Sri L.Sridhar

1

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE :: ELURU

Present:- Sri L.SRIDHAR

Principal Senior Civil Judge

Thursday, the 19th day of April, 2018

O.S.No. 200 / 2011

Between :

1. Teegavarapu Surya Dinesh.

2. Teegavarapu Venkata Lakshmi Anusha. .. Plaintiffs.

(The next friend/guardian mother of the plaintiff by name T.Vakulamata discharged on 14-9-2017 as per orders passed in I.A.No.2356/2017 due to attainment of majority by plaintiffs)

and

1. T.V.N.S.L.Ravindra Prasad.

2. T.V.S.N.L.Sastry.

3. T.L.Sakunthala. .. Defendants.

This suit coming on 6-4-2018 for final hearing before me in the presence of Sri D.S.V.Manikyala Rao, Advocate for the Plaintiffs and of

Sri S.V.R.Gandhi, Advocate for the defendants 2 and 3; and the 1st defendant is set exparte and having stood over the matter for consideration to this day, this Court delivered the following:

J U D G M E N T

This is a suit filed by the plaintiff for partition of plaint schedule property into three equal shares and for possession of 2/3rd shares to plaintiffs.

2. The case of the plaintiffs in brief is mentioned as follows. It is stated that the 1st defendant is the father of the plaintiffs and 2nd defendant is the brother and 3rd defendant is sister in law of first defendant. It is further stated that the 1st defendant was having an extent of Ac.2.50 cts., of agricultural land situated at Yendapalli village and the said property is the ancestral property of the 1st defendant. The plaintiffs and the 1st defendant 2 constitute Hindu Undivided joint family and the said extent of agricultural land is the joint family property of the 1st defendant and plaintiffs. The 1st defendant was also having agricultural land that was settled by his mother and brother in his favour and thus the total extent of land of 1st defendant was Ac.6.31 cts. It is further stated that the 1st defendant on 07-03-2003 sold away an extent of Ac.1.52 cts., to the 2nd defendant by way of a registered sale deed for an alleged consideration of Rs.55,000/- and further the 1st defendant on the same day sold away an extent of Ac.4.79 cts., by way of registered sale deed to the 3rd defendant for an alleged consideration of Rs.1,83,000/- and that the first defendant has no legal necessity to borrow any amounts for which the above sale consideration was said to be paid and as such the above sale transactions do not bind the plaintiffs in any way. It is further stated that the said property is ancestral property of first defendant and the ancestral property of Ac.2.50 cts., of the 1st defendant was blended with his other properties and subsequently the 1st defendant sold away the entire extent of plaint schedule property of an extent of Ac.6.31 cts., to the defendants 1 and 2 under two individual registered sale deeds dt.07-03-2003 and hence the ancestral property of

Ac.2.50 cts., of 1st defendant is to be carved out of Ac.6.31 cts., and after such separation, the plaintiffs are entitled to 1/3rd share of each such separated share of Ac.2.50 cts., from out of the plaint schedule property of

Ac.6.31 cts. The plaintiffs got issued a regd., legal notice dt.20-01-2011 to the defendants 1 and 2 demanding for partition for their respective share of property in the plaint schedule property and the defendants received the same and got issued reply legal notice dt.07-02-2011 with false allegations stating that the said Ac.2.50 cts was sold away by the 1st defendant as 3 kartha and manager of the joint family and also for the discharge of ancestral debts and denied the right of plaintiffs to seek for partition of the plaint schedule property and hence the plaintiffs are constrained to file this suit.

3. The 1st defendant who is father of the plaintiffs remained ex- parte and the remaining defendants i.e. defendants 2 and 3 only contested the suit. The defendants 2 and 3 filed their written statement by denying the case of the plaintiff except admitting the relationship and contended that one late Teegavarapu Venkata Lakshmi Suryanarayana garu had three sons and two daughters and the eldest son Venkata Satya Sitaramayya died in 2008 and the 2nd defendant herein is the 2nd son and the first defendant is the youngest. After the death of said T.V.L.Suryanarayana garu on 14-07-1977, his wife late Smt.Damayanthi, three sons and two daughters divided their joint family properties in the year 1978 into six shares and later got executed Partition List dt.22-1-1985 and in that partition, the 1st defendant was allotted the D-schedule properties which alone was the joint family property of the plaintiffs and 1st defendant. It is further contended that after partition, the late Damayanthi settled an extent of Ac.1.32 cts., on the 1st defendant by a registered Dakhal Deed dt.21-4-1998 out of love and affection towards him and hence the said land is the self acquired property of the 1st defendant. It is further stated that the eldest brother T.V.S.Sitaramayya was allotted an extent of Ac.3.31 cts., in both the villages as per the B-schedule of the partition list and he executed a registered Dakhal deed dt.21-04-1998 in favour of the 1st defendant conveying Ac.2.49 cts., with the 4 mango trees therein reserving to himself the right to enjoy the produce for his life and the said land is also self 4 acquired property of the 1st defendant. Thus out of Ac.6.31 cts mentioned in the plaint, Ac.3.81 cts., is the self acquired property of the 1st defendant over which he has absolute power of disposal.

4. After perusing the pleadings of both sides and on hearing of both the following issues are framed.

1. Whether the plaint schedule properties comprised of ancestral properties to an extent of Ac.2-50 cents and joint family properties for remaining extent?

2. Whether the alienation made by D1 in favour of D2 and D3 are for discharge of antecedent debt and binding on the plaintiffs?

3. Whether the plaintiffs are entitled for partition of plaint schedule properties as prayed for?

4. Whether the plaintiffs are entitled to mesne profits as prayed for?

5. To what relief?

5. In support of the plaintiff, P.W.1 is examined and marked

Exs.A-1 to A-4. On behalf of the defendants D.Ws.1 and 2 are examined and marked Exs.B-1 to B-21.

6. Heard arguments of both sides and posted for judgment.

7. ISSUE.1:-- The learned counsel for the plaintiffs argued that the evidence of plaintiffs coupled with the documentary evidence would clearly show that the plaint schedule properties are ancestral properties of first defendant and that sale of those properties by 1st defendant is no for the purpose of family necessities and that those sale transactions under Ex.A1 and A2 sale deeds are not valid and hence the plaintiffs are entitled for partition as prayed for. The learned counsel for the defendants argued that the said property is not an ancestral property and that it is self acquired property of father of first defendant and that after demise of their father, the 5 said property fell to the share of 1st defendant by virtue of partition list and hence it is self acquired property of 1st defendant and hence it is not ancestral property. It is also argued that the sale transactions under Ex.A1 and A2 in favour of D2 and D3 are for the purpose of family necessities and further the plaintiffs and also brother of D1 also involved in those sale transactions and hence they cannot be said as invalid and thus they are perfectly valid. As seen from the material on record, the plaintiffs herein filed this suit for partition of the plaint schedule property of Ac.2.50 cts., out of

Ac.6.31 cts., in R.s.NO.34/1A and 35 into three equal shares and to allot two such shares to the plaintiffs. In support of the same, the plaintiffs examined their mother as Pw1 and marked Ex.A1 to A4 on their behalf.

According to plaintiffs, the said property of Ac.2.50cts is ancestral property of their father i.e.1st defendant and hence they are entitled for partition of the same. The mother of plaintiffs being guardian is examined as Pw1 on behalf of the plaintiffs. According to their case, the 1st defendant sold away

Ac.4.79 cts., to 3rd defendant under a registered sale deed dt.07-03-2003 and also sold away another Ac.1.52 cts., to 2nd defendant under a registered sale deed dt.07-03-2003 and the total property that was sold away by 1st defendant comes to Ac.6.21 cts. The said registered sale deeds are marked as Ex.A1 and A2 on behalf of the plaintiff. The defendants also filed registered extracts of said two sale deeds and they are marked as

Ex.B17 and B18. The said property of Ac.2.50 cts., of D1 is part and parcel of said Ac.6.31 cts that was sold out under Ex.A1 and A2 sale deeds in favour of D2 and D3 respectively. The main contention of plaintiffs is that said property of D1 measuring Ac.2.50 cts., is ancestral property of D1. On perusal of record, the said property originally belonged to father of D1 and 6

D2. As seen from the evidence of defendants and documents filed by them marked under Ex.B20 and B21, the father of defendants 1 and 2 said to have purchased the said property. It is found that under Ex.B20 registered sale deed, the father of the defendants 1 and 2 purchased Ac.4.21 cts out of

Ac.6.21 cts in R.S.No.34/1 and Ac.5.79 cts out of Ac.10.90 cts in R.S.NO.35 of Yandapalli village. It is also found that under Ex.B21, the father of D1 and

D2 purchased Ac.2.00 cts of land out of Ac.6.21 cts in r.s.NO.34/1 of

Yandapalli village. Therefore as seen from the above documents, it is clear that the father of D1 and D2 by name T.V.L.Suryanarayana who is father of

D1 and D2 purchased the said property under the above two registered sale deeds and hence the said properties covered under Ex.B20 and B21 are self acquired properties of their father Suryanarayana. It has been argued by the learned counsel of defendants that there is no pleading or evidence on behalf of plaintiffs that said properties are acquired by Suryanarayana with any ancestral nucleus and that there are some other ancestral lands inherited by him and that with the income derived from that property, the said lands are acquired and that after acquiring the same, the said lands are blended with the ancestral properties of Suryanarayana. On perusal of record, the plaintiffs did not file any documentary evidence before this court to establish that said properties are ancestral properties of said

Suryanarayana. It is also found from their evidence, that after demise of said Suryanarayana, the mother Damayanti, three sons i.e.,

T.V.S.Seetharamayya, 2nd defendant and first defendant and two daughters namely Smt.Venkata Rama Kalavathi and Smt.Parvata Vardhanamma partitioned their properties of late Suryanarayana by virtue of partition list

dated 22-12-1985. There is also no dispute from the plaintiffs with regard to

7 said partition under partition list and it has been admitted by Pw1 at the time of her cross examination. By virtue of said partition, said Ac.2.50 cts fell to share of 1st defendant. Further the mother Damayanthi and brother late

Seetaramayya settled their shares in favour of 1st defendant under registered Dakhal deeds for which there is no dispute from the plaintiffs. It has also been referred in Ex.A1 and A2 sale deeds and also in Ex.A3 legal notice and also in Ex.B1 to B5 registered documents that the joint properties of the 1st defendant, his brother and mother were partitioned and that the same is evident from the partition list and therefore the plaintiffs cannot plead ignorance about the recitals in the said registered documents and further they are estopped from raising the plea that the schedule properties are ancestral properties. Moreover the plaintiffs were not born by the date of demise of late Suryanarayana or by the time of partition or by the date of partition list and hence the plaintiffs have not acquired any right over the said property by birth. Thus it is clear that the said properties in an extent of

Ac.2.50 fell to the share of D1 are not ancestral properties but self acquired properties. There is a judgment of our Honourable High Court of A.P. in

a case between Padala Prasad and others vs Padala Anandarao and

others reported in 2011 (5) ALT 448 wherein it has been held that the

property acquired by father in partition with his father and brothers

can be regarded as his self acquired property. On coming to this case, originally the father of D1 purchased the said properties under Ex.B1 and

B2 sale deeds and after demise, the D1, his mothers and brothers and sisters got partitioned the said property and in that partition, the 1st defendant was allotted Ac.2.50 cts of land which is subject matter of this suit. Therefore when D1 who is father of plaintiffs got said property in the 8 partition, it becomes self acquire property of D1 and it cannot be regarded as ancestral property. Further the plaintiffs did not place before the court any such material in support of their contentions as to alleged fact that the said properties are ancestral properties. The facts of the above citation are applicable to this case. Thus this issue is decided as against the plaintiffs.

8. ISSUES NO.2, 3 & 4:-- These issues are clubbed together for discussion as they are interrelated to each other. It has been argued by the plaintiff that the above alienations are made not for any debts and not for any necessity of the family. According to plaintiffs, the said sale transactions under Ex.A1 and A2 are made by their father i.e 1st defendant not for necessities of their family and hence they do not bind the plaintiffs in any way. On the other hand, the defendants 2 and 3 argued that the 1st defendant and his brother late Seetaramayya contracted debts from private money lenders and Andhra Bank and they were utilised for need and legal necessity of their family and hence the said sale transactions under Ex.A1 and A2 are perfectly valid. As seen from the recitals from the recitals of

Ex.A1 and A2 that the sales were effected in favour of D2 and D3 for discharging debts contracted by the 1st defendant and his brother Seetha

Ramaiah and there is no specific pleading that the said debts were contracted for immoral purpose by the first defendant for his vices. It is also to be seen that the properties sold under Ex.A1 and A2 are not only the properties of 1st defendant but also the properties belonged to his mother

Damayanthi and his brother Seetharamayya who settled the same in favour of D1 under registered Dakhal deeds. Further it is found from the above

Ex.A1 and A2 sale deeds they are found to be executed by D1, his brother

Seetharamayya and the plaintiffs represented by their father i.e., D1 as 9 guardian. According to plaintiffs and their mother Pw1, they alleged as if they were sold by D1 alone but the recitals of said documents show otherwise that they were sold by D1, plaintiffs and also D1’s brother

Seetharamayya. If D1 alone sold the said properties under Ex.A1 and A2, than one can come to conclusion that he sold the same for discharging his debts and vices but hereunder not only D1 but also his brother

Seetharamayya and his children i.e. plaintiffs also participated in those sale transactions and hence we cannot infer those transactions under Ex.A1 and

A2 for the purpose of his vices. It is also to be noted that it is not the case of the plaintiffs that their father i.e.D1 was addicted to bad vices and living separately away from his family. There is also no pleading for that purpose.

Further it is also not their case that D1 contracted debts for his vices. There

is a judgment of our Honourable High Court of A.P. in a case between

V.V.V.Ramaraju and another vs Korada Malleswara Rao and others

wherein it is stated that the father has special powers of such

alienation including son‘s share for legal necessity or for the benefit of

the estate or for the discharge of antecedents debts not tainted with

illegality or immorality. In this case also, the first defendant along with his brother and children who are plaintiffs herein sold out the said property to

D2 and D3 under Ex.A1 and A2 registered sale deeds and the recitals therein indicate as if they are sold for discharging debts and necessity of the family but it is not mentioned therein as if debts incurred for immoral purpose. Further it is also not specifically pleaded by the plaintiffs as to absence of legal necessity. It is also case of the defendants 2 and 3 that the 1st defendant and his brother Seetharamayya borrowed amounts under

Exs.B6, B8, B10 and B12 and borrowed loan from Andhra Bank. In support 10 of the same, the defendants filed those promotes and also receipts issued by Andhra Bank and they are marked as Exs.B15 and B16. It is also case of the defendants 2 and 3 that they discharged said promotes and the said discharge endorsements are marked as Exs.B7, B9, B11, and B13. There is also no dispute from the plaintiffs with regard to debts under the above pronotes and also about the loan of Andhra Bank. Therefore as per recitals of said Exs.A1, A2 and other sale deeds as referred above, the sale consideration of Exs.A1, A2 and other sale transactions had been utilised for the discharge of said debts and thus it has not been recited in those documents as if they were borrowed for immoral purpose. It is also their case that the defendants 2 and 3 paid said debt after concession given by

Andhra Bank and accordingly they paid Rs.10,000/- on 20-03-2004 to the 1st defendant and his brother Seetharamayya and obtained Ex.B14 voucher from them which is signed by the 1st defendant and his brother

Seetharamayya. As contended by the defendants, it is true that there is no suggestion from the plaintiffs to Dw1 and Dw2 as to genuiness of signatures in the above promotes and other documents. It is also not the case of plaintiffs that the 1st defendant did not borrow any amounts under those promissory notes. There is a judgment of Honourable High Court of A.P.

in a case between Voleti Eswqara Rao and others v. V.T.Sharat

Chiandra Thotraj and others reported in 2014(5) ALD 85 wherein it has

been held that unless specifically pleaded by plaintiff and issue

framed in that regard by trial court, it was unnecessary for alienee to

lead any evidence as to existence of legal necessity for sale of

property in question to her. There is also another judgment of our

Honourable High Court of A.P. in a case between Kolasani Sivakumari

11

and others vs. Kolasani Sambasiva Rao and others wherein it is held

that alienations made by father cannot be assailed by sons unless

there is proof that transactions are tainted with illegality or immorality

and that purchasers had notice of tainted nature earlier thereto and

sons cannot challenge the debts contracted by father even if they are

not for legal necessity nor for benefit of family unless they are

incurred for illegal or immoral purposes.

9. It is also to be noted that the 1st defendant who is father of plaintiffs remained exparte. As seen from Ex.B19 sale deed, the 1st defendant along with first plaintiff sold out Ac.019 cts., by affixing copies of their aadhar cards and it clearly shows that they have been living together at Tadepalligudem. It is also not the case of the plaintiffs that they have been living separately along with their mother away from D1. Herein the 1st defendant who is father of plaintiffs also participated in those sale transactions under Ex.A1 and A2 and though he has been living together with his children i.e plaintiffs and their mother, but the plaintiffs being represented by their mother as guardian filed this suit by including their father as D1 by projecting him as acted contrary to interest of plaintiffs. But in the light of above material, the 1st defendant remained ex-parte and also shown to have participated in some of sale transactions with his son and it clearly shows that the 1st defendant might have got filed this suit with his children though he already sold out those properties to D2 and D3 for discharging debts incurred for the purpose of his family. Further the plaintiffs also failed to take plea for setting aside those sale transactions. When the plaintiffs pleaded those properties are ancestral properties and that those sale transactions are not valid, they should have pleaded in this suit as if 12 the said sale deeds under Ex.A1 and A2 are to be set aside. Hence under the above facts and circumstances, the plaintiffs failed to establish that the said sale transactions are tainted with illegality and immorality and therefore they are perfectly valid. The facts of the above citations are applicable to facts of this case. Hence the plaintiffs are not entitled for partition of the said property. Since the plaintiffs are not entitled for partition of the schedule property, they are not entitled to mesne profits and thus the issues are decided negative to plaintiffs.

10. ISSUE NO.5: In the result, the suit is dismissed without costs.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open Court, this the 19 th day of April, 2018.

PRINCIPAL SENIOR CIVIL JUDGE,

E L U R U.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS : FOR DEFENDANTS :

P.W.1 T.Vakula Matha. D.W.1 T.V.S.N.S.P.Lakshmi Narasimha Sastry. D.W.2 G.Srimannarayana Murthy.

DOCUMENTS MARKED

FOR PLAINTIFFS :

Ex.A-1 -- Certified copy of regd., sale deed dt.7-3-2003 executed by D1 in favour D2 in respect of Item No.1 of plaint schedule property. Ex.A-2 -- Certified copy of regd., sale deed dt.7-3-2003 executed by D-1 in favour of D3 in respect of item No.2 of plaint schedule property. Ex.A-3 -- Office copy of legal notice dt.20-1-2011. Ex.A-4 -- Reply notice of D2 and D3 dt.7-2-2011.

FOR DEFENDANTS :

Ex.B-1 -- Registration extract of registered Dakhal Deed dt.21-4- 1998 executed in favour of D-1.

13

Ex.B-2 -- Registration extract of registered Dakhal Deed dt.21-4- 1998 executed in favour of D-1 Ex.B-3 -- Registration extract of registered sale deed dt.7-6-1995 executed by D1 and another in favour of Malisetti Subba Rao vide Document No.1673/1995. Ex.B-4 -- Registration extract of registered sale deed dt.29-3-2003 executed by D1 in favour of P.Swarna. Ex.B-5 -- Registration extract of registered sale deed dt.29-3-2003 executed by TVS Sitaramaiah in favour of P.Swarna. Ex.B-6 -- Original Discharge pronote for Rs.30,000/- dt.2-4-2001 executed by TVS.Sitaramaiah and D1 in favour of TVS.Sitaramaiah and D1 in favour of Vuyyuru Nagabhushanam. Ex.B-7 -- Original Discharge endorsement dt.3-3-2003 duly signed by Vuyyuru Nagabhushanam. Ex.B-8 -- Original discharge pronote for Rs.30,000/- dt.15-3-1998 executed by TVS.Sitaramaiah and D1 in favour of Ganta Seshagiri Rao. Ex.B-9 -- Original Discharge endorsement dt.3-3-2003 duly signed by V.Nagabhushanam. Ex.B-10 -- Original discharge pronote for Rs.28,000/- dt.30-3-2000 executed by TVS.Sitaramaiah and D1 in favour of MD.Afzal Pasha. Ex.B-11 -- Discharge endorsement dt.5-3-2003 duly signed by Md.Afzal Pasha. Ex.B-12 -- Original discharge pronote for Rs.25,000/- dt.11-11-1998 executed by TVS.Sitaramaiah and D1 in favour of I.Satyanarayana Sarma. Ex.B-13 -- Discharge endorsement dt.25-2-2003 duly signed by Prasad i.e., D1. Ex.B-14 -- Original receipt for Rs.10,000/- dt.20-4-2004 executed by TVS.Sitaramaiah and D1 in favour D3. Ex.B-15 -- Original bank receipt for Rs.23,000/- dt.20-4-2004 issued by Andhra Bank, Ragavapuram. Ex.B-16 -- Original bank receipt for Rs.27,000/- dt.20-4-2004 issued by Andhra Bank, Ragavapuram. Ex.B-17 -- Registration extract of regd., sale deed dt.7-3-2003 executed by D1, his children and late T.V.S.Sitaramaiah in favour of D2. Ex.B-18 -- Registration extract of regd., sale deed dt.7-3-2003 executed by D1, his children and late T.V.S.Sitaramaiah in favour of D2. Ex.B-19 -- Registration extract of regd., sale deed dt.17-6-2016 executed by D1, 1st plaintiff in favour of M.Bala Krishna.

Ex.B-20 -- Registration extract of regd., sale deed dt.7-5-1956 executed by Malim Beeby Saheba in favour of Teegavarapu Venkata Lakshmi Suryanarayana.

14

Ex.B-21 -- Registration extract of regd., sale deed dt.3-8-1964 executed by T.R.Sastry in favour of T. Venkata Lakshmi Suryanarayana

P.S.C.J., ELR.

1

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE :: ELURU

Present:- Sri L.SRIDHAR

Principal Senior Civil Judge

Monday, the 16th day of April, 2018

O.S.No. 80 / 2015

Between :

Palnati Veera Venkata Satyanarayana. .. Plaintiff.

and

1. Chandu Nageswaramma.

2. Chandu Sita Rambabu.

3. Pasupuleti Krishna.

4. Pasupuleti Venkateswarao. .. Defendants.

This suit coming on 10-4-2018 for final hearing before me in the presence of Sri K.V.Rama Krishna, Advocate for the Plaintiff and of

Sri S.Ramachandra Rao, Advocate for the defendants; and having stood over the matter for consideration to this day, this Court delivered the following:

J U D G M E N T

The plaintiff filed the suit for recovery of suit amount basing on a pronote against the estate of the deceased Chandu Sobhanachalam laying in the hands of the defendants 1 to 3 and also against 4th defendant with joint and several liability.

2. The case of the plaintiff in brief is mentioned as follows: It is stated that one Chandu Sobhanachalam and 4th defendant jointly borrowed a sum of Rs.60,000/- from the plaintiff on 10-4-2012 for their necessities agreeing to repay the loan amount with interest at Rs.2/- per hundred per mensum with yearly compound and executed the suit pronote on the even date for a sum of Rs.60000/- in favour of the plaintiff promising to repay the same with the above terms on demand either to plaintiff or to 2 his order jointly and severally. It is further stated that the said Chandu

Sobhanachalam and 4th defendant failed to liquidate the loan amount in spite of his demands and later he learnt that Chandu Sobhanachalam died intestate survived by his wife Nageswaramma, a son Sita Rambabu and a daughter by name Pasupuleti Krishna and he also learnt that all the assets of said Chandu Sobhanachalam were devolved on the defendants 1 to 3.

In spite of his several demands, the defendants failed to repay the same and thereupon the plaintiff got issued legal notice on 3-2-2015 to the defendants but the defendants intentionally avoided to receive the notice without any response.

3. The defendants filed written statement by denying the case of the plaintiff and contended that the said Chandu Sobhanachalam and 4th defendant never borrowed any amount from the plaintiff either individually or jointly on 10-4-2012 and that there is no necessity for them to borrow such huge amount from the plaintiff and that suit pronote is fabricated note by forging thumb impression of Chandu Sobhanachalam and signature of 4th defendant only to give a threat as the 4th defendant stopped working in the fields of plaintiff as agricultural coolie since the plaintiff is an employee and due to above differences, 4th defendant stopped attending the cultivation operations for which the plaintiff bore grudge against him and filed the suit . It is further contended that there are no properties in their hands and therefore the above suit is not maintainable. It is also contended that the said Chandu Sobhanachalam fell sick from January, 2012 and he was moving from the house, thereafter on 8-3-2012 he was admitted in Manipal Super Speciality Hospital, Tadepalli, Guntur District, as inpatient and the doctors detected the disease that Chandu 3

Sobhanachalam was suffering with liver cancer and the doctors treated him for some time and later discharged from the hospital stating that there are no chances for curing his disease and asked them to take back to their village as there is no treatment. Thereupon they have returned to the village and kept Chandu Sobhanachalam in the house who was bedridden and that one Chilakapati Chandrasekhar, RMP Doctor, Sanivarapupet used to administer injections to him till he passed away on 3-6-2012 at

Ammapalem. Therefore the defendants prayed this Court to dismiss the above suit.

4. After perusing the pleadings both sides and on hearing ofboth the following issues are framed.

1. Whether late Chandu Sobhanachalam and D-4 borrowed

Rs.60,000/- on 10-4-2012 from the plaintiff by executing a pronote in his favour?

2. Whether the suit pronote is the outcome of the alleged circumstances as pleaded by D-4?

3. whether the plaintiff is entitled to recover the suit claim from out of the estate of Chandu Sobhanachalam lying in the hands of D-1 to D-3 and from D-4?

4. To what relief?

5. In support of the plaintiff, P.Ws.1 to 3 are examined and marked Exs.A-1 to A-6. On behalf of the defendants D.Ws.1 to 4 are examined and marked Exs.B-1 to B-3.

6. Heard arguments of both sides and posted for judgment.

7. ISSUES 1 to 3: All the above issues are clubbed together for discussion for the sake of convenience as they are inter-related to each other. The learned counsel for the plaintiff has argued that the evidence of

P.W.1 coupled with the evidence of other witnesses would clearly establish 4 the execution of suit pronote by the deceased Chandu Sobhanachalam and 4th defendant jointly and that as the defendants failed to disprove the case of the plaintiff the plaintiff is entitled for decree. The learned Counsel for defendants argued that it is a false case foisted against the defendants and that the pronote in this matter is a forged document and that the late

Chandu Sobhanachalam was bedridden due to liver cancer at the relevant time and therefore there was no chance of execution of suit promissory note and hence prayed this court to dismiss the suit.

8. It is a suit filed by the plaintiff for recovery of the suit amount basing on a pronote. In support of the case the plaintiff is examined as

P.W.1 and also examined two other witnesses as PW.2 and P.W.3. As seen from the evidence of P.Ws.1 to 3, one Chandu Sobhanachalam and 4th defendant borrowed a sum of Rs.60,000/- on 10-4-2012 for their necessities and executed Ex.A-1 pronote on the same day agreeing to repay the same with interest. It is also their evidence that the said

Chandu Sobhanachalam and 4th defendant failed to discharge the same during his life time in spite of repeated demands and later the defendants also failed to discharge the same in spite of registered legal notice. Apart from the evidence they also filed suit pronote which is marked as Ex.A-1 and further the office copy of legal notice got issued to the defendants is marked as Ex.A-2. The notices of defendants1 and 2 were returned which are marked as Exs.A-3 and A-4 and whereas the notices of defendants 3 and 4 were served under Exs.A5 and A-6 postal acknowledgements.

Therefore on the basis of the above evidence the plaintiff sought for decree. There is no dispute with regard to relation between the parties.

5

The 1st defendant is the wife, defendants 2 and 3 are children and 4th defendant is son in law of late Chandu Sobhanachalam.

9. In the cases of the above nature, the initial legal burden would caste upon the plaintiff to establish execution of suit pronotes by the defendant and if the plaintiff discharges said burden, it shifts upon the defendant to rebut the presumption as to non existence of passing of consideration. There is a decision of our Honourable A.P. High Court in a

case between G.Venkata Rama Subbaiah Vs. D.Rasool Naik..2003 (4)

ALT 414 J.Subrahmanyamwherein held that once the execution of the pronote is admitted or proved, then it is presumed to be supported by consideration unless contrary is proved. The burden is on the defendant to rebut the same by adducing convincing evidence. Unless the defendant rebuts the presumption by adducing convincing rebuttal evidence, the evidential burden would not shift back to the plaintiff who has legal burden.

Only after adducing such convincing rebuttal evidence, it can be held that thereafter the presumption under section 118 does not come to the rescue of the plaintiff.

10. It has been held by Honourable Supreme Court in a case

between Bharat Barrel and Drum vs Amin Chand Payrelal on 18 th

February 1999 (Division Bench) that Once execution of the promissory note is admitted or proved, the presumption under section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the 6 plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well.

In case, where the defendant fails to discharge the initial onus of proof by showing the non existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be bought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist.

11. The main contention of the defendants is that the said Chandu

Sobhanachalam and 4th defendant did not borrow any amount from the plaintiff and that it is a forged document since 4th defendant stopped attending cultivation affairs of plaintiff’s land. It is also their contention that 7 the said Chandu Sobhanachalam was suffering from liver cancer since

January, 2012 and also took treatment in Manipal Super Speciality Hospital and died on 3-6-2012 at Ammapalem village and he was bedridden at relevant time of this transaction and therefore there is no chance of execution of said pronote. In support of the same, the 2nd defendant is examined as D.W.1 and also examined 4th defendant as D.W.2. They also deposed before the Court on the same lines of their pleadings and further they have filed before the Court the medical record marked as Exs.B-1 and

B-2. Ex.B-1 is inpatient provisional bill of Chandu Sobhanachalam and B-2 is his Death Extract. They also examined the hospital authorities of

Manipal Super Speciality Hospital as D.W.3 who filed discharge summary and it is marked as Ex.B-3. Therefore basing upon the above record, the defendants requested this Court to dismiss the suit. It is true that there is no dispute with regard to the disease of Chandu Sobhanachalam and further he also took treatment in Manipal Super Speciality Hospital and he was admitted in the hospital on 8-3-2012 and took treatment till 10-3-2012 and on the same day he was discharged. Therefore the above record would indicate about the disease of Liver Cancer sustained by Chandu

Sobhanachalam. It is further case of the defendants that thereafter he was brought back to the village as there was no cure, at the advice of doctors and he was given treatment by RMP i.e., D.W.4 till his demise i.e., on 3-6- 2012. they also examined RMP doctor as D.W.4 to corroborate their version, but it has been clear from the above material that late Chandu

Sobhanachalam who was in the village since his discharge from the hospital on 10-3-2012, whereas the suit transaction said to have taken place on 10-4-2012. However, the defendants have been contending that 8 he was bedridden by then. Merely because Chandu Sobhanachalam was bedridden there is no point in coming to conclusion that he was not in the position to put his thumb impression in the pronote. However there was no record placed before the Court that the deceased Chandu Sobhanachalam was bedridden, was not in a position to put his thumb impression even.

However on the other hand the plaintiff examined the scribe and attestor of

Ex.A-1 who corroborated among themselves with regard to the transaction in between the plaintiff, and plaintiff from one side and late Chandu

Sobhanachalam and 4th defendant on other side. Further they received legal notices, but no response from them. Had really the defendants got any grievance they should have raise their grievance at the earliest point of time. But in this case though the defendants admitted to have received the legal notices but no reply was given. At the same time the defendants failed to place before the Court any material to disprove the case of the plaintiff. It is also to be noted that the defendants failed to take any steps to send the suit pronote for expert opinion. When the plaintiff could establish the execution of the suit pronote, when the defendants have taken plea of forgery, the burden is on them to establish the plea of forgery.

In this case the defendants could not send the above disputed pronote to the handwriting expert. Therefore in the light of the above material the plaintiff established the execution of the suit pronote and also the presumption under Section 118 NI Act would continue to operate in favour of the plaintiff as the defendants failed to rebut the same. Therefore the above issues are decided in favour of the plaintiff.

ISSUE NO.4: In the result, the suit is decreed against the 4th 12.

defendant personally and against the estate of deceased Chandu 9

Sobhanachalam, lying in the hands of the defendants 1 to 3, with costs for suit amount of Rs.1,00,800/- with subsequent interest at 12% per annum on the principal amount from date of the suit till date of decree and at 6% till its realization.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open Court, this the 16 th day of April, 2018.

PRINCIPAL SENIOR CIVIL JUDGE,

E L U R U.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF : FOR DEFENDANTS :

P.W.1 P.V.V.Satyanarayana. D.W.1 Ch.Seetharam Babu.

P.W.2 T.Kanakaraju. D.W.2 P.Venkateswara Rao.

P.W.3 B.Ramakrishna. D.W.3 Dr.Charan Tej.

D.W.4 Ch.Suryachandra Rao.

DOCUMENTS MARKED

FOR PLAINTIFF :

Ex.A-1 -- Pronote dated 10-4-2012 executed by one Chandu Sobhanachalam and D-4 in favour of plaintiff. Ex.A-2 -- Office copy of registered legal notice got issued by the plaintiff dt.3-2-2015. Ex.A-3 Return notice of 1st defendant. -- Ex.A-4 Return notice of 2nd defendant. -- Ex.A-5 Postal acknowledgement of 3rd defendant. -- Ex.A-6 Postal acknowledgement of 4th defendant. --

FOR DEFENDANTS :

Ex.B-1 -- Inpatient provisional bill issued by Manipal Super Speciality Hospital, Tadepalli, Guntur District for I.P.No.40862. Ex.B-2 -- Death extract of Chandu Sobhanacalam issued by Registrar of Births and Deaths, Ammapalem Gram Panchayat, Pedavegi Mandal.

10

Ex.B-3 -- Discharge summary of Chandu Sobhanacalam.

P.S.C.J., ELR.

1

IN THE COURT OF THE ADDITIONAL ASSISTANT SESSIONS JUDGE, ELURU

Present: Sri L. Sridhar, Addl. Assistant Sessions Judge

Monday, the 6th day of March, 2017

SESSION CASE NO.139/2016

(P.R.C.No.60/2011 of II Addl. Judicial Magistrate of First Class Court, Eluru in

Cr.No.154/2011 of Eluru I Town Police Station.)

Name of the complainant : State: Represented by the Sub Inspector of Police, Eluru I Town L & O Police Station.

Name of the Accused : 1. Peyyala Rajendra, s/o.Bhaskara Rao, 28 years, SC-Mala, Boy, Bharat Petrol Bunk, NH-5 bye-pass High Way, Ammapalem, r/o.D.No.2-15-22, Nerella Raja Colony, Eluru (A-1). (The case against Accused No.1 was abated as died)

2. Pulavarthi Ramesh, s/o.Venkana, 29 years, Mala, Lorry puncture work, r/o.backside of Ramalayam, Vangaigudem, Eluru.

Plea of the accused : Pleaded not guilty.

Finding of the Court : Found not guilty.

Sentence of the Court : In the result, the A-2 found not guilty for the offence charged under Section 366- A of I.P.C., and he is accordingly acquitted under Section 232 Cr.P.C. The case against A-1 was already abated as he died. The bail bonds and surety bonds, if any, shall stand cancelled after expiry of appeal time.

Prosecution conducted by : Additional Public Prosecutor, Eluru.

Defence conducted by : Sri I.S.Satyanarayana, Counsel for Accused.

2 Police station and Crime : Eluru I Town L & O Police Station. Number Cr.No.154/2011.

This case coming on this day for final hearing before me in the presence of the Additional Public prosecutor for the State and of Sri I.S.

Satyanarayana, Counsel for the accused; and upon consideration the material on record and on hearing arguments of both sides, this Court delivered the following:

J U D G M E N T

The above case arises out of the charge sheet filed by the Sub

Inspector of Police, Eluru I Town Police Station in Cr.No.154/2011 for the offence under Section 366-A of I.P.C., against the Accused.

2.The case of the prosecution in brief is as follows: The 1st accused who is no more now, used to have close acquaintance with the victim girl i.e., P.W.2 herein. While he was coming to the grocery shop of

P.W.1, he also used to express about his love towards her but she did not pay any attention. While the matter stand so, on 22-7-2011 at 4-00 A.M., both the accused took P.W.2 forcibly to Vijayawada and from there to Tirupathi by informing A-1 would marry her. Thereupon P.W.2 got escape from them and came to Vijayawada and from there she came back with the help of her father. Hence basing on the complaint of P.W.1, the above case is registered as a case in Cr.No.154/2011 under Section 363 of I.P.C., of Eluru I Town P.S., and during the course of investigation, the S.H.O., Eluru I Town P.S., (L.W.10) examined the scene of offence and prepared rough sketch. After completion 3 of entire investigation, the charge sheet is filed in this case.

3. The said case was taken into cognizance by the learned II Addl.

Judicial Magistrate of I Class, Eluru for the offence under Section 366-A IPC.,

against the accused No.2 and after issuance of summons to the accused and after appearance of the accused, copies of the documents are furnished as required under Section 207 Cr.P.C., and since the offence under Section 366-

A IPC., is exclusively triable by Sessions Court, the said case is committed to the Honorable District and Sessions Court, West Godavari District at Eluru and the same was made over to this Court for trial.

4. After receipt of the case, this Court has issued summons to the accused No.2 and on his appearance before this Court, he engaged his

Counsel and on hearing both sides, the Charge under Section 366-A of IPC., is framed, read over and explained to the accused for which he pleaded not guilty and claimed to be tried. In support of the case, the prosecution examined P.Ws. 1 and 2 and marked Exs.P.1 to P.3 on their behalf. The learned A.P.P., has given up all the other witnesses. After completion of the prosecution evidence, the examination of accused under Section 313 Cr.P.C., is dispensed with due to lack of any incriminating material available on record and after hearing arguments of both sides the matter posted for judgment.

5. The point for consideration is: Whether the prosecution has proved the guilt of the accused No.2 beyond reasonable doubt?

4 6. POINT:- The learned A.P.P., has argued that though the main witnesses turned hostile, she relied upon the material brought before the

Court at the time of cross examination and hence she requested this Court to convict the accused. The learned Defence Counsel has argued that it is a false case foisted against the accused and hence there is no incriminating material against the accused and therefore he is entitled for clean acquittal.

7. It is a case relating to the kidnap of the victim girl by the accused. The said victim girl is examined as P.W.2 and she is the daughter of

P.W.1 who is no other than the defacto complainant. On coming to the evidence, P.W.1 deposed before the Court that about four years back when his daughter i.e., P.W.2 did not return home from the school. He got suspicion and lodged complaint before the Police. It is further evidence of

P.W.1 that on the next day she returned from the house of her relations.

Therefore as seen from the evidence of P.W.1, he has not made any incriminating evidence against the accused. He further clarified that he does not know the accused herein. The learned A.P.P., confronted the complaint to P.W.1 but he did not identify its contents except his signature and his signature alone is marked as Ex.P-1. The learned A.P.P., examined the victim girl as P.W.2 who categorically deposed before the Court that she does not know the accused and facts of the case. Therefore P.Ws.1 and 2 did not support the case of the prosecution and they completely turned hostile.

Hence the learned A.P.P., has obtained permission from the Court and cross 5 examined both the above witnesses but could not elicit any incriminating evidence against the accused, and further they disowned their 161 Cr.P.C., statements i.e., Exs.P-2 and 3. Therefore the learned A.P.P., has given up all the remaining witnesses and this Court has closed the same as no purpose would be served. Therefore the only evidence i.e., available before the Court does not show any incriminating material to attract the ingredients of offence charged against the accused. Hence the prosecution failed to establish the guilt of the accused beyond reasonable doubt and the accused is entitled for acquittal.

8. In the result,the A-2 is found not guilty for the offence charged under Section 366-A of I.P.C., and he is accordingly acquitted under Section 232 Cr.P.C. The case against A-1 was already abated as he died. The bail bonds and surety bonds, if any, shall stand cancelled after expiry of appeal time.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open Court, this the 6th day of March, 2017.

ADDL. ASSISTANT SESSIONS JUDGE,

ELURU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

P.W.1: A.Srinivasa Rao.

P.W.2: A.Yamuna Rani.

6 FOR DEFENCE: NONE.

DOCUMENTS MARKED

FOR PROSECUTION:

Ex.P-1 : Signature of P.W.1 in the complaint.

Ex.P-2 : 161 Cr.P.C., statement of P.W.1

Ex.P-3 : 161 Cr.P.C., statement of P.W.2

FOR DEFENCE: Nil.

MATERIAL OBJECTS MARKED

- NIL -

Addl. A.S.J.,

Eluru

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE :: ELURU

Present:- Sri L.SRIDHAR

Principal Senior Civil Judge

Friday, the 20th day of April, 2018

O.S.No. 74 / 2013

Between :

1. Althi Krishna

2. Sri Bora Prasadarao … Plaintiffs (2 nd plaintiff is added as per Order dated 14.9.2017 in I.A.No.297/2016)

and

Yatranji Appalaraju … Defendant (Surname of defendant is amended as per Order

dated 29.4.2013 in I.A.No.999/2013)

This suit is coming on 28-2-2018 for final hearing before me in the presence of Sri K.V.Rama Krishna, Advocate for the Plaintiffs; and the Defendant remained set exparte and having stood over the matter for consideration to this day, this Court delivered the following:

J U D G M E N T

This is a suit filed under Section 26, Or.7, Rule 1 of C.P.C., for recovery of the suit amount on the basis of a mortgage transaction.

2. The case of the plaintiffs in brief is mentioned as follows: It is stated that the defendant has borrowed a sum of Rs.3,50,000/- from the plaintiff for the purpose of discharging debts contacted by him and for the benefit and necessity of the family and executed registered mortgage deed on 3-3-2012 mortgaging the plaint schedule property in favour of the 1st plaintiff. The defendant also handed over the photostat copy of the partition deed dated 1-4- 1998 under which he got the schedule property towards his share. The defendant failed to repay the loan amount and therefore the 1st plaintiff filed the above suit for recovery of the mortgage debt due from the defendant.

2

It is further stated that after filing of the suit, the 1st plaintiff was in need of money has transferred the mortgage deed in favour of the 2nd plaintiff after receiving consideration of Rs.3,50,000/- from the 2nd plaintiff and executed a registered mortgage transfer deed dated 6-2-2015. Therefore the 2nd plaintiff became entitled for recovery of the suit debt, because of the above registered mortgage deed transferred to him. The 1st plaintiff got issued a registered notice

before filing of the suit on 18-1-2013. Though it was received by the defendant,

but he did not respond. Therefore, the plaintiff filed this suit.

3. In support of the plaintiff, P.Ws.1 to 4 are examined and marked

Exs.A.1 to A.5. Heard plaintiff side arguments and posted for Judgment.

4. The Point for consideration is,

Whether the plaintiffs are entitled to suit claim as prayed

for?

5. P O I N T:- The learned Counsel for the plaintiff submitted his arguments in support of his pleadings. On perusal of the record, it is a suit filed originally by the 1st plaintiff for recovery of the suit amount basing on the mortgage transaction under Ex.A-1 dated 3-3-2012. Subsequent to the filing of the suit, the 1st plaintiff was in need of money transferred the mortgage deed under Ex.A-3 in favour of the 2nd plaintiff by executing original mortgage transfer deed dated 6-2-2016. Therefore the 2nd plaintiff became entitled to recover the above debt and hence they sought for a mortgage decree.

6. The 2nd plaintiff who is examined as P.W.1 corroborated the pleadings on the same lines, whereas the 1st plaintiff is examined as P.W.2 who also supported the version of P.W.1 with regard to above mortgage transaction under Ex.A-1 in between himself and defendant and also about the transfer mortgage transaction in between the 1st plaintiff and 2nd plaintiff under

Ex.A-3. Apart from the same, they also filed certified copy of partition deed 3

dated 1-4-1998 under Ex.A-2 where under the defendant got property towards

his share and same was deposited by the defendant with the 1st plaintiff at the time of mortgage transaction by creating mortgage in respect of the schedule property. It is also stated that prior to filing of the suit, the 1st plaintiff got issued registered notice under Ex.A-4 and the same was received by the defendant under Ex.A-5, but no reply was given nor paid any amount.

7. Therefore the 1st plaintiff filed the above suit for recovery of the mortgage debt, but because of the changes subsequent to the filing of the suit with regard to transfer of the mortgage deed by the 1st plaintiff in favour of the 2nd plaintiff, the above case was proceeded with trial with a request to pass a decree in favour of the 2nd plaintiff. The plaintiffs also examined the attestors of Exs.A-1 and A-3, who are examined as P.Ws.3 and 4 and they also supported the case of the plaintiffs by corroborating with the material particulars. Though the defendant has received legal notice, he did not issue any reply.

8. Further after registration of the above matter, this Court has issued summons to the defendant and though the defendant received the same he failed to appear before the Court. Therefore the defendant remained exparte.

Hence in spite of having chance to contest the matter the defendant failed to cross examine P.Ws.1 to 4 and therefore failed to put forth his grievance before the Court at the earliest point of time. Therefore by considering entire material including the oral evidence of P.Ws.1 to 4 as well as the documentary evidence filed on behalf of the plaintiffs, it is established that the above mortgage transaction in between the 1st plaintiff and the defendant under Ex.A-1 is established and at the same time the transaction of mortgage transfer in between the 1st plaintiff and 2nd plaintiff under Ex.A-3 is also established. Therefore, in the light of the above material, the 2nd plaintiff is entitled to recover the above mortgage debt. Hence the point is answered in favour of the plaintiffs.

4

9. In the result, the suit is decreed preliminarily in favour of the 2nd plaintiff with costs for suit amount of Rs.4,27,700/- with subsequent interest at 12% per annum on the principal amount from date of the suit till date of decree and at 6% till its realization. Time for redemption is 3 months.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open Court, this the 20 th day of April, 2018.

PRINCIPAL SENIOR CIVIL JUDGE,

E L U R U

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFFS : FOR DEFENDANT :

P.W.1 : B.Prasada Rao - N O N E -

P.W.2 : A.Krishna

P.W.3 : T.Venkateswara Rao

P.W.4 : V.Venkateswara Rao

DOCUMENTS MARKED

FOR PLAINTIFFS :

Ex.A.1/Dt.03-03-2012 : Original Registered Mortgage Deed executed by the defendant in favour of 1st plaintiff.

Ex.A.2/Dt.01-04-1998 : Certified copy of partition deed. Ex.A.3/Dt.06-02-2016 : Original mortgage transfer deed executed by the 1st plaintiff in favour of the 2nd plaintiff.

Ex.A.4/Dt. -- : Office copy of registered notice got issued by the 1st plaintiff to the defendant.

Ex.A.5/Dt. -- : Postal acknowledgement.

FOR DEFENDANT :

- N I L -

P.S.C.J., ELR.

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE :: ELURU

Present:- Sri L.SRIDHAR

Principal Senior Civil Judge

Friday, the 20th day of April, 2018

O.S.No. 350 / 2015

Between :

Donthikurthi Subrahmanyam. … Plaintiff

and

Dasari Ramesh Babu. … Defendant

This suit coming on this day for final hearing before me in the presence of

Sri PSN.Valli, Advocate for the Plaintiff; and the Defendant remained exparte and having stood over the matter for consideration to this day, this Court delivered the following:

J U D G M E N T

This is a suit filed under Section 26 Or.VII, Rule 1 of C.P.C., by the plaintiff for recovery of the suit amount from the defendant basing on a pronote transaction.

2. The case of the plaintiff in brief is as follows: It is stated that the defendant has borrowed a sum of Rs.6,00,000/- from the plaintiff on 11.9.2012 for his business purpose and executed a promissory note on the same day in favour of the plaintiff agreeing to repay the same with interest at Rs.2/- per hundred per month to the plaintiff or to his order on demand. It is further stated that inspite of repeated demands, the defendant issued a cheque bearing

No.534020002, dated 2-7-2015 for Rs.6,00,000/- drawn on Indian Overseas

Bank, Eluru towards pronote debt, that the plaintiff presented the said cheque through Vijaya Bank, Eluru, but the same was dishonoured and returned unpaid with an endorsement “Exceeds arrangement” along with cheque return memo.

Subsequently the plaintiff filed a complaint against the defendant under Section 138 of N.I. Act and Sec.420 of I.P.C., on the file of Judicial First Class

Magistrate’s Court, Eluru. Hence, the suit.

3. In support of the plaintiff, he is examined as P.W.1 and marked Exs.A.1 and A.2. Heard plaintiff side arguments and posted for Judgment.

2

4. The Point for consideration is,

Whether the plaintiff is entitled to suit claim as prayed for?

5. P O I N T:- As seen from the material on record, it is a suit for recovery of the suit amount basing on the pronote transaction. In support of the same, the plaintiff examined himself as P.W.1 by reiterating the pleadings with regard to the debt borrowed by the defendant under Ex.A.1 promissory note. It is further case of the plaintiff that inspite of repeated demands, the defendant failed to repay the same. The plaintiff apart from his oral evidence also adduced the documentary evidence i.e., original promissory note under Ex.A.1 and also filed certified copy of calendar and judgment under Ex.A.2. The evidence of P.W.1 remains unchallenged as he was not cross examined by the defendant, since the defendant set exparte. Hence, under the above facts and circumstances, the plaintiff establishes his initial legal burden as to the execution of the suit promissory note and the defendant failed to rebut the presumption which is available under Section 118 of Negotiable Instruments Act as to non-existence of consideration. Therefore, the above presumption also would operate in favour of the plaintiff. Hence the point is answered in favour of the plaintiff against the defendant.

6. In the result, the suit is decreed with costs for suit amount of

Rs.10,28,400/- with subsequent interest at 12% per annum on the principal amount from date of the suit till date of decree and at 6% till its realization.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open court, this the 20 th day of April, 2018.

PRINCIPAL SENIOR CIVIL JUDGE,

E L U R U

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF : FOR DEFENDANT :

P.W.1 : D.Subrahmanyam. - N O N E -

DOCUMENTS MARKED

FOR PLAINTIFF :

Ex.A.1 11-9-2012 Original promissory note executed by the defendant in favour of the plaintiff. Ex.A.2 3-7-2017 Certified copy of calendar and judgment in C.C.459/2016 on the file of Judl. Magistrate of First Class, Special Mobile Court, Eluru.

FOR DEFENDANT : - N I L - P.S.C.J., ELR.