Sri. K. Rambabu

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IN THE COURT OF THE SENIOR CIVIL JUDGE :: VIZIANAGARAM

Present:- Sri K.Rambabu,

Senior Civil Judge,

Vizianagaram

Wednesday, this the 1st day of November, 2017

ORIGINAL SUIT NO. 122 of 2011

Between:-

Sailada Appalanaidu s/o. Late Satyanarayana, Hindu, aged 46 years, cultivation, residing at Ayyannapeta village, Vizianagaram district.

..PLAINTIFF

A n d :-

1. Rajana Apparao s/o. Late Appanna, (died)

2. Rajana Anjibabu @ Anjaneyulu s/o. Apparao, aged about 30 years, Hindu, rest do.

3. Rajana Marayya s/o. Late Appanna, Hindu, 62 years, retired railway employee, resident of Ayyannapeta village presently residing at Sri Mahalakshmy Colony, Near Krishna Mandiram, K.L.Puram, Vizianagaram

4. Rajana Atchuta Rao s/o. Late Appanna, Hindu, aged about 55 years, residing at B.C. Colony, Ayyannapeta Vizianagaram mandal and district.

5. Rajana Appayyamma w/o. Late Apparao, Hindu, aged about 55 years, residing at Rajaveedhi, Ayyannapeta, Vizianagaram.

6. Yelakala Sridevi w/o. Shankararao, Hindu, 32 years, presently residing at Rythu colony, near Railway station, Rayagada town, Odisha state.

7. Rajana Dharmarao s/o. Late Apparao, 31 years, residing at Raja Veedhi, Ayyannapeta, Vizianagaram.

(Defendants 5 to 7 are added as L.Rs of the deceased 1st defendant as per order in I.A.97/2014 Dt; 25.2.2015)

.. DEFENDANTS

This suit coming on 17.10.2017 before me in the presence of Sri

I.Ramesh, advocate for the plaintiff and of Sri G.R.K.S.S.K.Sharma, advocate for the defendants 2 to 7, the 1st defendant died pendenti lite, after having stood over for consideration till this day, this court passed the following:- 2

J U D G M E N T

1.This is a suit filed by the plaintiff, praying the court to pass a decree, i.directing the defendants 2 to 7 to execute the registered sale deed in respect of the plaint schedule property as per the terms of agreement of sale dated 16.2.2011 at the expenses of the plaintiff; OR ii. alternatively, to refund the sum of Rs.10,000/- received as advance sale consideration with interest @ 24% p.a. from the date of agreement of sale dated 16.2.2011 till realisation; and iii. for costs of the suit.

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

(i) The defendants 1 to 4 are the absolute owners of the plaint schedule dry land which is a thrashing floor. The defendants 1 to 4 for their necessities, agreed to sell the plaint schedule property to the plaintiff @ Rs.23,000/- per cent. Accordingly, both parties entered into an agreement of sale in favour of the plaintiff on 16.2.2011, in respect of the plaint schedule property and the plaintiff paid a sum of

Rs.10,000/- towards advance sale consideration and the defendants 1 to 4 received the same in the presence of elders on the same date i.e., 16.2.2011, at the time of execution of agreement of sale. The defendants 1 to 4 agreed to register the sale deed within two months from the date of agreement of sale, at the cost of the plaintiff. But, the defendants postponed the same on some ground, or the other.

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(ii)In fact, the plaintiff is ready and willing to perform his part of contract and finally, the plaintiff approached the defendants on 3.4.2011 along with mediators and demanded to comply with the terms and conditions of the agreement of sale. Before filing of the suit, he got issued legal notice dated 4.4.2011 to the defendants 1 to 4. Having received the notice a reply was issued by the defendants, with all false averments. In these circumstances, there is no other go except file the suit expressing his readiness to deposit the balance sale consideration amount, stamp duty and registration expenses.

3.The 3rd defendant filed written statement, and the same has been adopted by the defendants 1, 2 and 4. The important averments of the written statement of the 3rd defendant are that,

(i) At the out set, they denied all the plaint averments and contended that, the defendants 1 to 4 issued a reply notice dated 11.4.2011, through their counsel denying the contents of the plaintiff’s legal notice and requested the plaintiff to send photostat copies of agreement of sale and to give further reply. But, the plaintiff did not do so. It shows the act of plaintiff which gives suspicion.

(ii)Originally, the plaint schedule property belongs to one late Rajana Chinnappala Swamy @ Appanna, who is the father of defendants 1, 3, 4 and paternal grandfather of the 2nd defendant. After his demise, the schedule property was devolved on to his successors, which includes these defendants also. As such, all the successors of the said

Rajana Chinnappala Swamy are in joint possession with joint rights.

(iii)He further contends that the plaint schedule property is joint family property and only defendants 1 to 4 are having shares. This fact is known to the plaintiff. The remaining successors viz.,(1) Anjaneyulu @

Anjibabu (2nd defendant herein) (2) Dharmarao and one married daughter by 4 name Sreedevi and likewise the 3rd defendant had two sons (1) Srinivasarao (2) Chandra Sekhar and two daughters (1) Eswaramma and (2) S.Bhavani (married) and 4th defendant had one minor daughter by name Devi and one minor son by name Haresh, are all necessary and proper parties.

(iv)The 1st attestor by name Sylada Satyanarayana is an influential and associated to politics and the scribe Sylada Trinadharao is an

Ex.MPTC and political leader, by playing fraud against the defendants and concocted alleged document. The suit is bad for misjoinder and non joinder of parties and defendants have no exclusive right to execute agreement of sale. The agreement of sale might have been forged and fabricated and dishonestly converted into alleged one and the above agreement of sale is not binding on the defendants. With these averments, it is prayed to dismiss the suit with costs.

4.During the pendency of the suit, the 1st defendant died, the defendants 5 to 7 came on record as legal representatives of the deceased 1st defendant as per order in I.A.97/2014 Dt; 25.2.2015. The 5th defendant filed written statement and the same has been adopted by the defendants 6 and 7. The 5th defendant also has taken the same averments as taken by the 3rd defendant and it is only replica of the written statement filed by the 3rd defendant, and finally it is prayed to dismiss the suit with costs.

5.Basing on the above pleadings, one of my Predecessors in office framed the following issues on 20.4.2012:-

I. Whether the agreement of sale dated 16.2.2011 is true, valid and binding on the defendants ?

II. Whether the plaintiff is entitled for specific performance of contract, as prayed for ?

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III. Whether the plaintiff is entitled for alternative relief of refund of advance sale consideration together with interest, as prayed for?

IV. To what relief?

6.During the course of trial, on behalf of plaintiff, P.Ws.1 to 3 are examined, Exs.A.1 to A.5 are marked. On behalf of the defendants,

D.Ws.1 to 3 are examined and Ex.B.1 is marked.

7.Heard arguments. Perused the record.

8.ISSUES NO.1 and 2 :-Whether the agreement of sale

dated 16.2.2011 is true, valid and binding on the defendants ?

Whether the plaintiff is entitled for specific performance of contract,

as prayed for?

According to P.W.1 by name Sailada Appalanaidu, the defendants are the absolute owners of the schedule property i.e., dry land with thrashing floor. P.W.1 agreed to purchase it @ Rs.23,000/- per cent and accordingly entered into Ex.A.1 agreement of sale on 16.2.2011, that he paid

Rs.10,000/- at the time of execution of Ex.A.1 and a regular sale deed has to be obtained within two months, by paying balance sale consideration, which is evidenced through Ex.A.1. As the defendants did not come forward, he got issued original of Ex.A.2 lawyer’s notice to the defendants, expressing his readiness and willingness on 4.2.2012. Having received the same, the defendants got issued Ex.A.3 reply notice with false allegations. P.W.1 further stated that to prove his bonafides, he has deposited the remaining balance sale consideration and other incidental charges for obtaining regular sale deed. Exs.A.4 and A.5 are the term deposit receipts showing that he is ready to pay the remaining balance sale consideration. P.W.2 by name Rajana

Rambabu is one of the attestors of Ex.A.1 and he signed as second attestor and one Trinadharao is the scribe of it, whereas one Sylada Satyanarayana is 6 the 1st attestor of Ex.A.1. P.W.3 by name Sailada Trinadharao, is no other than the scribe of Ex.A.1.

9.The defendants while denying the claim of the plaintiff, they also adduced oral evidence. D.W.1 by name Rajana Atchuta Rao is no other than the 4th defendant herein. According to him, there are some more heirs to be added as parties to the suit and that the defendants herein alone are not entitled to execute either Ex.A.1, or, a regular sale deed in pursuance of Ex.A.1. Their main contention is that the suit is bad for misjoinder and non joinder of parties, as the defendants have no exclusive right over the joint family property. D.W.2 by name Rajana Anjibabu @ Anjaneyulu, is no other than the 2nd defendant, who is in the shoes of D.W.1. D.W.3 by name Rajana

Eswaramma who is a third party and according to her the suit schedule property is the ancestral property, that she is enjoying the same jointly and she has got a share in it, that taking advantage of innocence of defendants 1 to 4 and by using influence, the scribe of Ex.A.1 (PW 3) created the agreement of sale under Ex.A.1.

10.The learned counsel for the plaintiff, in support of his contention, relied on the following decisions:-

I.2014 (5) ALD 374 (DB) in the case of ARIMANDA

VIJAYA BHASKARA REDDY VS. MANUKONDA

RAMIREDDY (DIED) BY LRs. It is held that when the vendor of a sale agreement, examined scrine and one witness of Ex.A.1 stating that the defendant signed upon the document after receiving consideration and the defendants signed only after going through the contents thereof, which is a valid document.

II. 2017 (4) ALD 1 in the case of SEELAM MALLIAH

DIED BY LRS AND OTHERS VS. P.NARASINGARAO

7 (DIED) BY LRS AND OTHERS. It is held that when there is no strong basis in the pleadings about fraud said to have been committed by the defendants and the conspicuous silence of the defendants shows that the agreement of sale is genuine one.

11.The learned counsel for the defendants in support of their contention relied on the following decisions:-

I.2011 (3) ALT 137 in the case of CHODI

MAHALAKSHMI VS. KOPPADA SATHIRAJU AND

ANOTHER. It is held that when the defendants denied the execution of agreement of sale, the burden of proof is on the party who asserts it.

II. 2015 (4) ALT 633 in the case of K.TARAKAMMA (DIED) PER LRS VS. P.NARASIMHA SEDDY. It is held that, plaintiff must prove all aspects as to its execution, payment of consideration, delivery of possession, terms of contract with satisfactory evidence.

12.On appraisal of oral evidence of both parties, it is evident from the evidence of D.W.1 speaking that the signature as fourth executant on Ex.A.1 belongs to him, that he subscribed his signature on Ex.A.1, which is a blank white paper. He is aged about 56 years and he is not expected to sign on blank white paper. There is no threat, or, undue influence by the plaintiff in getting his signature on white paper. Therefore, D.W.1 voluntarily signed on Ex.A.1 knowing its contents.

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13.D.W.1 further admitted that the plaint schedule property is his ancestral property and there is no partition amongst the three brothers.

Except the suit schedule property, the family of D.W.1 has no other properties. Before selling the property, it is the duty of D.W.1 to disclose all the facts, defects, or, any other encumbrances, or, any other title dispute to the purchaser. Equally, the duties cast upon both purchaser as well as the seller. If really, the property is not the exclusive property of the defendants, it is the duty of the defendants to inform that some other persons also are having interest. This contention taken by the defendants is only an after thought, after P.W.1 filed the suit for specific performance of agreement of sale under Ex.A.1. The second executant is no other than Anjibabu, the 1st defendant is the 1st executant, the 3rd defendant is the 3rd executant of

Ex.A.1. So, D.W.1 also identified the signatures and participation of other defendants in respect of Ex.A.1.

14.The contention of the defendants is that they approached elders for partition of the plaint schedule properties. Similarly, the shares of defendants 1 and 3 have to be partitioned among their children. If really, the defendants 1 to 4 have no exclusive right and the family members of the defendants 1 and 3 are also having shares, nothing can be prevented the family members of the defendants 1 and 3 to file a suit for partition in respect of the plaint schedule property. Without executing regular sale deed basing on Ex.A.1, the defendants invited another litigation so saying the family members of the defendants 1 and 3 also have share over the property.

In order to show that the plaint schedule property is ancestral property, there is no documentary proof except Ex.B.1 adangal. Ex.B.1 is copy of adangal for the fasali 1426 speaks only the name of the enjoyer and possessor of the property, but, not the ownership, or, right relating to the property. Therefore, the plea taken by the defendants that the plaint schedule property is 9 ancestral property and the family members of the defendants 1 and 3 are also having right over the property, is not supported by any documentary evidence, or, other modes of evidence.

15.Coming to the evidence of D.W.2 there are no disputes in between the families of plaintiff and defendants, that they did not file any suit, or, issue any legal notice for partition of the properties belonging to their family. This portion of evidence clearly goes to show that the property is ancestral property and the family members of the defendants 1 and 3 are also having equal right, is a subsequent thought and only to defeat the interest of P.W.1 basing on Ex.A.1. According to D.W.3 who is no other than the daughter of the 3rd defendant herein that, she demanded her father to partition the property and the 3rd defendant is a retired railway employee and he is an experienced person in respect of the property affairs. Even the evidence of D.W.3 is also not helpful to their case.

16.According to the evidence of P.W.1, as stamp papers are not available in the village, Ex.A.1 was executed on a white paper by affixing revenue stamps. The agreement of sale is an understanding for certain terms and conditions which are to be enforced by anyone of the parties only if agreement of sale is proved to the satisfaction of this court. One

Trinadharao is the scribe of Ex.A.1, who is Ex.MPTC. P.W.1 admitted that there is a space in between the last paragraph and signature. However, he denied the suggestion that the signatures obtained on blank papers and filled in later. P.W.1 further admitted that the survey number is not mentioned.

The reasons for selling away the property are also not mentioned in Ex.A.1. A suggestion is given to P.W.1 that the defendants 1 to 4, one Sailada

Satyanarayana for partition of their properties and the said Satyanarayana obtained signatures of the defendants 1 to 4 on a blank white paper on revenue stamps, later he converted into Ex.A.1 agreement. However, P.W.1 10 denied the said suggestion. In order to substantiate this contention, the defendants have not placed any evidence that on the pretext of partition, the defendants signed on a blank white paper and there is no necessity on their part without knowing it. The scribe of Ex.A.1 is not experienced and not a document writer. The non mentioning of survey number, or, failure to assign reasons for selling the property does not speak that it is invalid agreement of sale. Agreement of sale only pertains to extent of property, agreed amount and the time for registration of the regular sale deed. Ex.A.1 does not require the minute details as if sale deed. Just it is an agreement before obtaining a registered sale deed. Any contention taken by the defendants from the oral evidence of P.W.1 are not acceptable under law.

17.According to P.W.2 the suit schedule property is the ancestral property of the defendants. P.W.2 is working as Teacher in a privater school, P.W.1 is his maternal uncle and he is no other than the second attestor. He asserts that the agreement of sale under Ex.A.1 is prepared on a white paper, affixing revenue stamps, that defendants 1 to 4 signed on the agreement in his presence. So far as the execution and attestation of Ex.A.1 is concerned, the evidence of P.W.2 is so clear proving both attestation and execution of Ex.A.1 and also consideration thereof.

18.According to P.W.3, he did not obtain any license for preparing documents, he is not a mediator in between the parties. P.W.3 also does not know whether the defendants 3 and 4 are also having children.

P.W.3 admitted that he did not mention the survey number as well as the reasons for sale. The duty of the scribe is to prepare the document on the dictation, or, instructions of the parties, or, furnishing particulars by the parties. It is not the case of the defendants that Ex.A.1 is not prepared without mentioning the instructions by the defendants. It is not the fault of

P.W.3 and also P.W.1 shall not became a sufferer for non mentioning of survey 11 number and reasons for sale in Ex.A.1. The 1st attestor is the Sarpanch of their village, who is a respectable person. A suggestion is given to P.W.3 that

Ex.A.1 is brought into existence and filed the suit because of the political rivalry in between the defendants and Sailada Satyanarayana, which is not supported by any mode of evidence.

19.After considering the rival contentions of both the parties, the plaintiff already has taken Exs.A.4 and A.5 FDRs for Rs.4,50,000/-, showing his readiness and willingness to get a regular sale deed. The contention of the defendants is that, the family members of the defendants 3 and 4 are also having interest over the property. Originally, the defendants 1 to 4 voluntarily executed Ex.A.1 to sell away the property, but, it appears that after exorbitant enhancement of rates of the property, the defendants 1 to 4 thought it fit to take a valid defence stating that the family members of the defendants 3 and 4 are also having interest and those members are not parties to Ex.A.1. With these contentions, a reply notice was issued under

Ex.A.3 which is a subsequent thought and only to defeat the interest of P.W.1 without executing regular sale deed in favour of P.W.1. Even according to the evidence of D.Ws 2 and 3, the family members of defendants 3 and 4 have no serious contest either to issue legal notice for partition of the properties, or, to file suit for partition so far. This suit is filed in the year 2011 basing on

Ex.A.1 agreement of sale and there is no material that the family members of defendants have taken steps for partition. If really, their version is true and correct, they will resort to initiate action as per law. In my considered opinion, the defence taken by the defendants is twofold one is that Ex.A.1 is not executed by the defendants treating it as an agreement of sale, and another is, that some other family members are also having interest over the property. The plaintiff has successfully proved the execution, attestion and consideration under Ex.A.1 and the burden on the plaintiff is discharged with 12 required and satisfactory evidence, as a result of which, the decisions relied on by the defendants are not applicable to the facts of the case on hand.

Moreover, the defendants took the above pleas only to drag the matter without executing a regular sale deed in favour of the plaintiff.

20.According to the decision reported in 2014 (5) ALD 374 (DB) if the plaintiff examine the scribe and attestor, in favour of the plaintiff and the defendants signed on it, only after receiving consideration, any plea taken by the defendants that they signed on Ex.A.1 under the impression that it is a deed of mortgage, cannot be accepted.

In this case also the contention of the defendants is that they signed on white paper for partition of properties, but not knowing the contents of agreement of sale. The defendants 1 to 4 are not innocents, or they are influenced by any fraud, or, misrepresentation, or undue influence.

Hence, this decision is applicable to the case of the plaintiff.

21.According to the decision reported in 2017 (4) ALD 1 when the defendnats have not taken any plea of fraud, or, applying force, or compulsion on the parties to create agreement of sale Ex.A.1, the silence on the part of family members of the defendants in not initiating any proceedings, such silence shows that Ex.A.1 is a genuine document. This decision is also applicable to the present facts of the case in favour of the plaintiff. So far, the family members of the defendants have not taken any legal step. Therefore, Ex.A.1 is a genuine document and only defendants are dodging on some ground, or other without executing a regular sale deed in favour of the plaintiff.

22.Coming to the decision relied on by the defendants reported in 2011 (3) ALT 137. This decision relates to burden of proof under

Sec.103 and 104 of the Evidence Act 1872. The burden always lies on the party, who seeks discretionary relief of specific performance under Ex.A.1.

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The plaintiff is ready and willing by depositing the amount under Exs.A.4 and

A.5 and also he issued notice under Ex.A.2. The plaintiff also examined P.Ws 2 and 3. Though the evidence of P.Ws 2 and 3 is challenged by the defendants 1 to 4, nothing can be elicited that the defendant signed on

Ex.A.1 without knowing that it is an agreement of sale. This court already came to the conclusion that the decisions relied on by the defendant are not applicable to the present facts of the case. As such, the plaintiff has successfully discharged his burden in proving executing, attestation and consideration thereof under Ex.A.1. In these circumstances, Ex.A.1 agreement of sale is considered to be true, valid and binding on the defendants and the plaintiff is entitled for specific performance of contract, directing the defendants to execute regular registered sale deed within three months from the date of this judgment at the instance and costs of the plaintiff. Both the issues 1 and 2 are answered in favour of the plaintiff and against the defendants.

23.I SSUE NO.3 :- Whether the plaintiff is entitled for

alternative relief of refund of advance sale consideration, as prayed

for ?

As the plaintiff has successfully proved his case for the relief of specific performance of agreement of sale (Ex.A.1), the question of refund of advance sale consideration does not arise and this issue is unnecessary in view of my findings on issues 1 and 2.

24.ISSUE NO. 4:- To what relief?

IN THE RESULT, the suit is decreed directing the defendants to execute registered sale deed basing on the agreement of sale dated 16.2.2011, within three months from the date of this judgment, on receipt of balance sale consideration under the FDRs (Exs.A.4 and A.5) with accrued interest and at the costs and instance of the plaintiff, failing which the 14 plaintiff has to execute the decree in accordance with law. In the circumstances of the case, both plaintiff and defendants shall bear their own costs.

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

pronounced by me in open court on this the 1 st day of November, 2017.

Sd/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

Appendix of evidence

Witnesses examined

For plaintiffs:- For defendants :

P.W.1 :Sailada Appalanaidu D.W.1 : Rajana Atchutha Rao

P.W.2 :Rajana RambabD.W.2 : Rajana Anjibabu

P.W.3 :Sailada TrinahdaraoD.W.3 : Rajana Eswaramma

Documents marked For plaintiffs:-

Ex.A.1/:Agreement of sale dated 16.2.2011

Ex.A.2/:Office copy of lawyer’s notice Dt; 4.4.2011

Ex.A.3/:Reply notice Dt; 11.4.2011

Ex.A.4/:FDR for Rs.4 lakhs dated 13.4.2011

Ex.A.5/:FDR for Rs.50,000/- dated 13.4.2011

For defendants:-

Ex.B.1/:Adangal for fasali 1426

Sd/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

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Table of costs

For plaintiff:- For defendant:-

Stamp on plaint Rs.4,826-00 No costs memo filed .do. On vakalat Rs. 3-00 .do. On process Rs. 500-00 Advocate fee Rs.5,000-00 ----------------- Costs certified Rs.10,329-00 -------------------

Sd/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

Copy of plaint schedule is hereto attached.

IN THE COURT OF THE SENIOR CIVIL JUDGE :: VIZIANAGARAM

Present:- Sri K.Rambabu,

Senior Civil Judge,

Vizianagaram

Thursday, this the 2nd day of November, 2017

ORIGINAL SUIT NO. 258 of 2011

Between:-

State Bank of Hyderabad, Lower Tank Bund Road, rep. By its Branch Manager Sri S.Srinivasarao s/o. Subbarao, aged about 43 years, resident of Vizianagaram.(now merged with State Bank of India)

.. PLAINTIFF

A n d :-

1. Gandham Veeraju s/o. G.V.Ravi Kumar (died)

2. Kanugula Sethu Udaya Vardhan s/o. Manmadharao (late), Hindu, aged about 32 years, resident of D.No.4-37, Gajularega, Vizianagaram

3. Gandham Nagamani w/o. Late Verraju, Hindu, aged 35 years, r/o. Ellisipuram village near Ryotu bazar, Badram temple, Srikakulam.

4. Gandham Vidydharani d/o. Late Veeraju, 11 years, rest do.

5. Gandham Yeswanth Kumar s/o. Veeraju, 8 years, rest do.

(Defendants 4 and 5 being minors rep. By their mother 3rd defendant) (Defendants 3 to 5 are added as L.Rs of the deceased 1st defendant as per order in IA 923/2012 dated 12.10.2017)

.. DEFENDANTS

This suit coming on this day for hearing before me in the presence of Sri Boddu Satyanarayana and Boddu Karthik, advocates for the plaintiff; the 1st defendant died pendenti lite, the 2nd defendant at the first instance appeared and filed his written statement and thereafter, he was set exparte, the defendants 3 to 5 having been called absent and set exparte, after having stood over for consideration till this day, this court delivered the following:- 2

J U D G M E N T

1.This is a suit filed by the plaintiff/bank praying to pass a preliminary against the defendants, directing the 2nd defendant and also the defendants 3 to 5 to pay a sum of Rs.3,71,170/- from out of the assets of the deceased Gandham Veeraju lying in the hands of defendants 3 to 5 together with interest @ 12.5% p.a. with quarterly rests, from the date of suit till date of realization, and for costs.

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

The plaintiff is a Nationalised Bank. The 1st defendant approached the plaintiff/bank for sanction of loan of Rs.4 lakhs and after completion of all formalities, the plaintiff/bank sanctioned loan of Rs.4 lakhs to the 1st defendant on 11.1.2007 under account No.62023299116. The 1st defendant agreed to repay the said amount in equal monthly instalments with interest @ 12.5% p.a. The 2nd defendant stood as guarantor for the said loan and both the defendants executed necessary documents in favour of the plaintiff/bank. The 1st defendant mortgaged the plaint schedule property towards security. Thereafter, the 1st defendant committed default in paying instalments. The plaintiff/bank during course of its business invoked the provisions of SARFACE Act and issued legal notice on 14.1.2011 for repayment of the loan. Having received the notice the defendants 1 and 2 kept quiet. Hence, the plaintiff/bank filed the suit initially against the defendants 1 and 2.

During pendency of the suit, the principal borrower ie., 1st defendant died and his legal representatives were brought on record as defendants 3 to 5 as per order in I.A.No.923/2012 Dt; 12.10.2017. Hence, 3 the plaintiff amended the relief and prayed the court to pass preliminary decree against the 2nd defendant personally and against the defendants 3 to 5 to pay the suit debt from out of the estate of the deceased Gandham

Veeraju lying in the hands of the defendants 3 to 5. Hence, the suit.

3.The 2nd defendant at the first instance made his appearance through an advocate, filed written statement and subsequently, he remained exparte. The defendants 3 to 5 who are added as L.Rs of the deceased 1st defendant, are also called absent and they were set exparte by way of publication.

4.On behalf of plaintiff/bank, its Manager is examined as

P.W.1 and Exs.A.1 to A.4 are marked.

5.Heard the learned counsel for the plaintiff.

6.The present Branch Manager of the plaintiff/bank by name

Sri Ch.Ramu, examined as P.W.1, by filing his chief affidavit, reiterating the plaint averments. He marked Exs.A.1 and A.4. The evidence of P.W.1 has been unchallenged by the defendants. The plaintiff is a Nationalised Bank and all the acts are presumed to be done during the course of its regular business. The 1st defendant died pendenti lite, 2nd defendant who stood as guarantor to the 1st defendant remained exparte. So also the defendants 3 to 5 who are the legal representatives of the deceased 1st defendant called absent and set exparte. In these circumstances, the oral evidence of P.W.1 coupled with Exs.A.1 to A.4 has to be accepted and it can be concluded that the deceased 1st defendant availed loan of Rs.4 lakhs for which the 2nd defendant stood as guarantor, and subsequently, the 1st defendant committed default. In these circumstances, the plaintiff/bank is entitled for decree, as prayed for.

7.IN THE RESULT, the suit is decreed as follows:- 4 i.granting preliminary decree for a sum of

Rs.3,72,170/- together with interest @ 6% p.a., on the principal amount of Rs.3,72,170/- from the date of suit till date of realisation against the 2nd defendant and against defendants 3 to 5 from out of the estate of the estate of the deceased

Gandham Veeraju (deceased 1st defendant) lying in the hands of defendants 3 to 5; ii. time for redemption granted for three months.

iii. The plaintiff is entitled for costs.

Typed to my dictation, corrected and pronounced by me in open court on this the 2 nd day of November, 2017.

Sd/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

Appendix of evidence Witnesses examined

For plaintiff:- For defendants: NONE

P.W.1 :Ch.Ramu

Documents marked

For plaintiff:-

Ex.A.1/:Loan agreement dated 11.1.2007 Ex.A.2/:Guarantee agreement Ex.A.3/:Memorandum of equitable mortgage Ex.A.4/:Account copy

For defendants:- NIL Sd/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM

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Date of presentation:-28.1.2011/14.6.11/28.7.2011 Date of filing:- 2.8.2011

IN THE COURT OF THE SENIOR CIVIL JUDGE :: VIZIANAGARAM

Present:- Sri K.Rambabu,

Senior Civil Judge,

Vizianagaram

Monday, this the 30th of October, 2017

ORIGINAL SUIT NO. 259 of 2011

Between:-

State Bank of Hyderabad, Lower Tank Bund Road, rep. By its Branch Manager Sri S.Srinivasarao s/o. Subbarao, aged about 43 years, resident of Vizianagaram.(now merged with State Bank of India)

.. PLAINTIFF

A n d :-

1. Gandham Veeraju s/o. G.V.Ravi Kumar (died)

2. Kanugula Sethu Udaya Vardhan s/o. Manmadharao (late), Hindu, aged about 32 years, resident of D.No.4-37, Gajularega, Vizianagaram

3. Gandham Nagamani w/o. Late Veraju, Hindu, aged 35 years, r/o. Ellisipuram village near Ryotu bazar, Badram temple, Srikakulam.

4. Gandham Vidydharani d/o. Late Veeraju, 11 years, rest do.

5.Gandham Yeswanth Kumar s/o. Veeraju, 8 years, rest do.

(Defendants 4 and 5 being minors rep. By their mother 3rd defendant) (Defendants 3 to 5 are added as L.Rs of the deceased 1st defendant as per order in IA 926/2012 dated 13.10.2017)

.. DEFENDANTS

This is a suit filed by the plaintiff/bank praying to pass a preliminary against the defendants, directing the 2nd defendant and also the defendants 3 to 5 to pay a sum of Rs.3,71,372/- from out of the assets of the deceased

Gandham Veeraju lying in the hands of defendants 3 to 5 together with interest @ 12.5% p.a. with quarterly rests, from the date of suit till date of realization, and for costs.

/2/

Value of the suit for the purpose of court fee and jurisdiction is

Rs.3,71,372/- and a court fee of Rs.6,226/- is paid u/sec.31 r/w 20 of APCF and SV Act.

This suit coming on this day for hearing before me in the presence of Sri Boddu Satyanarayana and Boddu Karthik, advocates for the plaintiff; the 1st defendant died pendenti lite, the 2nd defendant at the first instance appeared and filed his written statement and thereafter, he was set exparte, the defendants 3 to 5 having been called absent and set exparte, after having stood over for consideration till this day, this court doth order and,

PRELIMINARY DECREE

It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to the 28th day of January, 2011, is a sum of Rs.3,71,372/- for principal and interest, the sum of Rs.NIL for costs, charges and expenses (other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage security, together with interest thereon, and the sum of Rs.23,529/- for the costs of the suit awarded to the plaintiff, making in all the sum of Rs.3,94,901/-(Rupees Three Lakhs ninety four thousand nine hundred and one only) (Principal + Interest + costs of the suit).

2.And it is hereby ordered and decreed as follows:

(i)that the 2nd defendant and the defendants 3 to 5 from out of the estate of deceased Gandham Veerraju (D.1), which were lying in the hands of the defendants 3 to 5, do pay into the court, on or before 30th day of January, 2018, the said sum of Rs. 3,94,901/- along with subsequent interest @ 6% p.a. on the principal amount of Rs.3,71,372/- from the date of suit till date of realisation, or in any later date up to which time for payment may be extended by the court with interest .

(ii)that on such payment and on payment thereafter before such date as the court may fix of such amount as the court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 1, 10, together with such subsequent interest as may be payable under rule 1.11, of order XXXIV of the first schedule to the code of Civil Procedure, 1908, the plaintiff shall bring into court all the /3/ documents in his possession or power relating to the mortgaged property in the plaint mentioned and all such documents shall be delivered over to the defendants or to such person as he appoint, and the plaintiff shall, if so required, recovery or retransfer the said property free from the said mortgage and clear of and from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so, required, deliver up to the defendant quite and peaceful possession of the said property.

3.AND it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff may apply to the court for a final decree for the sale of the mortgaged property, and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be sold; and for purposes of such sale the plaintiff shall produce before the court or such officer as it appoints all documents in his possession or power relating to the mortgage property.

4.AND it is hereby further ordered and decreed that the money realized by such sale shall be paid into court and shall be duly applied (after deduction there from of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit and in payment of any amount which the court may adjudge due to the plaintiff in respect of such costs of the suit, and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11 of order XXXIV of the first schedule to the Code of Civil Procedure, 1908, and that the balance, if any shall be paid to the defendant or other persons entitled to receive the same.

5.And it is hereby further ordered and decreed that, if the money realized by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty ( Where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force ) to apply for a personal decree against the defendant for the amount of the balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, /4/ and on such application or otherwise the court may give such directions as it thinks fit.

Given under my hand and the seal of the court, this the 30th day of October, 2017.

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

MEMORANDUM OF COSTS

For Plaintiff:

Stamp on Plaint: 6,226-00 Stamp on Vakalat: 3-00 Stamp on process: 300-00 Advocate fees: 12,500-00 Publication charges: 4,500-00 --------------------- Costs allowed: 23,529-00 --------------------

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

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IN THE COURT OF THE SENIOR CIVIL JUDGE :: VIZIANAGARAM

Present:- Sri K.Rambabu,

Senior Civil Judge,

Vizianagaram

Wednesday, this the 7th day of August, 2019

ORIGINAL SUIT NO. 658 of 2014

Between:-

Mantri Siva Prasadarao s/o. Narasimha Murthy, Hindu, aged about 65 years, Retgd. Employee, residing at C/o. I.A.L. Narayana, door No.1-13/2-121, 3rd street, Boggula Dibba, Cantonment, Vizianagaram

.. PLAINTIFF

A n d :-

Chokkaku Arjuna Rao s/o. Pentayya, Hindu, aged about 31 years, residing at Budathanapalli village, Gantyada mandal, Vizianagaram dist.

.. DEFENDANT

This suit coming on this day for final hearing before me in the presence of Sri I.Ramesh, S.Jagan Mohanarao, Advocates for the plaintiff and of Sri B.Satyanarayana and B.Karthik, Advocates for the defendant, after 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 praying to pass a preliminary decree in his favour for Rs.3,72,000/- and against the defendant with costs and subsequent interest on the principal amount of Rs.2,00,000/- due under a simple mortgage deed dated 22.2.2011, from the date of suit till date of realisation and in case, if the defendant fails to pay the amount, order for sale of the mortgaged property and pay the sale proceeds to the plaintiff 2 and in case, the sale proceeds are not sufficient, to pass a personal decree against the defendant.

2.The averments of the plaint are as follows:-

The defendant for his family necessities i.e., for house construction expenses, borrowed a sum of Rs.2,00,000/- from the plaintiff on 22.2.2011, agreeing to repay the same with interest @ 24% p.a, and accordingly executed a simple registered mortgage deed in favour of the plaintiff, mortgaging the schedule mentioned property. In spite of repeated demands, the defendant did not repay the amount due under the mortgage.

Thereupon, the plaintiff got issued a legal notice to the defendant, demanding payment of amount due. However, the defendant evaded to receive the same. Hence, the plaintiff filed the present suit.

3.The defendant filed written statement, denying all the plaint averments and contended that, the defendant is a permanent resident of Budathanapalli village, and used to do meals contract to various hospitals and other institutions. During such course of said contracts, it became inevitable for this defendant to borrow huge amounts to a tune of

Rs.25,50,000/- from various persons and thereafter, in the said business, the defendant sustained huge loss and also do not have any financial capacity to discharge the said debts. Due to immense pressure of the creditors, this defendant filed I.P.8/2014 before the Senior Civil Judge’s Court, Vizianagaram and the same is pending. As a counter blast to the said I.P, the present suit is filed by the plaintiff with untenable allegations. In view of the pendency of

I.P, and under the provisions of Insolvency Act, the present suit is not at all tenable and not at all maintainable under law. Hence, the suit is liable to be rejected and dismissed in limini. Finally, it is prayed by the defendant to dismiss the suit with costs.

3

4.Basing on the above rival contentions, the following issues have been framed on 7.6.2017:- i. Whether the plaintiff is entitled for a preliminary decree for a sum of Rs.3,72,000/- together with interest @ 24% p.a, on the

principal amount of Rs.2,00,000/- from the

date of suit till date of realisation ?

ii. Whether the plaintiff is entitled for the relief of personal decree against the defendant in case the sale proceeds of the mortgaged property is not sufficient to satisfy the decretal amount ?

iii. Whether the suit is maintainable in view of IP 8/2014 filed by the defendant on the file of this court ?

iv.To what relief?

5.Earlier, this court delivered judgment in this case on 26.6.2018, on merits, dismissing the suit, with costs. Aggrieved by the said

Judgment and decree, the unsuccessful plaintiff preferred appeal in

A.S.No.89/2018 before the Hon’ble District Court, Vizianagaram. Whereupon,

the Hon’ble District Court, Vizianagaram, was pleased to set aside the decree and judgment in question and remanded the suit to this court, with a direction to give opportunity to both parties to adduce evidence, if any, and to dispose off the suit afresh within 45 days from the date of receipt of the record.

6.In this suit, earlier P.W.1 is examined, Exs.A.1 to A.4 are marked. The defendant is not examined. After remand of the matter to this court, during the course of further trial, the plaintiff let in evidence by examining P.W.2 and defendant examined himself as D.W.1 and marked no documents. Issues in this suit framed earlier are not disturbed.

7.Heard both sides. Perused the record.

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8.ISSUES NO.1 to 3:- According to the case of the plaintiff, the defendant borrowed a sum of Rs.2,00,000/- from him on 22.2.2011 agreeing to repay the same with interest @ 24% p.a and on receipt of consideration, the defendant executed Ex.A.1 registered mortgage deed in favour of the plaintiff and when the defendant failed to redeem the same, he filed the present suit.

9.On the other hand, the case of the defendant is that, he sustained loss in his business of meals contract and he borrowed

Rs.25,50,000/- from different creditors and as he was unable to discharge the debts, he filed I.P.No.8/2014 showing the debt of the plaintiff. The plaintiff filed the suit even in spite of Insolvency Petition 8/2014 is filed by the defendant. P.W.1 is no other than the plaintiff/mortgagee. In order to comply

Sec.68 of the Indian Evidence Act, one of the attesting witness is examined as P.W.2. The defendant while examining himself as D.W.1 admitted the debt under Ex.A.1, but contends that the debt under Ex.A.1 is not a secured debt and leave of Insolvency Court is required to file the suit. The contention of the plaintiff is that according to Sec.58 of the Transfer of Property Act 1882, it is a secured debt, irrespective of nature of mortgage as defined under

Sec.58 of the Transfer of Property Act.

10.The plaintiff further invited the attention of this court to the definition of “secured creditor”, as per Sec.2 of Provincial Insolvency Act, 1920, a person holding a mortgage, charge, or, lien on the property of the debtor, or, any part thereof, as a security for the debt due to him from the debtor. Therefore, the plaintiff obtained mortgage under Ex.A.1 and he is a secured creditor as per definition of Sec.2 of Insolvency Act, 1920. According to Sec.28 (6) of the Provincial Insolvency Act, 1920, nothing in this section shall effect the power of any secured creditor to realise, or, otherwise deal with his security, in the same manner as he would have been entitled to 5 realise, or, deal with it. Therefore, pendency of Insolvency Application filed by the defendant is not a bar to file a suit by the plaintiff as per Sec.28(6) of the Insolvency Act, 1920. In such a situation, the contention taken by the defendant that the debt under Ex.A.1 is not a secured debt, cannot be accepted. Mere filing of I.P.8/2014 cannot be construed as adjudicated and

Sec. 28(6) of the Insolvency Act attracts to the case of the plaintiff.

I.P.8/2014 is not yet adjudicated and property is not vested with the receiver as per sub Sec.2 of Sec.28 of the Insolvency Act. The plaintiff is a secured creditor and even after adjudication also, Sec.28 of the Insolvency Act is not applicable in view of the bar under Sec.2 of the Insolvency Act, since the plaintiff is a secured creditor. In such circumstances, the plaintiff has no legal necessity to approach the Insolvency Court seeking to grant leave for filing the suit based on Ex.A.1. Therefore, the suit is maintainable even though

I.P.8/2014 is pending on the file of this court as per Sec. 28(6) of the

Insolvency Act, 1920. Resultantly, the plaintiff is entitled both for preliminary decree and personal decree in respect of the debt taken by the defendant from the plaintiff under Ex.A.1. All the issues are answered accordingly.

11.ISSUE NO. 4:- IN THE RESULT, the suit is decreed as follows:-

1. Granting preliminary decree for

Rs.3,72,000/- with costs and subsequent interest @ 6% p.a., on the principal amount of Rs.2,00,000/- from the date of suit till date of realisation;

2. In case the sale proceeds of mortgage property is not sufficient to satisfy the decretal amount, the defendant is personally liable to pay the remaining amount.

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3.Time for redemption granted is

FOUR MONTHS.

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

pronounced by me in open court on this the 7th day of August, 2019.

SD/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

Appendix of evidence

Witnesses examined

For plaintiff:- For defendant:

P.W.1 :Mantri Siva Prasadarao D.W.1 : Chokkaku Arjuna Rao

P.W.2 :Emandi Kalyana Chakravathi

Documents marked

For plaintiff:-

Ex.A.1/:Simple registered Mortgage deed executed by the defendant in favour of the plaintiff dated 22.2.2011

Ex.A.2/:Office copy of legal notice dated 5.8.2014

Ex.A.3/:Postal acknowledgments

Ex.A.4/:Returned cover.

For defendant:- NIL

SD/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

IN THE COURT OF THE SENIOR CIVIL JUDGE :: VIZIANAGARAM

Present:- Sri K.Rambabu,

Senior Civil Judge,

Vizianagaram

Friday, this the 3rd day of November, 2017

ORIGINAL SUIT NO. 414 of 2011

Between:-

Sri Sai Traders, a proprietary concern, reptd. By its Proprietor, Sri Akasapu Srinivasa Raghava @ Vasu, s/o. Bhavanishankar, aged about 38 yrs Hindu, business, R/o. M.G.Road, Vizianagaram.

.. PLAINTIFF

A n d :-

1. M/s. Pujyadarshan Dyeing, E-237, 3rd phase, Industrial area, Balhotra-344 022 (Rajasthan state)

2. S.S.Agencies, Commission agent, rep. By its Proprietor Sanjay Sharma, aged about 40 years, Hindu, r/o. Shop No.181, Upstairs, SBT Market, Cantonment, Vizianagaram.

.. DEFENDANTS

This suit coming on 31.10.2017 for final hearing before me in the presence of Sri K.Krishna Murthy, advocate for the plaintiff and the defendants having been called absent and set exparte, after having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

1.This is a suit filed by the plaintiffpraying to pass a preliminary decree against the defendants, directing for settlement of account between the plaintiff and the defendants from 11.11.2004 and to pass a final decree in terms of preliminary decree and for costs of the suit.

2.The averments of the plaint are as follows:-

The plaintiff is doing business in manufacturing petticoats and women-wear since 2001, by getting cloth from various companies including the 1st defendant through it’s agent 2nd defendant 2 herein. The plaintiff used to place indents in writing, through the 2nd defendant to the 1st defendant and other companies and receiving stocks from the 1st defendant and used to pay the amount through the 2nd defendant. The 2nd defendant has been maintaining bill to bill clearance accounts and whereas the plaintiff and the 1st defendant have opened a mutual and open account in their respective accounts. The plaintiff has been noting every transaction like stocks received in stock register, invoice file, piling up all invoices being sent by the 1st defendant and other companies, receipts, evidencing payment of amounts and ledgers. Similarly, the 1st defendant also maintaining the accounts in the name of plaintiff in its books of account. The 2nd defendant used to give periodical statements and bills, outstanding due. Due to continuous monitoring in the business, the plaintiff had to repose confidence with the 2nd defendant and believing at times the plaintiff used to make payments upon the assurance of the 2nd defendant.

Lateron, it is transpired that the 2nd defendant, while acting as an agent of the 1st defendant and in breach of confidence, used to misappropriate some amounts, paid by the plaintiff, towards the amounts payable to the 1st defendant.

While giving some periodical statements of accounts by the 2nd defendant, he was mentioning the amounts received by him, to the credit of the 1st defendant though no receipt was passed for such amount.

Whileso, the 2nd defendant approached the plaintiff in the 2nd week of

September 2006, for payment due and further indents to various companies, then the plaintiff demanded for passing of receipts for the amounts already paid by him and after verification of his office files, he passed receipts to the plaintiff. Later, in order to save his skin, for being prosecuted for the offence of breach of trust by the 1st defendant and other companies, whose amounts were misappropriated, the 2nd defendant made false complaint to the 3

Wholesale Cloth Merchants Association, which summon both the plaintiff and 2nd defendant, for showing accounts.

Later, the 2nd defendant got issued a notice on 5.12.2006 demanding huge amounts covered by the receipts passed in the month of September 2006, for which a suitable reply was issued by the plaintiff on 25.12.2006. Thereafter, the 2nd defendant filed O.S.27/2007 on the file of Senior Civil Judge’s Court, Vizianagaram, for recovery of amount of

Rs.2,12,224/- said to be due by the plaintiff to the 1st defendant. Thereafter, the plaintiff sent registered letter dated 6.2.2007 and copies of its accounts to all companies, to which the 2nd defendant is acting as an agent. The plaintiff owes an amount of Rs.37,583/- only to the 1st defendant, but, not the quantum of amount demanded by the 1st defendant. On verification of the accounts of the plaintiff and that of the 1st defendant, the plaintiff felt that some wrong entries were made, showing the dispatch of goods, though not indented and some payments made, were not reflected, as such, there is necessity for settlement of account of the plaintiff and 1st defendant. The 2nd defendant has been proclaiming in the market that he will see that the plaintiff cannot carry on any business and hence, the plaintiff sought for reconciliation of accounts and he will be entitled to a tune of Rs.37,583/-, being the amount paid in excess to the 1st defendant through the 2nd defendant. Hence, the plaintiff is constrained the present suit praying the court to direct the defendants for settlement of accounts.

3. Originally, the suit was filed before the Principal Junior

Civil Judge Court, Vizianagaram on 5.6.2007 and numbered as O.S.359/2007.

At the first instance, the 2nd defendant filed written statement and the same has been adopted by the 1st defendant, denying the averments of the plaint.

Thereupon, basing on the above pleadings, the learned Prl. Junior Civil Judge,

Vizianagaram, settled the following issues:- 4

I.Whether the plaintiff is entitled to reconciliation of accounts as prayed for ?

II. Whether the frame of the suit is not correct?

III. Whether the court fee paid is not proper?

IV. To what relief?

4.Thereafter, as per the order of the Hon’ble Prl. District

Judge, Vizianagaram, in TOP No.688/2009 dated 22.10.2011, the above suit

i.e., O.S.359/2007 was transferred to this court and renumbered as

O.S.414/2011. Thereafter, the matter went on for several adjournments.

Subsequently, when the matter is coming up for cross-examination of P.W.1, defendants did not turn up and hence, one of my Predecessors in Office, set the defendants exparte on 29.9.2016. Thereupon, this court proceeded with further in this matter, since it is an old matter pertains to pre-2012.

5.During the course of trial, on behalf of plaintiff, P.W.1 is examined, Exs.A.1 to A.10 are marked.

6.Heard the counsel for the plaintiff. Perused the record.

7.P.W.1 by name Akasapu Srinivasa Raghava @ Vasu, who is the Proprietor of plaintiff firm, filed his chief affidavit reiterating the contents in the plaint. He marked relevant documents as Exs.A.1 to A.10. The defendants remained exparte. Therefore, the oral evidence of P.W.1 and the documentary evidence under Exs.A.1 to A.10 became unchallenged. In the absence of any contra evidence, this court has no other option except to accept the plea of the plaintiff. In these circumstances, the plaintiff is entitled for the relief as prayed for.

8. IN THE RESULT, the suit is decreed as follows:

I. granting preliminary decree, directing the defendants to settle the accounts in between the plaintiff and defendants from 11.11.2004; 5 and settlement of accounts shall be decided on a separate application;

II. the defendants are hereby directed to pay suit costs and plaintiff is directed to pay court fee on the excess, if any, on the amount arrived at the time of final decree;

Typed to my dictation, corrected and pronounced by me in open court on this the 3 rd day of November, 2017.

Sd/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

Appendix of evidence Witnesses examined For plaintiff:- For defendants: NONE

P.W.1 :A.Srinivasa Raghava

Documents marked For plaintiff:- Ex.A.1Served copy of the plaint filed by the 2nd defendant in

O.S.27/2007 on the file of Senior Civil Judge’s Court.

Ex.A.2Served copy of notice dt 5.12.2006 got issued by D.2 to the plaintiff Ex.A.3Office copy of reply notice Dt; 25.12.2006 to Ex.A.2 Ex.A.4Office copy of notice Dt; 6.2.2007 got issued by the plaintiff to D.1 and others Ex.A.5Served copy of Notice dated 10.5.2007 Ex.A.6Account copy for the years 2004-05; 2005-06; 2006-07 Ex.A.7Invoice-cum-challans (28 in number) between the period from 2004 to 2005, issued by D.1 Ex.A.8Counterfoils of SBI, Vizianagaram (13 in number) evidencing payment by way of D.D. to D.1 by the plaintiff Ex.A.9Receipts (33 in number) issued by D.2 Ex.A.10Registration certificate

For defendants: NIL

Sd/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

6

Dt; 3.11.2017 contd..

Judgment pronounced (vide separate judgment).

IN THE RESULT, the suit is decreed

I.grantingpreliminary decree,directingthe defendants to settle the accounts in between the plaintiff and defendants from 11.11.2004; and settlement of accounts shall be decided on a separate application;

II.thedefendantsare hereby directed to pay suit costs and plaintiff is directed to pay court fee on the excess, if any, on the amount arrived at the time of final decree;

SCJ,VZM

1

IN THE COURT OF THE SENIOR CIVIL JUDGE :: VIZIANAGARAM

Present:- Sri K.Rambabu,

Senior Civil Judge,

Vizianagaram

Tuesday, this the 6th day of August, 2019

ORIGINAL SUIT NO. 335 of 2016

Between:-

Borusu Nityanandam s/o. Late Latchayya, Hindu, aged about 63 years, resident of Sri Nagar, Visakhapatnam.

.. PLAINTIFF

A n d :-

Dunnana Satyanarayana s/o. Surapanaidu, Hindu, aged about 58 years, r/o. D.No.1-64-8/1, LIG-27, Sector-1, Near Park, M.V.P. Colony, Visakhapatnam.

.. DEFENDANT

This suit coming on this day, for hearing before me in the presence of Sri Boddu Satyanarayana and Boddu Karthik, Advocates for the plaintif and the defendant remained exparte, after having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

1.This is a suit filed by the plaintif praying to grant permanent injunction restraining the defendant, his men, agents, relatives, friends, from interfering with the peaceful possession of the schedule property by the plaintif and for costs of the suit.

2

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

(i) At present, plaintif and defendant are residing at

Visakhapatnam. The plaintif is the absolute owner of the property situated in Chowduvada village, Pusapatirega mandal, Vizianagaram district, which is described in the plaint schedule, to a total extent of Ac.3.79 cents comprising in S.Nos 5/5, 6/1, 6/3 and 5/4. Originally, Sri Pariti Raghunadha

Kasipathi is the absolute owner of the plaint schedule property, together with some other property with absolute rights, title, interest and possession. The said Pariti Raghunadha Kasipathi sold away the plaint schedule property together with some other property to the plaintif through registered sale deed dated 30.3.1998 bearing document No.426/1998 and handed over possession of the same on the date of registration itself, to the plaintif.

Since then the plaintif is in possession and enjoyment of the plaint schedule property with absolute right and title. In addition to the same, there are various transaction in between the plaintif and the said Raghunadha

Kasipathi, in respect of other properties.

(ii)After purchase of the property, the name of the plaintif is mutated in all revenue records and the plaintif also paying cist in respect of the plaint schedule property. Subsequently, out of the said entire property purchased by the plaintif under the sale deed dated 30.3.1998, the plaintif sold an extent of Ac.0.60 cents in S.No.15/3 and an extent of Ac.0.72 cents in S.No.15/2 of Chowduvada village is in possession of plaint schedule property covered under the above said registered sale deed with absolute right, title and possession thereof.

(iii)Whileso, the defendant approached the plaintif and requested him to sell the plaint schedule property along with other property, for which the plaintif agreed with certain terms and conditions, and also to keep some obligations. Accordingly, agreement of sale is executed in 3 favour of the defendant and the contract is concluded in between the plaintif and defendant with various terms and conditions, by specifically agreeing that time is essence of contract and retaining possession of the plaint schedule property with the plaintif only. The defendant also executed an agreement in favour of the plaintif for the same. The plaintif is ready to perform his part of contract. But, the defendant failed to perform his part of contract under the agreement of sale and committed default. During last week of May 2016 a mediation and negotiation is raised in between the plaintif and the defendant wherein the defendant agreed that he could not arrange the remaining consideration and further agreed to cancel the agreement of sale executed by the plaintif agreeing to return the same by endorsing cancellation endorsement on or before 31.7.2015, for which the plaintif agreed.

(iv)Thereafter, the plaintif got issued a lawyer’s notice dated 12.8.2016 calling the defendant to return the agreement of sale with due cancellation endorsement along with four pattadar pass books within three days from the date of receipt of notice, but in vain. Later, the plaintif got issued another registered notice on 5.10.2016, but the defendant failed to act accordingly. The defendant is trying to foist false cases and false complaints against the plaintif and his family members and the defendant on 10.10.2015, along with his men and anti social elements, tried to interfere with the possession and enjoyment of the plaintif, however, with great difficulty, the plaintif could resist the acts of the defendant. The defendant left the spot by proclaiming that he would trespass into the plaint schedule site and dispossess the plaintif. The defendant has no right, or, nexus with the plaint schedule property and he does not have any right to interfere with the possession and enjoyment of the plaintif over the plaint schedule property. If the defendant succeeded in his attempts, the plaintif would 4 sufer irreparable loss and injury. Hence, the plaintif filed the suit for permanent injunction.

3.The defendant remained exparte and did not choose to contest the matter.

4.In support of his contention, the plaintif examined himself as P.W.1 and marked Exs.A.1 and A.2.

5.Heard the learned counsel for the plaintifs.

6.Now the point for consideration is, “Whether the plaintif is entitled for permanent injunction restraining the defendant, his men, friends and relatives from ever interfering with his peaceful possession and enjoyment in respect of the plaint schedule property, as prayed for?”

7.POINT:- To prove his contention, the plaintif himself examined as P.W.1, by filing his chief affidavit, wherein the contents of the plaint are once again reiterated. He relied on Exs.A.1 and Ex.A.2. Ex.A.1 is registered sale deed dated 30.3.1998 whereunder the plaintif purchased the plaint schedule property from one Pariti Raghunadha Kasipathi and Ex.A.2 cist receipt shows that the plaintif paid land revenue to the Government. The defendant remained exparte and did not contest the matter. As such, the evidence of P.W.1 became unchallenged and unimpeached. Further, the plaintif, by examining himself as P.W.1 and exhibiting the documents under

Exs.A.1 and A.2, proved that he is the absolute owner of the plaint schedule property and he is in possession and enjoyment of the plaint schedule property by the date of filing of the suit. Therefore, in the absence of contest of the defendant, the claim of the plaintif can be accepted and the plaintif is entitled for permanent injunction against the defendant. The point is answered accordingly.

5

8.IN THE RESULT, the suit is decreed with costs, granting relief of permanent injunction in favour of the plaintif, restraining the defendant, his men, agents, relatives and friends from ever interfering with his peaceful possession and enjoyment, in respect of the plaint schedule property.

Typed to my dictation on computer, corrected and pronounced by me in open court on this the 6th day of August, 2019.

SD/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.

Appendix of evidence

Witnesses examined

For plaintif:- For defendant: NONE

P.W.1 :Borusu Nityanandam

Documents marked

For plaintifs:-

Ex.A.1/: Registered sale deed dated 30.3.1998

Ex.A.2/: cist receipt dated 6.2.2008

For defendant:- NIL

SD/- K.RAMBABU

SENIOR CIVIL JUDGE,

VIZIANAGARAM.