1. He got marked Ex-A.1 to A.4. Ex-A.1 is GPA executed by the plaintif in favour of B.Ramesh Kumar Jain, dt:15.02.2016, Ex-A.2 is demand promissory note executed by deceased Kosana Siva Narayana Murthy and D1,

dt:21.02.2013, Ex-A.3 is the cheque dt:21.08.2013. Ex-A.4 is O/c of registered

notice issued by plaintif to defendant dt:18.09.2013. P.W.1 got filed his chief examination affidavit by reiterating the same facts which were stated in the plaint. During the cross examination he deposed that he knew the husband of defendant for the last 20 years since his shop and the husband of defendant shop are side by side. At the time of transaction which was held in his shop premises, his father and two younger brothers were present and he ws present in his house at the time of transaction. He further deposed that on the date of transaction total 3 lakhs amount was transacted under three separate promissory notes. He deposed that the 1st defendant is a house wife and he voluntarily stated that she is also doing gold business. During his entire cross examination nothing was elicited which is contrary to his pleadings.

10.In support of his case he got examined his mother as P.W.2. There are minor contradictions in the evidence of P.W.2 about the presence of his mother i.e. 1st defendant at the time of transaction. In this connection, the learned counsel for the defendants argued that the 1st defendant is not present at the time of transaction and P.W.2 admitted the same in his evidence. It is true that P.W.2 has admitted that at the time of transaction his mother was not present, but he deposed twice that at the time of transaction himself, P.W.1, his brother, father defendant and her husband were present. He pleaded ignorance about the filing of cheque case by P.W.1 against defendant and the defendant was acquitted. He deposed that on 15.8.2014 the defendant executed letter of undertaking in favour of plaintif. The defendant has contended that there is conflictuer of page 32 & 33 of Civil Rules of Practice as P.W.1 i.e. B.Ramesh

Kumar Jain is not legally authorized agent of plaintif. P.W.1 got filed the GPA

dt:15.02.2016 executed by plaintif in his favour and at the time of filing of suit

6 O.S.135/16 I AJCJ/VSP a petition was filed U/R 32 of Civil Rules of practice along with GPA given in favour of the P.W.1 by plaintif and the said petition was allowed. Moreover

P.W.1, is no other than the son of plaintif. Therefore, the contention of defendant no force.

11.The main contention of defendant is that she did not execute Ex-A.2 jointly along with her deceased husband and Ex-A.2 is a forged document. A perusal of Ex-A.2 shows that the 1st defendant herself is the scribe of said document and Ex-A.2 contains the signature of the 1st defendant also. As the 1st defendant contended that her signature was forged, the plaintif took steps to send Ex-A.2 to the handwriting expert for comparison and opinion. The handwriting expert by name Smt P.Rajini was examined as C.W.1. During chief examination she deposed that she has got 19 years of experience and she has undergone training in government examiner of questioned documents,

Ramanthapur, Hyderabad. Their office had received a letter from the court for comparison of signatures is O.S.133/16, 134/16 and 135/16 and after careful examination and comparison of the documents containing the questioned signatures and the signatures of K. Jjayalakshmi. She has given her opinion, opining that the person who write the signature marked as S1 to S29 also wrote the signatures marked as “Q” Ex-X.1 is the opinion of C.W.1. In this case the defendant though denied the signatures on Ex-A.2 and stated that her signature was forged on Ex-A.2, she did not take any steps, in support of her contention.

The plaintif has taken steps for sending the disputed document to handwriting expert, to discover the contention of defednant that her signature on Ex-A.2 is forged. Moreover, the defendant failed to cross examine C.W.1 in this case. No doubt, the opinion of handwriting expert is not the conclusive proof of evidence.

But, in this case her evidence is corroborating with the case of plaintif.

12.In support of the case of defendants, the 1st defendant herself was examined as D.W.1. She filed her evidence affidavit be reiterating the same facts which were stated in the written statement. During the cross examination 7 O.S.135/16 I AJCJ/VSP

D.W.1 she admitted her signature on her written statement. She deposed that she does not know who were examined on behalf of plaintif. She deposed that she knows to write telugu and the suit summons confronted to her were marked as Ex-C.1 to C.3. She denied her signature on vakalat as 1st defendant. She admitted the signature of her husband on suit promissory note, but denied her signature. She denied the specific suggestion given by the counsel for plaintif that the questioned signatures marked as ‘Q’ and ‘S1 to S29’ are signed by me and the same person and the same was deposed by handwriting expert before the court. She pleaded ignorance that whether the handwriting expert had sent

Ex-X.1 report to the court. She also pleaded ignorance about the business of her husband when specifically asked by the counsel for plaintif. As she deposed that she does not know the plaintif, the counsel for plaintif asked her a question that in her evidence affidavit she has stated that plaintif is an old lady who is an educated woman and hence, she knows her, for which she deposed that she know, the plaintif after receiving money and prior to that she does not know the plaintif. During her further cross examination, she deposed that after the death of her husband she along with her two daughters are only legal heirs of her husband and his property was devolved on them. She deposed that she has not filed any documents which were mentioned in her evidence affidavit. She also admitted that the case under section 138 of N.I.Act was dismissed as the cheques were not issued by her.

13.From the entire evidence of D.W.1 it was clear that she admitted her signatures on the written statement but denied on vakalat. This shows that she has intentionally denied the said signatures. Except the sole testimony of

D.W.1, no other person was examined on her behalf and did not file any document in support of her contentions raised in her written statement.

Moreover, a perusal of record shows that the defendant has given undertaking letter on 15.08.2014. But the said document was not marked since it is a photocopy. Leaving the said document also, from the evidence of P.W.1 & 2, 8 O.S.135/16 I AJCJ/VSP

D.W.1, C.W.1 and the documents filed by plaintif and Ex-X.1 opinion of C.W.1 clearly established the case of plaintif. It is true a criminal case filed by plaintif u/sec.138 of N.I.Act was dismissed, since the cheques were not issued by the 1st defendant. From the above discussion, it can be safely concluded that the 1st defendant also jointly borrowed the amount and executed the suit promissory note jointly along with her husband and it was also established that the estate of deceased in the hands of defendants 1 to 3. Moreover, it was also elicited that after the death of her husband the defendant is looking after the business afairs of her husband. Therefore, the 3 issues are answered in favour of the plaintif and against the defendants.

Issue No.4:

14.In view of the discussion in issues 1 to 3, the plaintif is entitled to recover the suit amount from the 1st defendant. Accordingly, this issue is also answered in favour of the plaintif and against the defendants.

Issue No.5.

15.In the result, the suit is decreed with costs in favour of the plaintif and against the D1 personally and against the estate of the deceased Kosana

Siva Narayana Murthy, which is in the hands of the defendants 1 to 3 for a sum of Rs.2,07,500/- (Rupees two lakhs seven thousand and five hundred only) with subsequent interest @ 6% p.a. from the date of suit till the date of realization on the principal amount of Rs.1,00,000/- (Rupees one lakh only).

Typed to my dictation, corrected and pronounced by me in the open Court, on this the 22nd day of March, 2019.

II ADDL., JUNIOR CIVIL JUDGE,

(FAC)I ADDL. JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFF: DEFENDANT:

P.W.1 – Bohra Ramesh Kumar Jain D.W.1 – Kosana Jayalakshmi

P.W.2 – Bohra Chagan Lal Jain 9 O.S.135/16 I AJCJ/VSP

Court Witness

C.W.1 - Smt P.Rajani She deposed that she knows to write telugu and the suit summons confronted to her were marked as Ex-C.1 to C.3.

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex-A.1 is GPA executed by the plaintif in favour of B.Ramesh Kumar Jain,

dt:15.02.2016,

Ex-A.2 is demand promissory note executed by deceased Kosana Siva Narayana Murthy and D1, dt:21.02.2013,

Ex-A.3 is the cheque dt:21.08.2013.

Ex-A.4 is O/c of registered notice issued by plaintif to defendant dt:18.09.2013.

FOR DEFENDANTS: NIL “ X” Series:

Ex-X.1 is the Opinion of hand writing expert “ C” Series:

Ex-C.1 to C.3 are suit summons

II AJCJ/VSP (FAC)I AJCJ/VSP 10 O.S.135/16 I AJCJ/VSP 11 O.S.135/16 I AJCJ/VSP

Ex-A.1 is the GPA dt:15.02.2016. Ex-A.2 is the promissory note executed by deceased Kosana Siva Narayana Murthy and D1. Ex-A.3 is the cheque bearing

No.050507 dt: