Sri.N.Solomon Raju

I.A.No.520/2017 in S.O.P.No.435/20171

IN THE COURT OF THE V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT L.B.NAGAR, HYDERABAD, TELANGANA

PRESENT: Sri.N.SOLOMON RAJU,

V ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGAREDDY DISTRICT AT LB NAGAR

Friday, the Twenty First day of December, Two Thousand Eighteen

INTERLOCUTORY APPLICATION No.520 / 2017 IN SOCIETY ORIGINAL PETITION No.435 / 2017 Between: Charminar Cricket Club, a registered body represented by Mohd.Mahboob Ahmed, S/o.Mohammed Khalid Ahmed, Age: 46 yrs, Occ: Business, R/o.H.No.20-4-209/19/1, Khilwath, Hyderabad.

...Petitioner/Plaintiff

AND

The Hyderabad Cricket Association (Regd. No. 207 of 1961), Represented by its Secretary, Rajeev Gandhi International Cricket

Stadium, Uppal, Hyderabad ...Respondent/Defendant

This Interlocutory Application came before me for final hearing in the presence of Sri.R.A.Achuthanand, Counsel for the Petitioner and Sri.Mirza Suleman Baig, Counsel for the Respondent and upon perusal of the material papers on record and the matter stood over for consideration till this day, this Court delivered the following:

:: O R D E R ::

01.The Charminar Cricket Club represented by

Mohd.Mahboob Ahmed is the petitioner and the Hyderabad Cricket

Association represented by its Secretary, is the respondent. The petitioner filed this Interlocutory Application Under Section 23 of

Andhra Pradesh Societies Registration Act, 2001, praying this

Court to direct the respondent to include the petitioner club in any pools in the on going League Cricket Championship, 2017-2018 A1-

Three days Premier League and also to allow them to play in the league season, in the interests of Justice.

02.As per the contents of the affidavit appended to the

I.A.No.520/2017 in S.O.P.No.435/20172 petition, the case of the petitioner is briefed as follows: The petitioner club is registered club under Andhra Pradesh Societies

Registration Act, 2001 having its by-laws. The petitioner club is affiliated to the respondent association and the petitioner club has got good cricket infrastructure, trainers and coaches and other supporting staff and its name is included in the Master register of

Hyderabad Cricket Association. The petitioner club has been representing leagues and knockout tournaments and paying subscription fee every year to the respondent and the respondent has issued a certificate to all the Member Clubs from 2012 onwards.

03.As per Chapter-II of Hyderabad Cricket Association Rules and Regulations, Section 2 (8), members include club functioning within the jurisdiction of the Association. After the petitioner club was registered, the club started playing in the lower division leagues in the leagues and knockout tournaments of the respondent association. The club was promoted to A1 division in the Elite Group due to the efforts of the club and its members the gradation starts from A12 (Lower Division) and A1 (Elite Group) based on the performance of the clubs. The petitioner due to its performance during 2015-16 was placed in A1 division three days premier league in the year 2016-2017.

04.As per the annual report for the year 2014-2015 the association petitioner club was in A2 division played 18 matches and secured 201 points and was placed in the second position in the said group. The petitioner club was placed in the fourth

I.A.No.520/2017 in S.O.P.No.435/20173 position in the league table during the year 2016-2017 but the respondent has not mentioned the league performance table for the reasons best known to it. The petitioner club received letter dt.01-03-2017 for payment of subscription fee and remitted the payment through Cheque bearing No. 274221 dt.25-03-2017 drawn on Central Bank of India and the respondent issued receipt dt.25-03-2017 for the said payment.

05.The playing league season commences in the month of

June every year and the club has selected its players for the ongoing fixtures for the year 2017-2018 and waiting for draws to be communicated by the respondent in order to participate in the fixtures/tournaments. There was an election of the office bearers and the respondent association in the month of January, 2017 the election was questioned by the Office bearers and ultimately as per the Orders of the Hon'ble High Court the results were delcared and new office bearers assumed the charge of the respondent association.

06.After it assumed the charge, it started targeting selected clubs on a threat conception that they were supporting the erstwhile Office bearers of the respondent. In the month of

June, 2017 new season commenced in the first week of June, and the respondent releases the draws and circulates among the teams giving the date of fixtures in the tournaments, on 30-06- 2017 the petitioner has learned from the other clubs that the respondent conducted a draw and to the surprise of the petitioner, the respondent has not included the petitioner club in any pools of

I.A.No.520/2017 in S.O.P.No.435/20174 the league cricket championship 2017-2018 A-1 Three day Premier

League inspite of the fact that the club has performed exceedingly well and stood in the fourth position in the last season. This clearly shows vindictive attitude of the respondent against the petitioner club. The league season has just commenced and it will be for forty days, if the petitioner club is not included in any pools it will suffer irreparable loss to their cricketing career.

07.The respondent filed counter-affidavit and the case of the respondent in nutshell is as follows: The petition is neither maintainable in law nor on facts nor the dispute is contemplated

U/Sec.23 of Societies Registration Act, 2001 and the same is liable to be dismissed in limini. The petitioner has forged, fabricated, created, cheated and manipulated the facts and documents by colluding with the committee members of 2010-2012, 2014-16 dt.01-04-2017 and cheated the association by misrepresenting and fraud.

08.The petitioner signatory has taken undue advantage being friend of Special Invitee Mohd.Farooq, and he colluded with erstwhile President Mr.Arshad Ayub and Secretary K.John Manoj.

The Court has no jurisdiction to entertain or adjudicate the dispute as it does not fall within Section 23 of Societies Registration Act, 2001 and that for the reason that the petitioner has never appeared before the Apex Council, or the Ombudsmen the petitioner is neither affiliated nor is concerned to the first respondent. The bylaw is amended in the Special General Meeting of HCA held on 20-11-2016 which was ratified in another Special

I.A.No.520/2017 in S.O.P.No.435/20175

General Meeting dt.02-07-2017 and thereby the byelaw provides

Ombudsman, Ethics Officer who is competent to decide the dispute if it pertains to any Society or member of the society. The

Executive Committee or General Body have ever granted affiliation to the petitioner. The executive committee committed illegalities and violated the High Court and Supreme Court orders and OP was filed in this Court and pleased to appoint Advocate Commissioner to assist the respondent to conduct elections. The election notification was issued on 29-12-2016 and election was conducted on 17-01-2017 and C.R.P.No.174/2017 filed by the earlier committee on the file of the Hon'ble High Court was dismissed and election results were declared and the Apex Council took charge by implementing the Judgment of the Lodha Committee recommendations.

09.One Govindreddy filed P.I.L.No.16/2017 and two administrators were appointed and they submitted report and the

Hon'ble Division Bench passed an Order on 09-06-2017 severely

reprimanding the erstwhile Committee that the said report primafaicerevealsfinancialirregularities,financial mismanagement, huge financial implication and indepth probe / forensic audit is required by Competent Investigating Agency.

10.The petitioner has not produced any document to show how the present petitioner is affiliated by the respondent. It is false to show that the petitioner was promoted to A1-three day league season from A2 league division based on the performance and all the documents filed by the petitioner pertaining to the

I.A.No.520/2017 in S.O.P.No.435/20176 period of 2010-2012 and 2014-2016 are fabricated and forged.

The version of the petitioner that the petitioner club during the year 2016-2017 stood in the fourth position based on the performance, is false and baseless and all the matches of A1- three day league were already completed and thus the petition is infructuous. The petition is filed by playing fraud on the club and by creating forged documents and the petition is devoid of merits and the petition has not made out any primafaice case, and balance of convenience also does not lay in its favor, hence no question of irreparable loss and injury and the respondent finally prays to dismiss the petition with exemplary costs.

11.With the permission of the Court, the petitioner filed rejoinder to the counter-affidavit filed by the respondent and in the rejoinder the petitioner contends that the tenor in the contents of the counter-affidavit shows vengeance against the petitioner club that the amended bylaws have to be approved by the Registrar of

Societies and circulated among the members then the bylaws comes into force but the respondent never stated in the counter- affidavit that the amended bylaws have been approved by the

Registrar of Societies, in fact Apex Council, or Ombudsman are none other than the Executive Committee.

12.It is further stated that the petitioner club was known as

Khurshid Jha Cricket Club registered in the year 2008 under the

Registration No.422/2008 and Executive Committee passed a resolution for the change of the name of the club to Charminar

Cricket Club and as per the bylaws of the respondent a sum of

I.A.No.520/2017 in S.O.P.No.435/20177

Rs.25,000/- has to be paid for the change of the name which the petitioner club paid on 14-06-2011 by way of account payee cheque bearing No.314125 dt.13-06-2011 and the respondent has acknowledged the same and it is complied all the due requirements of the respondent and issued letter on 14-06-2011 acknowledging the receipt of the said cheque. After the respondent has taken over the charge the petitioner casted vote in the election and participated in AGM, SGM for the year 2016-2017 and this falsifies the defence taken by the respondent. The petitioner approached the Court in time but the conduct of the respondent was to see that the OPs gets frustrated and no relief is given to the petitioner and prays this Court to allow the application filed by the petitioner, in the interests of Justice.

13.During the course of enquiry Exs.P1 to P16 are marked on behalf of the petitioner and Exs.R1 to R8 are marked on behalf of the respondent.

14.Arguments heard on either side.

15.The learned counsel for the petitioner argued that the petitioner club is registered club under the Registrar of Societies

Act and is affiliated to the respondent which is Hyderabad Cricket

Association. The league cricket matches will be conducted from

A12 division to A1 division and during the year 2016-2017 the petitioner club stood at fourth place and as such it is eligible to participate in A1 three day league championship. But due to vindictiveness the respondent has not included the name of the petitioner club in the draws prepared by it and by the act of the

I.A.No.520/2017 in S.O.P.No.435/20178 respondent the petitioner club and budding cricketers sustained irreparable loss and damage to the career and the petitioner proved their primafaice case by filing Ex.P1 to P16 and the documents marked in Ex.R1 to R8 are not relevant and the petition filed by the petitioners may be allowed.

16.On the other hand, the respondent argued that the petitioner has not filed any document to show that Khurshid Jha

Cricket Club was changed to Charminar Cricket Club and registration certificate filed by the petitioner does not disclose the same and in fact either Khurshid Jha Cricket Club or Charminar

Cricket Club are not affiliated to the respondent and Section 23 of

Andhra Pradesh Societies Registration Act, 2001 do not pertain to the case of the petitioner and the petition filed by the petitioner club is not maintainable and is devoid of merits and no order can be given and as seen from Ex.P13 the petitioner club is not willing to participate in A2 division league championship and the petition is liable to be dismissed. The documents filed by the petitioner are forged, fabricated and created in collusion with the committee members and the same cannot be given any due weight. No season for A1 division or A2 division is left and the petition filed by the petitioner became infructuous and the same is liable to be dismissed.

17.As reply to the said arguments, the learned counsel for the petitioner submits that as per Ex.P16 the petitioner club has contended that at serial No.34 as per the respondent association and in inclusion of the name of the petitioner in A2 division

I.A.No.520/2017 in S.O.P.No.435/20179 falsifies the defence taken by the respondent and as such the petitioner is entitled for the relief as prayed for.

18.Now the point for determination herein is: Whether the petitioner club is entitled for the direction to include its name in

A1-three day premier league during the year 2017-2018 as sought for ?

DISCUSSION ON POINT:

19.The petitioner club filed S.O.P.No.435/2017 Under

Section 23 of Andhra Pradesh Societies Registration Act, 2001 against the respondent i.e., Hyderabad Cricket Association for declaration that the action on the part of the respondent in not including the petitioner club in any pools in the on going League

Cricket Championship, 2017-2018 A1-Three days Premier League, is based on vindictiveness, illegal and tainted with malafide and the petitioner club further sought interim order in the main OP as sought in the Interlocutory Application.

20.In the present Interlocutory Application, it is specific prayer of the petitioner seeking direction to the respondent to include the petitioner in any of the pools in the ongoing League

Cricket Championship, 2017-2018 A1-Three days Premier League, in the interests of Justice.

21.It is the contention of the respondent that the petitioner club is not affiliated to the respondent association and the petition filed by the petitioner club is not maintainable as it is not within purview of Section 23 of Societies Registration Act and the documents filed by the petitioner are false, forged and created in

I.A.No.520/2017 in S.O.P.No.435/201710 collusion with previous committee members and the same cannot be acted upon and that the petition became infructuous.

22.It is the settled law that Interlocutory Applications are to be disposed off basing on the affidavits filed by the respective parties and the documentary evidence placed by the both parties.

As seen from the documents filed by the petitioner, Ex.P1 is the CC of Registration Certificate and it shows that the petitioner club is registered with Registrar of Societies with registeration

No.461/2011. Ex.P2 is the demand issued for annual subscription of the year 2017-2018 by the respondent association. Ex.P3 is the acknowledgment of Hyderabad Cricket Association and the receipt issued by it and it shows that the petitioner club paid required fee for annual subscription fee, premier league feeds with ground and knoctout tournament fees totally Rs.3,565/- by way of cheuqe

No.274221 dt.25-03-2017. Ex.P4 is the draws for the League

Cricket Championship and A1 division for the year 2017-2018.

Ex.P5 is the copy of the rules of Hyderabad Cricket Association with amendment, 2016. Ex.P6 to P10 are the ID cards of

Mohd.Mahboob Ahmed and they show that the General Secretary sent to the petitioner club to represent Charminar Cricket Club as its representative in Special General Meeting, Annual General

Meeting, Apex Council Election. Ex.P11 is the acknowledgment given by Hyderabad Cricket Association for receipt of cheque bearing No.314125 dt.13-06-2011 for Rs.25,000/- towards charges for the change of the name of the club. Ex.P12 is the receipt issued for the same by Hyderabad Cricket Association. Ex.P13 is

I.A.No.520/2017 in S.O.P.No.435/201711 the notice issued to Hyderabad Cricket Association on behalf of the petitioner club in response to the notice issued by the respondent cricket assocation for the league championship for the year 2017- 2018 A2 division. Ex.P14 and P15 are the standing table and score cards derived from the website for the primer league 2016-2017.

Ex.P16 is the copy of the letter addressed by the respondent to the

Committee of Administrators, Board of Control for Cricket in India submitting the updated list of members dt.08-08-2017.

23.Coming to the exhibits marked on behalf of the respondent, xerox copy of the letter dt.25-05-2011 addressed by

Secretary Nawab Mohammed Asaduddin Khan to the Secretary of

Hyderabad Cricket Association is marked as Ex.R1, Ex.R2 is the xerox copies sent to Hyderabad Cricket Association dt.08-07-2011 on behalf of Khurshid Jha Club. Ex.R1 and R2 are marked subject to objection raised by the counsel for the petitioner on the ground of inadmissibility. Ex.R3 is the copy of Order of the Hon'ble

Division Bench in W.P.(PIL).No.16/2017. Ex.R4 is the Order dt.23- 03-2017 of the Hon'ble Division Bench in W.P (PIL) M.P.No.97/2017 in W.P.(PIL).No.16/2017. Ex.R5 is the interim report dt.31-05-2017 by the Administrators of Hyderabad Cricket Association in W.P (PIL)

M.P.No.97/2017 in W.P.(PIL).No.16/2017. Ex.R6 is the copy of order dt.09-06-2017 in W.P.(PIL).No.16/2017. Ex.R7 is the order dt.26- 09-2016 in W.P.No.16606/2015. Ex.R8 is the copy of order dt.18- 11-2016 in C.R.P.No.3435/2016.

24.The respondent by marking Ex.R1 and R2 documents tried to project that there was a dispute with regard to the owners

I.A.No.520/2017 in S.O.P.No.435/201712 of Khurshid Jha Cricket Club and objection was received from

Secretary of Khurshid Jha Cricket Club in the year 2011 for not entertaining others for change of name of cricket club. Since the respondent failed to place proper documents and Ex.R1 and R2 are only xerox copies, and in view of the objection raised by the learned counsel for the petitioner and in the light of the ratio laid down by the Hon'ble Apex Court in Shalimar Chemical Works

Limited Vs. Surendra Oil & Dal Mills (Refineries) & others

reported in 2010 (8) SCC 423, the respondent cannot be permitted to rely on the said documents.

25.Ex.R3 to R8 documents reveal that those proceedings came to be filed on non-implementing Lodha Committee

Recommendations of the Hon'ble Division Bench of Hon'ble High

Court of Judicature at Hyderabad from the interim reprot filed by the Administrators appointed by it primafacie financial irrularities and financial mismanagment was found to be more than 2.68 crores and the committee has further suggested for entrustment of investigation to the competent agency for indepth examination of such illegalities.

26.The learned counsel for the respondent endeavoured to connect these documents to the contention of the respondent that the documents filed by the petitioners are brought into existence by coordination and in collusion wiht the previous committee members and the same cannot be relied upon. But there is no force in such contention and from the documents filed by the respondent it is not permissible to draw an inference primafacie

I.A.No.520/2017 in S.O.P.No.435/201713 that all the documents filed by the petitioner are forged, fabricated and in fact the documents marked in Ex.R3 to R8 are not relevant to consider this Interlocutory Application.

27.It is not in dispute that as per the rules prevailing for the present affiliation of the cricket club with the respondent association, the said cricket club must be registered with Registrar of Societies. As per the case of the petitioner, previously, it was

Kushird Jha Cricket Club and as per the resolution taken in

Executive Committee the name of the club has been changed to

Charminar Cricket Club and the requirements for the change of the name have been fullfilled. Ex.P1 primafacie show that the petitioner club is registered wit Registrar of Societies with registration No.461/2011. As per Ex.P11 and P12 the petitioner club has paid a sum of Rs.25,000/- by way of cheque to the respondent association and the same was acknowledged by the respondent association and issued receipt. Exs.P6 to P10 further show that Charminar Cricket Club represented by Mohd.Mahboob

Ahmed, was permitted to participate as representative of Khurshid

Jha Cricket Club in the Annual General Meeting held on 08-06-2008 and was further permitted to participate in Special General

Meeting, Annual General Meeting and Apex Council Election held in the year 2017 as representative of Charminar Cricket

Association.

28.It is more pertinent to look into Ex.P16 which is the copy of updated list of members of cricket association wherein the petitioner club is shown in Serial No.34 as its member. Thus all the

I.A.No.520/2017 in S.O.P.No.435/201714 documents clearly go to show primafacie that erstwhile Khurshid

Jha Cricket Club was changed into petitioner club i.e., Charminar

Cricket Club and the same is affiliated to the respondent

Hyderabad Cricket Association and the petitioner club was permitted to participate in the Annual General Meeting, Special

General Meeting and Apex Council Election of of the respondent association held in the year 2017.

29.Admittedly, the league championships are being conducted by the respondent cricket association at different levels from A12 Division to A1 Division. The affiliated clubs of the respondent association are eligible to participate in the said cricket matches as per the eligible criteria in accordance with the rules of the Hyderabad Cricket Association. It is also not in dispute that as per the demand made by the respondent association in which subscription fee as well as the championship fees for respective divisions are to be paid on or before 31st March of every year and as seen from Ex.P2 the respondent association made demand on its affiliated clubs requiring them to pay required fee on or before 31-03-2017 for the year 2017-2018 and as per Ex.P3 the petitioner club paid a sum of Rs.3,565/- by way of cheuqe No.274221 dt.25- 03-2017 for the year 2017-2018 and in evidence of the same the association signatory of Hyderabad Cricket Association issued receipt dt.25-03-2017.

30.At this stage, it is pertient to note that mere payment of required fee or subscription fee does not give right to a particular cricket club to participate in the league matches at its choice. As

I.A.No.520/2017 in S.O.P.No.435/201715 seen from Ex.P4 to participate in A1-division three days league matches of the year 2017-2018 the performance of the cricket clubs in the matches played in A1-division during the year 2016- 2017 shall be considered, and the cricket clubs which stood in the last three places are not eligible to play in A1-division legaue matches during the year 2017-2018 and thus clubs shall be retained to A2 division league matches.

31.As per the contention of the petitioner it stood at fourth place in A1-division three days league matches during the year 2016-2017 and to prove the same the petitioner filed Ex.P4 and P5 documents but Ex.P4 clearly shows that the petitioner club i.e.,

Charminar Cricket Club stood at eighth place in the last of three clubs from the table during the year 2016-2017 with total ponits scored as 47. Consequently, the petitioner club is not entitled to participate in A1-Division Three Days league matches during the year 2017-2018 and it should be retained to A2 division two days league matches.

32.As a result of it, the respondent association prepared draw for A2 division matches in which the petitioner club has been included. But as per Ex.P13 the petitioner club was not willing to participate in A2 division two days matches and it asserted its right to participate in A1-division three days matches contrary to its performance levels during the leagues matches of the year 2016-2017 as evidenced from Ex.P14.

33.As mentioned in the aforesaid Orders, it is the main prayer of the petitioner that a direction to be given to the

I.A.No.520/2017 in S.O.P.No.435/201716 respondent association to include the name of the petitioner in any of the pools to participate in A1-division three days league matches during the year 2017-2018. But as discussed and concluded supra, the petitioner club is not entitled to participate in

A1-Division three days league matches during the year 2017-2018.

34.Further, as seen from Ex.P4 the leaque matches for A1- division commece from 14-06-2017 onwards and the same will be completed by 10-08-2017. Accoring to the petitioner also the league season for A1 division continues for forty days only. As seen from the record by the date the petitioner club approached this Court the league matches for A1 division of the year 2017- 2018 were commenced and three rounds of matches have been completed as per the draws prepared in Ex.P4. Further long before the conclusion of the arguments in this Interlocutory Application the league matches in A1-division have been completed and consequently, the relief claimed by the petitioner club to include in

A1-division league matches became infructuous. Therefore, the petitioner is not entitled for relief of inclusion of its name in A1- division three days league matches during the year 2017-2018. As corollary to it, there is no eligibility for the petitioner club to participate in A1-division three days league matches during the season 2018-2019 also.

35.As seen from the affidavit and petition filed by the petitioner club in this Interlocutory Application it further prays to allow them to play in the league season. The respondent denies the right of the petitioner club in participating in the league on the

I.A.No.520/2017 in S.O.P.No.435/201717 ground that the petitioner club is not affiliated to the respondent association. But in the aforesaid Orders, it is primafacie found that the petitioner club is an affiliated member of the respondent cricket association. Though the petitioner club due to the aforesaid reasons, is not entitled to participate in A1-division three days cricket league matches during the season 2017-2018 its right to participate in other divisions for which it is eligible to participate cannot be denied.

36.There is no clarification from the pleadings in the absence of non-eligibility to participate in A1-division matches and on petitioner club not willing to participate in A2 division matches, at which division it can be permitted to participate in the league season 2017-2018. In fact, this Court tried to solicit the assistance of both the counsel to have clarification on this aspect, but unfortunately they did not come forward. Under those circumstances, it is felt just and proper to direct the respondent i.e., Hyderabad Cricket Association to allow the petitioner club to participate in league season at appropriate level as per its eligibility criteria in accordance with rules of Hyderabad Cricket

Association. Accordingly, this point is answered.

37.In the result, this Interlocutory Application is partly allowed directing the respondent i.e., Hyderabad Cricket

Association to allow the petitioner club to participate in the league season at appropriate levels other than A1 Three days Premier

League matches, as per its eligibility criteria in accordance with the Rules of the respondent i.e., Hyderabad Cricket Association till

I.A.No.520/2017 in S.O.P.No.435/201718 the disposal of the main Original Petition. No order as to costs.

Dictated to the Personal Assistant, typed by him, corrected

and pronounced by me in the Open Court on this Friday, the Twenty First day of December, Two Thousand Eighteen.

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT LB NAGAR

APPENDIX OF EVIDENCE

EXHIBITS MARKED

On behalf of the Petitioner/s:

Ex.P1CC of Registration Certificate No.461/2011

Ex.P2Demand issued for annual subscription of 2017-2018

Ex.P3Acknowledgment and Receipt dt.25-03-2017

Ex.P4Draws for the League Cricket Championship and A1 division for the year 2017-2018

Ex.P5Copy of the rules of HCA with Amendment, 2016

Ex.P6 to P10ID cards of Mohd.Mahboob Ahmed

Ex.P11Acknowledgment given by HCA for receipt of cheque bearing No.314125 dt.13-06-2011 for Rs.25,000/-

Ex.P12Receipt issued by HCA

Ex.P13Notice issued to HCA

Ex.P14 & 15Standing table and score cards derived from the website for the primer league 2016-2017

Ex.P16Copy of the letter dt.08-08-2017.

On behalf of the Respondent/s:

Ex.R1Xerox copy of the letter dt.25-05-2011

Ex.R2Xerox copies sent to HCA dt.08-07-2011

Ex.R3Copy of Order of the Hon'ble Division Bench in W.P.

(PIL).No.16/2017

I.A.No.520/2017 in S.O.P.No.435/201719

Ex.R4Copy of Order dt.23-03-2017 of the Hon'ble Division

Bench in W.P (PIL) M.P.No.97/2017 in W.P.(PIL).No.16/2017

Ex.R5Copy of interim report dt.31-05-2017 by the

Administrators of Hyderabad Cricket Association in W.P.(PIL)

M.P.No.97/2017 in W.P.(PIL).No.16/2017

Ex.R6Copy of Order dt.09-06-2017 in W.P.(PIL).No.16/2017

Ex.R7Copy of Order dt.26-09-2016 in W.P.No.16606/2015

Ex.R8Copy of order dt.18-11-2016 in C.R.P.No.3435/2016

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT LB NAGAR

Compared by me:

Crl.App.No.444 / 20151

IN THE COURT OF THE V ADDITIONAL METROPOLITAN SESSIONS

JUDGE, RANGAREDDY DISTRICT AT L.B.NAGAR, HYDERABAD,

TELANGANA STATE

PRESENT: Sri.N.SOLOMON RAJU,

V ADDITIONAL METROPOLITAN SESSIONS

JUDGE, RANGAREDDY DISTRICT

Monday, the Thirty First day of December, Two Thousand Eighteen

CRIMINAL APPEAL No.444 / 2015 Between: G.Venkata Ramaiah, S/o.G.Laxman, Age: 42 yrs, Occ: Government Employee, R/o.H.No.3-20, Aharsmanpur, Nagole, Hyderabad Office Add: Head Cashier, SBH Bank, Mallikarjuna Nagar Branch,

Malkajgiri ...Appellant/Accused

AND

01.N.Siddulu Yadav, S/o.late.Venkaiah, Age: 35 yrs, Occ: Business, R/o.H.No.3-10/B, Pedda Golconda (V), Shamshabad Mandal, Rangareddy District

02.The State of Telangana rep. by APP …Respondent/Complainant

THIS CRIMINAL APPEAL IS PREFERRED AGAINST THE JUDGMENT

PASSED IN C.C.No.65/2014 ON THE FILE OF II SPECIAL

MAGISTRATE, CYBERABAD AT RAJENDRANAGAR, RANGAREDDY

Between: N.Siddulu Yadav, S/o.late.Venkaiah, Age: 35 yrs, Occ: Business, R/o.H.No.3-10/B, Pedda Golconda (V), Shamshabad Mandal,

Rangareddy District ...Complainant

AND

G.Venkata Ramaiah, S/o.G.Laxman, Age: 42 yrs, Occ: Government Employee, R/o.H.No.3-20, Aharsmanpur, Nagole, Hyderabad Office Add: Head Cashier, SBH Bank, Mallikarjuna Nagar Branch,

Malkajgiri ...Accused

This Criminal Appeal is coming before me for final hearing in the presence of M/s.L.Harish, Advocate for the Appellant and

Smt.Ch.Sumanjali Yada, Additional Public Prosecutor for the State and upon perusal of the material on record and the matter stood over for consideration till this day, this Court delivered the following:

Crl.App.No.444 / 20152 :: J U D G M E N T ::

01.This Criminal Appeal is preferred U/Sec.374 (3) (a) of

Cr.P.C against the Judgment of Conviction and Sentence imposed by the learned II Special Magistrate, Cyberabad at Rajendranagar,

Rangareddy District on 29-05-2015 passed in C.C.No.65/2014 for the offence U/Sec.138 of Negotiable Instruments Act.

02.The appellant herein was the accused before the Court below, the Respondent No.1 herein was complainant before the trial Court and the State of Telangana represented by learned

Additional Public Prosecutor is shown as Respondent No.2. The

parties are referred in this Judgment as they were arrayed before the Court below for the sake of convenience.

03.The complainant filed private complaint against the accused U/Sec.200 of Cr.P.C and the case of the complainant is summarized as follows:

I.The accused had close acquaintance with the complainant and due to such acquaintance the accused approached the complainant in the first week of May, 2012 and requested to arrange a sum of Rs.5,00,000/- for urgent family and personal requirements as a hand loan and further promised to repay the same within six months. Accordingly, the complainant arranged the amount on 16-05-2012 of Rs.5,00,000/- by borrowing an amount of Rs.2,00,000/- from his friend Srinivas and by withdrawing cash of Rs.3,00,000/- from his banker SBH

Shamshabad Branch by receiving the said amount the accused executed promissory note in favor of the complainant in the

Crl.App.No.444 / 20153 presence of witness by name M.Srinivas Goud and after lapse of promised period the complainant requested and demanded the accused for repayment of the said hand loan but the accused was postponing the same on some pretext or the other and on persistent demands made by the complainant on 08-03-2013 the accused issued cheque in favor of the complainant in the presence of M.Srinivas Goud bearing cheque bearing No.296410 dt.19-03-2013 for Rs.5,00,000/- drawn on SBH, Shamshabad

Branch and the complainant presented the said cheque on 19-03- 2013 itself with his Banker SBH Shamshabad branch, but the said cheque was returned with an endorsement insufficient funds vide cheque return memo dt.20-03-2013. Though the said fact was intimated to the accused he has not given proper response and the complainant got issued legal notice to the accused to his residence address on 28-03-2013 through registered post with acknowledgment due calling upon him to pay the cheque amount within 15 days and the legal notice was served to the accused on 02-04-2013. The accused did not comply the said notice nor gave any reply. Thus the accused committed offence punishable

U/Sec.138 of Negotiable Instruments Act.

04.Originally the complaint was filed in the Court of the learned VIII Metropolitan Magistrate, Rajendranagar, Rangareddy

District and on receiving sworn statement affidavit, the learned

Magistrate took cognizance of the offence and registered the

same as C.C.No.92/2013. Later the same was transferred to the learned II Special Magistrate, Cyberabad at Rajendranagar,

Crl.App.No.444 / 20154

Rangareddy District and the same is re-numbered as

C.C.No.65/2014.

05.On appearance of the accused, the copies of the documents are furnished on the accused and the accused was examined U/Sec.251 Cr.P.C for which he pleaded not guilty and claimed to be tried.

06.In order to establish the case, the complainant got examined PW1 to PW3 and Ex.P1 to P9 are marked. On closure of prosecution evidence, the accused was examined U/Sec.313

Cr.P.C and he denied incriminating material appears in the complainant's evidence. DW1 and DW2 are examined and Ex.X1 is marked on behalf of the accused.

07.Upon perusal of record and on hearing the arguments, the learned Magistrate found the accused guilty for the offence punishable U/Sec.138 of Negotiable Instruments Act and sentenced the accused to undergo Rigorous Imprisonment for one year and further sentenced to pay ₹5,00,000/- to PW1 within two months IDSI for six months.

08.Aggrieved by the Judgment passed by the trial Court, the accused preferred the present appeal contending that the

Judgment passed by the learned trial Judge is contrary to law and weight of evidence; that the trial Court committed grave error in law in not appreciating the evidence in proper perspective; that the trial Court erroneously came to conclusion that the accused failed rebut the presumption; that the Lower Court ought to have placed reliance on the fact that the postal acknowledgment

Crl.App.No.444 / 20155 marked in Ex.P7 does not bear the signature of the accused; the trial Court ought not to have placed reliance on Ex.P9 promissory note executed by PW1 in favor PW3 and the accused is not a party to the said document; and finally prays this Court to allow the Criminal Appeal and to set aside the Judgment of Conviction and Sentence imposed by the trial Court and to acquit the accused, in the interests of Justice.

09.Arguments heard on either side. The learned counsel

for the appellant reiterated the points urged during the course of

grounds of appeal. The learned counsel mainly argued that Ex.P1 cheuqe was not issued to the complainant towards discharge of legally enforceable debt. Ex.P3 promissory note is forged one and there is material alteration also in it and the same cannot be acted upon and the statutory notice sent is not received by the accused. Admittedly, the signature bearing on the acknowledgment is not that of the accused and as such requirement of Section 138 of Negotiable Instruments Act is not complied and there is no case against the accused and the

Judgment passed by the trial Court is not sustainable under law.

10.In support of the arguments, the learned counsel for the respondent relies on the following decisions:

01.Ramachandran Vs. K.Dineshan and another reported in 2005 (2) ALD (Crl.) (NOC) 22 (Ker.).

02.Rudda Ramakrishnam Raju Vs. Kalidindi

Ramakrishnam Raju reported 1997 (5) ALD 300.

03.M.Ravi Naidu Vs. G.Jayasekhar Naidu reported in

Crl.App.No.444 / 20156 2002 Suppl. (2) ALD 335.

11.Contrary to it, the learned counsel for the respondent argued that the complainant by examining himself as PW1 and by examining attestor to the promissory note as PW2 and person who arranged two lakhs under Ex.P9 promissory note as PW3 proved the case and all the requirements constitute the offence

U/Sec.138 of Negotiable Instruments Act are contemplated the statutory presumptions U/Sec.118 and 139 of Negotiable

Instruments Act arise in favor of the complainant and the evidence of DW1 and DW2 is not helpful to prove the defence version. Moreover there is inconsistency in the defence version.

The evidence of DW2 is no way helpful to prove the defence and the accused failed to rebut the presumption. The learned counsel further argued that the complainant got sent legal notice to respondent as well as office address and the said notice was served on the accused since notice received was sent to correct address there is presumption in favor of the proof of service on the accused and there are no merits in the appeal and the same is liable to be dismissed.

12.In support of his arguments the learned counsel for the respondent relies on the ratio laid down in Mahadevaiah Vs.

Shivalingaiah reported in 2018 (3) KantLJ 75.

13.Upon perusal of the entire record, it is felt that the following points would germane for consideration in this Criminal

Appeal:

01.Whether the complainant could bring home the guilt of

Crl.App.No.444 / 20157 the accused for the offence punishable U/Sec.138 of Negotiable

Instruments Act ?

02.Whether the Judgment of Conviction and Sentence imposed by the learned II Special Magistrate, Cyberabad at

Rajendranagar, Rangareddy District on 29-05-2015 passed in

C.C.No.65/2014, is sustainable under law ?

POINT No.1:

14.In order to constitute the offence punishable U/Sec.138 of Negotiable Instruments Act, it is to be proved that the accused must have drawn the cheque on the account maintained by him in bank for the discharge in whole, or in part of the debt, or liability and that the cheque has been presented for collection within period of its validity and that the same is dishonored for the reason insufficient funds or it exceeds the amount arranged to be paid from the account by an Agreement made with the bank and that the accused failed to comply the legal notice issued calling upon him to pay the cheque amount within fifteen days.

15.As per the ratio laid down in K.Bhaskaran Vs.

Shankaran Vaidhyan Balan and another reported in AIR

1999 Supreme Court 3762 (1), D.Achyuthareddy Vs. State

of Andhra Pradesh reported in 2014 (1) ALD (Crl.) 233

(AP) when the signature on cheque was not denied by the

accused, the presumption that the cheque was made or

drawn for consideration on the date which the cheque

bears arises. Further the holder of the cheque presumed

Crl.App.No.444 / 20158 to have received it for discharge of liability. As per ratio laid down in Rangappa Vs. Sri Mohan reported in 2010 (5)

SCJ 700 held that the presumption mandated by Section

139 of the Act does indeed include the existence of a

legally enforceable debt or liability. This is ofcourse in

the nature of rebuttal presumption and it is open to the

accused to raise defences wherein the existence of a

legally enforceable debt or liability can be contested.

However, there can be no doubt that there is an initial

presumption which favours the complainant. It is further held in the same decision that the standard of proof to rebut

the presumption is that of preponderance of probabilities

for which the accused can rely on the materials submitted

by the complainant.

16.On perusal of the evidence adduced on both sides,

PW1 in his chief affidavit reiterated the contents of his complaint and Ex.P1 to P9 are marked through him. According to the evidence of PW1, there was acquaintance between the accused and the complainant and due to such acquaintance the accused approached the complainant in the first week of May, 2012 and requested to arrange a sum of Rs.5,00,000/- for urgent family and personal requirements as a hand loan and promised to repay the same within six months and accordingly he arranged the amount on 16-05-2012 of Rs.5,00,000/- by borrowing an amount of

Rs.2,00,000/- from his friend Srinivas who was examined as PW3 and by withdrawing cash of Rs.3,00,000/- from his banker SBH

Crl.App.No.444 / 20159

Shamshabad Branch as can be evidenced from Ex.P8 and by receiving the said amount the accused and in evidence of the same the accused executed promissory note in favor of the complainant and after lapse of promised period he requested and demanded the accused for repayment of the said hand loan but the accused was postponing the same on some pretext or the other and on persistent demands made by the complainant on 08-03-2013 the accused issued Ex.P1 cheque bearing No.296410 dt.19-03-2013 for Rs.5,00,000/- drawn on SBH, Shamshabad

Branch and the complainant presented the said cheque on the same day itself with his Banker SBH Shamshabad branch, but the said cheque was returned with an endorsement insufficient funds vide Ex.P2 cheque return memo dt.20-03-2013. Thereupon complainant got issued Ex.P4 legal notice dt.28-03-2013 and the same can be evidenced from Ex.P5 and P6 postal receipts and

Ex.P7 is the postal acknowledgment but the accused did not comply the legal notice nor reply the notice.

17.During the cross-examination, PW1 stated that he used to run chicken center and did cloth business as on the date of giving evidence he was doing poultry business and he is getting

Rs.50,000/- to Rs.60,000/- income monthly but he is not an income tax assessee and not filing any income tax returns and he is not paying income tax. He got acquaintance with the accused through one T.Krishna who worked in SBH Shamshabad Branch.

PW1 further stated that the accused also worked in the same branch. PW1 is further cross-examined on the correction in the

Crl.App.No.444 / 201510 father's name of the accused PW1 stated that though there is no mention in promissory note with regard to the repayment of the amount but the accused agreed to repay the amount within six months. Ex.P3 contains the name of the borrower as G.Venkat

Ramaiah and in father's name 'R' is corrected as 'L' and he does not know the name of the father of the accused and there are correction in Ex.P3 promissory note and annexed receipt and the accused did not put his initial at those corrections. One Srinivas

Goud was present at the time of lending of amount to the accused and he also signed in Ex.P3 as a witness. It is suggested to PW1 that he did not lend any amount to the accused and cheque belongs to the accused was given to him by T.Krishna as he borrwed amount from him but the said suggestions are denied by the witness.

18.Coming to the evidence of PW2 he knows the complainant as well as the accused and he was present when the complainant lent a sum of Rs.5,00,000/- on 16-05-2012 as hand loan to the accused at that time the accused promised to return the said amount within six months and while receiving the said amount the accused executed promissory note and he put his signature in the promissory note as a witness. PW2 further stated that on 08-03-2013 the complainant demanded the accused in his presence and the accused issued Ex.P1 cheque for Rs.5,00,000/- towards discharge of liability.

19.During the course of cross-examination PW2 stated that he came to the Court at the request of PW1 and he did not

Crl.App.No.444 / 201511 receive summons from the Court and he is doing business and he went to Bank along with PW1 where the accused were present and the complainant paid Rs.5,00,000/- to the accused in five hundred denominations and he signed on the promissory note as witness and it was brought by the accused.

20.As per the evidence of PW3 in the first week of May, 2012 the complainant requested him to give Rs.2,00,000/- as his friend i.e.,. the accused was in need of money for urgent personal requirements. Accordingly, he advanced a sum of Rs.2,00,000/- as hand loan and the complainant executed Ex.P9 promissory note in his favor. Later he came to know that the accused failed to return the borrowed amount and on demands made by the complainant the accused issued cheque for Rs.5,00,000/- towards discharge of liability but the same was dishonored on presentation.

21.During the cross-examination PW3 stated that he and the complainant belong to the same village and both are classmates. PW3 is having his own business besides working as

Computer operator in GHMC and he is earning Rs.15,000/- per month and he lent money to the complainant in the month of

May, 2012 but he does not remember the date of lending of amount. He had no acquaintance with the accused. The complainant informed him that he was lending an amount of

Rs.5,00,000/- to some other person and due to arragment of amount he met him to advance amount of Rs.2,00,000/- and he lent the same to the complainant under Ex.P9.

Crl.App.No.444 / 201512

22.Against the evidence adduced on behalf of the complainant, the accused as DW1 deposed that he had no acquaintance with the complainant and he got acquaintance with one Krishna who is his colleague in bank and he did not issue cheque or cheques or cheques in favor of PW1 and he did not borrow any amount from PW1 and he has seen the complainant for the first time in the Court. During the cross-examination DW1 stated that he has given cheque in question to Krishna towards discharge of debt due to him and that cheque was given to him at the end of the year 2011 and himself and Krishna did real estate business and he did not issue any legal notice to Krishna for return of his cheque and did not ask him for return of his cheque.

He did not question Krishna even after filing the present case about his cheque.

23.The Public Relation Officer, South East Zone, Postal

Department by name S.Yadagirireddy as DW2 on behalf of the accused and as per his evidence he received summons from the

Court with a direction to produce the information relating to registered letters bearing No.RN127195665IN and letter

No.RN127195643IN dt.28-03-2014. On enquiry he came to know from the Post Master, Malkajgiri that records relating to Jubilee

Head Office and on verification of records it was identified that the records relating to those letters were destroyed as per Rules.

Ex.X1 is the letter addressed to the Court annexed with relevant rules for destruction of records since there is no record available with their office pertaining to those two letters and he cannot say

Crl.App.No.444 / 201513 anything about delivery of those two covers to the addressee.

24.As per the settled ratio mentioned supra, since issuance of the cheque under Ex.P1 drawn on the account of the accused maintained by him and signatures of the accused thereon are not disputed with, presumption U/Sec.118 and 139 of

Negotiable Instruments Act arises in favor of the complainant. As per which it shall be presumed that Ex.P1 cheque was issued towards discharge of the legally enforceable debt which indeed exsitence of the legally enforceable debt.

25.It is the burden on the accused to rebut the presumption. As seen from the defence taken by the accused, he endeavored to rebut the presumption contending that he had no acquaintance with the complainant and he did not borrow any amount from PW1 and he did not issue cheque to PW1 towards discharge of any legally enforceable debt and that Ex.P3 promissory note is a fabricated one and had material alteration and not valid in the eye of law and in fact, he issued Ex.P1 cheque to Krishna who was his colleague in the Bank towards debt due to him.

26.As seen from the evidence of PW1 he got acquaintance with the accused and he came into acquaintance with the accused through Krishna who is also bank employee and out of such acquaintance he arranged hand loan of Rs.5,00,000/- to him. As seen from the cross-examination of PW1 no single suggestion is given that he had no acquaintance with PW1 and he had never seen him. For the first time as DW1 the accused made

Crl.App.No.444 / 201514 such statement, which cannot be given any due weight.

27.Coming to the money transaction, according to the evidence of PW1 on the request made by the accused in the first week of May, 2012 he arranged hand loan of Rs.5,00,000/- on 16- 05-2012 by withdrawing cash of Rs.3,00,000/- from SBH

Shamshabad Branch, as can be seen from Ex.P8 and by taking hand loan of Rs.2,00,000/- from his friend Srinivas who is examined as PW3 under Ex.P9 promissory note.

28.To prove the said transaction apart from his evidence and filing Exs.P3, P8 and P9 complainant examined PW2 and

PW3. PW2 is the attestor to Ex.P3 promissory note and he proved the transaction under Ex.P3 and nothing is elicited to disbelieve his testimony during cross-examination. The hand loan transaction under Ex.P9 promissory note is proved through PW3 and in fact, the presence of PW2 and his signing in Ex.P3 as attesting witness and taking hand loan of Rs.2,00,000/- from PW3 and execution of promissory note under Ex.P9 are specifically mentioned in the complaint itself and the evidence given by PW1 to PW3 is in conformity with the contents of the complaint.

Though PW3 stated that he did not file any suit for collection of amount under Ex.P9, no adverse inference is permissible to be drawn because there is one more year of limitation period to take legal action on Ex.P9 as on the date of giving evidence.

29.Though the learned counsel for the accused contends that there is material alteration in Ex.P3 promissory note since there is correction in the name of father of the accused, I find no

Crl.App.No.444 / 201515 force in such contention, if the evidence given by PW1 and PW2 is read together it is the accused who brought promissory note and the name of the father of the accused as found corrected in Ex.P3 is not in dispute. Even to a naked-eye the signatures appearing on Ex.P3 are found similar to the signature appearing on Ex.P1.

Though the complainant proved Ex.P3 promissory note by examining PW2, the accused did not take any steps to get it examined through Handwriting Expert to substantiate his plea of forgery.

30.The citations on which the appellant is relying in respect of the material alteration have no application to the present case. Since there is no change of legal identity or business character of instrument either in terms or in legal relation of parties to it. The facts of the cited decisions are not akin to the facts of the present case. Though there is no dispute as to the ratio laid down in the said cited decisions it is of the firm view that those decisions are not applicable to the present case.

31.The accused did not choose to examine T.Krishna to whom Ex.P1 cheque is said to have been given. It is not stated by DW1 whether the alleged liability due to Krishna is discharged.

In this case, the admissions made by DW1 are material to be noted. According to DW1 he did not ask his friend Krishna to return the cheque and he did not issue any notice to him, even

before or after filing of the present case demanding him to return

the cheque issued to him. Therefore, the defence version raised by the accused is found as palpably false.

Crl.App.No.444 / 201516

32.The accused even did not suggest that the complainant misused Ex.P1 cheque by taking it from the custody of Krishna. The accused miserably failed to explain as to how impugned cheque came into custody of complainant. Thus the accused failed to rebut the presumption, the accused either adduced any legal and cogent evidence nor elicited necessary facts and circumstances from the evidence adduced on behalf of the complainant to prove his defence version by preponderance of probabilities. It is further contended that the accused did not receive any legal notice as contemplated U/Sec.138 of Negotiable

Instruments Act and as such the prosecution against the him cannot lay.

33.According to PW1 and as seen from Exs.P4 to P6 he got issued legal notice to the accused residence as well as office addresses and according to PW1 the accused received the said notice but failed to give any reply nor complied with the said notice. As seen from Ex.P7 notice sent to bank address is served and there is no information as to service or non-service of notice sent to the residence address. As admitted by PW1, the signature of addressee appearing on Ex.P7 is different from signature of accused appears on Ex.P3 promissory note.

34.Exfacie Ex.P7 discloses that the signatures of addressee is not appearing as that of the accused. It is not in dispute that the said legal notice is sent to the correct office address of the accused as on that date. Whether it is signed by the accused or some other person in the office received the said

Crl.App.No.444 / 201517 notice makes no difference in view of Section 27 of General

Clauses Act, as per which the presumption as to proper service raised. Therefore, there is no force in the contention of the accused that the mandatory requirement U/Sec.138 of Negotiable

Instruments Act with regard to the service of the notice is not complied with.

35.All the acts done by the complainant are within the period of limitation as stipulated in Negotiable Instruments Act.

To sum up the prosecution case, by examining PW1 to PW3 and by marking Ex.P1 to P9 the complainant proved that he arranged hand loan of Rs.5,00,000/- to the accused on 16-05-2012 and the accused executed Ex.P3 promissory note in evidence thereon and thereafter on persistent demands made by the complainant the accused issued Ex.P1 cheque to discharge the legally enforceable debt and the said cheque was dishonored for the reason insufficient funds as evidenced from Ex.P2 cheque return memo and after giving intimation to the accused the complainant got issued legal notice under Ex.P4 as can be evidenced from Ex.P5 and P6 and the said notice was served on the accused but the accused failed to comply the said notice and the accused further failed to rebut the presumption drawn in favor of the complainant and as such he has committed the offence punishable U/Sec.138 of Negotiable Instruments Act and liable to be punished for the said offence. Accordingly, this point is answered.

POINT No.2:

36.In view of my finding on Point No.1 and as the

Crl.App.No.444 / 201518 sentence imposed by the trial Court is not harsh or excessive, I further hold that the Judgment of Conviction and Sentence imposed by the learned II Special Magistrate, Cyberabad at

Rajendranagar, Rangareddy District on 29-05-2015 passed in

C.C.No.65/2014, is not suffered from any illegality, or irregularity, and it is sustainable under law and I find no merits in this

Criminal Appeal and the same is liable to be dismissed.

Accordingly this point is answered.

37.In the result, this Criminal Appeal is dismissed confirming the Judgment of Conviction and Sentence imposed by the learned Special Magistrate, Rajendranagar, Rangareddy

District on 29-05-2015 passed in C.C.No.65/2014. The Lower

Court is directed to take steps against the accused / appellant to serve out the unexpired portion of sentence.

Dictated to Personal Assistant, typed by him, corrected and

pronounced by me in the Open Court on this Monday, the

Thirty First day of December, Two Thousand Eighteen.

V ADDITIONAL METROPOLITAN SESSIONS JUDGE

RANGAREDDY DISTRICT

APPENDIX OF EVIDENCE: NIL

V ADDITIONAL METROPOLITAN SESSIONS JUDGE

RANGAREDDY DISTRICT

Compared by me:

I.A.No.730/2017 in O.S.No.913/20171

IN THE COURT OF THE V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT L.B.NAGAR, HYDERABAD, TELANGANA

PRESENT: Sri.N.SOLOMON RAJU,

V ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGAREDDY DISTRICT AT LB NAGAR

Friday, the Twenty First day of December, Two Thousand Eighteen

INTERLOCUTORY APPLICATION No.730 / 2017 IN ORIGINAL SUIT No.913 / 2017 Between: The Merchant Committee Lakshmi Padmashali Handloom & Textiles Market represented by its President Rapolu Ravi and another …Petitioners/Plaintiffs AND

The Merchant Committee subsequently and fictitiously created in the same name Represented by their claiming President Badugu

Ashok and others ...Respondents/Defendants

This Interlocutory Application came before me for final hearing in the presence of Sri.M/s.R.S.Reddy, Counsel for the Petitioners/Plaintiffs and Sri.Ranjit Prasad, Counsel for the Respondents/Defendants No.1 to 3, 5 & 6 and upon perusal of the material papers on record and the matter stood over for consideration till this day, this Court delivered the following:

:: O R D E R ::

01.The petitioners/plaintiffs filed this Interlocutory

Application Under Order 39 rule 1 and 2 r/w.Section 151 of CPC seeking temporary injunction against the respondents/defendants restraining them from interfering with normal functioning of the plaintiffs from their office premises at LPT Market and for a direction to the local Police at P.S. LB Nagar to aid them in the implementation of the Order of such injunction pending disposal of the main suit.

02.As seen from the contents of the affidavit appended to this Interlocutory Application, the plaint averments: The Merchant

I.A.No.730/2017 in O.S.No.913/20172

Committee Lakshmi Padmashali Handloom & Textiles Market represented by its President Rapolu Ravi is the first plaintiff and the Registered Trust of Laxmi Padmashali Handlooms and Textiles

Trust (LPT Market), represented by their President Jella Bixam is the second plaintiff. The Merchant Committee alleged to have been subsequently and fictitiously created in the same name represented by their claiming President Badugu Ashok, is shown as the first respondent and Badugu Ashok and others are shown as respondents No.2 to 6.

03.The case of the petitioners is briefed as follows: The plaintiff organization has been sponsored, set up and established by the second plaintiff trust. The second plaintiff came into existence in terms of Registered Deed of Trust made on 26-11- 2010 vide document No.137/2010. Earlier the registered Office of trust was in HUDA Colony, Saroornagar. The trust has been shifted and set up its office at LPT Market premises. The office of the first plaintiff organization is also been shifted and in the same premises along with the said trust, so as to facilitate the working of both of them in close coordination in serving and achieving objectives with which they are formed and established.

04.All the persons who are allotted shops by the trust in

LPT market shall automatically become members of the first plaintiff organization in terms of their conveyance deeds got executed by the said Trust. In the event of sale of the shop, the new owner, who should also belong to Padmashali Community was also became a member of the organization, subject to fulfillment

I.A.No.730/2017 in O.S.No.913/20173 of the conditions. Accordingly, all the allotees of the said LPT

Market numbering about 150 covering 80% of them have duly joined taking the membership of the first plaintiff.

05.The first plaintiff merchant committee has been rendering services efficiently while so, the respondents with their evil intentions subsequently formed their fictitious organization of the defendant No.1, more or less repeating the objectives and functions of the first plaintiff merchant committee and have been interfering with and creating obstructions in the smooth functioning of the plaintiffs at LPT Market premises.

06.The respondent made unsuccessful attempts forcibly and illegally trespassing to and occupy the said office premises and such attempts have been thwarted by the Office bearers and the members of the plaintiffs organization. Recently on 25-06- 2017 when the plaintiffs held their General Body Meeting at the premises of LPT Market the respondents/defendants created ugly scenes at the Meeting and had thrown the proceedings of the meeting into utter choas causing extensive damage to the furniture. However, with the interference of the local Police law and order was restored and the meeting got concluded in peace.

07.Again on 04-08-2017 when the petitioners/plaintiffs have organized Annual Function to celebrate one year completion of the said LPT Market establishment, the respondents/defendants have again repeated their disturbing acts and activities causing extensive damage to the furniture and with the help of local Police the Annual Function has been successfully conducted. Lastestly

I.A.No.730/2017 in O.S.No.913/20174 on 14-08-2017 some of the defendants have attempted to hold an illegal meeting at the said LPT Market premises in which cine- actress Ms.Samantha attended which created virtual commotion and traffic jams, in utter violation of the Orders of the Police and a criminal case booked against them and FIR dt.14-08-2017 is issued.

08.If the respondents are allowed to continue their unlawful and unauthorized activities, the normal business at LPT market comes into pell-mell. When the petitioners sought the

Police Protection, the Police at P.S. LB Nagar expressed their inability to do so stating that it is a matter of Civil nature and advised them to approach Civil Court, hence they filed the suit and present injunction petition.

09.Counter-affidavit of the first respondent filed on behalf of the respondent No.1, 3, 5 and 6. The case of the respondents is brief as follows: The second respondent is the President and the third respondent is the Secretary of the first respondent. The respondent No.1 is the actually registered as Laxmi Padmashali

Handlooms and Textiles Market (LPT Market) Merchant Committee.

The petitioners No.1 and 2 could not have joined as co- petitioners/co-plaintiffs in the same suit as there is no common cause of action between them. The first plaintiff is non-existent legal entity and as such he cannot maintain a suit much less the relief of the nature as sought in the petition and plaint.

10.The petitioner No.2 has no manner of the right, title or interest in respect of the alleged Office premises at LPT market to

I.A.No.730/2017 in O.S.No.913/20175 conduct meetings. The person who verified and signed plaint on behalf of the second plaintiff is not competent to represent it even as per the deed of trust filed by the petitioners, the petitioners have not approached the Court with clean hands. The petitioners cannot seek injunction against true owners and the petition is also bad for non-impleading of the owners and shop workers and there are about 170 shops besides certain portions which are used as godowns for keeping the stock or offices of the merchants.

11.It is true that a registered trust deed was executed on 26-11-2010 and as per the deed of trust the registered office of trust was at plot No.34 at D.No.11-7-256, HUDA Colony,

Saroornagar, Rangareddy. It is incorrect to state that trust has been shifted and setup its Office at LPT Market premises. The office ceased to function since long once the construction work was over and units are transferred they have no right whatsoever in the subject premises.

12.The byelaws filed as document No.1 is nothing but created and fabricated document. The trust has no role in so far as day-to-day affairs and management of the first respondent.

The petitioners have no primafacie and balance of convenience is also not in their favor and contrary to it balance of convenience is in their favor and if injunction is granted they suffer irreparable injury. The members of Padmashali community have decided to form a trust for community people, with that object, a registered trust was formed and trust deed was executed vide document

No.137/2010 dt.26-10-2010. Incidentally, Sri.Jella Biksham

I.A.No.730/2017 in O.S.No.913/20176 happends to be one of the founder trustee.

13.However, over a period of time he has drifted from the original aims, objects and intent of the trust. Consequent to the completion of the complex the very purpose of the formation of the trust is completed and consequent to the transfer of the title to the respective purchasers and trust cannot claim its right in and over the property. As a matter of fact, there are certain unfinished works which the respondents have been requesting the trust to complete as they have already paid their contributions in full. The complex has been in operation and the members are carrying on their business. As per clause No.19 of deed of conveyance also makes it clear that the land appurtenant to the building shall be common to all owners as parking place, etc.,

14.It became clear that the owners/allottees of the respective shops are required to form an association to manage and monitor affairs of Committee of shopping complex. Marchants committee in the name of the respondent No.1 was formed and it has registered vide registration No.1029/2017 dt.27-07-2017 and the same was managed temporarily by the petitioner No.2 trust through its members and the respondents have been demanding them to handover the accounts and the account books but they failed to hand over the same. For the notice dt.11-05-2017 issued on behalf of the petitioner No.2 and the reply notice dt.16-05-2017 was got issued by the owners welfare association and the second respondent in his personal capacity. The petitioners are not in possession of the property and any portion in the subject LPT

I.A.No.730/2017 in O.S.No.913/20177 market and they cannot seek for injunction against true owners and prays this Court to dismiss the petition with costs.

15.During the course of enquiry, Exs.P1 to P8 are marked on behalf of the petitioners, Exs.R1 to R20 are marked on behalf of the respondents.

16.Arguments heard on either side. Written submissions are made by both sides.

17.As seen from the arguments advanced, on behalf of the petitioners, the first petitioner is the organization sponsored, set up and established by the second plaintiff trust. The first respondent/defendant No.1 is the fictitious and subsequently created body contrary to the affairs of the plaintiff trust. The second plaintiff came into existence in terms of Registered Deed of

Trust made on 26-11-2010 vide document No.137/2010 in the

Office of the Sub-Registrar of Saroornagar. The trust after developing the property allotted shops to its members who belongs to Padmashali community as per layout got prepared and approved in the Board of Trustees.

18.The first defendant and other defendants have been making unsuccessful attempts and illegal trespassing into the office premises of the plaintiffs and on 25-06-2017 the plaintiffs held General body meeting at the premises of the plaintiffs and the defendants along with henchmen came to disturb the same and caused damage to the furniture and law and order was restored with the interference of the local police and again on annual function of LPT market the defendants tried to disturb and

I.A.No.730/2017 in O.S.No.913/20178 caused damage to the furniture and this time also local Police interfered and assisted the plaintiffs to continue in the function.

On 14-08-2017 the defendants attempted to held illegal meeting by brining Ms.Samantha and the legal attempts on the part of the respondents are required to be prevented by granting temporary injunction as prayed for. Though the petitioners referred the rulings given in Gujarat Bottling Company Limited Vs. Coca

Cola Company reported in 1995 (5) SCC 545 and Dalpat

Kumar Vs. Pralhad Singh reported in AIR 1993 SC 276, the copies of the said citations are not filed into the Court.

19.As seen from the arguments advanced on behalf of the respondents, the petitioners have not given proper description of the first respondent. The respondent No.1 is actually registered as

Laxmi Padmashali Handlooms and Textiles Market (LPT Market)

Merchant Committee and the petition and suit are liable to be rejected. The petitioners No.1 and 2 could not have joined as co- petitioners/co-plaintiffs in the same suit as there is no common cause of action. As a matter of fact, the Andhra Pradesh

Apartments (Promotion of Construction and Ownership) Act, 1987 contemplates formation of such association and once such a society (association) is formed, then it is this society has to manage all the common areas and facilities.

20.The respondent filed CC of Registration under Ex.R1 and it obtained police permission for announcing programme and the activities done by the first respondent marchant committee can be evidenced from Exs.R2 to R10. The copies of the sale deeds are

I.A.No.730/2017 in O.S.No.913/20179 filed and the same are marked as Exs.R11 to R17 clause No.22 of the said conveyance deeds. The petitioner seeks to rely under clause No.22 of Ex.R11 and state about the formation of the association and the said clause is absent in Ex.R18 onwards and even otherwise this clause is contrary to the provisions of Andhra

Pradesh Apartments (Promotion of Construction and Ownership)

Act, 1987 and therefore void. Therefore relying on clause No.22 of

Exs.R11 to R15 is of no value to the petitioners even otherwise this is contrary to the Act (law) and therefore void and unenforceable.

21.It is well settled that no relief can be granted for which foundation is not laid down in the plaint and the petitioners has no primafacie when all the shops have already being sold and alienated in favor of the third parities and the petitioners have no manner of right, title and interest over the property and injunction in this nature cannot be granted. As admittedly the petitioners have no interest in the suit schedule property and the balance of convenience is also not in their favor and then the question of suffering irreparable loss does not arise.

22.In support of the arguments the respondents are relying on the following citations:

01.C.Shekarreddy Vs. C.S.R.Estates Flat Owners

Welfare Association, Kothapet reported in 2003 (3) ALT 413

(DB).

02.P.Varalaxmi Vs. Commissioner and Special Officer,

Greater Hyderabad Municipal Corporation and others

reported in 2013 (6) ALT 493 (DB).

I.A.No.730/2017 in O.S.No.913/201710

03.Union of India Vs. Ibrahimuddin and another reported in 2012 (8) Supreme Court Cases 148.

23.Now the point for determination is: Whether the petitioners/plaintiffs are entitled for relief of temporary injunction against the respondents/defendants as prayed for ?

DISCUSSION ON POINT:

24.There is no dispute to the fact that the Merchant

Committee Lakshmi Padmashali Handloom & Textiles Market came into existence in terms of Registered Deed of Trust made on 26-11- 2010 vide document No.137/2010 of Sub-Registrar Office of

Saroornagar and the objectives of the trust is to encourage business of Padmashali community with a view to contribute for over all development and upliftment of committee and particularly the members of the trust who joined from time to time.

25.It is also not in dispute that the shopping complex known as LPT market near Chandrapuri Colony, LB Nagar,

Hyderabad has been constructed by the trust and conveyed the shops to its trust members under registered conveyance deeds. It is also an admitted fact that Jella Bixsham is the founder trustee and life member of the said trust and fourth and fifth respondents by name Gosika Yadagiri and Gajam Goverdhan are among the life members of the said trust. It is also not in dispute that the respondent No.2, 3 and 6 are also members of the said trust and the said trust owned shops in LPT market.

26.As seen from the respective contentions of the parties, the first petitioner merchant committee is sponsored and

I.A.No.730/2017 in O.S.No.913/201711 established by the second plaintiff trust and is entitled to work in coordination with the second plaintiff trust as per the objectives and byelaws and the first respondent merchant committee is fictitious and has no right to interfere with the affairs of the petitioners No.1 and 2. According to the respondents they are having right to form association for the welfare of the shop owners in the LPT market as per Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987 and the same is formed and registered under the Society Registration Act and the first petitioner is fictitious association having no legal entity and the first respondent is the rightful committee to work for the welfare of the shop owners / marchants in LPT market.

27.As per the settled law, the cardinal principles to be considered for granting temporary injunction are:

01.Primafacie case;

02.Balance of convenience;

03.Irreparable injury;

28.As held by the Hon'ble Apex Court in Dalpat Kumar

and another Vs., Prahlad Singh and others reported in

1992 (1) SCC 781, all the above said three conditions are to be satisfied for granting such relief. Since the petitioners seek temporary injunction, it is their burden to satisfy all the above said cardinal principles.

29.Coming to the Exhibits marked on behalf of the petitioners, Ex.P1 is the memorandum of organization of the merchant committee dt.18-10-2016. As mentioned in Ex.P1 all the

I.A.No.730/2017 in O.S.No.913/201712 persons who are allotted shops by LPT market/second plaintiff shall become members of organization in terms of their respective conveyance deeds registered and got executed by the said trust and in the event of sale of the shop the new owner should also become Padmashali community. Ex.P2 is the CC of trust deed dt.26-11-2010 through which LPT market came into existence.

Ex.P3 is the declaration document of the first petitioner organization. Ex.P4 is the General notice dt.06-06-2017 with regard to the conducting trust general body meeting on 25-06- 2017. Ex.P5 is the General notice dt.03-08-2017 gave to the members of the trust by its founder President and Ex.P6 is the copy of the complaint said to have been given to the Station

House Officer P.S. LB Nagar against the respondent No.2 dt.25-06- 2017. Ex.P7 is the copy of the complaint dt.04-07-2017 said to have been given to the Station House Officer P.S. LB Nagar against respondent No.2. Ex.P8 is the copy of the FIR in crime

No.894/2017 lodged on the complaint given by M.Srinivas PC of LB

Nagar.

30.Coming to the exhibits of the respondents, Ex.R1 is the certified copy of the registration of the first respondent with registration No.1029/2017. Ex.R2 is the copy of the pan card,

Ex.R3 is the copy of proceeding of Assistant Commissioner of

Police, LB Nagar. Ex.R4 is the General notice given to the press inviting the members to participate in first annual body meeting held on 04-08-2017. Ex.R5 is the copy of letter addressed to SI of

Police to provide Bandhobusth to the programme to be held on 04-

I.A.No.730/2017 in O.S.No.913/201713 08-2017. Ex.R6 is the copy of the statement of account relating to the first respondent merchant committee. Ex.R7 is the news item relating to newly formed body of the respondent No.1 published in

Namaste Telangana dt.02-07-2017. Ex.R8 is the news item published in Andhra Jyothi dt.05-08-2017. Ex.R9 is the copy of the photographs of Ms.Samantha in Andhra Prabha dt.15-08-2017.

Ex.R10 are the positive photographs relating to the presence of

Samantha at the function conducted by the respondent No.1 committee. Exs.R11 to R19 are the conveyance deeds executed by LPT Trust in favor of the trust members and shop owners.

Ex.R20 is the copy of the occupancy certificate issued by GHMC to

LPT market trust represented by J.Bixam and five others.

31.On perusal of the record exhibited on both sides, LPT market trust came into existence as per Ex.P2 document wherein

Jella Bixam is founder member and life member and five others including the respondent Nos.4 and 5 are life members of the said trust and all the shop owners in whose favor LPT market trust executed deeds will automatically become as members of the said trust and the respondents filed Exs.R2 to R19 to show that the conveyance deeds are executed by the trust in favor of the shop owners who are members of the said trust.

32.As mentioned in the aforesaid Orders, with regard to the formation of the trust and execution of the conveyance deeds in favor of the trust members in respect of the individual shops are not in dispute. Further Ex.R20 shows that LPT market trust was the owner of the property and developer of the property and after

I.A.No.730/2017 in O.S.No.913/201714 conclusion of the construction GHMC issued occupancy certificate and all the shop owners in whose favor conveyance deeds are executed by the trust are entitled to occupy their respective shops and are further entitled to carry on their respective business. The first petitioner claims to be proper merchant committee at LPT market premises and the first respondent is also claiming to be the proper merchant committee at LPT market premises. The first petitioner and the first respondent are contending that the counter part has no legal entity and are fictitious one and has no right to manage the affairs of the shop owners/merchants at LPT market.

33.All the activities of the trust shall be managed by the board of trustees consists of 11 members. Apart from the founder member and life members totalling six, five members will be nominated out of the members of the trust by founder trustee and life members and all the said 11 members are considered as Board of Trustees. The term of founder trustee and life members is life period whereas the term of the nominated members is three years.

34.As per clause No.16 of Ex.P2 trust deed the members can establish the bodies, associations, organizations, societies, or any cooperative bodies for carrying on specific functions and the said bodies and associations or organizations shall function under the control and supervision of the managing body of the trust which shall regularize the activities of such bodies. If trust feels that any such organization is deviating from its object or activities the trust can dissolve the said organization and hold control over

I.A.No.730/2017 in O.S.No.913/201715 the properties and securities of such organization.

35.Though Ex.P1 contains the declaration to the effect that the first petitioner merchant committee is sponsored and established by the LPT market trust under resolution of the trust, the said resolution is not placed nor referred in Ex.P1 and P3.

Likewise, though the body of the persons found mentioned in

Ex.R1 formed into society under the Society Registration Act and got registered the same with Registrar of Societies it is absolutely without the role of the LPT Market trust.

36.Either the founder member or one or two life members of the trust cannot form any such committee or association without therebeing any resolution made by the members.

Therefore from the documents filed on behalf of both sides, it is exfacie evident that the petitioner organization and first respondent merchant committee came into existence without the authority of the trust and not in accordance with Ex.P2 trust deed.

The other documents filed by both sides are in relation to the disputes occurred when first petitioner and the first respondent attempted to conduct meetings and functions.

37.The rulings on which the respondents are relying are not applicable to the present case. In Ibrahimuddin's case,

Section 34 and 5 of Specific Relief Act are dealt with apart from dealing with the documents filed as additional evidence under order 41 rule 27 CPC. In C.Shekarreddy's case cited supra, the dispute is to the boundary and plot individual owners and builder made some modifications from the original plans without noticing

I.A.No.730/2017 in O.S.No.913/201716 the affected individual plot owners and it is held as illegal. In

P.Varalaxmi's case is with regard to the installation of the cell towers on the roof tops and in the said decision it is held that memo issued by the Government exempting the cell towers from all building reactions in erecting such towers are not valid in the eye of law and accordingly the same is quashed.

38.As mentioned at the threshold of the orders, the burden is on the petitioners to establish all the cardinal principles for granting temporary injunction. Further it is settled ratio that at the stage of Interlocutory Applications, the parties are required to prove their case by filing affidavits and documentary evidence in support of the facts stated in the said affidavits.

39.In the present Interlocutory Application, the affidavit of the first plaintiff is filed in support of the application filed under

Order 39 Rule 1 and 2 CPC but the said affidavit is not attested.

As per the ratio laid down by the Hon'ble Apex Court in Dwarka

Nath Vs Income Tax Officer reported in AIR 1966 SC 81, if an affidavit is found defective in any manner instead of dismissing the petition in limine, a reasonable opportunity to file a better affidavit complying requirements of the law, is to be given.

40.In view of the above said ratio the petitioners are given an opportunity to file better affidavit without changing the contents of the original affidavit. But the petitioners did not choose to file any such better affidavit though sufficient time was granted. Consequently, the affidavit of the first plaintiff which is filed in support of the present Interlocutory Application is not valid

I.A.No.730/2017 in O.S.No.913/201717 in the eye of law and the same shall not be taken into consideration. Thus it is to be taken that no affidavit is filed by the petitioners in support of their case. Therefore, the question of proving their case by filing any other documents does not arise.

Therefore, I hold that the petitioners failed to prove their case and further failed to establish cardinal principles for granting interim injunction and as such they are not entitled for interim injunction as prayed for. Accordingly, this point is answered.

41.In the result, this Interlocutory Application is dismissed, no Order as to costs.

Dictated to the Personal Assistant, typed by him, corrected

and pronounced by me in the Open Court on this Friday, the Twenty First day of December, Two Thousand Eighteen.

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGA REDDY DISTRICT AT LB NAGAR

APPENDIX OF EVIDENCE

WITESSES EXAMINED

NIL

EXHIBITS MARKED

On behalf of the Petitioner/s:

Ex.P1Memorandum of organization of the merchant committee dt.18-10-2016.

Ex.P2CC of trust deed dt.26-11-2010

Ex.P3Declaration document of first petitioner organization

Ex.P4General notice dt.06-06-2017

Ex.P5General notice dt.03-08-2017

Ex.P6Copy of the complaint dt.25-06-2017

Ex.P7Copy of the complaint dt.04-07-2017

Ex.P8Copy of the FIR in crime No.894/2017

On behalf of the Respondent/s:

I.A.No.730/2017 in O.S.No.913/201718

Ex.R1Certified copy of the registration of the first respondent with registration No.1029/2017

Ex.R2Copy of the pan card

Ex.R3Copy of proceeding of ACP, LB Nagar

Ex.R4General notice for first annual body meeting on 4-8-17

Ex.R5Copy of letter addressed to SI of Police to provide

Bandhobusth to the programme to be held on 04-08-2017

Ex.R6Copy of the statement of account relating to the first respondent merchant committee

Ex.R7News item in Namaste Telangana dt.02-07-2017

Ex.R8News item in Andhra Jyothi dt.05-08-2017

Ex.R9Copy of the photographs of Ms.Samantha in Andhra

Prabha dt.15-08-2017

Ex.R10Positive photographs

Exs.R11 to R19 Conveyance deeds

Ex.R20Copy of the occupancy certificate issued by GHMC.

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGA REDDY DISTRICT AT LB NAGAR

Compared by me:

I.A.No.468/2018 in O.S.No.318/20181

IN THE COURT OF THE V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT AT L.B.NAGAR, HYDERABAD, TELANGANA

STATE

PRESENT: Sri.N.SOLOMON RAJU,

V ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGAREDDY DISTRICT AT LB NAGAR

Friday, the Twenty First day of December, Two Thousand Eighteen

INTERLOCUTORY APPLICATION No.468 / 2018 IN ORIGINAL SUIT No.318 / 2018 Between: M/s.Sri Sai Homes represented by its Managing Partners: G.Gurunath and Gurram Raghumareddy …Petitioner/Plaintiff

AND

Arkala Venkatesh ...Respondent/Defendant

This Interlocutory Application came before me for final hearing in the presence of M/s.G.Sathyaveerreddy, Counsel for the

Petitioner/Plaintiff and Sri.Palakuri Ramulu, Counsel for the

Respondent and upon perusal of the material papers on record and the matter stood over for consideration till this day, this Court delivered the following:

:: O R D E R ::

01.The petitioner/plaintiff filed this Interlocutory

Application Under Order 39 rule 1 and 2 r/w.Section 151 of CPC praying this Court to grant temporary injunction against the respondent/defendant restraining him from alienating, or transferring the suit schedule property in favor of the third parties till the disposal of the suit, in the interests of Justice.

02.As seen from the contents of the affidavit appended to this Interlocutory Application and from the averments of the plaint:

The petitioner / plaintiff is Partnership firm being represented by

I.A.No.468/2018 in O.S.No.318/20182 its Managing Partner entered into Agreement of Sale dt.08-08- 2016 with the respondent/defendant in respect of an area of

Ac.02-00 guntas out of the land bearing Sy.Nos.4/AA/A/1 situated at Mangalpally Village, Ibrahimpatnam Mandal, Rangareddy

District which is described in the suit schedule property in pursuance of Agreement of Sale the total consideration was mutually got fixed as Rs.2,40,00,000/- out of which they have paid an amount of Rs.60,00,000/- to the respondent/defendant by way of cash and two cheques. It is agreed upon to receive the balance sale consideration in two installments, the first installment of

Rs.60,00,000/- shall be payable on or before 08-12-2016.

03.As per the clause No.2 of the said Agreement of Sale the respondent/defendant agreed to get survey of the suit schedule property inconsonance with the official tiffon of survey and settlement departments and to get fix the boundaries.

Further as per clause No.3 the respondent / defendant agreed to give consent letters to the purchaser to apply HMDA layout and sign on the required HMDA papers and other requisite permissions.

04.There is only 15 feet wide approach road available, which is not sufficient to get an HMDA layout approval though it is not incorporated under the Agreement of Sale the respondent / defendant agreed to see that he will manage the area which will be sufficient to have 40 feet wide approach road to the suit schedule property either by getting the said balance area from adjoining land owners or make them convince to sell the said area.

But he did not made any such efforts and kept the matter pending.

I.A.No.468/2018 in O.S.No.318/20183

05.The respondent/defendant did not perform his part of contract as per above said clause. In the mean while the petitioner got converted the land under sale from the agricultural land to non-agricultural land by incurring huge amounts apart from paying schedule fee of Rs.96,000/- vide challan dt.16-09-2016.

The petitioner bonafidely trusting the respondent / defendant took the steps to get complete the sale transaction.

06.Due to the above said reasons, the petitioner did not pay further balance of sale consideration as agreed, in order to get compel the respondent / defendant to perform his part of contract.

In the meanwhile in the month of November, 2016 just before payment of first installment as agreed, demonetisation policy was imposed by the Central Government the petitioner has been regularly perusing the matter with the respondent/defendant and requested him to complete the formalities in complying the terms and conditions which were mutually agreed. But the respondent / defendant for one reason or the other could perform his part of contract and went on postponing the same. The respondent/defendant utilized the amounts paid by the petitioner to perform his daughter's marriage and met other family necessities.

07.While the matter stood thus, the respondent / defendant got issued legal notice dt.16-11-2017 and also filed caveat petition and thereby took a plea of termination of agreement of sale and also forfeiture of the amounts paid in pursuance of the clause No.9 of the Agreement. The petitioner

I.A.No.468/2018 in O.S.No.318/20184 approached the respondent to get settle the matter amicably but the respondent started demanding to increase the total sale consideration. Later the petitioner approached the elders and mediators and in view of the efforts for the amicable settlement the petitioner has not sent any reply to the legal notice sent by the respondent. In the third week of February, 2018 the respondent started putforthing unexecutable demands with malafide intention to compel them and yield to wishes. The defendant already offering the suit schedule property to third parties. The defendant has no right to terminate the Agreement without complying the terms and conditions which are to be performed by him. The defendant is also not entitled to demand balance of sale consideration, or to forfeit the amounts paid without performing his part of contract. The petitioner got primafacie, balance of convenience is also in his favor, if temporary injunction is not granted, the petitioner will be put to great loss.

08.The respondent / defendant filed counter-affidavit denying the material averments of the petition and plaint. The case of the respondent / defendant is briefed as follows: As per the

Agreement of Sale the first installment is to be paid Rs.60,00,000/- by 08-12-2016 and final installment of Rs.1,20,00,000/- is to be paid by 08-03-2017 and after paying the sale consideration the petitioner has to get the sale deed registered in his favor. The respondent agreed to sell the land with specific purpose to perform the marriage of his daughter and construct a house in his village, because of the failure on the part of the petitioner to

I.A.No.468/2018 in O.S.No.318/20185 comply the terms and conditions of the Agreement of Sale he was put to mental agony and to borrow huge amounts for high interest rates for performing his daughter's marriage. The respondent got issued legal notice dt.16-11-2017 that is after waiting for more than seven months from the due date of the last payment as per the terms of the Agreement of Sale dt.08-08-2016 and invoked clause No.9 of the Agreement of Sale and as per such clause the

Agreement of sale is ceased to exist. The suit is filed after more than a year of last payment due to this respondent the petitioner did not choose to give reply to the legal notice. The respondent also filed counter-affidavit along with his written statement and the matter has to be adjudicated finally.

09.As of now, the suit is not maintainable in view of the fact that Agreement of Sale itself is terminated by this respondent as earlier as on 16-07-2017. Once the Agreement of Sale is terminated, the petitioner is nothing to do with the suit schedule property and no where in the petition it is stated that the petitioner is ready to deposit the balance of sale consideration into the Court presuming that the Agreement of Sale is in force.

Surprisingly, the petitioner filed one petition under order 39 rule 1 and 2 and other application under 38 and rule 5 CPC.

10.In view of the conflicting and different versions of the petitioner, it can be presumed that absolutely there is no balance of convenience in favor of the petitioner and no harm will be caused to the petitioner, if any adverse orders are passed he will be put to hardship and irreparable loss. There are no bonafides on

I.A.No.468/2018 in O.S.No.318/20186 the part of the petitioner, both the petitions are liable to be dismissed with costs.

11.Arguments heard on either side. The respondent filed written arguments also.

12.During the course of enquiry Ex.P1 to P3 are marked and no documents are exhibited on behalf of the respondent.

13.The learned counsel for the petitioner argued that the execution of the Agreement of Sale dt.08-08-2016 on receiving advance sale consideration of Rs.60,00,000/- is admitted by the respondent / defendant and in fact the respondent / defendant did not perform his part of contract as per the terms and conditions of the Agreement of Sale. The respondent / defendant has got land surveyed and fixed boundaries and further signed relevant papers to obtain necessary permission and layout from HMDA but the same are not done without performing his part of contract the respondent again demanded payment of balance of sale consideration or invoking clause No.9 of Agreement of Sale, in fact, the demontisation is imposed by the Central Government just

before the due date for first installment. The respondent /

defendant has no right to terminate the Agreement of Sale and the

Agreement of Sale is in force and subsisting and the petitioner is entitled for the relief of specific performance. Taking advantage of the issuance of the legal notice the defendant is making hectic efforts to alienate the suit schedule property in favor of the third parties and if the respondent is permitted to alienate the suit schedule property to others, the petitioners will be put to

I.A.No.468/2018 in O.S.No.318/20187 irreparable loss and great hardship.

14.On the other hand, the learned counsel for the respondent argued that the petition under order 39 Rule 1 and 2

CPC is not maintainable and there is no cause of action to file the present suit. As per the Agreement of Sale dt.08-08-2016 the balance of sale consideration shall be paid in two installments and as per the clause No.9 of Agreement of Sale on the failure of the petitioner to pay the balance of sale consideration as per the schedule of installments fixed in it, the Agreement shall be ceased and the advance amount paid shall be forfeited.

15.The respondent having waiting long time after due date and final payment he got legal notice by invoking clause No.9 of

Agreement of Sale and accordingly, the Agreement of Sale dt.08- 08-2016 is terminated and advance amount is forfeited and the petitioner did not choose to give any reply to it. The petitioner was never ready with the balance of sale consideration and never willing to get the sale deed executed. The cause of action for filing suit for specific performance and permanent injunction should be separate and both the cause of actions cannot be clubbed together.

16.The respondent filed counter-claim for Rs.20,00,00/- towards loss and damage sustained by him. The petitioner is not entitled for relief as prayed for. The sole motive behind filing the present petition and suit is to harass the present respondent who is aged more than sixty years. In support of his arguments, the learned counsel for the respondent relies on the following

I.A.No.468/2018 in O.S.No.318/20188 decisions:

01.Kalawati (d) through LRs and others Vs. Rakesh

Kumar and others in Civil Appeal No.2244/2018 decided by

the Hon'ble Apex Court on 16-02-2018.

02.Sucha Singh Sodhi (D) through LRs. Vs. Baldev

Raj Walia and another in Civil Appeal No.3777/2018

decided by the Hon'ble Apex Court on 13-04-2018.

03.His Holiness Acharya Swami Ganesh Dassji Vs.

Sita Ram Thapar repored in 1996 LawSuit(SC) 852.

04.I S Sikandar (d) by LRs Vs. K.Subramani and others reported in 2013 LawSuit(SC) 1204.

17.Now the point for determination is: Whether the petitioner is entitled for ad-interim injunction against the respondent prayed for ?

DISCUSSION ON POINT:

18.As seen from the record, the plaintiff which is the partnership firm represented by its Managing Partners filed suit in

O.S.No.318/2018 for declaration that the suit Agreement of Sale

dt.08-08-2016 is subsisting and thereby directing the defendant to execute sale deed in its pursuance and put the plaintiff in possession and enjoyment of the suit schedule property and alternatively for refund of the amount of Rs.60,00,000/- which was paid by the defendant as advance and amount of Rs.96,000/- towards expenses incurred by the plaintiff with interest @ 24 % per annum from the date of Agreement of Sale till realization and for such other reliefs.

I.A.No.468/2018 in O.S.No.318/20189

19.It is the contention of the respondent / defendant that the plaintiff failed to pay the balance of sale consideration as per the installments fixed in Agreement of Sale and time is the essence of contract and as per the clause No.9 of the Agreement of Sale the said Agreement of Sale is terminated and advanced amount paid is forfeited and as such no Agreement of Sale is subsisting and as such the suit and Interlocutory Application filed by the petitioner are not maintainable.

20.It is further contended that the petitioner was never ready and willing to perform his part of contract and as such he is not entitled for the reliefs prayed for.

21.According to the petitioner, the defendant failed to perform the acts as agreed upon and incorporated in the

Agreement of Sale and in its absence the defendant has no right to terminate the Agreement of Sale and forfeit the advance amount paid and the Agreement of Sale dt.08-08-2016 is still subsisting.

22.As per the settled law, the cardinal principles to be considered for granting temporary injunction are:

01.Primafacie case;

02.Balance of convenience;

03.Irreparable injury;

23.As held by the Hon'ble Apex Court in Dalpat Kumar

and another Vs., Prahlad Singh and others reported in

1992 (1) SCC 781, all the above said three conditions are to be satisfied for granting such relief. So far as primafacie case is concerned, on the facts before the Court there is a serious

I.A.No.468/2018 in O.S.No.318/201810 disputed question to be tried in the suit and there is probability of his being entitled to the relief asked for. The amount of substantial mischief, or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted, is to be weighted for appreciation of balance of convenience and irreparable injury is a material injury that cannot be adequately compensated by way of damages.

24.As seen from the pleadings of the both parties the

Agreement of Sale dt.08-08-2016 is not in dispute. The said

Agreement of Sale dt.08-08-2016 is marked in Ex.P1. The legal notice issued on behalf of the defendant to the plaintiff is marked in Ex.P2. Served copy of caveat petition filed in PDJ Court,

Rangareddy at LB Nagar is marked as Ex.P3.

25.In Ex.P2 and P3 also the execution of the Agreement of

Sale and receiving advance sale consideration of Rs.60,00,000/- are being admitted. As per the terms of the Agreement vendor shall cause the survey of the suit schedule property and fix the boundaries and further agreed to give consent to the purchaser to apply HMDA layout and agreed to sign on the required HMDA and other papers. If the vendor fails to execute the sale deed, even after receipt of the entire sale consideration the purchaser shall have the right to seek specific performance of Agreement of Sale.

If the purchasers fails to pay the amount according to the

Agreement of Sale then this Agreement becomes invalid and amounts paid by them will be forfeited.

I.A.No.468/2018 in O.S.No.318/201811

26.The balance of sale consideration shall be paid in two installments and first installment of Rs.60,00,000/- on or before 08-12-2016 and second installment of Rs.1,20,00,000/- is to be paid by 08-03-2017. Admittedly, the balance of sale consideration is not paid by the petitioners to the respondent.

27.As seen from the averments of the plaint and petition contents, the petitioners spent a sum of Rs.96,000/- in getting the land converted into the non-agricultural land and it shows that the respondent/defendant has cooperated with the petitioner/plaintiff in getting such conversion of the land. According to the petitioner the respondent has not performed the acts as agreed upon and as such they did not pay the balance of sale consideration. The contention of the respondent is that time is essence of contract, and clause No.9 of Agreement of Sale is incorporated and notice is issued to the plaintiff under Ex.P2.

28.At this stage, it is relevant to consider the legal position as per the rulings filed on behalf of the respondent in Kalawati

(d) through LRs's case cited supra, the Hon'ble Apex Court is in agreement with the ratio laid down in His Holiness Acharya

Swami Ganesh Dassji's case, in the said decision a distinction between readiness to perform the contract and willingness to perform the contract, was drawn. It was observed that by readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinized. The

I.A.No.468/2018 in O.S.No.318/201812 factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. On the facts available the

Court may infer whether the plaintiff was ready and was always ready and willing to perform his part of the contract. In those decisions the Hon'ble Apex Court further observed that the facts of this case would amply demonstrate that the petitioner/plaintiff was not ready, nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash. In Sucha Singh Sodhi (D) through LRs.'s case cited supra, the question arises whether there was bar under Order 2

Rule 2 CPC for the suit filed for specific performance. Previously, suit for injunction was filed between the same parties and the said suit was withdrawn and thereafter suit for specific performance was filed in that aspect it is held that the cause of action to file injunction suit and cause of action to file specific performance suit are different and as such the relief of the specific performance could not have been pleaded in the previous suit.

29.Coming to the facts of the present matter such question has not been arisen and the ratio laid down in Sucha Singh

Sodhi (D) through LRs.'s case cited supra, is not applicable to the present case. The respondent filed the decision in I S

Sikandar (d) by LRs's case cited supra, for two principles, one is whether the Agreement of Sale was terminated as per the notice the plaintiff has to seek declaratory relief to declare the termination of the Agreement of Sale, besides relief of specific

I.A.No.468/2018 in O.S.No.318/201813 performance and in the absence of seeking such declaratory relief the suit is not maintainable. Secondly, though in a case of sale of immovable property time is not essence of contract, if the parties agreed to specify time in Agreement of Sale to perform their contract time is the essence of contract. So far as the first principle is concerned, the plaintiffs in the present suit sought declaratory relief for declaring that the Agreement of Sale dt.08- 08-2016 is subsisting and no such anomaly exists. Coming to the second principle, as per Ex.P1 specific time is fixed for payment of the balance of sale consideration and clause No.9 is provided for ensuing consequences, as per clause No.9 of Ex.P1 if the purchasers fails to pay the balance sale consideration as per the schedule fixed in the Agreement of Sale the Agreement shall become invalid and the advance amount paid is forfeited.

30.Further it is not in dispute in the present case that the respondent / defendant intended to alienate the suit schedule property for the purpose of performing his daughter's marriage and to construct the house in his village. Therefore, from the terms and conditions and contents stated in the Agreement of Sale marked in Ex.P1 and in the light of the ratio laid mentioned in the above referred decision, it can be said that the time is the essence of contract in the present matter.

31.As per Ex.P2 the defendant got issued legal notice informing to the plaintiffs that on either failure to pay the balance sale consideration clause No.9 of Agreement of sale is invoked and the Agreement of Sale is terminated and advance paid is forfeited.

I.A.No.468/2018 in O.S.No.318/201814

Whether Ex.P1 Agreement of Sale is validly terminated or not, whether Ex.P1 Agreement of Sale is subsisting or not are the facts required to be determined during the course of trial. At the stage of Interlocutory Application as mentioned supra, the conduct of the plaintiffs is very much relevant to be considered for granting temporary injunction.

32.As per the plaintiffs, the respondent / defendant has not done the acts which are agreed upon by him as stipulated in the

Agreement of Sale. It is also contended by the plaintiffs that there was an oral understanding between the parties with regard to the arriving of 40 feet wide road. It is evident from the record that the petitioners have not issued any notice to the respondent / defendant requiring him to perform the above said acts. The petitioners also did not make any endeavor to get the time extended for payment of the balance of sale consideration. The petitioners did not choose to give any reply notice to Ex.P2 notice sent by the respondent / defendant. Despite the issuance of Ex.P2 the plaintiffs approached the Court on 21-03-2018. The conduct of the plaintiffs creates a reasonable doubt as to their proposed readiness and willingness to pay the balance of sale consideration and get registered sale deed. Moreover the petitioners sought alternative relief for refund of advance amount paid and recovery of expenses incurred by them in getting the land converted to non- agricultural land. Further the facts enumerated supra, show that the petitioners are not diligent, and their conduct disentitles from seeking the relief of ad-interim injunction. I, therefore, hold that

I.A.No.468/2018 in O.S.No.318/201815 the petitioners are not entitled for the relief of temporary injunction as prayed for. Accordingly, this point is answered.

33.In the result, this Interlocutory Application is dismissed.

No order as to costs.

Dictated to the Personal Assistant, typed by him, corrected

and pronounced by me in the Open Court on this Friday, the Twenty First day of December, Two Thousand Eighteen.

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGA REDDY DISTRICT AT LB NAGAR

APPENDIX OF EVIDENCE

WITESSES EXAMINED

NIL

EXHIBITS MARKED

On behalf of the Petitioner/s:

Ex.P1Agreement of Sale dt.08-08-2016

Ex.P2Legal notice issued on behalf of defendant to plaintiff

Ex.P3Served copy of caveat petition filed in PDJ Court,

Rangareddy at LB Nagar

On behalf of the Respondent/s: NIL

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGA REDDY DISTRICT AT LB NAGAR

Compared by me: