Smt. K. Vijaya Kalyani

1 Fair Judgment in O.S.547/2016,

dated 04-11-2019

IN THE COURT OF THE I ADDL. SENIOR CIVIL JUDGE :: KAKINADA

Present : SMT.K.VIJAYA KALYANI I Addl. Senior Civil Judge, Kakinada

Monday, the 4th day of November, 2019

O.S.547/2016

Between:

M/s.Sri Sai Gopi Krishna constructions, D.No.5-3, Vadlamuru. Peddapuram Mandal. E.G.Dt., represented by the Managing Partner M.Chandrasekhararao, S/o Suryanarayana, Hindu, 48 years, Vadlamuru, Peddapuram Mandal.…Plaintiff.

AND

1.The Chief Engineer, A.P. Rajiv Swagruha Corporation Ltd., 7th floor, Gagana Vihar, M.J.Road, Nampally, Hyderabad – 500 001. 2.The Senior General Manager (Projects), A.P. Rajiv Swagruha Corporation Ltd., ABJA Township, Chollangi, Tallarevu Mandalam. 3.The State represented by the District Collector, East Godavari, Kakinada.…Defendants.

This suit coming on 15-10-2019 for final hearing before me in the presence of Sri P.Subbarao, Smt.K.Saradadevi, Advocates for plaintiff and of Assistant Government Pleader for defendants and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This suit has been filed by the plaintiff’s company

represented by its Managing Partner Sri M.Chandrasekhara Rao to

pass a decree for Rs.8,24,400/- in their favour and against the

defendants with interest, costs and other reliefs.

1.Brief averments made in the plaint are as follows:-

Plaintiff was given contract work on tender basis under agreement dt.27-06-2013 for laying of B.T.surface to existing approach road from N.H.214 to ABJA Township and laying internal roads for packages-C and

D area under Phase-I within six months stipulated period at Chollangi Village,

Tallarevu Mandal near Kakinada under Rajiv Swagruha Scheme. On that 2 Fair Judgment in O.S.547/2016,

dated 04-11-2019

plaintiff furnished bank guarantee for Rs.4,30,700/-, paid insurance amount for the works, spent Rs.2 lakhs for the works, requested the department to handover clear possession of site without any hurdles and obstructions, but, defendants department failed to do so.

Plaintiff made correspondence with the department to handover possession as per Clause 20.1 of terms and conditions of the agreement, extension of time to complete the work, for estimation to grant E.O.T., but, no favourable reply received from the department.

Plaintiff issued notice on 03-11-2015 to the defendants 1 and 2 to consider circumstances or else to close the contract, return EMD and to pay the spent amount of Rs.2,00,000/-. 1st defendant issued reply notice

dated 01-12-2015 denying notice contents. Plaintiff got issued another legal

notice to defendants, but, they did not issue any reply notice.

Defendants Department has withdrawn the bank guarantee of

Rs.4,30,700/- on 01-12-2015. Even plaintiff filed W.P.38816/2015 before

Hon’ble High Court of A.P., Hyderabad to issue Writ of Mandamus, writ order

declaring the action of defendants in cancelling the contract without handing over possession physically as illegal and arbitrary, violative of principles of natural justice and consequently to set aside notice letter dated 15-10-2015.

The Hon’ble High Court admitted Writ Petition and dismissed the petition with a direction to approach local Court within jurisdiction.

Under such circumstances, plaintiff is constrained to file the present suit. Hence, the plaint.

2.The defendants denied and disputed the claim of the plaintiff in toto. 2nd defendant filed detailed written statement which was adopted by D1 and D3.

3.Brief averments of the written statement filed by the 2 nd defendant are as follows:-

(a) This defendant admits that on 27-06-2013 plaintiff was given contract work. As per the terms of contract, plaintiff has to complete the 3 Fair Judgment in O.S.547/2016,

dated 04-11-2019

entrusted work within six months. Accordingly, 2nd defendant handed over land for placing road. Plaintiff did work for only one day, left place unattended and did not choose to complete the work entrusted. As plaintiff did not complete the entrusted work in time, 2nd defendant withdrawn the guaranteed amount. Suppressing the facts, plaintiff invented the theory that defendants did not clear the hurdles.

(b) This defendant submits that the land on which work was to be done is a clear land, nothing was to be cleared off as stated by the plaintiff.

Plaintiff alone has to prove the alleged hurdles. Pipelines are no way hurdles for plaintiff to lay road.

(c) This defendant submits that plaintiff’s company with their misbehaviour did not come forward to complete the entrusted work, on that department issued show cause notice on 25-08-2015. As there is breach of agreement on the part of plaintiff, 1st defendant cancelled the agreement.

Without doing any work, plaintiff’s company put a claim in an improper manner for huge amount to gain unlawfully.

(d) This defendant submits that as already contract dated 26-07-2013 lapsed, the question of closing of agreement does not arise. As there is breach of agreement, department withdrew the amount from the bank, as such, they are not liable to alleged insurance made by plaintiff’s company investing Rs.47,262/- and plaintiff’s company alone should prove the same.

(e) This defendant submits that suit is barred by limitation and not maintainable. Value of the suit is incorrect. Hence, prays to dismiss the suit with exemplary costs.

4.After hearing both sides and basing on the above pleadings, this

Court framed the following issues:-

1. Whether the plaintiff paid an amount of Rs.2,01,700/-,

Rs.47,262/- and an amount of Rs.4,30,700/- for construction works?

4 Fair Judgment in O.S.547/2016,

dated 04-11-2019

2. Whether the defendants 1 to 3 are liable to pay any amounts to plaintiff?

3. Whether the plaintiff is entitled for suit claim?

4. To what relief?

5.Heard arguments.

6.To prop up the contentions of both parties, plaintiff

examined himself as P.W.1 and got marked Exs.A1 to A11

documents. On the other hand, general manager of A.P. Rajiv

Swagruha Corporation Ltd by name Kambala Venkata Mutya Saya

Satyanarayanarao examined as D.W.1 on behalf of the defendants.

Exs.B1 to B4 were marked.

7.As Issues 1 to 3 overlap each other, for better appreciation, all the three Issues were answered at a stretch.

Issues 1 to 3:-

1. Whether the plaintiff paid an amount of Rs.2,01,700/-,

Rs.47,262/- and an amount of Rs.4,30,700/- for construction works?

2. Whether the defendants 1 to 3 are liable to pay any amounts to plaintiff?

3. Whether the plaintiff is entitled for suit claim?

It is the contest of the plaintiff’s company that contract

work was entrusted to them on tender basis under agreement dated

27-06-2013, but, defendants department did not hand over site

without any hurdles despite several demands. Plaintiff mobilised

labour and materials by giving advance and spent Rs.2,01,700/- and

made preliminary works. Plaintiff issued notice on 03-11-2015 to

the defendants 1 and 2 to consider circumstances or otherwise,

5 Fair Judgment in O.S.547/2016,

dated 04-11-2019

close the contract, return EMD and to pay spent amount of

Rs.2,00,000/-, for which, 1 st defendant issued reply notice dated 01-

12-2015 denying notice contents. Again, another legal notice has

been issued by plaintiff to defendants, having received, defendants

did not issue any reply notice. Therefore, plaintiff is constrained to

file the present suit for recovery of amounts for the value of

insurance amount, value of bank guarantee. Hence, prays to decree

the suit with costs.

Per contra, it is the contest of the defendants 1 to 3 that

as per the terms of the agreement plaintiff’s company has to

complete entrusted work within six months, but, failed to do so and

did work for only one day and did not choose to complete the work

entrusted. As work not completed, 2 nd defendant withdrawn the

guaranteed amount. Several letters addressed to the plaintiff, but,

no response from his side. Plaintiff did not place any material or

machinery in the work spot, did not mobilise labour, did not invest

amount and did not spent that much amount as mentioned in plaint

anticipating the alleged clearing possession of land. In fact, land on

which work was to be done is a clear land, nothing was to be cleared

off as stated by the plaintiff. Pipelines are no way hurdles to the

plaintiff to lay road and complete work entrusted. As there is breach

of agreement on the part of plaintiff, 1 st defendant withdrew the

amount and they are not liable to alleged insurance made by

plaintiff investing Rs.47,262/- and plaintiff alone has to prove the

same. Hence, prays to dismiss the suit with exemplary costs.

To prove their case, plaintiff’s construction company

examined their managing partner Sri M.Chandra Sekhararao as

P.W.1. His chief affidavit is admitted in lieu of chief examination which is the replica of the plaint pleadings. Through him Exs.A.1 to A.7 were marked wherein Ex.A.1 is letter of D1; Ex.A2 is the reply; Ex.A3 is the termination 6 Fair Judgment in O.S.547/2016,

dated 04-11-2019

letter; Ex.A4 is the office copy of legal notice; Ex.A5 is the reply notice; Ex.A6 is the notice given by the plaintiff; Ex.A7 is the expenditure statement; Ex.A8 is the photos along with C.D.; Ex.A9 is the letter dated 25-04-2014 addressed to Chief Engineer, APRSCL, Bandlaguda, Hyderabad; Ex.A10 is the letter

dated 23-11-2013 addressed to General Manager, APRGCL, Kakinada and

Ex.A11 is the letter dated 06-04-2016 addressed by General Manager,

APRGCL, Kakinada.

Exs.A1, A2, A3, A4, A5, A6, A8, A9, A10 and A11 are admitted documents, hence, not discussed in detail.

He was cross examined at length by the counsel for the defendants. In his cross examination, he stated that date of agreement is 27-06-2013 and as per agreement, he should complete work within six months.

With regard to visiting site, at one breathe of cross examination, he stated that he did not verify the site location prior to filing tender. In another breathe of cross examination, he admitted that before bidding, he physically verified the site.

To know the exact facts let us peruse Ex.B1 which was admitted by both parties. One of the terms or conditions in Ex.B1 in S.No.2 at Page 45, it has been mentioned as follows:-

“we have inspected the site of the work before quoting my

percentage excess or less on ECV. We have satisfied about the

quality, availability and transport facilities for stones, sand and

other materials.”

In S.No.3 at Page 45 it has been mentioned as follows:-

“we are prepared to furnish detailed data in support of all

my quoted rates, if and when called upon to do so without any

reservations.” 7 Fair Judgment in O.S.547/2016,

dated 04-11-2019

Therefore, Ex.B1 (bidders/Contractor’s certificate), clearly speaks that plaintiff has inspected site of the work before quoted percentage.

Hence, the evidence of P.W.1 that he physically verified the site before bidding prevails.

In further cross examination, P.W.1 stated that the site was not given in possession to him, as such, he could not complete the contract work.

The admitted agreement between him and the defendants has been confronted and marked through him as Ex.B1. He admitted the terms and conditions of the agreement.

He admitted that as per clause 14.6 at Page No.29 of the agreement, the earnest money deposit will not carry any interest. He also admitted that as per clause 14.7 if the bidder withdraws the bid during the validity period of bid, the EMD shall be forfeited.

With regard to this piece of evidence, it is the case of plaintiff that he did some preliminary work anticipating possession of site to be given to him which is not believable because without giving possession of site, how could a contractor can commence his work i.e., preliminary work.

During further cross examination, P.W.1 added that when he went to physical verification of the site after bidding, when he verified the site there is some variation as pipelines were fixed and gravel was laid in the site with excess height and if he carry his work, water will go into the neighbouring house. He again stated that he stopped his work as the water will enter into the neighbouring house, but, the same was not informed to the defendants. Even he did not mention in the plaint that if he start work, water will enter into the neighbouring houses. As per “Clause 6” of Ex.B1 agreement mentioned in Page No.45, he gave a declaration that he did not claim any price escalation.

8 Fair Judgment in O.S.547/2016,

dated 04-11-2019

As can be seen from the evidence of P.W.1, there is some variation prior to physical verification before bidding and after bidding and with regard to the defects in continuing works. Admittedly, the same was not mentioned in the plaint. The defects stated by P.W.1 is also very crucial for the plaintiff’s case because what made him to stop his work is also crucial and important to decide this case, but, for the first time, P.W.1 made a whisper about defects in continuing work. As evidence without a pleading is ignored, therefore, evidence of P.W.1 about inconvenience to proceed with the work is also ignored.

When he admitted that as per Clause 6 of the agreement mentioned in Page No.45, he gave declaration that he did not claim any price escalation, then how he can claim price escalation in the plaint.

He also admitted that as per Clause (9), it is declared that they will execute the work as per the mile stone programme and if he fail to complete the work as per the mile stone programme, he abide by the condition to recover liquidated damages as per the bid conditions.

He also admitted that as per clause 23.1 in Page 51, if any dispute or difference of any kind whatsoever arises between the department and the Contractor in connection with, or arising out of the Contract, whether during the progress of the works or after their completion and whether

before or after the termination, abandonment or breach of the Contract, it

shall in the first place, be referred to and settled by the EE/ General Manager who shall, within a period of thirty days after being requested by the

Contractor to do so, give written notice of his decision to the Contractor.

Upon receipt of the written notice of the decision of the EE/General Manager the Contractor shall promptly proceed without delay to comply with such notice of decision.

When admittedly there is a Clause in Ex.B1 agreement to refer the dispute or difference to EE or General Manager, who shall within a period 9 Fair Judgment in O.S.547/2016,

dated 04-11-2019

of 30 days give written report of the decision to the contractor, what made

P.W.1 not to make an application before EE or General Manager. The reason for non referring to EE or General Manager remained unexplained.

It is further evidence of P.W.1 that validity of Ex.B1 agreement is only for six months and he sought extension of period of agreement continuously, but, there is no response from the defendants department. He admitted that if time is not extended automatically agreement gets terminated. He agreed with the terms mentioned in Clause 24.8. He agreed with the terms mentioned in Clause 25.1. He agreed that he did not submit work schedule to the defendants and he added that defendants did not give site clearance, he is in dilemma.

When he admitted that he is abide by the terms mentioned in

Clause 24.8 of the agreement which speaks that:- “Extension of time will be allowed by the EE or General Manager, which in the opinion of the EE or

General Manager are undoubtedly beyond the control of the contractor. If it is beyond the control of the contractor, then only time will be extended.” But here in the present case it is not so, therefore, time was not extended. As time was not extended admittedly agreement gets terminated.

Here, admittedly, even P.W.1 did not submit work schedule to the defendants as referred in Clause 25.1 of Ex.B1 agreement, no matter whatever may be the reason.

With regard to price escalation also, he stated that as per

G.O.Ms.No.35, he is seeking price escalation and as per Clause 46.2 of the agreement, G.O.Ms.No.35, dated 30-01-2009 is not applicable.

Through him, Ex.B2 which is letter addressed by General

Manager to him on 03-12-2014; Ex.B3 is letter addressed by General

Manager along with acknowledgment dated 09-01-2015; Ex.B4 is the letter 10 Fair Judgment in O.S.547/2016,

dated 04-11-2019

addressed by General Manager along with acknowledgment dt.15-05-2014 were marked.

Here, when it is the contest of the plaintiff that he did preliminary work anticipating possession of site, burden lies on the plaintiff to prove the expenditure incurred by him for the preliminary work if he wants to claim that amount. To prove the same P.W.1 filed Ex.A7 which disclose about expenditure made by him for gravel, 60 excavator, two wheeler tractor and labour charges. Ex.A7 is self styled document of plaintiff’s company as expenditure mentioned on their company’s letter head. No receipts or bills enclosed along with Ex.A7. Therefore, Ex.A7 cannot be relied upon.

In this case, admittedly, work was not completed by the plaintiff.

Therefore, bank guarantee etc., was forfeited as per the agreement. Even admittedly, after completion of work, he get refund of insurance premium, but, no such work has been completed, therefore, even insurance amount not paid to him. Hence, plaintiff/P.W.1 do not have any right to seek the said reliefs as prayed for.

Now, let us discuss the evidence of defendants herein. One

Kambala Venkata Mutya Saya Satyanarayanarao has been examined

as D.W.1. In his cross examination, he stated that he did not file any proof to show that he is the authorized person for East and West Godavari

Districts. He admitted that D1 is connected with the suit as he is signatory of

Ex.B1.

Here, suit has been filed against Senior General Manager, A.P.,

Rajiv Swagruha Corporation Ltd., ABJA Town ship, Chollangi, Tallarevu Mandal by showing as 2nd defendant for which D.W.1 stated that there is no cadre of

Senior General Manager in their department. He is General Manager in A.P.

Rajiv Swagruha Corporation Ltd.

11 Fair Judgment in O.S.547/2016,

dated 04-11-2019

He also admitted that basing on the record available with 2nd defendant, he is deposing evidence. He also admitted that plaintiff has done one day work. One day work is that plaintiff has been peg marking through his “labour.”

Here, D.W.1 stated that plaintiff did one day work. When defendants admitted that plaintiff did one day work, then burden lies on the plaintiff to prove the expenditure for his one day work, which is lacking here.

He also stated that Assistant General Manager informed him orally that plaintiff did peg marking through his labour. He admitted that they laid pipelines for drainage, water facility for said houses. Generally, before laying any road, they apply road level technology. Unless and until, he peruse levels record, he cannot say the road levels.

He admitted that as per pleadings of the plaintiff, there are hurdles for formation of the road. Again he added that pleading of the plaintiff is false.

According to his evidence, in the year 2013 contract work was allotted to the plaintiff. In the year 2015, back guarantee was encashed. He admitted that if there is fault on the part of contract that after expiry of six months, bank guarantee can be encashed.

Here, as discussed supra no work has been completed before expiry of six months. Therefore, bank guarantee was encashed as deposed by D.W.1.

Letter dated 25-04-2014 addressing to the Chief Engineer,

APRSCL, Bandlaguda, Hyderabad confronted to D.W.1. On perusing letter with acknowledgment, he identified that the copy of letter has been received by Divisional Accounts Officer, A.P. Rajiv Swagruha, Kakinada. The said letter along with the acknowledgment was marked as Ex.A9. He cannot say 12 Fair Judgment in O.S.547/2016,

dated 04-11-2019

whether letter dated 05-02-2017 addressed to 2nd defendant and copy to 1st defendant sent through courier received or not.

He admitted that plaintiff has paid insurance amount and also admitted that Ex.B2 disclose three letters dated 23-11-2013, 22-05-2014 and 21-11-2014 addressed by plaintiff to them. Ex.B3 disclose four letters dated 23-11-2013, 22-05-2014, 21-11-2014 and 15-12-2014 addressed by plaintiff to them.

He also admitted that if contractor fails to do work within six months, he should apply extension of time. He admitted that the letter dated 23-11-2013 was referred in Exs.B2 and B3. The said letter dt.23-11-2013 addressed to General Manager, APRGCL, Kakinada, copy marked to Chief

Engineer, APRSCL marked as Ex.A10 along with acknowledgment. Even letter

dated 06-04-2016 was marked as Ex.A11. Ex.A4 refer to Ex.A11 letter.

He also admitted that if the reasons mentioned by the contractor is not reasonable, penalty will be imposed. He further stated that if contractor failed to complete the work in time, a notice will be issued to him, if the reasons mentioned by the contractor is satisfactory, further time will be extended, but, if the reasons are not satisfactory bank guarantee will be forfeited.Here, as deposed by D.W.1 reasons are unsatisfactory. Therefore, further time not extended and bank guarantee has been forfeited by the defendants.

As per agreement, there is no interest to EMD (Earning Money

Deposit) given by way of bank guarantee for Rs.4,00,000/- and odd. Then how “with interest” plaintiff is claiming on EMD i.e., bank guarantee.

According to the facts and circumstances of the case, burden lies on the plaintiff to prove the reliefs claimed by him either by adducing any evidence or by extracting evidence from the opposite party.

13 Fair Judgment in O.S.547/2016,

dated 04-11-2019

Hence, plaintiff failed to prove his case by adducing cogent evidence and also failed to extract from the evidence of D.W.1.

In the light of above discussion, defendants are not liable to pay any amounts to the plaintiff. Therefore plaintiff is not entitled for an amount of Rs.2,01,700/-; an amount of Rs.47,262/- and amount of Rs.4,30,700/-, finally not entitled for the suit claim.

Issue No.4 :- “To what relief?”

From the above discussion made supra in Issues 1 to 3, as plaintiff is not entitled for the suit claim,

In the result, suit is dismissed without costs.

Dictated to the Stenographer Grade-II, transcribed by him, corrected

and pronounced by me in Open Court, this the 4th day of November, 2019.

I Addl Senior Civil Judge, Kakinada.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: P.W.1 : M.Chandrasekhara Rao (plaintiff)

For Defendants : D.W.1: Kambala Venkata Mutya Saya Satyanarayanarao

DOCUMENTS MARKED

For Plaintiff: Ex.A1: Letter of D1 dated 25-08-2015. Ex.A2: Reply notice dated 18-09-2015. Ex.A3: Termination letter, dt.15-10-2015. Ex.A4: Office copy of legal notice dt.03-11-2015. Ex.A5: Reply notice issued by defendants counsel dated 01-12-2015. Ex.A6: Notice given by plaintiff dated 02-12-2015. Ex.A7: Expenditure statement, dated 05-03-2016. Ex.A8: Photos along with C.D. Ex.A9: Letter dated 25-04-2014 addressed to Chief Engineer, APRSCL, Bandlaguda, Hyderabad. Ex.A10: Letter dated 23-11-2013 addressed to General Manager, APRGCL, Kakinada. Ex.A11: Letter dated 06-04-2016 addressed by General Manager, APRGCL, Kakinada.

For Defendants: Ex.B1: Agreement bond.

14 Fair Judgment in O.S.547/2016,

dated 04-11-2019

Ex.B2: Letter addressed by General Manager along with acknowledgment dated 03-12-2014. Ex.B3: Letter addressed by General Manager along with acknowledgment dated 09-01-2015. Ex.B4: Letter addressed by General Manager along with Acknowledgment TO plaintiff’s company dt.15-05-2014.

I A.S.C.J.,

Kakinada.

1 Fair Judgement

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE: KAKINADA

PRESENT: Smt K.Vijaya Kalyani,

Principal Senior Civil Judge,

Friday, this the 30th day of April, 2021

O.S.No.655/2018

Between:- 1.M/s New India Assurance Company Limited,

A Corporate body constituted under the

General Insurance Corporation of India having its

Head Office at Mumbai and Divisional Office and

Branch offices amongst other places at Kakinada,

Represented by its Divisional Manager, Subhadra Arcade,

Bhanugudi Junction, Kakinada.

2. M/s Sri Sai Egg Exports Private Limited,

Near Cattle market, Dwarapudi Village,

Mandapeta Mandal, Represented by its Special Power of

Attorney Holder and Letter of Subrogation, the New India

Assurance Company Limited, i.e, 1st Plaintiff,

Represented by its Divisional Manager, Kakinada.

… Plaintiffs

A N D 1.Gandi Srinivasarao S/o Suryanarayana, Aged 45 years,

Owner of lorry bearing No.AP05 TT 3996, R/o D.No.8.21,

Bantrothuvari street, Dwarapudi Village, Mandapeta Mandal.

2.P.Srihari S/o Mutyalarao, Aged 53 years, Driver of Lorry bearing no.AP05 TT 3996, R/o D.No.7.68, Rajyalakshmi Bangarammapeta, Mandapeta.

… Defendants 1 and 2 2 Fair Judgement

This suit is coming on 15.04.2021 for final hearing before me in the presence of Sri M.Jawahar Ali, Advocate for Plaintiffs and of Sri D.Nagababu,

Advocate for Defendants and the matter having stood over for consideration till this day, this Court delivered the following:-

J U D G E M E N T

This is a suit filed by the plaintiff's against the defendants 1 and

2 for recovery of a sum of Rs.9, 49,440 /- with subsequent interest ,

costs and other reliefs.

1. Brief averments of the plaint are as follows :-

That first plaintiff is M/S. New India Assurance company limited, a corporate body, constituted under General Insurance corporation of India Act.

The 2nd plaintiff is M/s. Sri Sai Exports private limited, represented by special power of Attorney and under letter of subrogation, i.e the 1 st plaintiff here in. On the other hand, 1st defendant is lorry supplier/owner of National permit lorry bearing no. AP 05 TT 3996 where as 2nd defendant is driver of said lorry.

That 2nd Plaintiff sold 1104 boxes of eggs to M/s Siddant Eggs dealer,

Gaya of Bihar, for that he engaged 1st defendant to transport eggs from

Dwarapudi to Gaya. On 30/6/2017 consignment was started through lorry bearing no. AP 05 TT 3996 and in the intervening night of 02/03-07-2017 when Lorry reached Bondu gati, 30 kms from Ranchi, 2nd defendant drove his lorry and hit against an unknown vehicle due to which entire consignment was damaged.2nd defendant reported the accident to Dasham Falls police station, Ranchi, so also to 1st defendant and 2nd plaintiff.

3 Fair Judgement

After receiving information about the accident , 1stplaintiff appointed an independent survey and obtained a report. 2nd plaintiff served notice to first defendant on 3/07/17 claiming the value of the damaged goods approx about

Rs.8,81,605/-, however defendants failed to arrange loss caused to 2nd plaintiff. As per the terms and conditions of the policy obtained by 2nd plaintiff, 1st plaintiff company settled the claim of Rs.8,60,000/- on 22.8.2017 by way of NEFT/ on line transfer. On the same day. 2nd plaintiff subrogated their rights in respect of above consignment in favour of first plaintiff. In accordance with the letter of subrogation, first plaintiff is entitled to receive a sum of Rs.8,60,000 /-from the defendants as compensation for the said loss. Hence the plaint.

2. The first defendant denied and disputed the claim of the plaintiff in toto and filed his detailed written statement which was adopted by the second defendant.

3. Brief averments of the written statement filed by the 1st defendant are as follows :-

(a) This defendant submits that he is owner of lorry bearing no. AP 05

TT 3996 but second defendant is not his driver and he is men of second plaintiff.

(b) That there is no express or implied contract in between him and second plaintiff about exporting of eggs to Gaya as lorry was entrusted to second plaintiff on an understanding to pay a monthly rent of Rs. 30,000 /- to him and second plaintiff has to maintain and Send the lorry as per his wish, so he do not know about sending Lorry to Gaya.

4 Fair Judgement

(c) This defendant submits that letters submitted by second plaintiff and second defendant shows that Lorry was parked by 2nd defendant on Tata road near bondu meraka near Thamara Ghat, 30 kms close to Ranchi in the intervening night of 02/03-07-2017 and went nearby dhaba to take some snacks and tea, then an unknown vehicle hit the stationed lorry from behind and ran away. It is a case of hit and run. Immediately second defendant lodged a report to Dashan police station and also intimated to him and the second Plaintiff.

(d) This defendant submits that as can be seen from cargo open policy of 2nd plaintiff, said policy do not contain information with regard to present transaction of eggs . So egg transaction not covered in the said policy.

(e) This defendant submits that survey report and photos filed by the surveyor who is the men of plaintiff, there was no damage to front portion of vehicle. only small hit caused to rear portion of transport vehicle and the vehicle was slightly damaged. so damage was caused to the 2nd plaintiff due to their poor package but not due to fault of transport vehicle.

(f)This defendant submits that from the invoice it can be seen that second plaintiff collected commission, insurance, package charges and other charges to a tune of Rs53,323/-. He paid only lorry loading charges to a tune of Rs.

5,250/-. He did not pay any oil charges, advance charges, freight charges to him. So it reveals that entire transaction was done by second plaintiff only.

Hence prays to dismiss the suit with costs.

4. After hearing both sides and basing on the above pleadings, my predecessor framed the following issues :- 5 Fair Judgement

1. Whether the damage caused due to the rash and negligent act of 2nd defendant ?

2. whether the theory of right of subrogation as consignment between 1st defendant and 2nd plaintiff ?

3. whether the plaintiffs are entitled for recovery of the suit amount ?

4. To what relief ?

5. As can be seen from the pleadings of the plaint , this court feels that 2nd issue has been wrongly framed and there is a need to frame additional issues under order 14 rule 5 of CPC which speaks with regard to amend issues, add additional issues and strike out any issue wrongly framed, at any time before passing a decree. Hence 2nd issue has been striked out and

additional issues were framed which are mentioned below:-

Additional issues :-

1. Whether there was an express agreement in between 2nd plaintiff

and 1st defendant about transportation of eggs from Dwarapudi to

Gaya ?

2. whether 1st plaintiff is having right under letter of subrogation to file suit against the defendants 1 and 2 ?

3. whether this court has jurisdiction to try the suit ?

As both parties covered additional Issues in their evidence, hence no opportunity has been given to both parties to reopen their evidence.

6. Heard arguments of both sides

7. To prove their case, 1st plaintiff examined their administrative officer as PW1 and surveyor as pw2. Ex A1 to A13 were marked. On the other hand, defendants 1 and 2 examined themselves as Dw’s 1 and 2. No documents were marked in 'B ' series.

6 Fair Judgement

8. The following are the undisputed facts which need not be proved as per section 58 of Indian evidence Act :-

1. It is an undisputed fact that D1 is owner of lorry bearing number

AP 05 TT 3996

2. It is an undisputed fact that D2 is driver of lorry on the date of accident

3. It is an undisputed fact that accident took place near Ranchi

4. It is an undisputed fact that eggs were damaged in the accident

5. It is an undisputed fact that surveyor has been appointed and submitted his report

6. It is an undisputed fact that second plaintiff obtained policy from

the first plaintiff and second plaintiff executed a letter of

subrogation in favour of the first plaintiff.

The learned counsel for the plaintiffs argued orally in the lines of his pleadings and prayed to decree the suit. Per contra the counsel for the defendants submitted Written Arguments (Discussed as and when required in the judgment) and prayed to dismiss the suit with costs.

Additional issue no.1 :-

1. Whether there was an express agreement in between 2nd plaintiff

and 1st defendant about transportation of eggs from Dwarapudi to

Gaya ?

It is the contest of the plaintiff's that for transportation of eggs from

Dwarapudi to Gaya, second plaintiff engaged first defendant’s lorry where in during the said transportation, accident occurred. Per Contra it is the contest of the defendants that there is no express or implied contract in between first defendant and second plaintiff in respect of sending eggs to Gaya, in fact first 7 Fair Judgement defendant had entrusted his lorry to the second plaintiff on a monthly rent of

Rs.30,000/- with an understanding to maintain lorry and send the lorry as per his wish.

To prove this aspect the evidence of PW1 and DW1 is only crucial to discuss.

If we peep into the evidence of PW1, no admissions were made by pw1 at his cross examination. Though ExA3 is a way bill issued in favour of 1st defendant dated 30/7/2017, but it do not contain the signature of D1 and D2.

Moreover it will be issued in the name of owner of lorry.

On the other hand, Dw1 admitted during his cross-examination that he has no documentary evidence to prove that he gave his lorry on contract/lease to second plaintiff without driver. He also admitted that there is no document to show that he has given his lorry to second plaintiff on lease.

When first defendant admits that his lorry used for transportation of eggs, he should prove that he has no knowledge about transportation of eggs from Dwarapudi to Gaya as there was an understanding in between him and second plaintiff, but 1st defendant failed to prove that there was an express understanding in between him and the second plaintiff. Even nothing was elicited from the mouth of pw1 admitting about the said understanding.

Though defendants disputed D2 being driver of his lorry but at his cross examination he admitted that D2 is driver of his lorry.

Hence first defendant miserably failed to prove that there was an express agreement in between him and second plaintiff.

Addl. issue No.2:- “Whether 1 st Plaintiff is having right under letter of Subrogation to file suit against the defendants 1 and 2 ?

8 Fair Judgement

As per the contest of first plaintiff, their company paid damages to second plaintiff on the terms and conditions of the policy. On the same day, second plaintiff subrogated their rights in respect of the consignment in favour of first plaintiff. Even special Power of Attorney executed in favour of 1st Plaintiff. Therefore in accordance with the letter of subrogation, first plaintiff is entitled to receive a sum of Rs.8,60,000 /- as compensation for the said loss from defendants. To that effect he filed letter of subrogation and settlement intimation voucher for Rs.8,60,000/- issued by 2nd plaintiff. There is no dispute about execution of letter of subrogation in favour of first plaintiff by second plaintiff, So also about payment of Rs.8,60,000/- by the 1st Plaintiff in favour of 2nd Plaintiff marked as Ex.A.10. The letter of subrogation has been marked as Ex.A11.

Upon perusal of Ex.A11, the date of execution not mentioned.

Therefore, “when Ex.A11 came into operationis silent”. Even as rightly argued by counsel for defendants, exhibit A1policy is inadmissible in evidence as it do not contain signature and seal of first plaintiff. Even the clause about right of subrogation is silent under terms of policy.

Though it was pleaded about execution of special power of attorney by 2nd plaintiff in favour of first plaintiff, but no such document been filed.

Inadvertently indemnity bond was marked as ex A12 with a description as special power of attorney. With regard to indemnity bond, there is no whisper about execution of it in the pleadings of Plaintiff’s, hence it cannot be looked into even though marked as Ex A12.

9 Fair Judgement

On this aspect, if we ponder into the oral evidence. pw1 is one Kadali

Leela Krishna who is an administrative officer of 1st plaintiff's company .He was given authorisation to give evidence in this suit. His authorisation letter

dated 11.03.20 marked as Ex.A13. His evidence reveals that there is a

condition in Ex A1 incorporating right of subrogation when loss occurs to second plaintiff during transportation, but no such clause mentioned in Ex.

A1 as discussed supra. With regard to signature on Ex A11, he admitted that signature on Exs A2 and A3 are different when compared to Ex.A11.

Interestingly PW1 deposed that Ex.A11 is a proforma which shows that original of Ex A11 not filed into this court. As Ex.A11 is a proforma, therefore the argument submitted by learned counsel for defendants that Ex.A.11 is insufficiently stamped and it should be demarked do not arise.

Hence as rightly argued by defendant's counsel first plaintiff has no right to obtain “right of subrogation” from the second plaintiff. Accordingly

Additional issue No.2 answered.

Additional issue no. 3 :-

“Whether this Court has Jurisdiction to try the suit?”

As can be seen from the pleadings of the plaint, the cause of action arose when the consignment was booked and when the accident took place near to Ranchi; when second plaintiff was paid compensation under the policy obtained from the first plaintiff; when second plaintiff executed a letter of subrogation and special power of attorney in favour of 1st plaintiff.

10 Fair Judgement

The root cause for claiming amount of Rs. 9,49,440/- by the 1st plaintiff from the defendants is damage/ loss sustained due to occurring of accident at

Bondu Gati, 30 kms away from Ranchi.

As per Section 19 of Civil Procedure Code “Where a suit is for

compensation for wrong done to the person or to movable property,

if the wrong was done within the local limits of the Jurisdiction of one

court and the defendant resides, or carries on business or personally

works for gain, within the local limits of the jurisdiction of another

court, the suit maybe instituted at the option of the Plaintiff in

either of the said courts”.

In the present case, suit has to be instituted where the cause of action arose that is at Bondu ghati, 30 kilometers from Ranchi or at Mandapeta where defendants resides, carries on business or personally works for gain as per the pleadings of the plaint, but not in Kakinada where 2nd plaintiff obtained policy from 1st plaintiff.

Hence this court has no jurisdiction to try the suit. Accordingly Additional

Issue No.3 answered.

Issues 1 and 3:- “1. Whether the damage caused due to the rash and negligent act of 2nd defendant?”

“3. Whether the plaintiffs are entitled for recovery of the suit

amount ?”

It is the contest of the plaintiffs that second defendant drove his lorry and dashed against an unknown vehicle due to the said impact, entire consignment was damaged. Accident was caused due to rash and negligent act of 2nd defendant. Per Contra it is the contest of the defendants that in the intervening night of 02/03.07.17, at Bondugati, 30 kms away from Ranchi, 2nd defendant parked his lorry and went to nearby dhaba to take some 11 Fair Judgement snacks and tea and to have some rest and relaxation, in the meanwhile an unknown vehicle hit the stationed lorry from behind and ran away. It is only a case of hit and run. Moreover due to poor packing of 2nd plaintiff’s company, eggs were damaged.

The relevant exhibits which are to be perused are Ex A4 , A5 and Ex A8.

To answer this issue, let us discuss the admissions made by PW1 during his cross examination. For better appreciation the admissions of PW1 are reproduced as follows:-

It is true in Ex.A4, it is mentioned that "maku chendinatu vanti lorry gayaku 30 kilometres duramulo vundaga gurthuteliyani vahanam guddatam valana e pramadam jarigindi."

It is true as per Ex A5 surveyor report along with photos, due to impact of another vehicle, accident had occurred.

It is true in Ex A6, an accident took place at a distance of 30 kilometres to the destination. It is true as per ex A6, accident took place due to unknown vehicle.

It is true second defendant gave report to the police station after the accident stating that while lorry parked an unknown vehicle came and hit their lorry.

It is true as per the surveyor report, lorry was in a parking stage and it was hit by another vehicle. I cannot personally say whether accident took place when the lorry is in stationed condition or while moving. There is no evidence whether accident took place due to 2nd defendant.

Coming to the evidence of Pw2 who is the surveyor. He admitted during the course of cross examination that accident took place at Tamaraghat which is within the jurisdiction of Dasham police station. He admitted that the 12 Fair Judgement rear portion of consignment vehicle hit by another vehicle. Damage has been caused to rear portion of consignment vehicle. He did not enquired about another vehicle which caused the damage. some of the nearby people including driver informed him that due to impact of another vehicle , accident occurred.

Therefore the evidence of PW’s 1 and 2 proves that accident occurred due to hit by another vehicle. Even Ex A4 and A6 disclose the same.

If we Peruse Ex A8, it is a report lodged before Dasham police station which is in Hindi language. Admittedly no translation copy has been filed by the 1st plaintiff, but this court having knowledge of Hindi language perused the contents which disclose that “accident occurred as suddenly animal came across”. Even counsel for the plaintiff’s suggested the said fact to Dw2 which is contrary to his pleadings. Assume for a moment as mentioned in Ex.A8 accident occurred even then it cannot be called as an “accident due to negligence of D2” who is driver of the lorry involved in the accident.

From the above discussion plaintiff’s failed to prove that due to rash and negligent Act of 2nd defendant accident took place. Hence, plaintiffs are not entitled for the suit amount.

Issue No.4:- “To What relief?”

From the above discussion made supra in Issues 1, 3 and Additional

Issues 1 to 3,

In the result, suit is dismissed without costs.

Typed to my Dictation, corrected and pronounced by me, in the Open Court, on this the 30th day of April, 2021.

PRINCIPAL SENIOR CIVIL JUDGE,

KAKINADA.

13 Fair Judgement

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiffs:-

P.W.1 : Kadali Leela Krishna (Administrative Officer of M/s New India Assurance Company Limited)

P.W.2 : Anil Kumar Bajaj (Surveyor)

For Defendants:-

DW1 : Gandi Srinivasa Rao((1st Defendant)

DW2 : Pappu Srihari (2nd Defendant)

DOCUMENTS MARKED

For Plaintiff :-

Ex.A1/16.05.2017: Computer Generated on line Policy bearing No.62040221170200000005 issued by the 1st Plaintiff in favour of 2nd Plaintiff

Ex.A.2/30.06.2017:Invoice raised by 2nd Plaintiff i.e, M/s Sri Sai Egg Exports Private Limited, Dwarapudi Vide No.4/23 for value of of Rs.8,81,605/-

Ex.A3/30.06.2017: Way Bill issued in favour of 1st Defendant

Ex.A4/03.07.2017: Letter issued by 2nd Plaintiff to 1st Plaintiff intimating the fact of Accident along with Postal cover

Ex.A5/06.07.2017: Surveyor Report along with photos

Ex.A6/03.07.2017: Office copy of Claim Letter raised by 2nd Plaintiff against 1st Defendant

Ex.A7/04.07.2017: Acknowledgment of 1st Defendant

Ex.A8/………………..: Report made by 2nd Defendant to the Station House Officer, Dasham Falls Police Station, Ranchi Showing the General Diary Entry made by Police Vide SD No.10/17

Ex.A9/19.07.2017: Marine Claim Form Submitted by 2nd Plaintiff

Ex.A10/…………….: Settlement Intimation Voucher for Rs.8,60,000/- issued by the 2nd Plaintiff

Ex.A11/……………..: Letter of Subrogation Voucher for Rs.8,60,000/- issued by the 2nd Plaintiff 14 Fair Judgement

Ex.A12/………………: Indemnity bond executed by 2nd Plaintiff in favour of 1st Plaintiff

Ex.A13/…………….: Authorization in favour of Kadali Leela Krishna

For Defendants:- ---Nil---

Sd/- K.Vijaya Kalyani,

PRINCIPAL SENIOR CIVIL JUDGE,

KAKINADA.

15 Fair Judgement 16 Fair Judgement

1 Fair judgment in O.S.64/2018 Dt.06-11-2019

IN THE COURT OF THE PRL. SENIOR CIVIL JUDGE :: KAKINADA

Present : SMT.K.VIJAYA KALYANI I Addl. Senior Civil Judge, Kakinada (FAC) Prl.Senior Civil Judge, Kakinada.

Wednesday, the 6th day of November, 2019

O.S.64/2018

Between:

Yerramnedi Govindu, S/o Satyanarayana, 44 years, Occupation: Cultivation, Manjeru Village, Kajuluru Mandal. East Godavari District.…Plaintiff.

AND

Dadala Suryarao, S/o Chatari, 65 years, Occupation: Business, SC Peta, Manjeru Village. Kajuluru Mandal. East Godavari District.…Defendant.

This suit coming on 29-10-2019 for final hearing before me in the presence of Sri B.Rajesh Advocate for plaintiff and of Sri K.Sreehari, Advocate for defendant and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This suit has been filed by the plaintiff against the

defendant for recovery of an amount of Rs.10,86,600/- on the foot of

a promissory note said to have been executed by the defendant

with subsequent interest, costs and other reliefs.

1.Brief averments of the plaintiff’s case are as follows:-

Defendant in need of money borrowed an amount of

Rs.8,00,000/- from him on 15-08-2016 and executed a promissory note on the same day agreeing to repay the said sum together with interest. Despite several demands made by him, which includes legal notice dated 10-01-2018, defendant failed to make repayment. Hence, he is constrained to file the present suit.

2.The defendant denied and disputed the claim of the plaintiff in toto and filed his detailed written statement.

2 Fair judgment in O.S.64/2018 Dt.06-11-2019

3.Brief averments of the written statement filed by the defendant are as follows:-

a) This defendant submits that he borrowed an amount of

Rs.30,000/- from one Gandi Chandan Kumar, S/o Subbarayudu, resident of

Kotha Manjeru on 10-01-2011. At that time, said Chandan Kumar obtained signatures on empty pronote. Out of financial necessity, he signed on empty pronote furnished by Chandan Kumar. On 20-12-2013 he discharged entire borrowed amount with interest. Finally, he asked said Chandan Kumar to return empty pronote bearing his signatures, but, the said Chandankumar did not return the same as it was misplaced.

b) This defendant submits that after receipt of legal notice dated 10-01-2018, he approached plaintiff along with elders by name Epparthi

Ravindrababu, Ragham Venkataswamy and asked him “NENU NEEKU NOTE

VRAYALEDU, NEEDAGIRA DABBU THEESUKO LEDU, NOTICE ENDUKU

PAMPIMCHAVU”. Then plaintiff replied that “GANDI CHANDAN KUMAR

PAMPINCHAMANTE, PAMPINCHANU, GANDI CHANDAN KUMAR IKKADA LEDU,

VACHINA TARUVATHA”, he and Gandi Chandan Kumar will talk each other.

Subsequently, plaintiff postponed the issue on several times and did not settle the matter or arranged meeting with Gandi Chandan Kumar. Finally, plaintiff informed him that he is not concerned and asked him to talk with

Gandi Chandan Kumar. Subsequently, plaintiff filed this suit against him. Due to the said reasons, he did not give reply notice immediately to plaintiff registered notice.

c) This defendant submits that plaintiff has no capacity to lend

Rs.8,00,000/- to anybody. He is a white ration card holder.

d) This defendant submits that he is not liable to discharge the suit amount. Suit pronote is a fabricated and forged one and not supported by any consideration. Plaintiff and Gandi Chandan Kumar colluded each other 3 Fair judgment in O.S.64/2018 Dt.06-11-2019 and fabricated suit pronote on empty pronote form which contains his signatures lying in the hands of Gandi Chandan Kumar. Hence, prays to dismiss the suit with costs.

4.After hearing both sides and basing on the above pleadings, my predecessor framed the following issues.

1. Whether the suit promissory note is true, valid and binding on the defendant?

2. Whether the plaintiff is entitled for recovery of the suit amount?

3. To what relief?

5.Heard arguments.

6.To prop up the contentions of both parties, plaintiff

examined himself as P.W.1 and sole attestor of suit pronote as

P.W.2. Exs.A1 to A3 documents were marked. On the other hand,

defendant examined himself as D.W.1 and one Dadala

Satyanarayana, 3 rd party to the suit examined as D.W.2. Exs.B1 to

B4 were marked.

As Issues 1 and 2 overlap each other, for better appreciation, both the Issues were answered at a stretch.

ISSUES 1 AND 2:-

1. Whether the suit promissory note is true, valid and binding on the defendant?

2. Whether the plaintiff is entitled for recovery of the suit amount?

It is the contest of the plaintiff that defendant failed to

repay the borrowed debt of Rs.8,00,000/- despite several demands.

Hence, prays to decree the suit with costs.

4 Fair judgment in O.S.64/2018 Dt.06-11-2019

Per contra, it is the contest of the defendant that he

never borrowed any amount from the plaintiff. Previously, he

borrowed an amount of Rs.30,000/- from one Gandi Chandan Kumar,

S/o Subbarayudu in the year 2011. At that time, his signatures were

obtained by said Gandi Chandan Kumar on empty pronotes. Later he

repaid said debt, but, Gandi Chandan Kumar did not return empty

pronote bearing his signature. Plaintiff and Gandi Chandan Kumar

colluded with each other and fabricated pronote which contains his

signature. Hence, prays to dismiss the suit with costs.

To prove his case, plaintiff examined himself as P.W.1. He filed his chief affidavit which has been admitted in lieu of chief examination.

Through him Ex.A1 to A3 were marked, wherein Ex.A1 is the original promissory note dated 15-08-2016 for Rs.8,00,000/- executed by the defendant in his favour; Ex.A2 is the office copy of legal notice dated 10- 01-2018 issued by plaintiff’s counsel to defendant and Ex.A3 is the postal acknowledgment.

He was cross examined by the counsel for the defendant. In his cross examination, he deposed that he is not an income tax assessee.

With regard to financial capacity, plaintiff admitted that he is a white ration card holder and used to get ration on white ration card.

With regard to source of income, he deposed that he got said amount from brandy shop in which he is having share. Specifically he stated that one Mudrayya Chowdhury gave the said amount to him.

P.W.1 was suggested that even till today, he is receiving ration on white ration card, as such, he has no capacity to lend amount. The said suggestion was denied by P.W.1.

Here, it is the evidence of P.W.1 that he is having acquaintance with defendant since 10 years. Therefore, there is every possibility for the plaintiff to lend amount to defendant.

5 Fair judgment in O.S.64/2018 Dt.06-11-2019

The evidence of P.W.1 is not silent with regard to source of amount. He specifically stated that one Mudrayya Chowdhury gave the said amount to him and he got the said amount from brandy shop in which he is having share.

P.W.1 being white ration card holder will not make his evidence or his case to disbelieve because in general irrespective of their financial status, everyone posses white ration card.

With regard to place and time of transaction, P.W.1 stated that he paid consideration at his house in their village at about 3-00 p.m. Both attestors came at a time by 3-00 p.m. and he paid consideration at about 4- 00 p.m. One Gandi Venkateswararao and the person who was brought by defendant were present at that time when he paid consideration to defendant.

In support of his case, he examined P.W.2 who is one Gandi

Venkateswararao. According to P.W.2, he is attestor of suit pronote.

Therefore, he got acquaintance with the facts of the case.

As per his evidence in chief, defendant borrowed an amount of

Rs.8,00,000/- from plaintiff on 15-08-2016 and executed a promissory note and consideration was paid by defendant by way of cash. Pronote was scribed by M.V.S.Sastry of Kakinada who was brought by defendant to plaintiff’s house on that day. He was present at the time of transaction and signed as an attestor of promissory note.

He was cross examined by counsel for defendant. During the course of cross examination, he admitted that P.W.1 is his own brother-in-law.

He got movable properties at Patha Manjeru. P.W.1 is doing business and got shares in brandy shops and rice mill. He do not know who are the share holders of plaintiff. He do not know Gandi Chandana Kumar.

According to his evidence, plaintiff informed him over phone in the morning about lending amount to defendant. By 3-00 p.m., he reached to the house of plaintiff. Ex.A1 transaction took place at the house of plaintiff at 6 Fair judgment in O.S.64/2018 Dt.06-11-2019

Kotha Manjeru. At about 3-00 p.m. giving and taking of money transaction took place between parties in his presence. In total four members namely he, plaintiff, defendant and another person brought by defendant who scribed the pronote were present at that time.

According to him, defendant counted the amount after receipt of consideration. Consideration was paid in old thousand rupee notes denomination. He signed on Ex.A1 pronote in Telugu language.

With regard to source of amount lent by P.W.1, he spoke that

P.W.1 did not inform him from where he bought the amount.

With regard to pen used by him and defendant, he spoke that he do not remember the colour of ink with which he attested Ex.A1, but, signed on Ex.A1 with the pen used by scribe.

Upon perusal of Ex.A1 pronote, it is clear that ink used by defendant as well as scribe is one and the same. So, there is every possibility for defendant to sign with the pen used by scribe.

According to P.W.2, he signed in Telugu, even Ex.A1 discloses the same. Even time and place of transaction corroborated with the evidence of

P.W.1. When the plaintiff proved the execution of Ex.A1 pronote, presumptions under Section 118 of Negotiable Instruments Act attracts which goes in favour of the plaintiff to say that the contents of Ex.A.1 pronote were in existence, was happened and the consideration thereon under Ex.A.1 was so passed to the defendant herein. However, the said presumptions are not conclusive proof, can be rebutted by the defendant by adducing cogent and satisfactory evidence to say that it is impossible to happen the contents of pronote on a particular day under Ex.A.1 and that there was no execution of pronote and consideration was never passed to the defendant.

To rebut the presumptions, defendant examined himself as

D.W.1. Through him, Exs.B1 to B4 were marked, wherein Ex.B1 is the copy of reply notice got issued by him to plaintiff’s counsel dated 02-07-2018; 7 Fair judgment in O.S.64/2018 Dt.06-11-2019

Ex.B2 is the postal acknowledgment; Ex.B3 is the copy of legal notice got issued by his counsel to Gandi Chandan Kumar dated 02-07-2018 and Ex.B4 is unserved postal cover of Gandi Chandan Kumar.

During the cross examination, he admitted that he know plaintiff for the last 10 years and he admitted that plaintiff used to work in brandy shop near their village. When Ex.A1 was confronted, surprisingly, D.W.1 denied signature across the revenue stamp on Ex.A1. He also denied the signature on Ex.A3 acknowledgment. But, he identified his signature on vakalat filed by Sri K.Srihari, Advocate, Kakinada.

When it is the case of the defendant that one Gandi Chandan

Kumar is behind the litigation and he is in possession of empty pronote bearing signature of defendant and by using those empty pronote, present pronote has been fabricated D.W.1 should admit his signature on Ex.A1, but, he did not do so.

With regard to Gandi Chandan Kumar, he stated that Chandan

Kumar gave the said pronote to plaintiff. No steps were taken against

Chandan Kumar except issuance of Ex.B3. After receipt of Ex.A2, he approached Chandan Kumar with Vipparthi Ravindra Babu and Raghava

Venkataswamy and demanded for return of promissory note executed by him in his favour and Ex.A1 is not the promissory note executed by him in favour of Chandan Kumar. He stated that he can send Ex.A1 to the expert to prove forgery.

He was suggested that he brought the scribe to the house of plaintiff on the date of Ex.A1 to scribe the same. The said suggestion was denied by D.W.1.

The evidence of D.W.1 disclose that signature on Ex.A1 do not belongs to D.W.1. When it is the case of defendant that Gandi Chandan

Kumar is in possession of empty pronotes bearing his signatures, what made him not to take steps against said Gandi Chandan Kumar except issuance of

Ex.B3.

8 Fair judgment in O.S.64/2018 Dt.06-11-2019

To support his case, he examined D.W.2, who is one Dadala

Satyanarayana, S/o Bhairava Murthy. He is village elder in Manjeru

Village and 3rd party to the suit proceedings. He know the plaintiff as well as defendant in this suit.

According to his evidence, after receipt of legal notice dated 10- 01-2018 from plaintiff, at the request of defendant, he went to the house of plaintiff along with elders Epparthi Ravindrababu and Ragam Venkataswamy and defendant, where in their presence, defendant asked plaintiff saying that “NENU NEEKU NOTE VRAYALEDU, NEEDAGGIRA DABBU THEESUKO LEDU,

NOTICE ENDUKU PAMPIMCHAVU”, for which plaintiff replied that “GANDI

CHANDAN KUMAR PAMPINCHAMANTE, PAMPINCHANU, GANDI CHANDAN

KUMAR IKKADA LEDU, VACHINA THARUVATHA, GANDI CHANDANKUMARTHO

MATLADUKO”.

During the cross examination, D.W.2 stated that he do not remember the date when he acted as a village elder. He do not know whether plaintiff issued notice to defendant. This piece of evidence is contrary to his chief affidavit because according to his chief examination, after receipt of legal notice dated 10-01-2018 from plaintiff, at the request of defendant, he went to the house of plaintiff. Further, he admitted that

Chandan Kumar belongs to Kotha Manjeru Village which is 2 k.ms. away from

Patha Manjeru and he along with Epparthi Ravindrababu and Ragam

Venkataswamy know Chandan Kumar. There are no disputes in between plaintiff and defendant. He and other elders did not approach Chandan

Kumar and questioned about issuance of legal notice. He do not know the details of the suit.

He was suggested that he did not act as an elder and visited the house of plaintiff and questioned him. He was suggested that in order to help the defendant, he is deposing false.

The aforesaid suggestions were denied by D.W.2.

9 Fair judgment in O.S.64/2018 Dt.06-11-2019

Here, the name of D.W.2 was not mentioned in the pleadings of defendant. Even it is not the pleading of defendant that Epparthi

Ravindrababu and Ragam Venkataswamy etc., were elders. It is the specific pleading of defendant that he approached plaintiff along with elders by name

Epparthi Ravindrababu and Ragam Venkataswamy. Therefore, D.W.2 acting as an elder and accompanying defendant (D.W.1) is false. Hence, no substantial evidence was put forth by defendant to disprove the contest of plaintiff and to rebut the presumptions U/Sec.118 of Negotiable Instruments

Act.

Hence, in the light of above discussion, plaintiff proved

that suit pronote is true, valid and binding on the defendant and

therefore, he is entitled for the recovery of the suit amount.

Issue No.3 :- “To what relief?”

From the above discussion made supra in Issues 1 and 2, as plaintiff is entitled for the suit amount,

In the result, suit is decreed with costs directing the defendant to pay a sum of Rs.10,86,600/- (Rupees ten lakhs eighty six thousand and six hundred only) to the plaintiff with subsequent interest @ 12% p.a. from the date of suit till the date of decree and future interest @ 6% p.a. from the date of decree till realisation on the principal amount of Rs.8,00,000/-.

Dictated to the Stenographer Grade-II, transcribed by him, corrected

and pronounced by me in the Open Court, on this the 6th day of November, 2019.

I ADDL. SENIOR CIVIL JUDGE,

KAKINADA.

(FAC) PRL. SENIOR CIVIL JUDGE,

KAKINADA.

10 Fair judgment in O.S.64/2018 Dt.06-11-2019

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:-

P.W.1 :Yerramnedi Govindu (Plaintiff)

P.W.2 :Gandi Venkateswararao (attestor of suit pronote)

For Defendant:-

D.W.1:Dadala Suryarao (Defendant)

D.W.2:Dadala Satyanarayana (3rd party)

DOCUMENTS MARKED

For Plaintiff:-

Ex.A.1 /15-08-2016:Original promissory note executed by the defendant in favour of the plaintiff for Rs.8,00,000/-.

Ex.A.2 /10-01-2018:Office copy of legal notice issued by counsel for plaintiff to defendant.

Ex.A.3 /-- :Postal acknowledgment.

For Defendant:-

Ex.B.1/02-07-2018:Copy of reply notice got issued by the defendant’s counsel to plaintiff.

Ex.B.2/-- :Postal acknowledgment.

Ex.B.3/02-07-2018:Copy of legal notice got issued by the defendant’s counsel to Gandi Chandan Kumar.

Ex.B.4/-- :Unserved postal cover of Gandi Chandan Kumar.

I A.S.C.J.,

KAKINADA.

(FAC) P.S.C.J.,

KAKINADA.

11 Fair judgment in O.S.64/2018 Dt.06-11-2019

1 Fair Judgment in O.S.464/2018

dt:31-10-2019

IN THE COURT OF THE I ADDL. SENIOR CIVIL JUDGE :: KAKINADA

Present : SMT.K.VIJAYA KALYANI I Addl. Senior Civil Judge, Kakinada

Thursday, the 31st day of October, 2019

O.S.464/2018

Between:

Pilli Nooka Ratnam, W/o late P.Satyanarayana, 55 years, Housewife, D.No.69-2-21, New Gaigolupadu. Kakinada Rural. E.G.Dist.…Plaintiff.

AND

Karri Kanaka Durga, W/o Pilli Arjuna Rao, 46 years, Staff Nurse, Kakinada. E.G.Dist.…Defendant.

This suit coming on 29-10-2019 for final hearing before me in the presence of Sri Y.Ramam, Smt. D.V.S.Srilakshmi, Sri P.Vijayababu, Advocates for plaintiff and of Sri A.Muralidhar, Advocate for defendant and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This suit has been filed by the plaintiff for recovery of an

amount of Rs.4,32,800/- on the foot of a promissory note said to

have been executed by the defendant with subsequent interest,

costs and other reliefs.

1.Brief facts of the plaintiff’s case is as follows:-

Defendant in need of money borrowed an amount of

Rs.3,00,000/- from her and executed a promissory note in her favour on 10-10-2016 agreeing to repay the same with interest. Despite several demands which includes legal notice dated 09-07-2018, defendant kept mum and failed to repay the borrowed debt. Hence, she is constrained to file the present suit. Hence, the plaint.

2.The defendant denied and disputed the claim of the plaintiff in toto and filed her detailed written statement.

2 Fair Judgment in O.S.464/2018

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3.Brief averments of the written statement filed by the defendant are as follows:-

(a) This defendant submits that she is working as a staff nurse in

Government General Hospital, Kakinada whereas her husband was an auto driver. Due to family burdens and financial crisis, they indebted to several financiers within the limits of Kakinada and its surrounding villages. Thereby, financiers pressurized and threatened her, her husband and her family members with dire consequences, thereby they all obtained blank signed pronotes, blank signed cheques and blank signed stamp papers from her and also from her husband. Later time to time she paid debt amounts including interest to said financiers, but, said financiers started harassment against her and her husband by demanding further interest with abnormal rate. Then she was constrained to give a report as call money case to Superintendent of

Police, East Godavari District, Kakinada and also to superior police officers and to Hon’ble Home Minister of A.P. with all details of financiers and list of blank signed promissory notes, blank signed stamped papers and blank signed cheques that were obtained by said financiers. Upon which, police officials conducted enquiry. Therefore, it is clear that there was no debt payable by her to plaintiff and alleged pronote is not supported by any consideration much less amount mentioned in the plaint.

(b) This defendant submits that she strongly believes that one of the above said financers might have planted her and got fabricated the blank signed pronote, thereby created litigation for squeezing money from her illegally. Hence, prays to dismiss the suit with costs.

4.After hearing both sides and basing on the above pleadings, this Court framed the following issues:-

1. Whether the suit promissory note dated 10-10-2016 is true, valid and binding on the defendant?

2. Whether the plaintiff is entitled for the suit amount?

3. To what relief?

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5.Heard arguments.

6.To prop up the contentions of both parties, plaintiff

examined herself as P.W.1 and 2 nd attestor of suit pronote examined

as P.W.2, scribe of suit pronote examined as P.W.3. Exs.A1 to A4

were marked. On the other hand, defendant examined herself as

D.W.1, but, she did not turn up for cross examination, hence, her

evidence is eschewed. No documents were marked in ‘B’ series.

7. As Issues 1 and 2 overlap each other, for better appreciation, both the Issues were answered at a stretch.

ISSUES 1 and 2:-

1. Whether the suit promissory note dated 10-10-2016 is true, valid and binding on the defendant?

2. Whether the plaintiff is entitled for the suit amount?

It is the contest of the plaintiff that defendant failed to

repay the borrowed debt of Rs.3,00,000/- despite several demands

which includes legal notice. Hence, she is constrained to file the

present suit. Hence, prays to decree the suit in her favour.

Per contra, it is the contest of the defendant that she was

indebted to so many financiers. At the time of borrowing debt,

financiers obtained blank signed pronotes, blank signed cheques

and blank signed stamp papers from her and her husband. Later she

discharged those debts, but, blank signed pronotes, cheques and

papers were not returned to her. She believes that one of the

financiers might have planted plaintiff and fabricated blank signed

pronote in order to squeeze money from her illegally. Hence, she

prays to dismiss the suit with costs.

4 Fair Judgment in O.S.464/2018

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To prove her case, plaintiff examined herself as P.W.1 and 2 nd attestor and scribe of pronote examined as P.Ws.2 and 3. She filed her chief affidavit which has been admitted in lieu of chief examination.

Through her Exs.A1 to A4 were marked wherein Ex.A1 is the original promissory note dated 10-10-2016 for Rs.3,00,000/- executed by the defendant in her favour; Ex.A2 is the office copy of legal notice dated 09-07-2018 issued by her to the defendant; Ex.A3 is the postal acknowledgement dated 10-07-2018 from the defendant and Ex.A4 is the reply notice dated 22-07-2018.

In her cross examination, she deposed that she is an LIC agent and earns Rs.10,000/- per month. She is having PAN card in her name and her income tax will be deducted in her income as a LIC agent. Presently she is unable to work as an LIC agent. She lent Rs.3,00,000/- to defendant on 10-10-2016. At the time of lending amount, defendant used to reside in their street. Denomination of cash of Rs.3,00,000/- is one hundred rupee notes.

With regard to occupation of defendant, she deposed that defendant is working as a Nurse at GGH, Kakinada and she is aged about 45 years and defendant scribed her signature in English on Ex.A1 pronote.

The evidence of P.W.1 is not shaken and with stood the test of cross examination.

No evidence let in by P.W.1 to show that she is in possession of

Rs.3,00,000/- on the alleged date of execution of pronote, but, here, no plea has been taken by defendant in her written statement disputing financial capacity of plaintiff. Therefore, non-submitting of any document by plaintiff, will not make her case to disbelieve. No obligation lies on the plaintiff to produce any documentary evidence to prove that she is in possession of

Rs.3,00,000/- on the date of suit transaction.

Now, let us discuss the evidence of P.W.2 Pilli Parvathi, who is 2 nd attestor of Ex.A1 pronote. According to her evidence, suit transaction took place in her presence and in the presence of P.Arjunarao and Pilli Vamsi

Krishna, wherein she and P.Arjunarao attested the suit pronote.

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She was cross examined by the counsel for defendant. According to her evidence, she is a housewife. As plaintiff is her neighbour, she knows the plaintiff since 10 years. Plaintiff is working as an LIC agent. According to her, defendant is also resident of Gaigolupadu Village and she saw defendant one year back.

With regard to suit transaction, she stated that plaintiff lent amount to defendant at her house. At the time of said money transaction, she, plaintiff, husband of plaintiff, defendant and husband of defendant were present. She never visited to the police station along with plaintiff. Plaintiff is not in the habit of lending any amount to 3rd parties. At the time of lending amount, plaintiff obtained only one promissory note from defendant. Plaintiff informed her that defendant did not pay the borrowed debt.

She was suggested that as she is neighbour-cum-friend of plaintiff, deposing false. The said suggestion was denied by P.W.2.

The evidence of P.W.2 is not shaken and inspires confidence. Her evidence disclose that she being neighbour to plaintiff, know the plaintiff.

She attested Ex.A1 pronote and suit transaction took place at the house of plaintiff.

Now, let us discuss the evidence of P.W.3, who is scribe of pronote. Pilli Vamsi Krishna is P.W.3. He also deposed in the same lines of P.W.2.

According to his evidence, he was tenant of plaintiff, in that way, he know the plaintiff. He is scribe of Ex.A1 pronote.

As per his evidence, defendant was residing next street of plaintiff and plaintiff brought amount from her house and said that interest is 2% to the defendant and transaction took place in between 5-00 to 6-00 p.m.

He, plaintiff, defendant, two attestors by name Pilli Arjunarao and Pilli

Parvathi were present at the time of suit transaction. He saw the defendant on the date of scribing Ex.A1 pronote. At that time, defendant was aged in between 45 to 46 years.

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The evidence of P.W.3 is corroborated with the evidence of P.W.1, so also with the evidence of P.W.2.

There is no dispute about P.W.3 being tenant of plaintiff, therefore, there is possibility for P.W.3 to scribe Ex.A1 promissory note on the request of plaintiff. Even with regard to P.W.2, there is no dispute about P.W.2 being neighbour to plaintiff, therefore, there is possibility for P.W.2 to act as an attestor of Ex.A1 suit transaction.

With regard to call money case, no suggestion was put to P.W’s.2 and 3 on that aspect, so also P.W.1.

Hence, plaintiff by examining himself as P.W.1 and by examining attestor and scribe of pronote as P.W’s.2 and 3 and by filing Exs.A1 to A4 proved the execution of Ex.A1 pronote. When the plaintiff proved the execution of Ex.A1 pronote, presumption under Section 118 of Negotiable

Instruments Act attracts which goes in favour of the plaintiff to say that the contents of Ex.A.1 pronote were in existence, was happened and the consideration thereon under Ex.A.1 was so passed to the defendant herein.

However, the said presumptions are not conclusive proof, can be rebutted by the defendant by adducing cogent and satisfactory evidence to say that it is impossible to happen the contents of pronote on a particular day under

Ex.A.1 and that there was no execution of pronote and consideration was never passed to the defendant. .

To rebut the said presumptions, defendant herself examined as D.W.1. She filed her chief affidavit which has been admitted in lieu of chief examination, but, as she did not turn up for cross examination, her evidence was eschewed on 20-09-2019. No steps were taken by defendant to re-open her evidence and to set aside the eschew order. No further evidence adduced to rebut the said presumption.

Assume for a moment, the defence taken by the defendant is true, even then defendant is admitting her signature on Ex.A.1 pronote. It is her case that financiers obtained her signatures on blank pronotes by 7 Fair Judgment in O.S.464/2018

dt:31-10-2019

threatening her and by using one such blank pronote, the suit pronote was created through the plaintiff. If at all her defence is true, the said document is called as inchoate document means under law she has permitted the holder of the signed pronote to fill and enforce the said document under

Sec.20 of Negotiable Instruments Act in view of the ruling of “Duggineni

Seshagiri Rao vs. Kothapalli Venkateswara Rao”, (2001 (6) A.L.T. 95

(D.B.)(A.P.).

Therefore, defendant failed to shatter or dispel the case of the plaintiff by adducing rebuttal evidence.

In the light of above discussion, plaintiff proved that suit

pronote dated 10-10-2016 is true, valid and binding on the

defendant. Therefore, she is entitled for the suit amount.

Issue No.3 :- “To what relief?”

From the above discussion made supra in Issues 1 and 2, as plaintiff is entitled for the suit amount,

In the result, suit is decreed with costs directing the defendant to pay a sum of Rs.4,32,800/- (Rupees four lakhs thirty two thousand and eight hundred only) to the plaintiff with subsequent interest @ 12 % p.a. from the date of suit till the date of decree and future interest @ 6% p.a. from the date of decree till realisation on the principal amount of Rs.3,00,000/-.

Dictated to the Stenographer Grade-II, transcribed by him, corrected

and pronounced by me in the Open Court, on this the 31st day of October, 2019.

I ADDL. SENIOR CIVIL JUDGE,

KAKINADA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:-

P.W.1 :Pilli Nooka Ratnam (Plaintiff)

P.W.2 :Pilli Parvathi (2nd attestor of Ex.A.1 pronote)

P.W.3 :Pilli Vamsi Krishna (Scribe of Ex.A.1 pronote) 8 Fair Judgment in O.S.464/2018

dt:31-10-2019

For Defendant:-

D.W.1:Karri Kanaka Durga (defendant) (eschewed)

DOCUMENTS MARKED

For Plaintiff:-

Ex.A.1 /10-10-2016:Original promissory note executed by the defendant in favour of the plaintiff for Rs.3,00,000/-.

Ex.A.2/09-07-2018:Office copy of Legal Notice issued by the Plaintiff to the defendant.

Ex.A.3/10-07-2018:Postal acknowledgement from the defendant.

Ex.A.4/22-07-2018:Reply notice issued by defendant.

For Defendant:-NIL.

I A.S.C.J.,

KAKINADA.

1 Fair Judgment in O.S.29/2017

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IN THE COURT OF THE I ADDL. SENIOR CIVIL JUDGE, KAKINADA

Present : SMT.K.VIJAYA KALYANI

I Addl. Senior Civil Judge

Wednesday, the 30th day of October, 2019

ORIGINAL SUIT NO.29/2017

Between:

Yedla Satyavathi, W/o Uma Maheswararao, 53 years, Business, D.No.32-5/4,

Ranganayakula Veedhi, Kakinada...Plaintiff.

AND

Rokka Manga, W/o Srinivasu, 36 years, Business, D.No.17-1-17/53, Parlovapeta,

Kakinada...Defendant.

This suit coming on 28-10-2019 for final hearing before me in the presence of Sri N.S.R.N.Chowdary, Smt.P.Mangadevi, Advocates for plaintif and of Sri S.David Samuel, Sri M.Krishnarjun, Advocates for defendant and the matter having stood over for consideration till this day, this Court delivered the following:-

JUDGEMENT

This suit has been filed by the plaintiff for recovery of an

amount of Rs.4,16,833/- on the foot of a promissory note said to

have been executed by the defendant with subsequent interest,

costs and other reliefs.

1. Brief facts of the plaintiff’s case is that:-

Defendant in need of money borrowed an amount of

Rs.2,50,000/- from her at Kakinada on 05-04-2014 and executed a promissory note on the even date. Later defendant failed to repay the borrowed debt despite of several demands which includes legal notice dated 27-12-2016. Having received the same, defendant kept mum and failed to repay the borrowed debt. Hence, she is constrained to file the present suit.

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2.The defendant denied and disputed the claim of the plaintif intoto and filed her detailed written statement.

3. Brief averments of the written statement filed by the defendant are as follows:

(a) This defendant submits that she received legal notice and found its contents as false. With the help of address in the notice, she approached plaintif and questioned her as to why she gave notice with false allegations. She placed the matter before the elders wherein plaintif promised to withdraw all further proceedings, therefore, she did not give any reply for the said notice.

(b) This defendant submits that previously also one notice was received by her alleging that she borrowed some amount along with her husband. She issued reply notice for the said notice. Subsequently, no action was taken by the said person who issued legal notice.

(c) This defendant submits that after perusing the Photostat copy of pronote, she found that her signature has been forged. In fact, till receiving notice, she do not know the plaintif. Hence prays to dismiss the suit with exemplary costs.

4.After hearing both sides and basing on the above pleadings, my predecessor framed the following issues:-

1. Whether the suit promissory note is true, valid and binding on the defendant?

2. Whether the suit promissory note is forged document?

3. Whether the plaintiff is entitled for suit claim?

4. To what relief?

5. Heard arguments.

6. To prop up the contentions of both parties, plaintiff

examined herself as P.W.1 and sole attestor of Ex.A.1 pronote

examined as P.W.2. Exs.A.1 to A.3 were marked. On the other hand,

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defendant examined herself as D.W.1. No documents were marked

in ‘B’ series.

7. As Issues 1 to 3 overlap each other, for better appreciation, all the three Issues were answered together.

Issues 1 to 3:-

1. Whether the suit promissory note is true, valid and binding on the defendant?

2. Whether the suit promissory note is forged document?

3. Whether the plaintiff is entitled for suit claim?

It is the contest of the plaintiff that defendant failed to

repay the borrowed debt of Rs.2,50,000/- despite several demands.

Hence, prays to decree the suit in her favour.

Per contra, it is the contest of the defendant that

signature on suit pronote is forged one. She do not know the

plaintiff. Only after receiving legal notice, she came to know about

the plaintiff. She approached and questioned her for issuance of

legal notice with false allegations. Later she placed the matter

before the elders, wherein plaintiff promised to drop further

proceedings. Hence prays to dismiss the suit with exemplary costs.

To prove her case, plaintiff examined herself as P.W.1. She filed her chief affidavit which has been admitted in lieu of Chief Examination.

Through her Exs.A.1 to A.3 were marked wherein Ex.A.1 is the original promissory note dated 05-04-2014 for Rs.2,50,000/- executed by the defendant in her favour ; Ex.A.2 is the office copy of legal notice

dt:27-12-2016 issued by her to the defendant and Ex.A.3 is the postal

acknowledgment.

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P.W.1 was cross-examined at length by the counsel for the defendant. In her cross examination, she deposed that she is doing cloth business at Kakinada; Defendant is residing nearby house of her daughter by name Veeralakshmi; She is not in habit of lending amount and she has no money lending business. She has no document to show that on the date of transaction, she was in possession of Rs.2,50,000/-; She is not an income tax assessee and she has no license to run cloth business; Transaction took place at her house. Five persons were present at the time of transaction.

As per the evidence of P.W.1, no document filed to prove possession of Rs.2,50,000/- on the date of suit transaction. Though no document has been placed before the Court, but, here, in this case, there is no pleading by the defendant disputing the financial capacity of the plaintif.

Therefore, non filing of document by P.W.1 will not weaken her case.

Learned counsel for the defendant argued that there is no source of income to the plaintif. To prove that she is doing cloth business, no account books etc., were filed. The said argument is not tenable as there is no pleading in the written statement disputing running of cloth business by the plaintif/P.W.1.

To corroborate her evidence, she examined P.W.2 who is the sole attestor of Ex.A1 pronote. It is the evidence of P.W.2 that he got acquaintance with the plaintif as she does cloth business and he purchase clothes from her.

According to his evidence, defendant is residing near to his residence and she often visit the house of plaintif, in that way he know the defendant also.

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According to him, plaintif is resident of Suryanarayanapuram, whereas, he is residing at Hanuman Nagar and there is a distance of 5 k.m.

in between Hanuman Nagar and Suryanarayanapuram.

According to him, suit pronote was executed on 05-04-2014 in between 2-00 to 2-30 p.m. in the house of plaintif. At the time of suit transaction, five persons were present. He is only attestor of Ex.A1 pronote.

He is not indebted to the plaintif.

He was suggested that as he is having acquaintance with the plaintif, he is deposing false and in fact no money transaction took place in his presence. The said suggestion was denied by P.W.2.

The evidence of P.W.2 corroborates the evidence of P.W.1 with regard to time, date and place of execution of Ex.A1 pronote.

No dispute put forth by counsel for the defendant that P.W.2 has no acquaintance with P.W.1 or defendant by way of cross examination. P.W.2 was only suggested that as he is having acquaintance with the plaintif, he is deposing false, which means defendant is admitting that P.W.2 had acquaintance with P.W.1.

Learned counsel for the defendant argued by stating that scribe was not examined. Here, I strongly disagree with the arguments advanced by learned counsel for the defendant because there is no hard and fast rule to examine scribe. It is wish and will of the plaintif to examine either attestor or scribe to prove execution of pronote.

Hence, plaintif by examining herself as P.W.1 and by examining attestor of Ex.A.1 promissory note as P.W.2 and by filing Exs.A.1 to A.3 proved the execution of Ex.A.1 Pronote. When execution of Ex.A.1 proved, presumptions under Section 118 of Negotiable Instruments Act attracts 6 Fair Judgment in O.S.29/2017

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which goes in favour of the plaintif to say that the contents of Ex.A.1 pronote were in existence, was happened and the consideration thereon under Ex.A.1 was so passed to the defendant herein. However, the said presumptions are not conclusive proof, can be rebutted by the defendant by adducing cogent and satisfactory evidence to say that it is impossible to happen the contents of pronote on a particular day under Ex.A.1 and that there was no execution of pronote and consideration was never passed to the defendant.

To rebut the said presumptions, defendant examined herself as D.W.1. She filed her chief affidavit wherein interestingly new facts were added in her chief affidavit which are as follows:- “she borrowed amount from one Nallamilli Venkata Reddy of

Anaparthi. Later some disputes arose between them, he might have supplied her signature to plaintif and plaintif forged her signature.” This pleading was not taken in her written statement, for the first time, she mentioned about borrowing amount from one Nallamilli Venkatareddy, the same was admitted by her at her cross examination. This is a new story invented by the defendant in her chief examination. If really, something happen as apprehended by her, what made her not to plead in her written statement why she kept quiet all these days remained unexplained. Hence, evidence without a pleading is of no value.

During her cross examination, she stated that she cannot say the date when she met the plaintif; She cannot say the date when she placed the matter before the elders; She did not issue any reply notice for the notice sent by the plaintif; She admitted about receiving legal notice from the plaintif.

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When Ex.A1 was confronted, she denied the signature and thumb impression on the stamp paper on Ex.A1; She admitted that she did not file any petition to send Ex.A1 for expert opinion.

With regard to unknown notice received by her as pleaded in her written statement, she stated that she cannot say the details of the notice which was received by her prior to the notice issued by the plaintif. If at all she received any notice, she might have whispered the contents of said notice in the absence of which, it is deemed that “no unknown notice” received by her.

As per the evidence of D.W.1, she deposed that she placed the matter before the elders, but, no elder was examined to prove her contest.

Though she denied signature and thumb impression on the stamp paper, but, no eforts put by her to send Ex.A1 pronote for expert opinion along with contemporary signatures, due to which application filed U/Sec.45 of Indian

Evidence Act dismissed without costs which attained finality for non challenging the said order.

Under these circumstances, it can be safely concluded that plaintif proved the execution of Ex.A1 pronote. The evidence of D.W.1 is not sufficient to prove her defence. Her evidence needs corroboration, but, no evidence adduced by her to shatter or dispel the case of the plaintif in toto.

In the light of above discussion, plaintiff proved that suit

pronote is true, valid and binding on the defendant; suit pronote is

not a forged document and she is entitled for the suit claim.

Issue No.4 :- “To what relief?”

From the above discussion made supra in Issues 1 to 3, as plaintif is entitled for the suit amount, 8 Fair Judgment in O.S.29/2017

dt:30-10-2019

In the result, suit is decreed with costs directing the

defendant to pay a sum of Rs.4,16,833/- (Rupees four lakhs sixteen

thousand eight hundred and thirty three only) to the plaintiff with

subsequent interest @ 12% p.a., from the date of suit till the date of

decree and future interest @ 6% p.a., from the date of decree till

realization on the principal amount of Rs.2,50,000/-.

Dictated to the Stenographer Grade-II, transcribed by him, corrected

and pronounced by me in Open Court, this the 30th day of October, 2019.

I Addl Senior Civil Judge, Kakinada.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: P.W.1 : Yedla Satyavathi (plaintif) P.W.2 : Patneedi Srinivasarao (attestor of Ex.A.1 pronote) For Defendant: D.W.1:Rokkam Manga (defendant)

DOCUMENTS MARKED

For Plaintiff: Ex.A.1 /05-04-2014:Original Promissory Note for Rs.2,50,000/- executed by the defendant in favour of the Plaintif. Ex.A.2 /27-12-2016:Office copy of Legal Notice issued by the Plaintif to the defendant. Ex.A.3 /--:Postal acknowledgment. For Defendant:NIL.

I A.S.C.J.,

Kakinada.