Sri.K.Kalyan Chakrawarthi

-1-

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE AT ::

WARANGAL.

Friday, this the 30 th day of October, 2015.

Present :- Sri K. Kalyan Chakravarthi, Prl. Junior Civil Judge,

Warangal.

E.P. No.396 of 2009

in

O.S. No.1208 of 2008

Between:- Somalla Venkataiah … Petitioner/Decree Holder.

And

1.Burla Komuraiah 2.Burla Ellaiah 3.Burla Yadagiri 4.N.Yellaiah …Respondents/Judgment Debtors.

This petition is coming before me for final hearing on 15.10.2015 in the presence of Sri R. Venkateswar Rao, Advocate

for the Petitioner/ Decree Holder, and of Sri K. Venkat Reddy,

Respondents/Judgment Debtors and upon perusing the material on record and after hearing the arguments, this Court made the following:-

:O R D E R:

This petition is filed under Order 21 R 32 (1) CPC to arrest and detain the respondents No.1 to 4 in Civil Prison, for violating the permanent injunction decree.

2.The averments of the petition in brief are as follows:-

The main suit was filed for grant of permanent injunction and the suit was decreed on 1.6.2009 as the defendants failed to file written statement. The defendants are well aware of passing of -2- decree against them with full knowledge and conscious they are willfully disobeying the decree. The petitioner made request and also warned them that a decree is subsisting against them but in a careless and reckless manner, the respondents still interfering with the possession of the petitioner, as such to detain the respondents 1 to 4 to civil prison.

3.After receiving notice, the first respondent filed counter and the same was adopted by the respondents 2 to 4. The averments of the counter in brief are:-

The petition averments are not correct and the petitioner is put to strict proof of the petition averments. The petitioner/decree holder obtained the decree by misrepresenting the real facts. In fact the respondents 1 to 4 are in possession of their own land for about six decades by doing agriculture with big agricultural well fitted with electric motor with electric connection. The decree holder is in possession of his own land which is adjacent to the land of respondent No.1. The first respondent raised mango garden which is aged about 14 years in their land. There is a clear natural boundary in the form of Gattu covered with trees an bushes which is permanent in nature separating their land and the land of decree holder. This boundary line is existing from several decades and the first respondent never trespassed or encroached or interfered over the land of petitioner/decree holder and at any time much less than subsequent to the decree. The decree holder is trying to grab the property of these respondents under the guise of ex parte decree and the petitioner/decree holder is in possession of Ac. 5=33 gts of land -3- and the boundaries are not correct as such the decree is un- executable and hence, to dismiss the petition.

4.During the enquiry on behalf of the petitioner P.Ws.1 to 3 were examined and no documents are marked. On behalf of the respondents R.Ws.1 to 6 were examined and no documents are marked.

5.Heard the counsel for either side.

6.Now the point for consideration is:

Whether the petitioner is entitled to seek Detention

of the respondents 1 to 4 in Civil Prison on the ground of

violation of the decree?

7.Point:- The counsel for the petitioner submitted that though in the main suit ex parte decree was passed, subsequent to passing of decree, the petitioner informed the respondents about passing of decree but ignoring the said fact, the respondents frequently interfering with the possession of the petitioner over the schedule property. He further submitted that in the petition the date of interference is not mentioned because there is continuous interference by the respondents day in and day out. He further submitted that according to the respondents they filed a suit for declaration and recovery of possession but however, the property in that suit is totally different from the present suit property. He further submitted that in order to substantiate the case of the petitioner, the petitioner examined P.Ws. 1 to 3 and the evidence of P.Ws. 2 and 3 fully proved that subsequent to passing of decree the respondents interfered with the possession of the petitioner over the petition schedule property. He further submitted that though on behalf of -4- respondents R.Ws.1 to 6 examined, none of the witnesses produced any documents to show that they have land adjacent to the land of the respondents and as if the respondents are in possession of the petition schedule property. He further submitted that as the respondents wilfully violated the decree of injunction, detain the respondents in civil prison.

8.The counsel for the respondents submitted that the respondents filed a suit for declaration with respect to the present schedule property and the same is pending. He further submitted that in the main suit the petitioner obtained ex parte decree behind the back of respondents and subsequent to the decree the respondents never interfered with the petition schedule property and already they filed the comprehensive suit for declaration. He further submitted that if really the respondents interfered with the petition schedule property certainly in the petition or at least in evidence of P.Ws. 1 to 3 the witnesses would have mentioned the dates or at least the first day when the respondents started interfering with the possession of the petitioner but the petition and the evidence are lacking such details. He further submitted that as the petitioner filed the present petition for civil detention, he cannot succeed in the petition by alleging vague facts and the petitioner should strictly prove the alleged interference by the respondents. He further submitted that according to the petitioner, the respondents interfered with the possession of the petitioner but P.W.1 claimed as if he filed suit for recovery of 8 gts which is in possession of the respondents and further filed the present petition for recovery of possession, as such it -5- is clear that the petitioner do not know the facts of the case and do not know the purpose of the present petition and this itself shows that the case of the petitioner is utterly false. He further submitted that the respondents examined R.Ws. 1 to 6 and R.Ws. 2 to 6 though did not file any documents to prove that their property is adjacent to the property of petitioner, the over all evidence of respondents prove that the respondents did not interfere with the possession of the petitioner as such to dismiss the petition.

9.The counsel for the respondents relied on the following decision in support of their contention.

(1) Decision reported in 2014 (6) ALD 457 between Malle

Ranga Reddy and another Vs. Thirunagaru Purushotham,

wherein the Hon'ble High Court while making discussion at para-11 held that:- “A reading of Or. 21 Rule 32 CPC makes it very much manifest that the said provision is a penal one. As such the provisions of the said Rule are required to be adhered to meticulously and scrupulously while de- priving an individual of his liberty.”

Further at para-12, the Hon'ble High Court observed that:- “Since the relevant provisions are penal in nature the material available on record is required to be scanned and thoroughly analysed for the purpose of arriving at a conclusion. There is also no room for any assumptions or presumptions while dealing with the cases of this nature, unless strong founda- tion is laid and case is made out by the person applying for, the order of arrest can be made.”

10.In the petition there are no details about when the respondents interfered with the possession of the petitioner or at least the date on which the respondents started interfering with the -6- possession of the petitioner, subsequent to passing of injunction decree. It is an admitted fact that the suit was decreed ex parte.

Even during the chief-examination of P.W.1 it is not mentioned about the date on which the respondents started interfering with the possession of the petitioner. As per the cross-examination of P.W.1 between the land of the petitioner and respondents there is a cart track and there is fencing of trees and bushes. P.W.1 further added that the respondents occupied 8 gts of his land and raised trees and bushes and when they tried to take possession of the property, the respondents interfered. This admission shows that already the respondents are in possession of 8 gts of the petitioner and when the petitioner tried to recover possession without due process of law, the respondents started obstructing. P.W.1 admitted that the respondents having Mango, Neem and Guava garden in Sy. No.219 abutting the land of the petitioner and there is a shed abutting the agricultural well of the respondents. P.W.1 further added that he filed suit when the respondents illegally got executed the documents in respect of the land belonging to the petitioner acquired by the

Government for the purpose of Devadula Project. This admission shows that in fact the suit was filed when the respondents got executed the documents with respect to the property for the purpose of compensation. The evidence of P.W.1 is contrary to the petition because according to P.W.1 evidence he filed suit for recovery of 8 gts of land occupied by the respondents. P.W.1 admitted that he tried to recover the 8 gts of land, the respondents obstructed and then the suit was filed. This clearly show that there is no interference -7- by the respondents with the suit schedule property and that the 8 gts of land which is in the occupation of the respondents is claimed by the petitioner and when the respondents obstructed, the petitioner filed a suit for injunction. More over, P.W.1 claimed that he filed a suit for recovery of that land. According to the evidence of P.W.1 the respondents are in occupation of the petitioner land and occupied some land after purchase by the petitioner, as such the petitioner filed suit for recovery of possession. This means the petitioner did not know for what purpose the suit was filed and the admissions of P.W.1 show that only because the respondents obstructed the petitioner for recovering 8 gts of land, the petitioner filed the main suit.

11.In support of the contention of the petitioner he examined

P.Ws. 2 and 3. P.W.2 during cross-examination claimed that he do not know what is mentioned in the affidavit. According to his admission he cannot say the boundaries of the land of the petitioner.

He also admitted that there is a Gattu between the land of the petitioner and respondents. According to his evidence one month ten days back the respondents tried to interfere with the possession of the petitioner and he came to know about the present petition about one month fifteen days back. P.W.2 was examined on 8.2.2011 whereas the present petition filed in 2009. In such case the respondents interfering with the possession of the petitioner one month ten days back from the date of evidence of P.W.2 does not arise. So, it is clear that P.W.2 do not know the facts of the case and do not know what is mentioned in chief-examination. P.W.3 during his evidence gave different version that the suit was filed by the -8- petitioner with respect to his land and the land claimed by the respondents. He also admitted that there is a Gutta in between the land of petitioner and the land of respondents. According to his evidence since three months the respondents are trying to interfere with the possession of the petitioner. P.W.3 was examined on 8.2.2011. According to his admission, for the past three months from the date of his evidence, the respondents are trying to interfere with the possession of the petitioner. So, the averments of the petition that in 2009 the respondents interfered with the possession of the petitioner are absolutely incorrect. Further P.Ws. 2 and 3 also did not mention in their affidavits about the specific date on which the respondents started interfering with the possession of the petitioner.

12.On behalf of the respondents R.Ws. 1 to 6 examined and out of them R.W.1 is one of the respondents. According to his admission, he received summon in the main suit but he did not contest in the suit. His evidence reveal that whenever he approached the M.R.O he directed both the parties to enjoy their respective lands and the M.R.O also informed that if he dug the well in the land of the petitioner it will be decided subsequently. According to his admission at the request of the petitioner a survey was conducted and P.W.1 was present at the time of survey. More over his evidence was that at any point of time he never objected with regard to the said survey.

Coming to the evidence of R.W.2 according to his chief-examination he got land towards the north side of the property of respondents. He further admitted that he do not know in which survey number first respondent got land. His admission show that he do not know the -9- facts. The evidence of R.Ws.2 to 6 is in fact a negative form of evidence and they gave evidence as if the decree holder is not in possession of the property of respondents 1 and 2. Their evidence is that the respondents are in possession of their respective land. Their evidence is not much helpful to decide the present case because they came to court only to give evidence about possession of the respondents of their land. R.W.3 during his evidence claimed that the first respondent filed suit against the petitioner about one or two years back. His evidence also show that the decree holder got surveyed the land by a surveyor and at that time the respondents did not raise any objection. R.W.3 in his chief-examination claimed that his property is towards the western side of property of respondents whereas coming to cross-examination he admitted that the property is at a distance of one mile from the property of petitioner and respondents. R.W.4 during his evidence deposed that the petitioner filed suit for injunction against the respondents with respect to Sy.

No. 270. He further admitted that the petitioner is cultivating the land in Sy. No. 270 and 271 and that he was brought to the court by the respondents to prove that the respondents are the owners of Sy. No.

270. Similarly R.W.6 gave evidence and claimed that his land is nearer to the land of respondents and far away from the land of petitioner further that there is land of five or six people in between his land and the land of petitioner and respondents. The evidence of

R.W.6 is in the kind of negative evidence saying that he never saw respondents obstructing the petitioner. The evidence of R.Ws. 2 to 6 -10- is relevant only show that the the respondents are cultivating their land.

13.As rightly contended by the counsel for the respondents as this petition is filed to curtail the personal liberty of respondents,the petitioner must strictly prove the alleged interference by the respondents subsequent to passing of decree that too with the knowledge about passing of decree. As mentioned supra, in the petition or in the evidence of P.Ws. 1 to 3 the date of alleged interference or first day on which the respondents interfered is not mentioned. The evidence of P.Ws.2 and 3 is not in consonance with the evidence of P.W.1 with regard to the alleged interference. The evidence of P.W.1 show that the suit was filed for recovery of possession of 8 gts and further show that he filed the suit because the respondents obtained a document from the Government when the land was acquired for the purpose of Devadula Project. So, the evidence produced by the petitioner is not enough to prove that subsequent to passing of decree, the respondents interfered with the possession of the petitioner over the suit schedule property. Hence, the petitioner cannot seek civil detention of the respondents on the ground of disobedience of decree.

14.In the result, the petition is dismissed with costs.

(Dictated to the Steno after his transcription, corrected and pronounced by me in the Open Court on this the 30th day of October, 2015.)

PRINCIPAL JUNIOR CIVIL JUDGE,

WARANGAL.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner/D.Hr: For Respondent/D.Hr:

PW1 S. VenkataiahR.W.1: B. Komuraiah

PW2 K. LaxminarayanaR.W.2:B. Swamy

PW3 K. SiriyalaR.W.3:B. Maraiah

R.W.4:Ch. Roshaiah

R.W.5: B. Venkatadri

R.W.6: M. Venkatesham

EXHIBITS MARKED

For Petitioner/D.Hr:

-NIL-

For Respondent/D.Hr:

- Nil -

PRINCIPAL JUNIOR CIVIL JUDGE,

WARANGAL.

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE AT :: WARANGAL.

Wednesday, this the 4 th day of November, 2015

Present :- Sri K. Kalyan Chakravarthi,

Prl. Junior Civil Judge,

Warangal.

O.S. No. 814 of 2012

Between:-

Kalakotla Sundaraiah … Plaintiff

And

1. Ravula Ujwal

2. Smt. Ravula Latha

3. Ladella Prabhaker … Defendants

This suit is coming before me for final hearing on 16.10.2015 in the presence of Sri Ch. Swamy Nathan, Advocate for the Plaintiff and of Sri M. Sudhakar, Advocate for Defendants, and upon perusing the material on record and after hearing the arguments, this Court delivered the following:-

: J U D G M E N T :

This suit is filed for recovery of amount basing on Promissory note.

2.As per the plaint averments the plaintiff is permanent resident of

Warangal and one Ravula Prakash is known to the plaintiff through third defendant. The said Ravula Prakash approached the plaintiff and requested an amount of Rs. 30,000/- for his family necessities. Out of acquaintance and request made by the third defendant, the plaintiff agreed to pay Rs. 30,000/- to

Ravula Prakash and accordingly he paid the amount to Ravula Prakash on 10.6.2009 vide Cheque No. 211431. Ravula Prakash encashed the cheque and received the amount. On 10.6.2009 the said Ravula Prakash executed a demand promissory note in favour of plaintiff in the presence of Gannerapu Koteshwar and Thagarapu Vidya Sagar. On 10.8.2009 Ravula Prakash borrowed an amount of Rs. 10,000/- and the plaintiff has paid the said amount through Cheque No.

211436. Further Ravula Prakash has borrowed an amount of Rs. 10,000/- on 10.11.2009 and the said amount was paid by the plaintiff through Cheque bearing No. 997740 and the said Ravula Prakash has agreed repay the borrowed amounts along with agreed interest @ Rs. 24% per annum. Thus Ravula Prakash 2 has borrowed an amount of Rs. 50,000/- from the plaintiff on three occasions.

However, the present suit is filed with respect to Rs. 30,000/-.

Subsequently, several times the plaintiff demanded Ravula Prakash to pay the amount under promissory note but he dodged the matter on one pretext or other pretext. In the month of April, 2010 Ravula Prakash has promised to repay the borrowed amounts, as he is getting arrears from the Government but unfortunately Ravula Prakash died on 1.5.2010 leaving behind first and second defendant as legal heirs. The first and second defendant succeeded to the estate of the deceased. The plaintiff demanded the third defendant to pay the borrowed amount as he being the guarantor for the amount borrowed by Ravula Prakash.

But the third defendant failed to keep up promise an failed to discharge the amount borrowed by Ravula Prakash. Further, the defendants 1 and 2 are under pious obligation to discharge the liability of the deceased. Thus the defendants 1 to 3 are jointly and severally liable to pay the amount basing on promissory note as such the plaintiff issued legal notice dt. 9.6.2012 to the defendants 1 to 3. For the same the defendants did not issue any reply and did not choose to repay the amount. In those circumstances, the present suit was filed.

3.After receiving summons the third defendant remained ex parte whereas defendants 1 and 2 filed written statement with the following averments in brief:-

4.The plaint averments are not correct and the plaintiff is put to strict proof of the plaint averments. It is true that the first and second defendants are son and widow of late Ravula Prakash. The said Ravula Prakash did not borrow any money from the plaintiff as mentioned in the plaint, as such the question of repayment of same with interest does not arise. In fact Prakash has no necessity to borrow amount on the dates mentioned in the plaint. The Pro-note is forged and created in collusion with the so-called witnesses. It is interesting to note that the plaintiff has filed the suit only with respect of the amount of Rs. 30,000/- leaving the amount of Rs. 20,000/- alleged to have been borrowed subsequently.

The plaintiff never demanded Ravula Prakash for repayment. It is true that 3

Ravula Prakash died on 1.5.2010. The defendants did not have any acquaintance with the 3rd defendant and in fact he is not a guarantor for the amount alleged to have been borrowed by late Ravula Prakash. The surety bond is not stamped and inadmissible in evidence. The defendants 1 and 2 already issued legal notice on 29.6.2012 to the plaintiff. These defendants need not pay any amount to the plaintiff and further the interest claimed is usurious. Ravula Prakash did not leave any property behind and further if any amount is due from late Prakash he has to recover from the estate of late Prakash, as such the defendants are not liable to pay any amount. Ravula Prakash died as pauper and these defendants did not inherit any property from Ravula Prakash. There is no privity of contract between the plaintiff and the defendants and there is no cause of action and in those circumstances, to dismiss the suit.

5. Basing on the above pleadings the following issues were settled for trial:-

(i) Whether the suit pro-note is true, genuine and binding on the defendants?

(ii)Whether plaintiff entitled for the recovery of suit amount?

(iii)To what relief?

6.During trial on behalf of the plaintiff P.Ws.1 to 3 were examined and

Exs.A1 to A5 marked. On behalf of defendants D.W.1 was examined and Exs.B1 and B2 were marked.

7.Heard the plaintiff. As the defendants failed to argue, it is treated as heard the defendants.

8.Issue Nos. (i) and (ii):-

(i)Whether the suit pro-note is true, genuine and binding on the defendants?

(ii)Whether plaintiff entitled for the recovery of suit amount?

9.The counsel for the plaintiff submitted that due to the acquaintance with the third defendant, the plaintiff advanced Rs. 50,000/- on different occasions to the father of first defendant late Ravula Prakash, however, the present suit was filed only for Rs. 30,000/- paid by way of cheque and the 4 plaintiff want to file a separate suit for the claim of Rs. 20,000/- as such now the present suit was filed for that amount and has not included the amount of Rs.

20,000/-. He further submitted that the plaintiff gave that amount by way of cheque to Ravula Prakash and he encashed the same and to prove the same

Ex.A5 ie., Bank Pass Book of P.W.1 was filed. He further submitted that for the amount borrowed on that day, third defendant stood as guarantor and executed deed of guarantee vide Ex.A2. He further submitted that subsequent to death of

Ravula Prakash, the plaintiff issued Ex.A3 Legal notice but even thereafter the defendants did not pay any amount, as such the plaintiff is constrained to file the present suit. He further submitted that it is claimed by the defendants as if

Ravula Prakash died as pauper but in fact he is a Government employee as such he dying as pauper does not arise and further the defendants 1 and 2 succeeded to the estate of Prakash, as such they are liable to pay the suit amount along with third defendant. He further submitted that already D.W.1 was given appointment on compassionate grounds after the death of Ravula Prakash and the evidence of D.W.1 clearly show that the plaintiff issued legal notice to the same address and the evidence of D.W.1 show that the reply notice was issued by the defendants 1 and 2 subsequent to the filing of the suit. He further submitted that Ex.B1 Reply notice show that there is no signature of the counsel to show that it was issued by the advocate and further no postal receipt or acknowledgement was filed to show that Ex.B1 was received by the plaintiff or his counsel. More over he further submitted that it is claimed by the defendants as if the signature of Revula Prakash was forged on Ex.A1 whereas there is no such contest in Ex.B1. He further submitted that the evidence of D.W.1 show that his mother received the death benefits after the death of Ravula Prakash as such she inherited the property of Ravula Prakash as such first defendant as well as second defendant are liable to pay the suit amount. He further submitted that in this case the third defendant remained ex parte and it is clear that he is admitting the case of plaintiff that he stood as guarantor to Ravula Prakash, as such he is also liable along with defendants 1 and 2 to pay the amount.

5

10.As rightly contended by the counsel for the plaintiff in Ex. B1 there is no signature of the advocate and further no postal acknowledgement was filed by the defendants 1 and 2 to show that Ex.B1 was served on the plaintiff. Further admission of D.W.1 show that Ex.B1 was issued subsequent to the filing of the suit. In Ex.B1 there is no specific contest that the signature on the suit pronote do not belong to Ravula Prakash. The evidence of D.W.1 show that after the death of Ravula Prakash he was given compassionate appointment and further the wife of Ravula Prakash who is other defendant received death benefits. When

Ravula Prakash was a Government employee, the claim of the defendants 1 and 2 that he died as a pauper cannot be believed more particularly when admission of

D.W.1 show that his mother received death benefits after the death of Revula

Prakash.

11.The plaintiff examined P.Ws. 2 and 3 in support of his contention. As per plaintiff's case first he paid Rs. 30,000/- to Ravula Prakash by way of Cheque and the Ex.A1 was executed towards the discharge of that amount to the plaintiff. A perusal of Ex.A5 show that the cheque was in fact issued on 10.6.2009 to Ravula Prakash and it was encashed. Ex.A3 is the Legal Notice sent by plaintiff to the defendants and Ex.A4 are the Postal Receipts. Already the defendants 1 and 2 issued Reply notice vide Ex.B1. Ex.A1 is the Promissory note. Ex.A2 is the

Deed of Guarantee. In fact originally, Ex.A2 is not properly stamped but subsequently on impounding the document the plaintiff paid the stamp duty and penalty with respect to Ex.A2. Ex.A2 was executed by third defendant herein as surety for the deceased. If really, the signature of deceased Prakash was forged in Ex.A1 certainly in Ex.B1 Reply notice, the defendants 1 and 2 would have specifically claimed about the forgery of the signature. But there is no such plea in the legal notice and as such the plea was raised in the written statement.

12.It is suggested to P.W.1 that on the day of borrowal of the amount, the plaintiff accompanied Ravula Prakash to the bank and withdrawn that amount of Rs. 30,000/-. This suggestion itself show that there was in fact transaction between plaintiff and Ravula Prakash, as claimed by the plaintiff. Ex.A5 entries 6 show that already Ravula Prakash encashed the cheque and withdrawn the amount. As per the evidence of P.W.1 he had issued cheque at the office of L.I.C.

Where promissory note was executed by Ravula Prakash but subsequently admitted that he has mentioned in the plaint that Ravula Prakash executed promissory note at the residence of P.W.1 . Similarly, he admitted that in the legal notice issued by the plaintiff under Ex.A3, there is mention about Rs. 30,000/- only and he did not mention about Rs. 10,000/- and another sum of Rs. 10,000/-

It is suggested to P.W.1 that Ravula Prakash got two sons by name Nikhil and

Ujwal. But however, the defendants did not produce any documentary evidence or oral evidence to show that Ravula Prakash is survived by Nikhil and Ujwal. P.Ws.

2 and 3 are witnesses fo Ex.A1 Promissory Note. According to the evidence of

P.W.2 Ravula Prakash executed Pronote at the house of plaintiff. According to the evidence of P.W.2 he do not remember whether he signed as first or second witness in Pronote but he specifically stated that he signed as attestor to the pronote and except in the suit pronote, he did not sign on any other pronote as witness, executed in favour of the plaintiff. It is suggested to P.W.2 as if he and

P.W.3 colluded together and filed the suit but however, this suggestion was denied by P.W.2.

13.Coming to the evidence of P.W.3 he supported the case of the plaintiff about borrowing of amount and execution of Pronote in favour of P.W.1 by Ravula

Prakash. P.Ws.2 and 3 clearly deposed in their evidence that in their presence

Ravula Prakash, received cheque and executed the pronote. The minor discrepancies in the evidence of P.Ws.2 and 3 can be ignored because over all evidence supported the case of plaintiff about receipt of cheque and execution of pronote by Revula Prakash. As the third defendant remained ex parte, it is clear that under Ex. A2 the third defendant stood as guarantor for the amount borrowed by Ravula Prakash. The first and second defendants being the legal heirs of Ravula Prakash they are not personally liable to pay the amount.

However, the plaintiff can recover the amount from the assets of Ravula Prakash which are lying in the hands of defendants 1 and 2, since the execution of 7 pronote and passing of consideration are proved.

14.in the plaint, the plaintiff shown the cost of legal notice at Rs. 2,000/- but however, as per Civil Rules of Practice, that costs are not permitted and further the costs have to be claimed by way of a separate memo only, as such the said amount is liable to be deducted from the suit claim.

Accordingly, these two issues are answered in favour of plaintiff and against defendants 1 to 3.

15.Issue No. (iii):-

In the result, personal decree is passed against third defendant and decree is passed against the assets of deceased Ravula Prakash in the hands of defendants 1 and 2, with proportionate costs, directing defendants 1 to 3 to pay jointly and severally, Rs. 51,600/- with interest @ Rs. 12% on Rs. 30,000/- from the date of suit till the date of decree and further interest @ Rs. 6% per annum on Rs,. 30,000/- from the date of decree till realisation.

(Dictated to the Stenographer, after his transcription, corrected and pronounced by me in the open Court on this the 4th day of November, 2015).

PRINCIPAL JUNIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendants

PW-1 :K.SundaraiahDW1:R.Ujwal PW-2 :T. Vidyasagar PW-3 :G. Koteswar

EXHIBITS MARKED

For Plaintiff : Ex.A1 is the Original Promissory Note, dt. 10.6.2009. Ex.A2 is the Surety bond with Ex.A1. Ex.A3 is the Office copy of legal notice, dt. 9.6.2012. Ex.A4 is the Postal Receipt (3) in number. Ex.A5 is the Bank Pass Book of P.W.1. For Defendants: Ex.B1 is the office copy of Legal notice, dt. 29.6.2012. Ex.B2 is the Postal Receipt, dt. 29.6.2012.

PRINCIPAL JUNIOR CIVIL JUDGE,

WARANGAL.

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE AT :: WARANGAL.

Thursday, this the 5 th day of November, 2015

Present :- Sri K. Kalyan Chakravarthi,

Prl. Junior Civil Judge,

Warangal.

O.S. No. 1321 of 2012

Between:- Kapil Chit Funds Pvt. Ltd., Kazipet Br. rep. by it's Recovery Manager … Plaintiff

And

1. M. Nageshwar Rao

2. M. Bhagawan 3 N. Ram Gopal Rao

4. Ch. Mohan Reddy

5. T. Rajaiah … Defendants

This suit is coming before me for final hearing 15.10.2015 in the presence of Sri P. Balachander Rao, Advocate for the Plaintiff and of Sri P. Laxmi Narayana, Advocate for the Defendant No.1 and D2 D5 remained ex parteand upon perusing the material on record and after hearing the arguments, this Court delivered the following:-

: J U D G M E N T :

This suit is filed for recovery of amount basing on Chit transaction.

2.As per the plaint averments the plaintiff company registered under

Indian Companies Act having chit fund business, having it's head office at

Kazipet and one of it's branch office at Sidharthanagar, Kazipet. The first defendant joined as member of the chit worth Rs. 5,00,000/- to be subscribed in 50 monthly installments @ Rs. 10,000/- per month and accordingly, signed on

Agreement of Chit on the same day. The said chit commences from 28.10.2006 and terminates by 28.11.2010. On 28.10.2007 the first defendant participated in the auction and became successful bidder, having agreed to fore-go Rs.

1,82,000/- out of Rs. 5 lacs and the same was confirmed by the plaintiff. In order to receive the prize amount and surety for future installments, the first defendant furnished defendants 2 to 5 as guarantors.

By the date of auction the first defendant paid 1,30,000/- including dividends and his future liability was Rs. 3,70,000/-. The defendants 2 to 5 executed an agreement of guarantee on 19.11.2007 in favour of the plaintiff and 2 more over they executed Pro-note agreeing to repay the amount with interest @

Rs. 12% per annum in case of default made by the first defendant. The first defendant received Rs. 3,10,340/- by way of Cheque No. 937069 and Rs, 7,660/- through chit payment slip after deducting the legal deductions to the first defendant and thus the total amount of Rs. 3,18,000/- was received by the first defendant on 19.11.2007. All the defendants also executed a Pronote towards collateral security. From 10.8.2010 the first defendant committed default in payment of installments and the plaintiff demanded the first defendant and intimated to the other defendants about default committed by the first defendant but they did not hear. Thus the plaintiff issued legal notice on 10.1.2012 and the same was served on defendants 1 to 5. The first defendant paid some amount after notice up to part of 49th installment and the same was shown in the statement of account. Subsequently, the first defendant did not pay any amount.

As per the statement of account the amount due is Rs. 19,149/-. The defendants 2 to 5 are jointly and severally liable along with first defendant to pay that amount along with interest. In those circumstances, the plaintiff filed the present suit.

3.After receiving summons the defendants 2 to 5 remained ex parte.

Whereas the first defendant filed written statement with the following averments in brief:-

The plaint averments are not correct. The plaintiff is put to strict proof of the plaint averments. The plaintiff filed the present suit by suppressing the material fats. The plaintiff suppressed the payment of Rs. 10,000/- vide Receipt

No. 15735, dt. 21.12.2010 and Receipt No. 15727, dt. 6.12.2010 for Rs. 9,500/- and it was informed to the plaintiff by the first defendant vide Letter dt.

19.11.2011 which was acknowledged by P. Madan Mohan Reddy on the same day.

The plaintiff to over come their mistake in crediting the amount under the above mentioned receipts, vaguely claimed in the plaint as if the first defendant paid some amount after notice up to to partly 49th installment. The said amount was paid by the first defendant on 21.12.2010 vide Receipt No. 15735 for Rs.

3 10,000/- and on 6.12.2010 vide Receipt No. 15727 for Rs. 9,500/- and thus total amount paid by the first defendant is Rs. 19,500/- subsequent to the legal notice.

The first defendant need not pay any amount to the plaintiff. Already the plaitniff credited Rs. 19,500/- to the chit account of the first defendant as such the contention of plaintiff that subsequent to issue of notice, the first defendant paid amount is utterly false. After payment of Rs. 19,500/- the first defendant is not due any amount to the plaintiff. The plaintiff credited the amount in the account after long time in June, 2012 and made false claim in the present suit. As per para-9 of the plaint it is mentioned as if the first defendant is liable to pay Rs.

19,149/- and claimed interest from 1010.2010 to 25.6.2012 to a tune of Rs.

3,928/-. However, as already the first defendant paid Rs. 19,500/- much prior.

The plaintiff without referring to the application dt. 19.1.2011 having received Rs.

19,500/- under the receipts dt. 21.12.2010 and 6.12.2010 filed the suit with all false allegations and claims and did not even refer to the reply notice issued by the first defendant on 24.1.2012 and therefore, in those circumstances, to dismiss the suit.

4.Basing on the above pleadings the following issues have been framed:-

(i) Whether D1 has paid entire chit installments to plaintiff?

(ii) Whether plaintiff is entitle for recovery of suit amount as prayed?

(iii) To what relief?

5.During the trial on behalf of the plaintiff P.W.1 examined and Exs. A1 to A14 marked whereas on behalf of the defendants D.W.1 was examined and

Exs. B1 and B2 were marked.

6.Heard both sides.

7.Issues No. (i) and (ii):-

(i) Whether D1 has paid entire chit installments to plaintiff?

(ii) Whether plaintiff is entitle for recovery of suit amount as prayed?

8.The counsel for the plaintiff submitted that though it is claimed by the first defendant that he paid the amount vide two Receipt Nos. 15735 and 15727 4 under Ex.B3, it is clearly mentioned that he paid that amount to one P. Ramesh,

Collection Boy of the plaintiff and on 19.1.2011 when the first defendant went to the office of plaintiff for payment of balance amount and it was informed about the payment made to P. Ramesh, he came to know that amount was not deposited and only Rs. 3,000/- out of Rs. 19,500/- was adjusted and those recitals clearly show that even after payment of Rs. 10,000/- and Rs. 9,500/- claimed in the written statement and still the amount is due from the first defendant. He further submitted that in fact Exs. B1 and B2 Receipts are not disputed but however, they are paid with respect to amount up to 49th installment partly and the suit amount was not yet paid by the first defendant. He further submitted that even according to Ex. B4 Notice the amount paid under Receipt

Nos. 15735 and 15727 is with regard to the 47th and 48th installments and this clearly show that the amount paid under those receipts are not towards full and final payment of chit installments. He further submitted that P. Ramesh, once worked as agent of plaintiff but he misused the chit installments paid as such he was removed and the payments made under Exs. B1 and B2 are already shown in the statement of account, towards 47th and 48th installments, as such to decree the suit.

9.The counsel for the defendant No.1 submitted that one P. Ramesh,was the Collection Agent of the plaintiff and he used to receive the amount from the first defendant and issue receipt. He further submitted that subsequent to issuance of notice no amount was paid by the first defendant but he paid Rs.

9,500/- and Rs. 10,000/-much prior to issue of said legal notice and a perusal of

Ex.A11 Statement of Account clearly show that the amount of Rs. 19,500/- was not reflected in the said statement and that even after issuing Exs. B1 and B2 that amount was credited to the account and made a false claim in the suit. He further submitted that the amount under Exs. B1 and B2 is Rs. 19,500/- whereas the suit amount is Rs. 19,149/- and if that Rs. 19,500/- is adjusted to the account, prior to issue of legal notice, no amount is due from the first defendant as such the claim of plaintiff is false and hence, to dismiss the suit.

5

10.As rightly contended by the counsel for the plaintiff in Ex. B3 it is claimed by the first defendant that after he paid Rs. 9,500/- and Rs. 10,000/- to one P. Ramesh, when he went to the office of plaintiff to pay the balance amount he came to know that the amount paid to P. Ramesh is not adjusted. As per Ex.B4

Reply notice it is claimed that Rs. 9,500/- and Rs. 10,000/- was paid towards 47th and 48th installments. However, it is necessary to discuss the oral evidence to arrive at a just conclusion. Through P.W.1 Exs. B1 and B2 Receipts for Rs. 9,500/- and Rs. 10,000/- was marked. Those receipts were admitted by P.W.1. He further admitted about the reply notice given by the first defendant vide Ex.B4 and about the specific contest taken in the said reply notice. However in the plaint the plaintiff intentionally suppressed about the issuance of legal notice and claimed as if after issuance of legal notice, the first defendant paid up to partly 49th installment. In fact P.W.1 admitted that the suit chit transaction ended by 29.11.2010 whereas according to the legal notice given on 10.1.2012 that is more than one year after end of the transaction the first defendant paid 49th installment. P.W.1 was unable to say the amount paid by the first defendant after issuing legal notice and admitted that no receipt is filed by the plaintiff to show that first defendant paid the amount after receipt of legal notice.

11.Coming to the evidence of D.W.1 he was questioned about Exs. B1 and B2 but however, P.W.1 himself admitted about issuing Exs. B1 and B2 subsequent to issue of Ex. B3. He claimed that subsequent to Exs. B1 and B2, he did not pay any further amount to the plaintiff. He admitted that in Ex.B1 he claimed that he went to the office of plaintiff to pay the balance amount and he came to know that out of Rs. 19,500/- paid by him only Rs. 3,000/- was credited as such he demanded the plaintiff to issue receipt for Rs. 19,500/-. He further claimed that Exs. B1 and B2 are relating to 49th and 50th installments. But however, in Ex.B4 Notice it was specifically mentioned by the first defendant that the amount paid by the first defendant under Ex.s B1 and B2 are with respect to 47th and 48th installments so, the first defendant cannot claim that the amount paid under Exs. B1 and B2 are with respect to 49th and 50th installments. It is 6 suggested to D.W.1 that on 30.3.2012 the amount paid under Exs. B1 and B2 was entered in the chit account. A perusal of the Statement of account, which is marked as Ex.A11 show that on 30.3.2012 Rs. 6101/- and Rs.10,000/- was credited to the account of the first defendant. As per the admission made by the first defendant subsequent to issue of legal notice, he did not pay any amount to the plaintiff. As per Ex.B3 out of Rs. 19,500/- only Rs. 3,000/- was credited to the account and the balance amount was not discharged and requested the plaintiff to adjust the balance amount and to issue receipt. More over, as mentioned supra, in Ex. B4, D.W.1 was admitted that an amount of Rs. 19,500/- wad paid by him vide Exs. B1 and B2 with respect to 47th and 48th installments. So, if all these facts are summed up, it is clear that the amount paid under Exs. B1 and B2 is not with respect to 49th and 50th installments and that it is with respect to 47th and 48th installments and that amount was subsequently credited to the account on 30.3.2012 after deducting Rs.3,000/- which was already credited prior to issuance of Ex.B3. So,the claim of the first defendant that he fully discharged the chit installments is not correct and the first defendant committed default of payment of 49th installment in part and 50th installment as shown in the plaint.

Hence,the plaintiff is entitled to recover the amount as mentioned in the plaint together with interest.

However, in the plaint,the plaintiff shown Rs. 300/- towards legal notice charges but in fact that amount have to be claimed only by way of costs memo as such that amount is deducted from the suit claim.

Accordingly, these issues are answered in favour of the plaintiff and against the defendants.

12.Issue No.(iii):-

(iii) To what relief?

In the result, the suit is decreed with costs directing the defendants 1 to 5 to pay jointly and severally a sum of Rs. 23,077/- with interest @ Rs. 12% per annum on Rs. 19,149/- from the date of suit till the date of decree and further interest @ Rs. 6% per annum on Rs. 19,149/- from the date of decree till 7 realisation.

(Dictated to the Stenographer, after his transcription, corrected and pronounced by me in the open Court on this the 5th day of November, 2015).

PRINCIPAL JUNIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendants

PW-1 :P. RajuDW1:M. Nageshwar Rao

EXHIBITS MARKED

For Plaintiff : Ex.A1 is the Chit Agreement, dt. 20.10.2006. Ex.A2 is the Agreement of Guarantee, dt. 19.11.2007. Ex.A3 is the Pronote, dt. 19.11.2007. Ex.A4 is the Payment Voucher, dt. 19.11.2007. Ex.A5 is the Office copy of Legal notice. Ex.A6 to A10 are the Postal Ack. cards, dt. 10.1.2012. Ex.A11 is the Statement of account. Ex.A12 is the Authorisation Letter., dt. 15.7.2008. Ex.A13 is the CC of Firm Registration No. 3018, dt. 6.5.1998. Ex.A14 is the Authorisation Letter, dt. 29.3.2014.

For Defendants: Ex.B1 is the Temporary Receipt, dt. 6.12.2010. Ex.B2 is the Temporary Receipt, dt. 21.12.2010. Ex.B3 is the Office copy of Letter, dt. 19.1.2011. Ex.B4 is the Reply notice, dt. 24.1.2012.

PRINCIPAL JUNIOR CIVIL JUDGE,

WARANGAL.

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE AT :: WARANGAL.

Tuesday, this the 3 rd day of November, 2015

Present :- Sri K. Kalyan Chakravarthi,

Prl. Junior Civil Judge,

Warangal.

O.S. No. 1381 of 2010

Between:-

Sriramoju Vamana Chary … Plaintiff

And

1. Md. Raj Mohammad

2. Md. Razak … Defendants

This suit is coming before me for final hearing on 14.10.2015 in the presence of Sri D. Premsagar, Advocate for the Plaintiff and of Sri P. V. Vidyadhar Raj, Advocate for Defendantsand upon perusing the material on record and after hearing the arguments, this Court delivered the following:-

: J U D G M E N T :

This suit is filed for grant of permanent injunction restraining the defendants from interfering with the possession of the plaintiffs over the suit schedule property.

2. The averments of the plaint in brief are:-

The plaintiff is the absolute owner and possessor of Ac. 2=29 gts in Sy. No.

168/ shown as suit schedule property of the plaintiff. Originally the father of the plaintiff purchased Ac. 10=18 gts in Sy. No. 168. Subsequent to his demise the plaintiff and his brother partitioned the property and the survey number was bifurcated in the said partition and Ac. 5=09 gts fell to the share of plaintiff and that the property was mutated in the name of plaintiff. Out of the same the plaintiff sole some extent and presently in possession of Ac. 2=29 gts and it is the suit schedule property. The plaintiff is cultivating the suit schedule property since long time and recently, the plaintiff ploughed the land to raise corp. The defendants who do not have any right or title over the suit land interfered with the possession of the plaintiff but the plaintiff resisted the defendants with the help of his family members and well wishers. The defendants got an evil eye over 2 the suit schedule property and trying to interfere with the possession of the plaintiff. The defendants are having land towards the western side of the suit schedule property.

On 21.12.2010 when the plaintiff engaged in agricultural operations in the suit schedule property, the defendants along with their henchmen came there and interfered with the agricultural work. When the plaintiff questioned the defendants, the defendants abused the plaintiff and threatened him with dire consequences and further proclaimed that they will occupy the suit schedule property. The defendants are highly influential persons and having money and muscle power and in those circumstances, if the defendants succeed in their attempts, the plaintiff will be put to irreparable loss. The plaintiff is apprehending that the defendants may at any time encroach into the suit schedule property by taking advantage of their power. In those circumstances, there is no other alternative to the plaintiff except to approach the court and hence, the suit is filed for permanent injunction.

4.After receiving the summons, the defendants No. 1 and 2 filed the written statement.

5.The averments of the written statement in brief are:-

The plaint averments are not correct and the plaintiff is put to strict proof of the plaint averments. The plaintiff has not approached the court with clean hands. The plaintiff is not the owner or possessor of the suit schedule property and plaintiff is put to strict proof of the plaint averments. No partition took place between the plaintiff and his brothers with respect to the suit schedule property. The plaintiff never cultivated the suit schedule property as such the alleged interference is absolutely false. In fact the defendants are in possession and enjoyment of the suit schedule property. There is no cause of action for the suit and all the dates, statements made in the plaint are on imaginary and created for the purpose of suit. The plaintiff approached the court with unclean hands by suppressing the real facts.

The first defendant is the younger brother of the father of second defendant 3 namely Mohd. Fakir Mohammad. Fakir Mohammed died on 16.8.2010 leaving the second defendant as legal heir and successor for his estate. Originally the father of the first defendant Mohd. Hussain, popularly known as Dudekula Fakir Hussain, was the original owner and possessor of the agricultural land in Sy. No.165, to an extent of Ac. 2=20 gts, land in Sy. No. 166 to an extent of Ac. 5=30 gts, land in

Sy. No.53 and 54, to an extent of Ac. 4=28 gts and land in Sy. Nos. 167 and 168 to an extent of 9=31 gts situated at Narayanagiri village and also his father was the owner of land in Sy. No. 606/B to an extent of Ac. 2=00 gts. Out of the above said lands the father of defendant No. 1 Mohd. Hussain had purchased the land in

Sy. Nos. 167 and 168 to an extent of Ac. 2=20 gts from plaintiff under simple sale deed dt. 16.7.1876, for a valid consideration of Rs. 1,750/- and delivered possession. The father of the defendant No. 2 had purchased the land in Sy. Nos.

165 and 166 to an extent of Ac. 0=20 gts. And Ac. 0=35 gts. for a valid sale consideration of Rs. 250/- under simple sale deed dt. 1.4.1962. The father of the second defendant also purchased the agricultural land in Sy. No. 167 and 168 to an extent of Ac. 1=07 gts for a valid consideration of Rs. 7,750/- from V.

Mahender Reddy under simple sale deed dt. 18.11.1985 and obtained possession.

In fact Mahender Reddy purchased that property from plaintiff. The father of second defendant purchased an extent of Ac. 4=28 gts in Sy. No. 54 and Ac.

4=36 gts. in Sy. No.167 through registered sale deed dt. 8.1.1975 from the plaintiff. Only to grab those lands the plaintiff filed the present suit. Subsequent to the purchase of the above said lands, all the lands are under possession and ownership of defendants along with other agricultural lands. The present suit schedule property is part and parcel of the lands purchased by father of second defendant from the plaintiff.

After purchase of the lands, the father of second defendant has obtained

Rythu Pass book in the name of second defendant and his brothers namely Fakhir

Ahmed, Md. Mahabelli, Rahimuddin and Shamsuddin for all the agricultural lands and so far as the suit Sy. No. 168 is concerned, the second defendant and his brothers have got the Rythu Pass books for the total lands of Ac. 2=20 gts and it 4 is the suit schedule property. These defendants have obtained agricultural loans by depositing their Rythu Pass books before the bank authorities. The names of defendants have been recorded in the revenue records as possessors. There are under ground pipe lines in the suit land to supply water to the agricultural fields and those pipe lines were erected by the defendants about 25 years back.

Suppressing those facts, the plaintiff filed the present suit.

The plaintiff is a nominal pattedar without having possession and ownership over the suit schedule property. Taking advantage of his name in the revenue records the plaintiff filed the present suit to grab the land. The plaintiff is very much aware that the defendants and their brothers succeeded to the land above said land including the suit schedule property and they are cultivating the land.

As such the plaintiff is not entitled for grant of permanent injunction and hence, to dismiss the suit.

6. Basing on the above pleadings the following issued are framed:-

(i) Whether the plaintiff is in possession and enjoyment

of the suit schedule property by the date of filing of suit?

(ii) Whether the plaintiff is entitled for the relief of perpetual injunction as prayed for?

(iii)To what relief?

7.During the trial on behalf of the plaintiff P.W.1 was examined and

Exs. A1 to A9 were marked and on behalf of defendants no witnesses are examined and no documents are marked.

8. Heard the counsel for plaintiff.

9.As the defendants failed to argue, it is treated as heard the defendants.

10.Issues No.(i) and (ii):-

(i) Whether the plaintiff is in possession and enjoyment

of the suit schedule property by the date of filing of suit?

(ii) Whether the plaintiff is entitled for the relief of perpetual injunction as prayed for?

11.The counsel for the plaintiff submitted that in support of contention of the plaintiff, the plaintiff examined as P.W.1 and filed Exs.A1 to A9 ie., Copies 5 of Pahanis as well as Pattedar Pass Book, Title Deed Book and Rythu Pass Book.

Whereas the defendants neither cross-examined P.W.1 nor adduced any evidence in support of that contention to show that the defendants are in possession of the suit schedule property. He further submitted that the defendants took a false contest as if the plaintiff sold the suit schedule property under simple sale deed and thereby started interfering with the possession of the plaintiff and for that reason only the defendants did not adduce any evidence in their support and hence, the possession of the plaintiff is proved and as such to grant permanent injunction in favour of the plaintiff.

12.As per the written statement contents subsequent to the purchase of property by the father of the first defendant and second defendant, their names were mutated in the revenue records. It is clear that as per written statement the suit schedule property ie., Ac. 2=20 gts was purchased by the father of defendants under simple sale deed and later the second defendant and his brothers were given 20 gts each and their names were also entered in the revenue records. Again in the written statement the inconsistent plea is taken as if taking advantage the name of the plaintiff in the revenue records, the plaintiff is interfering with their possession. On one hand the defendants are claiming that their names were entered in the revenue records and on the other hand hand claiming that the name of the plaintiff is also in the revenue records. It is claimed in the written statement that the defendants deposited the Rythu Pass

Book with the bank for the purpose of obtaining the loan. If really, the names of the defendants are entered in the revenue records certainly the defendants would have filed those revenue records to show that they are in possession of the suit schedule property. However, the defendants did not adduce any evidence in support of their contention. On the other hand the plaintiff filed

Exs.A1 to A9 including Certified copies of Pahanis, Pattedar Pass Book,Title Deed

Book and Rythu Pass Book. Those documents clearly show that the plaintiff is in possession of the suit schedule property and that his name is also entered in the revenue records recognising his possession. As there is no cross-examination of 6

P.W.1 by the defendants, it is proved that the defendants interfered with the possession of the plaintiff without any basis. The defendants did not adduce any evidence in support of their contention to show that they are in possession of the suit schedule property. As the plaintiff is proved to be in possession of the suit schedule property and as the defendants without any manner of right tried to interfere with the possession of the plaintiff by making a false claim, as such the plaintiff is entitled for grant of permanent injunction.

Accordingly, the issues No. 1 and 2 are answered in favour of the plaintiff and against the defendants.

13. Issue No. (iii):-

(iii)To what relief?

In the result, the suit is decreed with costs and permanent injunction is granted, restraining the defendants from interfering with the possession of the plaintiff over the suit schedule property.

(Dictated to the Stenographer, after his transcription, corrected and pronounced by me in the open Court on this the 3rd day of November, 2015).

PRINCIPAL JUNIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendants

PW-1 : S. Vamana chary -None-

EXHIBITS MARKED

For Plaintiff : Ex.A1 is the CC of Pahani for the year 2008-2009. Ex.A2 is the CC of Pahani for the year 2005-2006. Ex.A3 is the CC of Pahani for the year 2000-2001. Ex.A4 is the CC of Pahani for the year 1995-1996. Ex.A5 is the CC of Pahani for the year 1988-1989. Ex.A6 is the CC of Pahani for the year 1984-1985. Ex.A7 is the Original Pattedar Pass Book. Ex.A8 is the Original Title Deed Book. Ex.A9 is the Orignal Rythu pass book.

For Defendants: -NIL-

PRINCIPAL JUNIOR CIVIL JUDGE,

WARANGAL.

7

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE AT :: WARANGAL.

Tuesday, this the 3 rd day of November, 2015

Present :- Sri K. Kalyan Chakravarthi,

Prl. Junior Civil Judge,

Warangal.

O.S. No. 954 of 2012

Between:-

Canara Bank, Madikonda Branch, rep. by it's Br. Manager. … Plaintiff

And

Kandukuri Shyam Sundar … Defendant

This suit is coming before me for final hearing on 2.11.2015 in the presence of Sri Bh. Nageshwar Rao, Advocate for the Plaintiff and of Sri B. S. Prakash Rao, Advocate for Defendant, and upon perusing the material on record and after hearing the arguments, this Court delivered the following:-

: J U D G M E N T :

This suit is filed for recovery of amount basing on loan transaction.

2.As per the plaint averments the defendant approached the plaintiff on 25.6.2009 for loan of Rs. 45,000/- under K.C.C. facility for raising paddy crop.

Accordingly, Rs. 45,000/- loan was sanctioned on the same day and on the same day defendant executed Agreement of Loan and Hypothecation Deed agreeing to repay the loan amount within one year with interest @ Rs. 10% per annum with quarterly compounded and also agreed to pay penal interest @ Rs. 2% per annum in excess in case of default. The defendant committed default of loan amount and as per the Account maintained by the plaintiff bank, the defendant is liable to pay Rs. 62,324 as on 22.6.2012. In spite of repeated demands, the defendant failed to repay that amount. The defendant has hypothecated the standing crop in favour of plaintiff bank. But on enquiry the plaintiff came to know that by misleading the bank the defendant fraudulently availed the loan as such the plaintiff gave report to the police and the case is pending with C.B.I. The original application and the agreement of hypothecation executed by the defendant were given to the C.B.I. And the same were filed before the Special

Judge for C.B. I. Cases, as such xerox copies were filed before this court. In

those circumstances, to decree the suit directing the defendant to pay Rs. 62, 2 324/- with interest and costs.

3.After receiving summons the defendant filed written statement with the following averments in brief:-

The plaint averments are not correct. The plaintiff is put to strict proof of the plaint averments. The defendant never approached the plaintiff and never obtained loan from the plaintiff and as such the repayment of loan with interest as alleged in the plaint is not correct. The plaintiff bank officials colluded with some interested persons and misused their powers by implicating the defendant's name and drawn the amount, as such there is no liability for the defendant to pay any amount to the plaintiff. The signatures of this defendant are forged by some persons behind the back of the defendant. At the time of obtaining loan, the plaintiff obtained the signatures of the defendant on blank papers. Taking advantage of the same, the plaintiff created the suit documents.

In those circumstances, to dismiss the suit.

4.Basing on the above pleadings the following issues have been framed:-

(i) Whether the plaintiff company/bank is entitled to receive the suit amount from the defendants herein jointly and severally?

(ii) Whether the first defendant can be permitted to pay the amount due to the plaintiff company/bank by way of installments as he pleaded in the written statement?

(iii)To what rate of interest, the plaintiff bank is entitled to recover the suit amount from the defendants herein?

(iv) To what relief?

5.During the trial on behalf of the plaintiff P.W.1 examined and Exs. A1 to A3 marked whereas on behalf of the defendant no witnesses examined and no documents are marked.

6.Heard the counsel for Plaintiff. As the defendant failed to argue, it is treated as heard the defendant.

7.Issue No. (ii):-

(ii) Whether the first defendant can be permitted to pay the amount due to the plaintiff company/bank by way of installments as he pleaded in the written statement?

3

8.In fact the defendant totally denied the loan transaction and no where pleaded for installment decree as such my predecessor in office erroneously framed this issued and hence, petition is struck off as irrelevant.

9.Issues No. (i) and (iii):-

(i) Whether the plaintiff company/bank is entitled to receive the suit amount from the defendants herein jointly and severally?

(iii)To what rate of interest, the plaintiff bank is entitled to recover the suit amount from the defendants herein?

10.The counsel for the plaintiff submitted that in this case the plaintiff examined P.W.1 and Exs. A1 to 3 ie., copies of loan application, hypothecation deed and statement of account filed. But the defendant neither cross-examined

P.W.1 nor adduced any evidence in support of his case as such the plaintiff's case is proved and hence, to decree the suit.

11.The then Presiding Officer of this Court erroneously framed issue No.

(i) as if there is joint and several liability of the defendants but there is only one defendant in the suit as such the joint liability does not arise. As per the plaint averments, the defendant agreed to repay the loan amount with interest @ Rs.

10% with quarterly rests and further agreed to pay default interest @ Rs. 2% whereas in the plaint, the plaintiff claimed subsequent interest @ Rs. 14% per annum. In support of the case of plaintiff, the certified copies of loan application, certified copies of hypothecation deed and statement of account are marked. The defendant did not cross-examine the plaintiff and further more, he did not adduce any evidence in support of his version. The evidence of P.W.1 coupled with Exs.

A1 to A3 prove that as on date of filing of the suit, the outstanding amount is Rs.

62,324/-. The evidence established that the defendant obtained loan from the plaintiff and subsequently, committed default. Exs. A1 and A2 are proved by the evidence of P.W.1.

According to plaint, the defendant agreed to pay penal interest @ Rs. 2% per annum but in fact if Ex.A2 is perused, in the same, the defendant agreed to repay the borrowed amount with interest @ Rs. 10% and there is no stipulation of penal interest in Ex.A2. Further more, when according to the plaint the interest is 4 compoundable quarterly, again seeking penal interest does not arise. In those circumstances, the plaintiff is entitled to only interest @ Rs. 10% but not Rs.

12%.

Accordingly, these issues are answered in favour of the plaintiff and against the defendant.

12.Issue No.(iv):-

(iv) To what relief?

In the result, the suit is decreed with costs directing the defendant to pay Rs. 62,324/- with interest @ Rs. 10% per annum on Rs. 45,000/- from the date of suit till the date of realisation.

(Dictated to the Stenographer, after his transcription, corrected and pronounced by me in the open Court on this the 3rd day of November, 2015).

PRINCIPAL JUNIOR CIVIL JUDGE,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendants

PW-1 :J. Shanker-None-

EXHIBITS MARKED

For Plaintiff : Ex.A1 is the CC of Loan application, dt. 25..6.2009. Ex.A2 is the CC of Hypothecation Deed, dt. 25.6.2009. Ex.A3 is the Statement of account.

For Defendants: -NIL-

PRINCIPAL JUNIOR CIVIL JUDGE,

WARANGAL.