Smt.P.SreeDevi

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

MEDCHAL-MALKAJGIRI DISTRICT :: AT MALKAJGIRI

PRESENT: SMT. P. SREEDEVI, II Addl. Senior Civil Judge, FAC I Addl. Senior Civil Judge, at Malkajgiri.

DATED THE 20th DAY OF JULY, 2022

IA.No. 335 OF 2019

IN

OS.No. 1453 OF 2017

BETWEEN:

1.K. Madhulatha, W/o. Bal Reddy, aged about 53 years, Occ: Housewife, R/o. Plot No.151/A, Phase-II, Cherlapally Village, Khapra Municipality, Medchal-Malkajgiri District.

2.K. Bargeve, W/o. V. Venkateshwar Reddy, D/o. Bal Reddy, aged about 33 years, Occ: Housewife, R/o. H.No.6-198, Praja Sai Garden, Kundanpally Village, Godmakunta Gramapanchayath, Medchal-Malkajgiri District.

3.K. Priyanka, W/o. Anji Reddy, D/o. Bal Reddy, aged about 30 years, Occ: Housewife, R/o. H.No.1-55, Rampally Dayara Village, Keesara Mandal, Medchal-Malkajgiri District.

...Petitioners/Plaintiffs

A N D

K.V. Krishna Rao, S/o. Late Subba Rao, aged about 70 years, Occ: Retd. Employee, R/o. H.No.1-7-184, Kamala Nagar, ECIL Post, Medchal-Malkajgiri District.

...Respondent/Defendant

This petition is coming for final hearing before me on 01-07- 2022 in the presence of Sri Mohd. Anwaruddin, learned Counsel for Petitioners/Plaintiffs and Sri Police Venkat Reddy, learned counsel respondent/defendant and the matter having stood over for consideration till this day, this court made the following:-

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ORDER

1. This petition is filed U/O 39 rule 1 and 2 R/w Sec. 151 CPC requesting the court to grant Temporary Injunction against the respondent from proceeding any sort of further construction over petition schedule property during pendency of the suit.

2.Notice given to other side. Counter filed by the respondent. Heard both sides. Perused the record. Ex. P1 to P25 and R1 to R34 marked.

3.The petitioners contended that they are absolute and joint owners of petition schedule property. Originally Samdani Begum was absolute owner and pattedar and possessor of entire extent of land in suit survey numbers 577, 583, 584 and 585 of Nagaram village, Keesara Mandal. Due to her personal necessities sold said entire extent of land in said survey numbers to different purchasers and delivered possession to them. Said owner sold the petition schedule property along with another plot no. 146 admeasuring 270 sq. yards in sy. no. 577, 583, 584 and 585 through a registered sale deed vide doc. no. 3162 of 2000 dt: 27-07-2000. Their vendors handed over the possession of the schedule property even prior to the sale and since then they are in possession of the schedule property. They constructed room as well as compound wall surrounding the petition schedule property by erectiing huge gate long back. The petitioners sold another plot no. 146 admeasuring 270 sq. Yards out of suit survey number to third parties through registered sale deed vide doc. No. 12385 of 2006 dt: 28-082006. Earlier the respondent interfered with the possession of the petitioners over the schedule property. Then they filed suit for perpetual injunction in OS. NO. 1519 of 2007 on the file of VI Additional senior civil judge, and the same was dismissed on 11-08-2014. The appeal also dismissed vide As. No. 190 of 2014 on 23-01- 2017.

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4.As per the sale deed of the vendor of respondent it is Sri. Mohan son of

Narasimhan claiming to be GPA holder of G.M. Akkai, C.N.Sukla, H.X. Paul and

P.A. Nandarajan, executed sale deed in favour of vendor of respondent. In fact said persons were not having any right to execute any GPA in favour of said

Mohan for said area Ac. 37-29 Gts., out of Sy.No. 32, 577, 583 and 584. Under said sale deed there is no reference of date and document number of alleged

GPA in favour of Mohan. Therefore the sale deed in favour of vendor of respondent itself is illegal and void document. In CRP.No. 17 of 1997 the

Hon’ble High Court had held that Mohan had no right to execute any sale

deed in respect of land covered by said suit. Even then the said Mohan executed illegally registered sale deed in favour of vendor of respondent on 19-10-1981 vide doc. No. 6428 of 1981.

5.The said sale deed and alleged agreement of sale cum general power of attorney dated 16-08-2001 in favour of P. Srinivas as well as alleged sale deed

dt: 29-06-2007 vide doc. no. 8123 of 2007 in favour of respondent are illegal

and void documents. Said Mohan also executed certain sale deeds in favour of third parties illegally by playing fraud. The respondent or his alleged vendors have no concern with the title of petition schedule property in any capacity. Original owner did not sell petition schedule property to said vendor of respondent. The respondent by taking advantage of dismissal of OS. NO.

1519 of 2007 illegally occupied petition schedule property on 26-01-2017 by dispossessing the petitioners and trying to sell the petition schedule property to others in order to get wrongful gains. Hence, requesting the court to grant

Temporary injunction against the respondent from proceeding with any sort of further construction over the petition schedule property till the disposal of the suit.

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6.The respondent contended in the counter that all the averments in the petition are false, except certain facts specifically admitted by him. He stated that the original pattedar sold the entire extent of land in suit survey numbers to different purchasers and delivered possession to them. The petitioners were never in possession of the petition schedule property at any point of time. The O.S. No. 1519 of 2007 filed by the petitioners and the appeal both are dismissed. Said Samdani Begum having inherited from her father as an only daughter to her parents. One Mohan executed the registered sale deed in favour of vendor of respondent as a GPA holder of GM Akkai and others.

The petitioners have absolutely no manner of right, title or interest over the property bearing plot no. 144 and 145 in Sy Nos. 577, 583, 584 and 585.

There is an order subsisting against any alienation of the property in IA.NO.

866 of 1998 in OS.No. 49 of 1998 against Mohd. Azeezuddin, Mohd. Alamdar,

Mohd. Anees Hussain who are all sons of Samdani Begum and late Shaik

Hussain, Shajunnisa Begum and several others. The said order was passed on 22-04-1998.

7.He further contended that entire property covered by Sy.No.32, 577, 583, 584 and 585 to an extent of Acs.66.38 gts., belong to Mir Fiaz Ali. He died during 1964 leaving behind his only daughter Samdani Begum. She in turn obtained permission u/s 47 and 48 of AP Tenancy and Agricultural Lands

Act, 1950 for alienation of the above said lands in favour of Kanaka Laxmi and others. The order was passed on 27-09-1966 by Tahsildar, Medchal. As per

Muslim Law on the death of Mir Faiz Ali his only daughter, Smt. Samdani

Begum becomes the absolute owner of the property and her children do not get any right by virtue of succession. She along with her children conveyed the entire property to several individuals which was succeeded by her from

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5 her father after dividing the land into 38 plots consisting of Acs.38-03 gts. The suit property falls within the area of lands sold by her which was divided into 38 plots of various sizes ranging from 1221 sq. Yards to 4992 sq. yards.

Therefore when the property was already conveyed in the year 1966-67 through registered sale deeds after obtaining due permission she cannot once again sell the property to any body. So also they cannot claim any right over the portion of the property which was sold more than 5 decades ago.

They did not obtain any layout plan dividing the land into small plots. Some of the purchasers of land from Smt. Samdani Begum entrusted their properties to one Mohan who obtained a layout sanction and divided the land into plots.

In earlier litigation it was held that Mohan had no right to convey the entire property without holding power of attorney from all the owners. The purchasers of property from Smt. Samdani Begum continued to be the owners of the property as long as there are no valid transfers from them or their agent. After 1966-67 at no point of time Smt. Samdani Begum or her children were in possession of the property Acs.38-03 gts., of the said survey numbers.

8.He further more contended that Hon’ble I Additional District court categorically held that the rights of alienating by D6 to D25 in OS. No. 49 of 1998 was upheld and petitioners vendors have no right and title over the petition plots and suit Sy. Nos. His vendor D. Sridhar and another filed a suit per perpetual injunction against the Petitioner no.1 and her husband vide OS.

No. 158 of 2001 on the file of Junior Civil Judge, Medchal. The said suit was decreed in his favour by granting perpetual injunction. Then the vendor of respondent and another obtained permission from Gram panchayat on 30-11- 2001 for construction of the houses on the suit plots. After obtaining

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6 permission they constructed the house over the petition plots and the Gram

Panchayat assessed the property and collecting the property tax. They also obtained electricity connection and water connection to the suit property. This respondent purchased the plot no. 144 from D. Sreedhar through registered sale deed vide doc. no. 8123 of 2007 and one Praveen Kumar purchased the plot no. 145 from B. S. Laxmi through registered agreement of sale cum GPA vide doc.no. 6828 of 2002. Since, the date of purchase he is in possession of the above plot. It is not a vacant plot as alleged by the petitioners. The petitioners have no possession and title over the petition sy.no. They suppressed material facts before this court. No prima-facie case or balance of convenience in their favour. Hence, requesting the court to dismiss the petition.

9.POINT FOR DETERMINATION IS:

“Whether the petitioners are entitled for Temporary Injunction

against the respondent restraining him from proceeding with

construction over the petition schedule property till the disposal of

the suit as prayed by them?”

10.POINT :-

Before adverting to the facts alleged and denied by both the parties in

the present petition it is necessary to observe the basic conditions to be satisfied for the grant of preventive relief of injunction. They are prima-facie case, irreparable injury, and balance of convenience. The applicant must prove the existence of a prima-facie right in his favour. The party must argue that there is serious question to be tried if the test of prima-facie is satisfied.

The applicant must satisfy the court that an order is highly necessary without

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7 which a right accrued in favour of the party concerned cannot be protected from injury and which cannot be adequately compensated. As the power of injunction is a preventive relief it should not be granted as a matter of right unless the above conditions are satisfied.

11.With the above observation this court had taken up the claims of both parties for consideration and the arguments of learned counsel for both parties as mentioned below in the present petition.

12.The learned counsel for the petitioners filed written arguments and argued that the petitioners are absolute owners of the petition schedule property and the vendor of the respondent had no title to execute any sale deed in favour of the respondent. The Hon’ble High Court held in C. R.P. No.

17 of 1997 that Mohan has no authority to execute any sale deed as he is not the GPA holder of the original purchasers. The petitioners filed Suit in OS.

1519 of 2007 and the sale deed in favour of vendor of the respondent and

AGPA in favour of P. Srinivas and the registered sale deed in favour of the respondent are false and fabricated and fraudulent documents. The respondent by taking advantage of dismissal of suit in OS.No. 1519 of 2007 and appeal in AS. No. 190 of 2014 illegally occupied the petition schedule property on 26-01-2017 by dispossessing the petitioners. He is trying to sell the same to the third parties. Hence, requesting the court to grant Temporary injunction against the respondents from. Proceeding with construction over the petition schedule property. He has referred the following documents.

Ex.P1 is the certified copy of sale deed vide doc.No.3162/2000, dt.27-07- 2000, Ex.P2 is the certified copy of pahani for the year 1989-90, Ex.P3 is the (2) statements of encumbrance on property from 01-05-1995 to 30-09-2007,

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Ex.P4 is the certified copy of sale deed vide doc.No.561/1966, dt.30-09-1966,

Ex.P5 is the certified copy of sale deed vide doc.No.12385/2006, dated 28-08- 2006, Ex.P6 is the certified copy of order passed in IA No.2241/1996 in OS

No.629/1995 on the file of Hon’ble I Addl. Senior Civil Judge, R.R. District,

Ex.P7 is the certified copy of sale deed vide doc.No.2761/1981, dt.19-05- 1981, Ex.P8 is the certified copy of sale deed vide doc.No.2764/1981, dt.19- 05-1981, Ex.P9 is the certified copy of sale deed vide doc.No.3945/1981, dt.30-06-1981, Ex.P10 is the certified copy of sale deed vide doc.No.3949/1981, dt.30-06-1981, Ex.P11 is the certified copy of sale deed vide doc.No.3951/1981, dt.30-06-1981, Ex.P12 is the certified copy of sale deed vide doc.No.3952/1981, dt.30-06-1981, Ex.P13 is the certified copy of sale deed vide doc.No.3953/1981, dt.30-06-1981, Ex.P14 is the certified copy of sale deed vide doc.No.3954/1981, dt.30-06-1981, Ex.P15 is the certified copy of sale deed vide doc.No.4458/1981, dt.22-07-1981, Ex.P16 is the certified copy of sale deed vide doc.No.4461/1981, dt.22-07-1981, Ex.P17 is the certified copy of sale deed vide doc.No.5062/1981, dt.19-08-1981, Ex.P18 is the certified copy of sale deed vide doc.No.5571/1981, dt.08-09-1981,

Ex.P19 is the certified copy of sale deed vide doc.No.5574/1981, dt.08-09- 1981, Ex.P20 is the certified copy of sale deed vide doc.No.5576/1981, dt.08- 09-1981, Ex.P21 is the certified copy of sale deed vide doc.No.5844/1981, dt.17-09-1981, Ex.P22 is the certified copy of sale deed vide doc.No.5847/1981, dt.17-09-1981, Ex.P23 is the certified copy of sale deed vide doc.No.6429/1981, dt.19-10-1981, Ex.P24 is the certified copy of decree and order in AS No.190/2014, dt.30-03-1996, Ex.P25 is the market value certificate, dt.28-07-2017.

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13.On the other hand the learned counsel for the respondent filed written arguments and argued that originally the land in suit Sy. No., is owned by one

Mohd. Faiz Ali and on his death his only daughter Smt. Samdani Begum succeeded the entire property of her father. She along with her children sold out the entire property to several purchasers under registered sale deeds and delivered possession by taking permission under AP (Telangana) Tenancy and

Agricultural lands Act, 1950 for alienation. Now her legal heirs can not claim any right over the above property as per Muslim Law of succession. Smt.

Samdani begum is the absolute owner of her father. Once, she sold out the property she can not subsequently alienate to other persons and in OS. NO.

158 of 2001 the vendor of the respondent sought for permanent injunction which was granted against the petitioner no. 1 and her husband. Now again the petitioners filed the present suit without there being a title and possession. There is no prima-facie case or balance of convenience in favour of the petitioners and requesting the court to dismiss the petition. The following documents filed by the respondents. Ex.R1 is the certified copy of order in IA No.866/1998 in OS No.49/1998, dt.22-04-1998, Ex.R2 is the certified copy of Decree in OS No. 49/1998, dt.22-08-2003, Ex.R3 is the certified copy of Judgment in OS No.49/1998, dt. 22-08-2003, Ex.R4 is the copy of order in IA No. 480/2001 in OS No. 158/2001, dt.08-08-2001, Ex.R5 is the certified copy of sale deed vide doc.No.6428/1981, dt.19-10-1981, Ex.R6 to R9 are the Encumbrance Certificates for the period from 01-01-1981 to 12- 11-2020 (5 sheets), Ex.R10 & R11 are the Building construction permission by the Grampanchayat vide proceedings No.155P/2000-2002 along with plan,

Ex.R12 copy of representation to the executive officer, Grampanchayat

Nagaram for allotment of house number, dt.18-02-2004, Ex.R13 is the

Original Agreement of Sale cum GPA vide doc.No.4170/2001, dt.16-08-2001,

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Ex.R14 is the Original Sale Deed vide doc.No.8123/2007, dt.29-06-2007,

Ex.R15 is the certified copy of sale deed vide doc.No.8050/1981, dt.21-12- 1981, Ex.R16 is the Original Agreement of Sale cum GPA vide doc.No.6828/2002, dt.22-11-2002, Ex.R17 & R18 are the (2) Encumbrance

Certificates for the period from 01-05-1995 to 02-11-2020, Ex.R19 is the original registered sale deed vide doc.No.2652/2018, dt.20-02-2018, Ex.R20 &

R21: are the (2) Property Tax receipts, dt.18-01-2021, Ex.R22 is the property tax receipt, dt.15-12-2004, Ex.R23 is the property tax receipt, dt.18-12-2004,

Ex.R24 is the property tax receipt dt.30-11-2001, Ex.R25 & R26 are the (2) property tax receipts, dt.01-04-2006, Ex.R27 is the property tax receipt dt.31- 03-2007, Ex.R28 & R29 are the (2 Nos.) property tax receipts, dt.04-04-2008,

Ex.R30 & R31 are the (2 Nos.) property tax receipts, dt.23-05-2009, Ex.R32 &

R33 are the (2 Nos.) property tax receipts, dt.01-04-2010, Ex.R34 is the property tax receipt, dt.13-04-2011.

14.On hearing to both sides, and after careful scrutiny of the entire material available on record it is pertinent to mention that the suit is filed for

Declaration of title, recovery of possession and perpetual injunction against the respondent. The petition schedule property is compound wall and two rooms, in plots no. 144 and 145 each plot of 270 sq. Yards, total admeasuring 540 sq. Yards forming part of Sy. No. 577,583,584 and 585 situated Nagaram village. According to the pleadings in the petition, the petitioners along with the above petition plots purchased another plot no. 146 admeasuring 270 sq.

Yards in above Sy. No. through registered sale deed vide doc. No. 3162 of 2000 from original pattadar and possessor of entire extent of land namely

Smt. Samdani Begaum along with her sons and delivered the possession of the same.

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15.Ex.P1 is the certified copy of the said sale deed which elicited the sale transaction, but the same is not showing how Smt. Samdani Begaum acquired the schedule plots under the said sale deed in order to alienate in favour of the petitioners. The document is silent with regard to the source of title of the vendors in Ex.P1 and from where they have acquired the schedule plots is not shown. Contradicting to the pleadings of the petitioners the respondent urged that in the year 1966 itself Smt. Samdani Begum had sold the plot no. 144 and 145 for valuable consideration to G. M. Akkai , H. X. Paul and P.A.

Nandarajan who had given GPA to Mohan and who has executed the sale deeds in favour of D. Sridhar and one B. S. Laxmi in respect of plot no. 144 and 145 respectively.

16.Ex. R5 is the certified copy of sale deed vide document no. 6428 of 1981 in favour of vendor of respondent D. Sridhar and Ex. R15 is certified copy of sale deed vide doc. No, 8050 of 1981 in favour of B.S. Lakshmi. Ex.

R6 is the Encumbrance certificate on the name of D. Sridhar pertaining to petition schedule property . Ex. R10 is the permission proceedings in favour of

D. Sridhar for construction over the schedule plot. Ex. R11 is the application of the said person for allotment of house number to the house construction in schedule plot. Ex. R22 to R34 are property tax receipts which showing the continuous possession of the vendor of the respondent and the respondent herein over the schedule plot no. 144. Ex. R13 is the original agreement of sale cum GPA in favour of P. Srinivas in respect of the schedule property executed by D. Sridhar who executed the sale deed in favour of respondent through registered sale deed vide doc. no. 8123 of 2007 marked as Ex. R14. It

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12 is the contention of the respondent that he purchased the schedule property from the vendor who acquired the title from the original purchasers of Smt.

Samdani Begum.

17.It is significant to mention that the petitioners claimed their title under

Ex. P1 and it was alleged that they were in possession of the same since the date of purchase until they have been allegedly dispossessed by the respondent and his henchmen. Ex.P2 is the certified copy of pahani for the year 1989 to 1990 showing the name of Smt. Samdani Begum as pattedar along with other pattedars in respect of the land to extent of Ac. 15-31 gts in sy. no. 583, Ac. 12-04 gts in Sy. No. 584, and Ac. 16-12 gts., in Sy.No. 585 and

Ac. 12-22 gts., in Sy. No. 577. But the said document is not sufficient to come to conclusion to what exact extent of the land was succeeded by Smt.

Samdani Begum and its boundaries.

18.Ex.P3 is the certified copy of Encumbrance Certificate which elicits the transaction of the petitioners with their vendors. The Ex.P4 is the certified copy of the sale deed by Smt. Samdani begum which elicits that she along with her sons executed the same in favour of G. Akki which supports the contentions of the respondent according to whom G. Akki is predecessors’ predecessors’ in title to the respondent who acquired the schedule plots under registered sale deed vide doc. no. 561 of 1966. Ex.P5 is the certified copy of sale deed in favour of one Vijaya Lakshmi which does not elicit the source of the title of the vendors in the said sale deed who are non other than the petitioners herein. All the documents filed by the petitioners do not elicit possession of the petitioners from the alleged sale transaction between

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13 themselves and their vendors. Therefore it can be said that no prima-facie case is made out in favour of the petitioners.

19.It is further to mention that it was pleaded that when the petitioners were in possession earlier this respondent interfered with their possession as such they filed OS. No. 1519 of 2007 but the same was dismissed and appeal vide A. S. No. 190 of 2014 was also dismissed. Ex. P24 is the certified copy of

Judgment in A. S. No. 190 of 2014 wherein it was opined that the plaintiffs failed to establish their possession and it was dismissed. The petitioners possession was not believed by the Hon’ble XVI Addl. District Court in the appeal.

20.In OS. NO. 49 of 1998 which was filed by the daughters of Smt. Samdani

Begum against their mother and others for partition it was held that Samdani

Begum is the sole heir of Fizal Ali Khan, the original owner of the property and during her life time, her children cannot have any right in the property, they cannot be joint owners of the same and consequently cannot ask for partition of the properties. Alienation made more than 12 years prior to the filing of the suit by Samdani Begum in favour of the defendants and others cannot be questioned by them now. The alienations made in favour of D25 and other defendants are perfectly valid and cannot be questioned by the plaintiffs. This judgment supported the contention of the respondent in the present petition.

The certified copies of Judgment and decree in O.S. No. 49 of 1998 were marked as Ex. R1 to R3.

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21.Therefore, the documents filed by the petitioners do not elicit the possession of the petitioners over the schedule property and the documents filed by the respondents are found to be superior than the documents filed by the petitioners. Having filed the suit for declaration of title and recovery of possession, the petitioners did not file such material before the court to grant temporary injunction. Unless a full fledged trial is conducted the rights of both parties cannot be adjudged. More over, it is observed that the averments of petition do not elicit any construction over the petition schedule property and only averred by the petitioners that the respondent by dispossessing the petitioners trying to alienating the petition schedule property. But in the prayer portion it was prayed the court to grant temporary injunction for not to proceed with the construction over the petition schedule property, without proper pleadings. Hence, no balance of convenience is established in favour of the petitioners. Hence, they are not entitled for temporary injunction against the respondent. Accordingly this point is answered.

22.In the result, the petition is dismissed with no costs. The Status Quo order granted on 12-09-2017 are hereby vacated.

(Typed by me corrected and pronounced by me in open Court, on this the 20th day of July, 2022)

II Additional Senior Civil Judge FAC I Addl. Senior Civil Judge, at Malkajgiri.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERFOR RESPONDENTS

- NIL-

EXHIBITS MARKED

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FOR PETITIONER

Ex.P1 : is the certified copy of sale deed vide doc.No.3162/2000, dt.27-07-2000 Ex.P2: is the certified copy of pahani for the year 1989-90 Ex.P3: is the (2) statements of encumbrance on property from 01-05-1995 to 30-09- 2007 Ex.P4: is the certified copy of sale deed vide doc.No.561/1966, dt.30-09-1966 Ex.P5: is the certified copy of sale deed vide doc.No.12385/2006, dated 28-08-2006 Ex.P6: is the certified copy of order passed in IA No.2241/1996 in OS No.629/1995 on the file of Hon’ble I Addl. Senior Civil Judge, R.R. District Ex.P7: is the certified copy of sale deed vide doc.No.2761/1981, dt.19-05-1981 Ex.P8: is the certified copy of sale deed vide doc.No.2764/1981, dt.19-05-1981 Ex.P9: is the certified copy of sale deed vide doc.No.3945/1981, dt.30-06-1981 Ex.P10: is the certified copy of sale deed vide doc.No.3949/1981, dt.30-06-1981 Ex.P11: is the certified copy of sale deed vide doc.No.3951/1981, dt.30-06-1981 Ex.P12: is the certified copy of sale deed vide doc.No.3952/1981, dt.30-06-1981 Ex.P13: is the certified copy of sale deed vide doc.No.3953/1981, dt.30-06-1981 Ex.P14: is the certified copy of sale deed vide doc.No.3954/1981, dt.30-06-1981 Ex.P15: is the certified copy of sale deed vide doc.No.4458/1981, dt.22-07-1981 Ex.P16: is the certified copy of sale deed vide doc.No.4461/1981, dt.22-07-1981 Ex.P17: is the certified copy of sale deed vide doc.No.5062/1981, dt.19-08-1981 Ex.P18: is the certified copy of sale deed vide doc.No.5571/1981, dt.08-09-1981 Ex.P19: is the certified copy of sale deed vide doc.No.5574/1981, dt.08-09-1981 Ex.P20: is the certified copy of sale deed vide doc.No.5576/1981, dt.08-09-1981 Ex.P21: is the certified copy of sale deed vide doc.No.5844/1981, dt.17-09-1981 Ex.P22: is the certified copy of sale deed vide doc.No.5847/1981, dt.17-09-1981 Ex.P23: is the certified copy of sale deed vide doc.No.6429/1981, dt.19-10-1981 Ex.P24: is the certified copy of decree and order in AS No.190/2014, dt.30-03-1996 Ex.P25: is the market value certificate, dt.28-07-2017

FOR RESPONDENTS

Ex.R1: is the certified copy of order in IA No.866/1998 in OS No.49/1998, dt. 22-04- 1998 Ex.R2: is the certified copy of Decree in OS No. 49/1998, dt.22-08-2003 Ex.R3: is the certified copy of Judgment in OS No.49/1998, dt. 22-08-2003 Ex.R4: is the copy of order in IA No. 480/2001 in OS No. 158/2001, dt.08-08-2001 Ex.R5: is the certified copy of sale deed vide doc.No.6428/1981, dt.19-10-1981 Ex.R6 to R9: are the Encumbrance Certificates for the period from 01-01-1981 to 12- 11-2020 (5 sheets)

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Ex.R10 & R11: are the Building construction permission by the Grampanchayat vide proceedings No.155P/2000-2002 along with plan Ex.R12: copy of representation to the executive officer, Grampanchayat Nagaram for allotment of house number, dt.18-02-2004 Ex.R13: is the Original Agreement of Sale cum GPA vide doc.No.4170/2001, dt.16-08- 2001 Ex.R14: is the Original Sale Deed vide doc.No.8123/2007, dt.29-06-2007 Ex.R15: is the certified copy of sale deed vide doc.No.8050/1981, dt.21-12-1981 Ex.R16: is the Original Agreement of Sale cum GPA vide doc.No.6828/2002, dt.22-11- 2002 Ex.R17 & R18: are the (2) Encumbrance Certificates for the period from 01-05-1995 to 02-11-2020 Ex.R19: is the original registered sale deed vide doc.No.2652/2018, dt.20-02-2018 Ex.R20 & R21: are the (2) Property Tax receipts, dt.18-01-2021 Ex.R22: is the property tax receipt, dt.15-12-2004 Ex.R23: is the property tax receipt, dt.18-12-2004 Ex.R24: is the property tax receipt dt.30-11-2001 Ex.R25 & R26: are the (2) property tax receipts, dt.01-04-2006 Ex.R27: is the property tax receipt dt.31-03-2007 Ex.R28 & R29: are the (2 Nos.) property tax receipts, dt.04-04-2008 Ex.R30 & R31: are the (2 Nos.) property tax receipts, dt.23-05-2009 Ex.R32 & R33: are the (2 Nos.) property tax receipts, dt.01-04-2010 Ex.R34: is the property tax receipt, dt.13-04-2011

II Additional Senior Civil Judge, FAC I Addl. Senior Civil Judge, at Malkajgiri,

O.S.396/2008Page 1 of 18

IN THE COURT OF THE SENIOR CIVIL JUDGE (FTC)

AT MALKAJGIRI, R.R. DISTRICT.

Present: P. SREEDEVI,

IX Addl. Senior Civil Judge, FAC Senior Civil Judge (FTC) at Malkajgiri, R.R. District

Dated this the 25th day of February, 2022

O.S NO. 396 OF 2008

BETWEEN:

Sanku Nageshwar Rao, S/o. Venkat Rao, aged 52 years, Occ: Ex-Serviceman, R/o. Siva Sai Residency, Flat No.14, H.No.1-12-162/10/G2, Temple Alwal, JJ Colony, III Lane, Secunderabad, Ranga Reddy District ….. Plaintif AND

1.M/s Jagadeeshwari Housing Corporation rep. By its Managing Director SKB Raja,

2.Meda Srinivasa Varma, S/o. Suryanarayana, Chairman of Jagadeeshwari Housing Corporation

3.SKB Raja, S/o. SBS Raja, Managing Director of Jagadeeshwari Housing Corporation

4.Bhaskar, S/o. Not known to the party, General Manager of Jagadeeshwari Housing Corporation

All above represented by this Compnay are Majors and their occupation is business and office at 12-22-16, 2nd Floor, Opp. Kalavathi Kalyana Mandapam, Aryapuram, Rajamundry.

….. Defendants

This suit is coming up for final hearing before the court on 22- 10-2021 in the presence of Sri P. Rameshwar Reddy, learned Counsel for plaintiff and Sri T.V. Sridevi, learned counsel for defendant No.2 and 4 and Sri Madhav Reddy, learned counsel for defendant No.3 and upon perusing the material papers on record and upon hearing to the counsel and having stood over for consideration till this day, this Court delivered the following:-

O.S.396/2008Page 2 of 18

J U D G M E N T

1.This is a suit filed for recovery of money of Rs.2,00,000/- towards damages for breach of contract and for the loss sustained by plaintif including legal expenses.

2.The pleadings of the plaint in brief are as follows :

The plaintif entered into agreement of sale with the defendant company to purchase Plot No.9 in Srinivasa Garden,

Rajamundry admeasuring 280 sq. Yards for total sale consideration of Rs.1,96,000/-. The defendant company through its representative received amount of Rs.50,000/- towards advance sale consideration and issued receipts vide receipt No.1415, 1416 and 1440, dated 04-09-2005, 04-09-2005 and 29-11-2005 respectively. The defendant company received an amount of

Rs.40,000/- as initial payment. It received Rs.1,000/- towards membership Fee. It issued a receipt vide receipt No.1415, dated 04-09-2005. On 22-10-2005 the defendant company received

Rs.40,000/- by way of demand draft bearing No.772686 drawn on

SBI, Langer House, Mehdipatnam, Hyderabad. On receipt of

Rs.50,500/- the defendant company entered into agreement of sale signed by defendant No.4 and the stamp paper purchase on the name of defendant No.4. The receipts issued by the defendant company signed by defendant No.4. It has agreed to register the said plot No.9 on receipt of the balance sale consideration of

O.S.396/2008Page 3 of 18

Rs.1,46,000/-. The plaintif is ready and willing to perform his part of contract by paying the balance sale consideration but the defendant company did not come forward to execute the registered a sale deed. Plaintif issued a legal notice dt. 24-09- 2007 and defendants received the notice and defendant No.1 & 2 gave reply notice on 08-10-2007 and they informed that present rate is Rs.1,850/- per sq. Yards and demanded to pay additional amount to execute registered the sale deed. The defendant No.3 issued a reply notice through his counsel on 08-10-2007 stating that there are internal disputes. They have filed suit in OS No.

52/2007 on the file Addl. Senior Civil Judge, Rajahmundry. The defendants failed to perform their part of contract as such they are liable to pay damages for tort.

3.The plaintif further pleaded that he issued second notice on 09-10-2007 stating that he is ready to pay balance sale consideration of Rs.5,04,000/- by way of demand draft in favour of defendant No.1 vide demand draft No.772686 drawn on SBI,

Langer House, Mehdipatnam, Hyderabad. He also went to sub- registrar office, Rajamundry along with the demand draft but the defendants did not come forward to execute the sale deed. Hence the plaintif filed the present suit for recovery of damages for the loss double the advance amount and including the legal expenses to the tune of Rs.1,00,000/- and also to return the advance amount of Rs.40,000/- paid by the plaintif to the defendants. Hence requesting the court to decree the suit.

O.S.396/2008Page 4 of 18

4.The defendant No.1 was set exparte. Defendant No.2 and 4 filed written statement and contended that the suit is not maintainable for want of territorial jurisdiction. The alleged payments made at Rajamundry, site is also located at Rajamundry and the alleged agreement of sale also entered into at Rajamundry.

All the allegations made in the plaint are false and denied. There is no privity of contract with the plaintif. The plaintif in collusion with the defendant No.3 filed false suit due to the misunderstanding developed among the defendants. All the documents are created for the purpose of this case. Hence requesting the court to dismiss the suit.

5.The defendant No.3 stated in the written statement that the suit is not maintainable on the point of territorial jurisdiction as transaction took place at Rajahmundry. The plaintif earlier filed case before District Consumers Forum, R.R. District which was returned for want of jurisdiction. This defendant is one of the partners in M/s Jagadeeshwari Housing Corporation but he is not managing partner. The second defendant is managing partner.

The managing partner misappropriated the funds of the firm and also acted against the interest of the partnership. He did not maintain proper accounts. This defendant filed suit in OS

No.52/2017 on the file of Senior Civil Judge, Rajahmundry for dissolution of the partnership firm. The plaintif did not implead all the partners of the firm as the parties to this suit who are

O.S.396/2008Page 5 of 18

necessary parties to this suit. He does not know the payment made by the plaintif. The managing partner and General manager misguided this defendant and got obtained signatures on the blank receipts and issued the same to some members. This defendant is not liable to pay the amounts. He did not sign on the agreement of sale. He admitted that the plaintif got issued legal notice and he gave reply notice. Hence requesting the court to dismiss the suit.

6.Basing on the above pleadings this court framed the following issues:

1)Whether the plaintif is entitled for the damages from the defendants @ Rs.2,00,000/- on the breach of contract?

2)To what relief?

7. Issue No.1 :-

1) Whether the plaintiff is entitled for the damages

from the defendants @ Rs.2,00,000/- on the breach of

contract?

8.The plaintif got examined himself as PW1 and filed his chief affidavit in lieu of his chief examination. The facts deposed by him in his chief affidavit are replica of the pleadings in the plaint. In support of his oral evidence he got marked Ex.A1 to A12. Ex.A1 is the Original Agreement of sale dated 29-11-2005, Ex.A2 to A4 is

O.S.396/2008Page 6 of 18

the Three Receipts dated 04-09-2005 and 29-11-2005 respectively,

Ex.A5 is the Office copy of legal notice, dated 24-09-2007, Ex.A6 and A7 are the Reply notices dated 09-10-2007 & 08-10-2007,

Ex.A8 is the Postal receipts, Ex.A9 is the Under Certificate of

Posting, Ex.A10: is the Return Acknowledgment, dt. 12-10-2007,

Ex.A11: is the Broacher of the defendant company.

9.He deposed in his cross examination by the counsel for D2 and D4 that schedule property is situated at Rajamandry. D2 and

D4 are also residing at Rajamandry. He has entered agreement with D3. There is no time limit for registration of the property. He has no proof to show that the blanks of the agreement filled at

Alwal. He did not file any proof to show that authorization given by defendant no. 2 in favour of defendant no. 3. All the receipts issued by the defendant no. 3 but not by defendant no.2.

10.He deposed in the cross examination by the counsel for D3 that the defendant no.1 company did not give partnership deed at that time of booking of plot. He filed a case before Consumer redressal Forum. The said case was dismissed on jurisdiction point.

The stamp of Ex. Al was purchased at Rajamandry. Ex. A1 stamp no where it is mentioned as Hyderabad. He did not file any document to show that defendant no.3 is managing director. Defendant no. 3 got issued legal notice stating that he is not the managing director of defendant no.1 firm. The defendant no.3 in his reply notice under Ex. A7 mentioned that there are internal disputes among

O.S.396/2008Page 7 of 18

defendant no. 1 to 3 and filed OS. NO. 52 of 2007. He deposed in his further chief examination that on Ex. A1 the stamp vendor address not shown as Rajamandry. He deposed in his further cross examination that he has not filed any documentary proof to show that the Ex. A1 stamp filled at Hdyderabad. The receipts under Ex.

A2 shown as Rajamandry address pertaining to the D1 company.

11.The 2nd defendant got himself examined as DW1 and filed his chief affidavit in lieu of his chief examination and deposed the facts which are on the similar lines of his pleadings in the written statement. He deposed in his cross examination that he did not receive legal notice sent by the plaintif. He admitted the Ex. A6 as his reply notice issued through his counsel. He further admitted that the Ex. A6 given on behalf of defendant no.1 and 4 also. He has mentioned in Ex. A6 that if the plaintif pays Rs. 1,800/- per yard for the suit schedule property he is ready to register the sale deed in favour of plaintif. In the reply notice under Ex. A6 he has also stated that D3 is colluded with plaintif and recevied the amount and they were taking appropriate steps against D3. He has not filed any documents to show that he has taken action against the D3 . The D3 filed a civil suit against him and D1 to dissolve the firm and to return the Rs. 9,00,000/- and profits and also requested to furnish the accounts in the year 2007. During his cross examination the certified copy of the written statement in OS.NO.

52 of 2007 was marked.

O.S.396/2008Page 8 of 18

12.The 3rd defendant got himself examined as DW2 and filed his chief affidavit in lieu of his chief examination and deposed the facts which are on the similar lines as that of his written statement. He got marked certified copy of plaint in OS. No. 52 of 2007 on the file of Senior Civil Judge, Rajamandry as Ex. B1 and certified copy of order passed in SR NO. 127 of 2008. he denied his signature on Ex.

A1 during his cross examination by the counsel of D2 and D4. He deposed in his cross examination by the counsel for plaintif that his name was shown as Managing Director in Ex. A1. The Ex. A1 shown as he issued and he executed but he has not executed the said document. He was confronted with the Ex. A2 to A4 and he admitted his signatures and those are shown as Managing Director.

He admitted that the company received amount of Rs. 50,500/- under Ex. A1 and it is dated 25-11-2005. As per Ex. A4 amount of

Rs. 40,000/- was paid. As on the date of Ex. A4 he is one of the partners of the compay. Ex. A7 is the reply notice issued by him.

The Ex. A11 does not show with regard to the jurisdiction for legal action . The suit is filed only for damages for breach of contract against the D1 to D4. Ex. A5 shows that a direction to D1 to D4 to present before Sub- Registrar Office on 5-11-2007 to execute the registered sale deed. They did not mention in their reply notice that they did not receive an amount as such they did not follow the directions.

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13.The learned counsel for the plaintif filed written arguments and argued that plaintif by believing the promise of the defendants company entered into agreement of sale and paid amount of Rs.40,000/- towards advance sale consideration but defendants company failed to execute registered sale deed and committed breach of contract. Oral and documentary evidence filed by the plaintif sufficiently established his case. Hence requesting the court to decree the suit. He also refered the following citations.

1) Rajasthan State Electricity Board and others Appellants vs.

M/s Dayal Wood Works Respondent reported in AIR 1998 Andhra

Pradesh 381.

“Held, that admittedly, in this case, the purchase order

was not accepted by the plaintiff, nor any contract agreement

was executed. Having regard to these circumstances, the

irresistible conclusion would be, that the contract between the

plaintiff and defendants was not concluded. Since the contract

itself was not concluded, the question of forfeiting the security

deposit would not arise. The question whether the contract is

concluded or not, depends upon the circumstances of each case,

having regard to the nature of the documents produced, and

also the evidence on record. Thus the plaintiff was entitled to

refund of security deposit.

2) L N Gupta vs. Tara Mani reported in 1983 Law Suit (Del) 146 High Court of Delhi.

O.S.396/2008Page 10 of 18

Under Section 20, Cl.(c), Civil Procedure Code., a suit can

be filed in a court in whose jurisdiction the cause of action,

wholly or in part arises. Place of performance in full or in part

of a contract and, therefore, the place of payment or of part

payment will give rise to a cause of action in that place. Such

place can be specified at the time of making the contract, may

be appointed alter on, or may be implied. Indian Contract Act,

1872. Sections 47, 48 and 49 deal with the place of

performance. So far as the stipulated place is concerned, there

should ordinarily be no problem. But where the contract is

silent about the place, and (i) the promisee is not required to

indicate the place, the place of performance shall be the place

at which the promise ought to be performed, or the promisor

must ask the promisee for a reasonable place, and (2) where the

promisee is required to specify the place, at the place appointed

by him, provided such place is a proper place. Now, there may

arise situations in which the promisee is not required to specify

the place or if required does not so specify the place, or if the

place so specified is neither reasonable nor proper, then the

court may be called upon to look for loci solutionis, that is the

proper place of performance. This the court can do by taking

into consideration all the relevant factors.

3) State of Andhra Pradesh vs. R.V. Krishna Reddy (died) by

Lrs reported in 2009 (1) ADL 660 (DB)

O.S.396/2008Page 11 of 18

Held in para 13 that “ The suit is filed for recovery of damages

on account of breach of contract, which, according to the

plaintiff, was committed by the defendant by unjust and illegal

termination of the contract, though the defendant is at fault due

to their failure to stop the flow of water in the canal to enable

the plaintiff to commence the work and also the failure to

furnish the revised drawings and designs pertaining to the

foundation work. In the letter Ex.A6 while blaming the plaitniff

for not starting the work, it was informed that the agreement

was determined duly forfeiting the EMD and FSD. It is only on

account of determination of the contract by the defendant,

which termination, according to the plaintiff, is unjust and

illegal, the suit was filed for recovery of damages, alleging

breach of contract on the part of the defendant. In the absence

of termination of contract by the defendant, there was no

occasion for the plaintiff to sue the defendant for damages.

Termination of the contract is, therefore, an important

milestone and in fact, the foundation for claiming the amounts

by the plaintiff.”

4) PNB Appellant vs. State Bank of Saurasthra Respondent reported in AIR 2001 Supreme Court 2412.

Held in para 8 that “Considering the fact that there was an

alternative plea for damages, on the facts of the present case it

would have been appropriate for the Special Court to have

computed and awarded the damages in addition to ordering

refund rather than requiring the appellants to purchase the

O.S.396/2008Page 12 of 18

units and give the same to the respondent. In other words, a

decree for specific performance in the manner in which it was

passed was probably not appropriate especially when the

respondent could be compensated with the return of money and

award of reasonable damages.”

5) Rajasthan State Electricity Board and others Appellants vs.

M/s Dayal Wod Works Respondent reported in AIR 1998 Andhra

Pradesh 381.

Held in para 8 that admittedly, in this case, the purchase

order was not accepted by the plaintiff, nor any contract

agreement was executed. Having regard to these

circumstances, the irresistible conclusion would be, that the

contract between the plaintiff and defendants was not

concluded. Since the contract itself was not concluded, the

question of forfeiting the security deposit would not arise. The

question whether the contract is concluded or not, depends

upon the circumstances of each case, having regard to the

nature of the documents produced, and also the evidence on

record. Thus the plaintiff was entitled to refund of security

deposit.

14.The learned counsel for the defendant No.2 to 4 filed written arguments seperately and argued that the plaintif filed this suit

before this court without territorial jurisdiction. All the documents

filed by the plaintif are pertaining to Rajamundry. They have also given reply notice that the suit is not maintainable. There is no

O.S.396/2008Page 13 of 18

pleading in the plaint with regard to claim of damages for

Rs.2,00,000/-. The plaintif has to mention the precise amount towards damages. The plaint does not disclose the cause of action nor the grounds under which he is seeking the relief. Hence requesting the court to dismiss the suit.

15.On the appreciation of oral and documentary evidence of plaintif, after hearing to the both sides and after careful sruitiny of the entire material available on record it is pertinent to mention that the plaintif pleaded in the plaint that, he entered into agreement of sale with the defendants company with regard to plot

No.9 in Srinivas Garden, Rajamundry, admeasuring 280 sq. Yards for total sale consideration. According to the pleadings the D2 to

D4 are partners of M/s Jagadeeshwari Housing Corporation and it is a partnership firm doing Real Estate Business of selling the plots.

The plaintif adduced his oral evidence by examining himself as

PW1 and filed Ex.A1 which is original agreement between the plaintif and defendants company executed by General Manager

D4. Admittedly Ex.A1 is an unregistered document but as it was executed on sufficiently stamped papers it can be considered for collatral purpose in order to ascertain the transaction between plaintif and defendants company. The contents of Ex.A1 clearly eliciting that plaintif and the defendants company entered into agreement of sale for Plot No.9 for sale consideration of

Rs.1,96,000/- and received amount of Rs.50,000/- from the

O.S.396/2008Page 14 of 18

plaintif. Therefore Ex.A1 sufficiently established the agreement between both the parties for the sale transaction.

16.Ex.A2 to A4 are the receipts showing the issuance of payment receipts by the defendants company for Rs.500/-, 10,000/- and 40,000/- respectively for the amounts received by the defendants company. Ex.A5 is the office copy of legal notice issue to the defendants company demanding to execute the registered sale deed by receiving balance sale consideration. Therefore in view

Ex.A2 to A4 it can be said that the defendants company received the amounts. The written statements of D2 to D4 showing the admissions of the defendants for receiving of the payments.

Hence the defendants received the amounts of Rs.50,500/- from the plaintif towards advance amount for registering the Plot No.9 in favour of the plaintif.

17.The defence taken by the D2 to D4 in common is that the property is situated at Rajahmundry and the defendants also working at Rajahmundry and amounts received at the defendants company office as such this court has no territorial jurisdiction. But according to the plaintif the cause of action arose when the payment of part sale consideration was made by him at

Hyderabad. The Ex.A1 to A4 do not reflect where they have been executed and issued. The Ex.A5 legal notice categorically elicited that the amounts were deposited by way of demand draft drawn on

SBI, Langer House Branch, Mehdipatnam.

O.S.396/2008Page 15 of 18

18.The DW2 categorically admitted during his cross examination that Defendant company received the amount of Rs. 50,500/- under Ex. A1 and as per Ex. A4 Rs. 40,000/-. He also admitted his signatures on Ex. A2 to A4 which are the reciepts issued in the name of the defendant company which are clearly eliciting that the defendants 1 to 4 in the name of company recieved the above amounts. He further admitted that by date of Ex. A2 to A4 he was working as one of the partners. Therefore it is sufficiently established that the defendants received the amounts from the plaintif and executed the agreement of sale under Ex. A1. Denial of the signatures on the Ex. A1 does not disprove the evidence on record which was admitted by the DW1 and DW2. Ex. B1 the certified copy of plaint in OS. 52 of 2007 shows that said suit is filed only after the plaintif and the defendants entered in to the agreement of sale and after receiving the amounts under Ex. A2 to

A4 when they were running the business under name of M/S

Jagadeeswary Housing corparation. Therefore, mere filing of the above suit does not extinguish the right of the plaintif to sue for the damages against the company and more over, non of the defendants does not brought before the court about the stage of the said suit.

19.The categorical defence of all the defendants herein is only the lack of territorial jurisdiction of this court. It is important to mention here that the plaintif filed CRP NO. 2611 of 2011 when the suit was returned by this court on the point of jurisdiction and

O.S.396/2008Page 16 of 18

the Hon’ble High court vide its orders dated 13-10-2015 allowed the CRP and restored the suit to this court and directed to decide it on merits as if it had territorial jurisdiction to decide the suit.

20.As per Sec.20(c) of CPC the suit can be instituted where the cause of action wholly or in part arises. During the cross examination of PW1 suggestions were given that the cause of action took place at Rajahmundry and the property also located at

Rajahmundry but the PW1 denied suggestion that the cause of action took place at Rajahmundry and he deposed that Ex.A1 agreement was entered by them at Hyderabad. Therefore the cause of action took place within the teritorial jurisdiction of this court. Though the defendants by way of written statement deny the jurisdiction of this court and they examined DW1 & DW2 on their behalf nothing elicited to disprove the evidence of PW1.

Therefore in the absence of contradicting evidence against the oral evidence of PW1, it is presumed that as Ex.A1 was executed within the territorial Jurisdiction of this Court, cause of action took place within the Jurisdiction.

21.Having admitted the signatures on the Ex.A1 to A4 in their written statements and the reply legal notices and in their evidence, the defendants are at liability to pay the damages for breach of contract apart from returning the amounts paid by the plaintif towards initial payment for which the agreement of sale was entered into. The citations filed by the plaintif are relevant to

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the facts in the present case. Hence the plaintif is entitled for damages of Rs.1,35,500/- from the defendants jointly and severally. Accordingly this issue is answered.

22.Issue No. 2 :-

To what relief?

The plaintif by producing cogent and reliable evidence sufficiently established that he paid the amount of Rs.50,500/- to the defendants company and entered into agreement of sale and they failed to execute registered sale deed and committed breach of contract. Hence the plaintif is entitled for damages which includes the amounts paid by the plaintif, compensation for breach of contract as prayed by him. Accordingly this issue is answered.

23.In the result, the suit is decreed with costs. The plaintif is entitled for payment of damages of Rs.1,35,500/- which includes amounts paid by the plaintif and towardss compensation for breach of contract payable by D1 to D4 jointly and severally.

(Typed to my dictation by Typist directly on the system, corrected and pronounced by me in open Court, on this the 25th day of February, 2022.)

IX Addl. Senior Civil Judge, FAC Senior Civil Judge, Ranga Reddy District at Malkajgiri.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Plaintiff: Defendant:

Pw.1 - S. Nageswar Rao-NIL-

Exhibits Marked For

Plaintiffs:

Ex.A1: is the Original Agreement of sale dated 29-11-2005

Ex.A2 to A4: is the Three Receipts dated 04-09-2005

Ex.A5: is the Office copy of legal notice, dated 24-09-2007

Ex.A6 and A7: are the Reply notices dated 09-10-2007 & 08-10- 2007

Ex.A8: is the Postal receipts

Ex.A9: is the Under Certificate of Posting

Ex.A10: is the Return Acknowledgment, dt. 12-10-2007

Ex.A11: is the Broacher of the defendant company

Ex.A12: is the written statement bears his signature marked through DW-1

Exhibits Marked For

Defendant:

- NIL - IX Addl. Senior Civil Judge, FAC Senior Civil Judge, Ranga Reddy District at Malkajgiri.

OS No. 706 of 2017 Page 1 of 15

IN THE COURT OF THE IX ADDL. SENIOR CIVIL JUDGE

RANGA REDDY DISTRICT, AT L.B. NAGAR

Present: P. SREEDEVI, IX Addl. Senior Civil Judge, FAC Senior Civil Judge, at Malkajgiri, R.R.District

DATED THIS THE 27 th DAY OF APRIL, 2022

OS. No. 706 OF 2017

Between :

Sarbani Kundu W/o. Santosh Kundu age: 56 years, Occ: House wife, R/o. Plot No. 59, Ferzenguda, Bollarum, Malkajgiri Dist. ...Plaintif

AND

1.Jagga Rao S/o. Raja Rao, age: 56 years, Occ: Business, R/o. D.No. 25-14/22, Part, Plot No.22/B Gollguda, Alwal Municipality, Malkajgiri Mandal, Malkajgiri District – 500015.

2.Ramesh Kandoi, S/o. Not known to Plaintif, aged about 55 years, R/o. D.No. 25-14/22, Part, Plot No. 22/B, Gollguda, Alwal Municipality, Malkajgiri Mandal, Malkajgiri District – 500015.

...Defendants

This suit is coming up for final hearing before me on 25.03.2022 in the presence of Sri M. Shiva Shekar, learned Counsel for the Plaintiff and defendants remained exparte and the matter having stood over for consideration till date, this Court made the following:

J U D G M E N T

1.This suit is filed for declaration of title, recovery of possession of the suit schedule property and declaring the registered agreement of

OS No. 706 of 2017 Page 2 of 15

sale cum GPA vide doc.no. 1868 of 2006 dated 29-03-2006 as null and void and to direct the defendant no. 1 and 2 to pay future mesne profits @ 15,000/- per month for the use and occupation of the suit schedule property from the date of the suit to till the date of realization.

2.The pleadings in the plaint in brief are as follow:

The plaintif is the absolute owner and possessor of the residential house bearing no. 25-14/22-Part in Plot no. 22/D consisting of ground floor and first floor in Sy.No. 317 admeasuring 100 Sq.yards situated at

Gollaguda, Alwal Village which is the suit schedule property herein. He purchased the open plot of suit schedule property under registered sale deed vide doc.No.405/1999 dated 18-02-1999 from D. Aagam Reddy who is the GPA holder of G. Ram Reddy for valid sale consideration.

When the plaintif intended to construct the suit schedule property three persons namely G. Mahipal Reddy, G. Krishna Reddy and Hari Kishore approached plaintif in the year 2004 that they are in construction business and the vendor of plaintif G. Ram Reddy is father of G. Mahipal

Reddy and G. Krishna Reddy. The plaintif and her husband believed their version and they agreed to give the suit schedule property for construction and both parties agreed to develop the suit property by constructing ground plus 2 floors for a total sum of Rs.12,10,000/- and first installment shall commence from January, 2005 after obtaining sanction from concerned authorities. The above three persons brought some typed stamp papers without disclosing the contents of the said document and obtained signatures of the plaintif in the absence of her husband and they took the original title deed of the plaintif. They also

OS No. 706 of 2017 Page 3 of 15

obtained two cheques for Rs. 2,00,000/- and Rs.2,10,000/- each from the plaintif and also four cheques each for Rs.2,00,000/- amounting to

Rs.8,00,000/- from the husband of plaintif in total Rs. 12,10,000/- were paid to the above persons towards cost of the construction of the suit schedule property. The above three persons failed to start construction on one or other pretext and behind the back of plaintif by taking advantage of the cheques in their custody they committed criminal breach of trust and presented the said cheques in the bank and got them dishonoured and filed the suit in OS.NO.365 of 2005 against the husband of plaintif on the file of III Senior Civil Judge with all false allegation and the said suit was dismissed. The above said three persons in collusion with one Selvaraj got filled the name of said

Selvaraj in another cheque bearing no. 387151 obtained from the plaintif for Rs. 2,10,000/- and got issued the legal notice on 10-04-2005 and they also misused another cheque bearing no. 387154 obtained from plaintif and filed a criminal case in CC.No. 535 of 2005 on the file of XI Addl ACMM, Secunderabad and the said suit was dismissed on merits.

3.The plaintif further pleaded that said G. Mahipal Reddy and two others have cheated the plaintif and her husband as such they started construction on their own in the suit schedule property. The above three persons by taking undue advantage of holding original title deeds, signed papers and photographs in respect of the suit schedule property trying to alienate the same to third parties. They also tried to interfere with the possession of the plaintif over the suit schedule property and

OS No. 706 of 2017 Page 4 of 15

also with her construction. On 25-05-2006 they trespassed into the suit schedule property and tried to dispossess the plaintif. Then the plaintif and her husband filed the suit in OS.No. 1702 of 2006 against the above three persons for return of original sale deed and for consequential relief of injunction. The said suit was decreed exparte on 02-02-2007. On 03- 12-2007 when the plaintif went to the suit schedule property she found the suit schedule property consisting of residential house with ground and first floor occupied by D1. When plaintif informed D1 that she is the absolute owner the D1 informed that he purchased the suit schedule property. When plaintif obtained EC she came to know that a false registered agreement of sale cum GPA vide doc.no. 1868 of 2006 was brought into existence in the name of plaintif in favour of D1. She obtained certified copy of said AGPA and she found that the above three persons in collusion with D1 brought the said document into existence by impersonating the plaintif. G. Mahipal Reddy and two others having custody of original sale deed of plaintif committed cheating by making wrongful gain created the AGPA which is a forged document. There is no signature of the plaintif and she always scribbed her signature in writing and putting thumb impression does not arise in the alleged

AGPA. Hence the thumb impression in the said AGPA is not her thumb impression. The photograph affixed to the said document is also not her photograph.

4.Then the plaintif got filed a criminal complaint against the D1 and above three persons in CC.No. 249 of 2008 on the file of XI Addl Chief

Metropolitan Magistrate, City Court for the ofence U/Sec 420, 425, 464,

OS No. 706 of 2017 Page 5 of 15

468 and 471 of IPC and Sec.82 of Indian Registration Act and the same is pending. The plaintif has not alienated the suit property and not entered into agreement of sale with D1 and not executed AGPA in favour of D1. The plaintif has not delivered the possession of the suit property either to D1 or D2. On enquiry she came to know that the D1 unlawfully let out the schedule property to D2 on monthly rent of Rs.15,000/- as such D2 made as a party to the suit. The plaintif did not execute any sale deed or agreement of sale in favour of D1 and did not receive any amounts as sale consideration and doc.No.1868 of 2006 was fraudulently brought into existence. Hence the above transactions are not binding on the plaintif. Hence she filed the present suit and requesting the court to declare the plaintif as the absolute owner of the suit schedule property, direct the D1 and D2 to deliver the physical possession of the suit schedule property to the plaintif, to declare the registered AGPA vide doc.No. 1868 of 2006 as null & void and to direct the D1 and D2 to pay future mense profits/damages @ Rs. 15,000/- per month till the date of realization.

5.Summons served to D1 and D2 but they failed to attend the court.

Hence they were set exparte on 06-09-2018. This court proceeded with the exparte evidence. Pw1 and 2 were examined. Exs. A1 to A10 were marked. Written arguments filed.

6. Perused the record.

7.POINTS FOR DETERMINATION ARE :

OS No. 706 of 2017 Page 6 of 15

1) “Whether the plaintiff is entitled for declaration to declare

her as owner of the suit schedule property and for recovery of

possession from D1 and D2?”

2) “ Whether the plaintiff is entitled for declaration of AGPA

vide doc.No. 1868 of 2006 dated 29-03-2006 as null & void”?

3) “Whether the plaintiff is entitled for amount of Rs. 15,000/-

from D1 and D2 towards mense profits/damages from the date

of the suit to till the date of realization?“

4) “To what relief?”

The plaintif got herself examined as PW1 and filed her chief affidavit in lieu of her chief examination. The facts deposed by her in her chief affidavit are on the similar lines as that of the pleadings in the plaint. In support of her oral evidence she got marked Ex. A1 to A10.

Ex.A1 is the CC of Regd Sale Deed No. 405/1999 belongs to plaintif

dated 18.02.1999, Ex.A2 is the CC of Agreement of sale cum GPA with

possession Doc.No. 1868/2006, dt: 29.03.2006, Ex.A3 is the Certificate of Encumbrance from 01-04-1987 to 06-11-2016 dated 07-11-2016 and 11-04-2017 (2 numbers), Ex.A4 is the Valuation Certificate issued by

S.R.O. Vallabnagar, dt: 11-04-2017, Ex.A5 is the Memo filed by affixing photograph plaintif, dt: 28-04-2017, Ex.A6 is the Ration Card, dt: 18-01- 2006, Ex.A7 is the Aadhar Card, dt: 23-07-2013, Ex.A8 is the Voter ID

Card, dt: 19-03-2014, Ex.A9 is the PAN Card, dt: 12-02-2016, Ex.A10 is the Office copy of complaint in CC.No.249/2008, dt: 14-03-2008.

OS No. 706 of 2017 Page 7 of 15

8.The learned counsel for the plaintif filed written arguments and argued that the plaintif is absolute owner and possessor of the suit schedule property and she is in possession of the same since the date of purchase. The sons of vendor of plaintif by name G. Mahipal Reddy, G.

Krishna Reddy and other person by name Hari Kishore under false promise that they will develop the suit schedule property they received cheques for amount of Rs. 12,10,000/- for construction of ground +2 floors in suit schedule property but they failed to construct and they filed suit for recovery of amount in OS.No. 365 of 2005 which was dismissed on merits. Another criminal case was filed vide CC.No. 535 of 2005 which was also dismissed on merits. By taking the undue advantage of holding of original title deeds, signed papers and photographs they tried to alienate the suit property. They tried to interfere with the possession of the plaintif then plaintif and her husband got filed suit in OS.No. 1702 of 2006 which is decreed exparte.

On 03-12-2007, she found that D1 in possession of the suit schedule property and on enquiry it was found that the above three persons in collusion with D1 created AGPA by impersonating the plaintif and D2 is staying in the suit schedule property as tenant for rent of Rs.15,000/- per month. Hence plaintif filed the present suit for declaration and recovery of possession and payment of mesne profits/damages. The oral and documentary evidence of plaintif is remained unchallenged as the defendants were set exparte. Hence requesting the court to decree the suit. He referred the following citations.

OS No. 706 of 2017 Page 8 of 15

i)2012 (1) A.L.D. PAGE No. 92 (S.C.):- Transfer of Property Act

1882 Sections 5, 54, 53 A & 55 – Immovable Property – Sale of, by

executing Agreement of Sale, General of Power of Attorney (G.P.A) &

a WILL – do not convey title and therefore, do not amount to transfer

nor are they valid mode of transfer of immovable property – they

cannot be recognized as Deed of Title and cannot form basic of

mutation – further such kind of transactions lead to loss of revenue

and increase in litigation due to defective title – also they generate

black money and leads to growth of land mafia – a transfer of

immovable property by way of sale can only be by a Deed of

convenience or Sale Deed-Section 17 of Registration act makes a

Deed of convenience compulsory Registrable – documents, if

registered, would make a process of verification and certification of

title easier and simple and reduced disputes and litigations to a large

extent (Registration Act 1908 – Sec.17, 49, of Stamp Act 1899,

section 27, Schedule -I Article 23, Power of Attorney act 1882

sections 1A & 2. Succession Act, 1925, Sections 69 & 79)

Powers of Attorney Act 1882 – Sections 1A and 2 – Power of

Attorney - Not an instrument of transfer in regard to any right, title

or interest in an immovable property – Even an irrevocable attorney

does not have effect of transferring title to the grantee – Eve an

irrevocable attorney does not have effect of transferring title to the

grantee – See transfer of property Act 1882, Section 5, 54 & 53 A and

55 – Immovable property – Sale of by executing agreement of sale,

General power of attorney (GPA) and a Will – do not convey title and

therefore do not amount to transfer nor are they valid mode of

transfer of immovable property.

Transfer of property Act 1882 – Section 53 – Agreement of sale –

Does not itself create any interest in or charge on its subject matter,

except to the limited extent of right granted under S. 53 A.

ii)2013 (5) A.L.D. Page No. 594:- Transfer of Property Act 1882 –

Section 54 – Agreement of Sale – would not by itself create any

interest in or charge on property comprised therein – Therefore such

an agreement of Sale could not have been regularized Under Section

OS No. 706 of 2017 Page 9 of 15

5A of ROR Act. Because it cannot be termed as an ‘ALIENATION’ OR

‘TRANSFER’ which alone could have been Regularized.

iii)2002 (1) A.L.T. Page 466(D.B.):- -Section 101 & 103 of Evidence

Act 1972 – Burden of Proof – Where truth and genuineness of a

document is put in drawn that all Registered documents are true and

genuine.

iv)2006 (6) A.L.T. Page 523 (F.B.) :- Specific Relief Act 1963, Sec. 31

& 34 - Cancellation of Sale Deed - Declaration of Right – for seeking

Cancellation, the sale deed must be void or voidable against such

person and such person must apprehend that it causes him serious

injury – Cancellation of deed can be sought in a court, only by a

person who executed the document and who perceives that it is void

or voidable – A person not a party to document can maintain a suit

for declaration.

REGISTRATION ACT 1908 Sections 17 (1) (b) and 18 –

Registration of Documents – By Registration of deed transferring

immovable property, it cannot conclusively be taken to be a legal and

valid transfer of title – Vendor will have still locus to question such

sale deed as it may be a void document.

Thus in view of the aforesaid pleadings/ Documentary evidence

filed in support of Plaintiff’s claim and so also in the Light of case

laws relied by the Plaintiff, Plaintiff proved her case, as such in the

interest of justice this Hon’ble Court may be pleased to pass

JUDGMENT AND DECREE IN favour of PLAINTIFF as prayed for and

against to the Defendants No.1 & 2 together with the costs of the

suit as prayed for.

9.POINT NO.1):

“Whether the plaintiff is entitled for declaration to declare

her as owner of the suit schedule property and for recovery of

possession from D1 and D2?”

OS No. 706 of 2017 Page 10 of 15

The plaintif alleged that she is the absolute owner of the suit schedule property and she purchased the same under registered sale deed vide doc.No.405 of 1999 dated 18-02-1999 from one D. Aagam

Reddy who is the GPA holder of G. Ram Reddy. Ex A1 is the certified copy of said sale deed which elicites that G. Ram Reddy through his GPA

Holder D. Aagam Reddy executed the sale deed in favour of the plaintif in respect of the suit schedule property. Admittedly Ex A1 shows the title of the plaintif over the suit schedule property. It is the allegation of the plaintif that G. Mahipal Reddy and G. Krishna Reddy who are the sons of G. Ram Reddy along with one Hari Kishore entered into agreement with plaintif to develop the suit property. The Ex A1 does not show the status of the schedule property therein whether it is a constructed house or open plot or any semi-construction was lying in the schedule property. Therefore, it is not clear in the pleadings of the plaint the nature of the schedule property and on which date the above three persons approached plaintif. The plaintif pleaded in her plaint that the above three persons obtained her signatures on some stamp papers and also the original title deed vide doc.No.405 of 1999. She filed suit in OS.No.1702 of 2006 for return of the original title deed and for injunction which was decreed exparte on 02-02-2007 but no such document was filed before the court to show that the above three persons failed to develop the schedule property and also failed to return the original title deeds. No cheques as alleged by the plaintif for total sum of Rs.12,10,000/- issued by the plaintif filed before the court nor any other proof substantiating the above allegations filed by the plaintif

OS No. 706 of 2017 Page 11 of 15

before the court to presume that the above three persons agreed to

develop the suit property and by playing fraud obtained original title deeds from the plaintif.

10.When it is pleaded by the plaintif that original title deeds were taken by the above three persons and failed to develop the suit property and return the title deeds and in collusion with D1 created the agreement of sale cum GPA with possession in favour of D1 she did not implead the above three persons in the present suit as defendants. The pleadings against above three persons without making them as defendants along with D1 and D2 no evidence can be considered against those three persons. As per the pleadings in the plaint the above three persons are necessary and proper parties. Therefore, failure of the plaintif in impleading them as defendants suit is not maintainable for non-joinder of necessary parties and proper parties.

Therefore, the plaintif is not entitled for declaration as she is the owner of the suit schedule property.

11.The plaintif further claimed for recovery of possession of the suit schedule property from D1 and D2. Her pleadings in the plaint are vague with regard to on which date the D1 and D2 entered into possession of the suit schedule property and when the plaintif was dispossessed from the same. For recovery of possession the plaintif has to establish that prior to her dispossession she was in possession of the suit schedule property. Admittedly no documents filed by her to show that she was in possession of suit schedule property before alleged dispossession of her

OS No. 706 of 2017 Page 12 of 15

or alleged possession of D1 and D2 over the suit schedule property.

Therefore, the plaintif is not entitled for delivery of physical possession of suit schedule property from the D1 and D2. Accordingly this point is answered.

12. POINT NO. 2):

“ Whether the plaintiff is entitled for declaration of AGPA

vide doc.No. 1868 of 2006 dated 29-03-2006 as null & void”?

It was the allegation of the plaintif that the agreement of sale cum

GPA with possession vide doc.No.1868 of 2006 was fraudulently brought into existence by impersonating the plaintif. The certified copy of said

AGPA was marked as Ex A2. Ex A3 is the statement of encumbrance on property which elicits the above execution of AGPA in favour of D1. A memo filed by the plaintif with the photograph of plaintif was marked as Ex A5, for the purpose of identifying the plaintif as not the person who executed the AGPA under Ex A2. She also got marked original

Ration Card as Ex A6, Aadhar Card as Ex A7, Voter I’d card as Ex A8, PAN

Card as Ex A9 showing that she is not the person who executed the

AGPA under Ex A2. If Ex A2 is observed the photograph affixed to the

AGPA with the name and details of plaintif is of a diferent person. The plaintif also filed a criminal case vide CC.No.249 of 2008 and the office copy of which was marked as Ex A10. However the said case was pending as per the pleadings of the plaint. According to Article 56 of the

Schedule of Limitation Act for declaring any forged instrument the limitation is three years when the registration becomes known to the

OS No. 706 of 2017 Page 13 of 15

plaintif and for any other declaration as per Article 58 is only three years when the right the sue first accrues. By virtue of the above two provisions if the pleadings of the plaint are looked into, on 03-12-2007 she found that the D1 is in possession of the suit schedule property and she came to know that the AGPA was came into existence. Therefore, the limitation for filing the suit for declaration of the said AGPA as null & void is three years but the suit is filed in the year 2017 after lapse of more than ten years without explaining the reasons for the delay. The right to sue accrued to the plaintif as soon as she got the knowledge about such AGPA but she failed to file the suit for the above relief within the limitation period.

13.Though the plaintif had pleaded that she filed the suit within twelve years from the date of the D1 grabbed the suit schedule property and the suit is within limitation but this court is unable to accept such plea as no evidence was produced before the court that on which date the D1 dispossessed the plaintif and since how many years the plaintif was in possession of the suit property prior to the dispossession of plaintif. Hence the plaintif is not entitled for declaration of AGPA vide doc.No.1868 of 2006 as null & void. Accordingly this point is answered.

14. POINT NO. 3) “Whether the plaintiff is entitled for amount of Rs. 15,000/-

from D1 and D2 towards mense profits/damages from the date

of the suit to till the date of realization?”

OS No. 706 of 2017 Page 14 of 15

The plaintif though pleaded that D1 let out the suit schedule property to D2 for rent of Rs. 15,000/- per month but no documentary evidence filed by the plaintif to substantiate her pleading. Though the

D1 and D2 were set exparte the plaintif has to produce her best evidence to prove her case and also which must be reliable. In the present suit the plaintif failed to produce such cogent and reliable evidence that the D1 given the schedule property to D2 for rent for amount of Rs. 15,000/- per month and while answering the points No.1 to 3 as this court opined that the plaintif is not entitled for the declaration that she is the owner of the suit schedule property or she is entitled for recovery of possession, hence she is not entitled for mense profits/damages of Rs.15,000/- from the D1 and D2. Accordingly this point is answered.

15. POINT No.4) “To what relief?”

Having regard to the facts and circumstances as discussed above the plaintif failed to stand on her own legs by producing cogent and reliable evidence in order to decree the suit in her favour. Though the

D1 and D2 remained exparte, that cannot be a ground to decree the suit and the plaintif has to establish her pleadings through sufficient evidence. Hence she is not entitled for the reliefs claimed by her.

Accordingly this point is answered.

OS No. 706 of 2017 Page 15 of 15

16.In the result, the suit is dismissed with no costs.

(Typed to my dictation by Typist directly on the system, corrected and pronounced by me in open Court, on this the 27th day of April, 2022.)

IX Addl., Senior Civil Judge FAC Senior Civil Judge, at Malkajgiri, R.R.District.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF FOR DEFENDANTS

PW1- Sarabani Kumdu- NIL -

EXHIBITS MARKED

FOR PLAINTIFF

Ex.A1: CC of Regd. Sale Deed No. 405/1999 belongs to plaintif dated 18.02.1999.

Ex.A2: CC of Agreement of sale cum GPA with possession Doc.No.

1868/2006, dt: 29.03.2006.

Ex.A3: Certificate of Encumbrance from 01-04-1987 to 06-11-2016 dated 07-11-2016 and 11-04-2017 (2 numbers)

Ex.A4: Valuation Certificate issued by S.R.O. Vallabnagar,dt: 11-04-2017

Ex.A5: Memo filed by affixing photograph plaintif, dt: 28-04-2017

Ex.A6: Ration Card, dt: 18-01-2006.

Ex.A7: Aadhar Card, dt: 23-07-2013

Ex.A8: Vote I’d Card, dt: 19-03-2014

Ex.A9: PAN Card, dt: 12-02-2016

Ex.A10: Office copy of complaint in CC.No.249/2008, dt: 14-03-2008.

FOR DEFENDANTS

-NIL-

IX Addl., Senior Civil Judge FAC Senior Civil Judge, at Malkajgiri, R.R.District.

IA.No.469/2018 in OS.No.176/2013Page 1 of 1

1

IN THE COURT OF THE SENIOR CIVIL JUDGE (FTC) ::

RANGA REDDY DISTRICT, AT MALKAJGIRI.

PRESENT: SMT. P. SREEDEVI, IX Addl. Senior Civil Judge, FAC Senior Civil Judge (FTC), Ranga Reddy District, at Malkajgiri.

MONDAY THE 7th DAY OF JANUARY, 2022

IA.No. 469 OF 2018

IN

OS.No. 176 OF 2013

BETWEEN:

M/s Timbermatics, Rep. by its Proprietor M.M. Vasu, S/o. M. Keshava Rao, age 56 years, Occ: Business, R/o. 1-24-21/4, Sri Sai Nagar, Lothukunta, Secunderabad.

...Petitioner/Complainant

A N D

N. Lakshmi Narayana Goud, S/o. Late N. Balarajaiah Goud, Aged about 52 years, Occ: Business, R/o. 1-14-29, Lothukunta, Secunderabad.

...Respondent/Proposed Accused

This petition is coming before me on 03.12.2021 in the presence of Sri Ch. Raghuveera Reddy & Others, learned Counsel for Petitioner/Complainant and Sri M. Prabhakar Reddy, learned Counsel for respondent/Proposed Accused and the matter having stood over for consideration till this day, this court made the following:-

ORDER

1. This petition is filed by the petitioner/defendant under Section 340 Cr.P.C. with a request to make a written complaint against the respondent/proposed accused/plaintiff to punish U/Sec.193 of IPC.

IA.No.469/2018 in OS.No.176/2013Page 1 of 2

2

2.Notice given to the respondent. Counter filed by him. Petitioner got examined himself as PW1 and filed chief affidavit and Ex.A1 to A7 were marked and Ex.R1 to

R3 were marked during his cross-examination. Written arguments filed by both the counsel. Heard the learned counsel for both parties. Perused the record.

3.The petitioner contended that the respondent filed the present suit against him for cancellation of the sale deed vide doc.No.264/1999 dated 05-02-1999. This petitioner filed the written statement. Issues were framed for trial. It has become necessary for the petitioner to initiate prosecution by following procedure U/Sec.340

Cr.P.C. for the category of the offences U/Sec.195 Cr.P.C., for giving false evidence by the respondent at various places on oath before Judiciary and declarations before

Registrars and committed offence punishable U/Sec.193 of IPC. This petitioner has filed the certified copies of several documents which are conclusive evidence for convicting the respondent/proposed accused for the offence U/Sec.193 IPC. The respondent well acquainted with the orders of Hon’ble Supreme Court in special leave petition (Civil) No.17945/2009 that the Will dated 02-01-1956 is inadmissible.

Having knowledge of the same the respondent submitted counter affidavit by submitting a gift deed before this court, executed in favour of his wife vide doc.No.3986/2017 is a false evidence on record before this court.

4.He further contended that the petitioner filed documents in the present petition to establish the fact of giving false evidence in the form of submitting a counter affidavit in IA No.153/2018 dated 28-02-2018 and said document will make out a case to punish the respondent U/Sec.193 IPC. Hence requesting the court to issue notice to the respondent and make a written complaint to the Magistrate having Jurisdiction for giving false evidence which has affected the administration of justice punishable U/Sec.193 of IPC. Hence requesting the court to allow the petition.

IA.No.469/2018 in OS.No.176/2013Page 1 of 3

3

5.The respondent contended in his counter that the allegations in the petition are false and untenable and it is liable to be dismissed. The petitioner has not given any particulars about the so-called admitted false evidence. The petitioner is not made out any case through the contents of his affidavit. It is not clarified by the petitioner how the findings given by the Hon’ble Supreme Court of India about the inadmissibility of the WILL help the petitioner in filing the present petition. The petitioner misinterpreted the finding of Hon’ble Supreme Court orders. The respondent never stated anywhere that the WILL dated 02-01-1956 is admissible in evidence and it has to be received in any proceedings. The Gift Deed was not executed by the respondent in favour of his wife. The Gift Deed dated 25-09-2017 was executed by his Sister-in-law and her sons in favour of his wife. Hence any recitals contained in that document cannot be imputed to this respondent. This respondent has merely stated about the Gift Deed which factum is true and not disputed by the petitioner herein in IA No. 153 of 2018 in OS No. 176 of 2013. Thus this respondent has not made any false statements on oath before this Court. The contention in the memo dated 07-03-2019 are all unconnected to the present suit.

The documents sought to be received with the memo not relevant to prove the alleged giving of false statements. Hence the offence U/Sec.193 of IPC will not attract as there is no deliberate and conscious miss statement by the respondent and fabricating evidence. Hence requesting the court to dismiss the petition.

6.POINT FOR DETERMINATION IS :- “Whether the petitioner is entitled for making a written complaint by this court U/Sec.340 Cr.P.C. against the respondent as prayed for ?”

POINT :-

The petitioner got himself examined as PW1 and filed his chief affidavit in lieu of chief examination. The facts deposed by him in the chief affidavit are replica of the averments of the petition. He got marked Ex.A1 to A7. Ex.A1 is the Certified copy of Gift Deed doc.No.3987, dated 25-09-2017, Ex.A2 is the Certified copy of counter affidavit Writ Petition No.39894/2012, Ex.A3 is the Certified copy of Gift Deed

IA.No.469/2018 in OS.No.176/2013Page 1 of 4

4 doc.No.3559/2010, Ex.A4 is the Certified copy of Sale Deed doc.No.2843/2006, Ex.A5 is the Memorandum of compromise false affidavit in OS No. 9/1993 on the file of

Hon’ble III ADJ in IA No. 966/2017, Ex.A6 is the Sale Deed doc.No.10221/2006, Ex.A7

is the false affidavit doc.No.20/2009 on the file of Hon’ble XVI ADJ, Malkajgiri.

7.The PW1 deposed in his cross-examination that his perjury petition was returned for want of documents and he filed order copy of Hoin’ble Supreme Court in

SLP No.17945/2009 as per the last para of order it was mentioned that due to undue

influence on Chandramma the said Will was executed and it is a fraud document.

The affidavit filed by him in IA No.844/2016 was marked as Ex.R1. The Gift Deed vide doc.No.3386/2017 was executed by Anuradha Goud and Venkata Ramana in favour of Sarala wife of the plaintiff. The said Gift Deed is a false document. He filed contempt petition in IA No.153/2018 against the plaintiff for encroaching 60 sq. yards of his land. Basing on the family settlement deed he had purchased the property.

Satthaiah Goud had filed partition suit in OS No.9/1993 on the file of Hon’ble III Addl.

District Judge, R.R. District which includes the suit property. He came to know about

the partition suit in the year 2013. He admitted that he issued notice through

Mr.R.K. Malla, Advocate to commissioner GHMC on 21-03-2018. The said attested copy of legal notice dt. 21-03-2018 was marked as Ex.R2. He is not a party to OS

No.9/1993. In final decree proceedings he filed implead application. The Ex.R2 was issued in respect of suit schedule property. In OS No.9/1993 the parties had approached the Hon’ble Supreme Court vide Civil Appeal No.1420/2008 by remanding the case to the Hon’ble High Court which was again sent to lower court.

The orders of Hon’ble Supreme Court was marked as Ex.R3. He does not know in the said orders the Hon’ble Supreme Court remanded the case to decide on the Will. He does not know in the second round of litigation it was decided on Chandramma’s Will and her right but not decided on the Will of Saya Goud.

8.The learned counsel for the petitioner filed the written arguments and argued that the respondent committed offence U/Sec.193 of IPC as he has given false

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5 evidence. The respondent who is a party in the Civil Appeal before Hon’ble Supreme

Court having knowledge about the orders in the Special Leave Petition (Civil)

No.17945/2009 about the Will dated 02-01-1956 as inadmissible. Knowing about the said fact filed counter affidavit in IA No.153/2018 having mention about said will and execution of Gift Deed in favour of his wife there by he committed offence of giving false evidence punishable U/Sec.193 IPC. The PW1 by producing oral and documentary evidence under Ex.A1 to A7 clearly established before this court that the respondent/plaintiff committed offence U/Sec.193 and liable for prosecution.

Hence requesting the court to make a written complaint as procedure contemplated

U/Sec.340 Cr.P.C. to prosecute the respondent before the proper Jurisdictional Court as the offence committed by the respondent has affected the administration of justice.

9.On the other hand the learned counsel for respondent filed written arguments and argued that this petition filed by the petitioner/defendant only to harass the respondent/plaintiff and the petition is liable to be dismissed. The will and findings of Hon’ble Supreme Court were misinterpreted by the petitioner before this court.

The Hon’ble Supreme Court said about the Will that it was already filed by the plaintiff along with the plaint and same was not marked though it was not disputed by both the parties and the matter was remanded back to the Hon’ble High Court to take on record the version of Will or certified copy and taking the consideration of the contents and its effect on the right of the parties. The contentions raised in some other cases alleged to be false cannot be looked into by this court. There is no order from any court or finding of any other court as the statements are false.

Whether the respondent made any false statement on oath before this court is a matter to be decided after full fledged trial not in a summary proceedings even

before the trial has commenced. The present petition is only to drag the

proceedings. Hence requesting the court to dismiss the petition.

10.He referred the following judgments in support of arguments.

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6

Ashok Kumar Aggarwal vs. Union of India (UOI) and others reported in

(2013) 12 SCR 607.

Law on the issue can be summarised that in order to initiate prosecution for

Perjury, the court must prima facie reach a conclusion after holding preliminary inquiry that there has been a deliberate and conscious effort to misguide the court and interfere in the administration of justice. More so, it has to be seen whether such a prosecution is necessary in the interest of justice. The case is required to be decided in light of the aforesaid settled legal proposition.

The prosecution for perjury is required only where perjury appears to be deliberate and conscious and the conviction is reasonable, probable or likely. In the circumstances, a mere impression or perception of the Appellant would not make the deposition on affidavit by the Respondent No.5 to be false as being a deliberate and conscious act.

The High Court has rightly reached the conclusion that there was no deliberate

perjury to misguide the court while making such statement or filing the affidavit. In such a fact situation, the question of allowing application U/Sec.340 Code of Criminal

Procedure read with Section 195(1)(b) Code of Criminal Procedure was not warranted.

Chintamani Malviya vs. High Court of Madhya Pradesh reported in (2018) 6

Supreme Court Cases 151 Before Arun Mishra and Uday U. Lalit, JJ)

Prosecution for perjury should be sanctioned by courts only in such cases where

perjury appears to be deliberate and conscious and conviction is reasonably probable or likely – Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial – There must be prima facie case of

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7 deliberate falsehood on a matter of substance and court should be satisfied that there is reasonable foundation for charge.

11.On the appreciation of oral and documentary evidence of petitioner, after hearing to learned counsel for both parties and on perusal of the material record in the present enquiry before this court it is relevant to mention about the facts took place in the present suit which is filed vide OS No.176/2013 for cancellation of the sale deed vide doc.No.246/1999 dated 05-02-1999 and Perpetual Injunction restraining the defendant from interfering with the possession of the plaintiff in respect of suit schedule property i.e., cattleshed together with open space in premises bearing No.1-14-35/1/A, admeasuring 434 Sq. yards in Sy.No.284 situated at Lothukunta, Alwal, Malkajgiri Mandal, where in the plaintiff pleaded that he is absolute owner and possessor of the suit schedule property which was leased out by him to the defendant for running business on a monthly rent of Rs.1,000/- in the year 1998. On the request of the defendant he went to Sub-Registrar office in the year 1999 on the false pretext of the defendant that a lease deed will be executed in favour of the defendant for the purpose of obtaining bank loans but he played fraud on the plaintiff and managed to got executed a registered sale deed vide doc.No.264/1999 on 05-02-1999 in favour of the defendant and in the month of

November, 2011 the plaintiff came to know about the fraud played against him by the defendant and he got issued a legal notice on 08-05-2012 for which the defendant gave a false reply and a rejoinder was also got issued by the plaintiff on 29-05-2012. Hence he filed the present suit for cancellation of said sale deed and to grant perpetual injunction against the defendant.

12.It is borne by the record that the petitioner herein is the defendant who has filed his written statement with counter claim for damages of Rs.10,00,000/- from the plaintiff who is the respondent herein in the present petition. Issues were framed on 05-10-2015 and Addl. Issue was framed on 29-06-2018. At this stage the present application is filed on the allegation that the plaintiff had committed U/Sec.193 of

IPC.

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8

13.A reading of Sec.193 IPC is given below. Whoever intentionally gives false

evidence in any stage of judicial proceeding or fabricates false evidence for

the purpose of being used in any stage of a judicial proceeding, shall be

punished with imprisonment of either description for a term which may

extend to seven years, and shall also be liable to fine;

and whoever intentionally gives or fabricates false evidence in any

other case, shall be punished with imprisonment of either description for a

term which may extend to three years, and shall also be liable to fine.

Explanation 1 :- A trial before a court-martial is a judicial proceeding.

Explanation 2 :- An investigation directed by law preliminary to a

proceeding before a Court of Justice, is a stage of a judicial proceeding,

though that investigation may not take place before a Court of justice.

Explanation 3 :- An investigation directed by a Court of Justice according to

law, and conducted under the authority of a Court of Justice, is a stage of a

Judicial proceeding, though that investigation may not take place before a

Court of Justice.

14.As per the above provision and also the illustration for explanation No.2 if a person makes on oath a statement which is being used before judicial proceedings it is to be said as giving false evidence. In the present petition it was alleged by the petitioner that the respondent had given false evidence. It is important to mention here that the suit is only at the stage of framing of issues at this stage the present petition has been filed. The trial was not yet commenced in the present suit. The assertion of the petitioner is that he filed a petition vide IA No.765/2017 for temporary injunction to restrain the respondent from making any sought of

IA.No.469/2018 in OS.No.176/2013Page 1 of 9

9 construction in the petition schedule property and the respondent filed counter affidavit and status quo was granted in the said IA and disobeying the said orders the respondent continued the construction. In IA No.153/2018 filed by this petitioner the respondent filed a counter affidavit by taking a new stand that the schedule property stands in the name of N. Sarala by virtue of the gift deed. Admittedly the said application is still pending which is filed by the petitioner for contempt of the court orders in IA No. 756/2017. Therefore it is not correct to say that any conclusion has been arrived with regard to the counter affidavit filed by the respondent in IA

No.153/2018 in order to presume that the respondent intentionally given any false evidence.

15.To come to a just conclusion in the present petition a reading of Sec.340

Cr.P.C. is given below :

(1) When, upon an application made to it in this behalf or otherwise, any

Court is of opinion that it is expedient in the interests of justice that an

inquiry should be made into any offence referred to in clause (b) of sub-

section (1) of Section 195, which appears to have been committed in or in

relation to a proceeding in that Court or, as the case may be, in respect of a

document produced or given in evidence in a proceeding in that Court,

such Court may, after such preliminary inquiry, if any, as it thinks

necessary,

(a) record a finding to that effect:

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before such

Magistrate, or if the alleged offence is non-bailable and the Court thinks it

necessary so to do, send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such

Magistrate.

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10

(2) The power conferred on a Court by sub-section (1) in respect of an

offence may, in any case where that Court has neither made a complaint

under sub-section (1) in respect of that offence not rejected an application

for the making of such complaint, be exercised by the Court to which such

former Court is subordinate within the meaning of sub-section (4) of

Section 195.

(3) A complaint made under this section shall be signed,

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

](b) in any other case, by the Presiding Officer of the Court or by such

officer of the Court as the Court may authorize in writing in this

behalf]

(4) in this section, “Court” has the same meaning as in Section 195.

16.Sec.340 Cr.P.C. contemplates a summary procedure for trial for giving false evidence. Before coming to a finding that a false evidence was given by the respondent this court has to form an opinion that the respondent has committed offence U/Sec.193 IPC in relation to the proceeding before this court or in respect of a document produced or given in evidence before this court and the respondent maliciously setting law into motion. Before exercising the power U/Sec.340(1)Cr.P.C.

it must express opinion that the witness before it has either intentionally given false evidence or fabricated such evidence and court must come to a conclusion that in the interest of justice the witness concerned should be punished summarily..

Therefore as the suit is only at the initial stage of trial no opinion can be formed against the respondent that he has given false evidence before this court. The allegation of the petitioner that the respondent given false evidences at various places is no way related to the proceedings before this court.

17.According to Sec.340 Cr.P.C. the respondent has to give false evidence or file any fabricated document in connection with the subject matter of the suit pending

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11

before this court. Filing of gift settlement deed by the respondent before this court

by itself does not attract offence U/Sec.193 IPC. The Ex.A1 to A7 showing the documents filed by the respondent before other courts. The Ex.A2 is the certified copy of counter affidavit in Writ petition No.39894/2012, Ex..A5 memorandum of compromise affidavit in OS No.9/1993, and Ex.A7 affidavit in OS No. 20/2019 on the file Hon’ble XIV Addl. District Judge, R.R. District. The said documents are no way concerned with regard to the subject matter of the present suit as they have been filed before Hon’ble High Court and other Hon’ble District Courts.

18.The purpose of Section 340 Cr.P.C. is to bar private prosecution where the courts of justice is sought to be perverted, leaving to the court itself to uphold its dignity and prestige. In Surjit Singh and others vs. Balbir Singh reported in

AIR 1996 SC 1592 Hon’ble Supreme Court held that “in view of the language used in Sec.340 Cr.P.C. the court is not bound to make a complaint regarding commission of an offence referred to in Sec.195(1)(b) as the section is conditioned by the words ‘Court is of opinion that it is expedient in the interest of justice’ this shows that such a course will be adopted only when the interest of justice required and not in every case.”

19.It was categorically asserted by the petitioner herein that the respondent committed offence U/Sec.193 IPC but in view of the discussion made in the above paragraphs and in the light of the above judgment of Hon’ble Supreme Court no case is made out for the petitioner at this stage to allege that the respondent gave false statement on oath before this court in the present suit. The documents filed by the respondent in the suit have not yet appreciated by this court to consider them as they have been produced in order to seek relief from the court which are alleged to be false documents according to the petitioner herein. Whether any legal santity is attached to Gift Deed dated 25-09-2017 can be considered only at the time of appreciation of the evidence while pronouncing the judgment. So far this court has not reached to the opinion that there is any affect or impact upon administration of

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12 justice and to file complaint in the interest of justice. Therefore the judgments referred by the learned counsel for respondent are relevant to the present petition on hand. What ever the allegations made by the respondent in the plaint have to be tested by adducing oral and documentary evidence on both sides. As the suit is not reached to that stage the court cannot draw any conclusion that any offence

U/Sec.193 IPC is made out against the respondent. Though the petitioner got himself examined as PW1 and filed oral and documentary evidence before this enquiry proceedings they are of no use for him to prove that the respondent committed any offence U/Sec.193 IPC. On the other hand the respondent during cross-examination of the PW1 got marked Ex.R1 to R3. On perusal of those documents filed by both sides it can be said that no offence U/Sec.193 IPC is attracted in this case. No cognizance of the offence U/Sec.193 IPC can be made out based on those documents which are not filed before this court by the respondent in order to get any relief from this court in the present suit. Hence there are no merits in the present petition and liable to be dismissed. Accordingly this point is answered.

20. In the result, the petition is dismissed with no costs.

(Typed by me corrected and pronounced by me in open Court, on this the 7th day of January, 2022)

IX Additional Senior Civil Judge FAC Senior Civil Judge (FTC), at Malkajgiri, Ranga Reddy District

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13

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERFOR RESPONDENTS

M.M. Vasu- NIL-

EXHIBITS MARKED

FOR PETITIONER.

Ex.P1 is the Certified copy of Gift Deed doc.No.3987, dated 25-09-2017 Ex.P2 is the Certified copy of counter affidavit Writ Petition No.39894/2012 Ex.P3 is the Certified copy of Gift Deed doc.No.3559/2010 Ex.P4 is the Certified copy of Sale Deed doc.No.2843/2006 Ex.P5 is the Memorandum of compromise false affidavit in OS No. 9/1993 on the file of Hon’ble III ADJ in IA No. 966/2017 Ex.P6 is the Sale Deed doc.No.10221/2006 Ex.P7 is the false affidavit doc.No.20/2009 on the file of Hon’ble XVI ADJ, Malkajgiri

FOR RESPONDENT

Ex.R1 is the affidavit filed in IA No. 844/2016 and the same was marked on confrontation Ex.R2 is the Notice through Mr. R.K. Malla, Advocate to Commissioner GHMC on 21- 03-2018 and the same on confrontation Ex.R3 is the Certified copy of orders of Hon’ble Supreme Court vide Civil Appeal No.1420/2008

IX Additional Senior Civil Judge,

FAC Senior Civil Judge (FTC),

at Malkajgiri, Ranga Reddy District.

IA.No.15 of 2021 in OS.No.250/2021Page 1 of 14

1

IN THE COURT OF THE SENIOR CIVIL JUDGE ::

RANGA REDDY DISTRICT, AT MALKAJGIRI.

PRESENT: SMT. P. SREEDEVI, IX Addl. Senior Civil Judge, FAC Senior Civil Judge, Ranga Reddy District, at Malkajgiri.

DATED THIS THE 29th DAY OF APRIL, 2022

IA.No. 15 OF 2021

IN

OS.No. 250 OF 2021

BETWEEN:

1.M/s Bevcon Wayors Pvt. Ltd., Rep. By its Managing Director Sri Y. Srinivas Reddy, Office at Plot No.139, Phase III, IDA Cherlapally, R.R. District.

2.Y. Srinivas Reddy, aged about Major, Managing Director, M/s Bevcon Wayors Pvt. Ltd., Office at Plot No.139, Phase III IDA Cherlapally, R.R. District.

3.Rithvik Pasupuleti, aged about Major, Managing Director, M/s Bevcon Wayors Pvt. Ltd., Office at Plot No.139, Phase III, IDA Cherlapally, R.R. District

...Petitioners/Defendants

A N D

M/s Win Win Distribution Pvt. Ltd., Rep. By its Managing Director, O/o Win Win House 5-4-72, Opp. Sundaram Motors, MG Road, Secunderabad.

...Respondent/Defendant

This petition is coming before me on 08.04.2022 in the presence of Sri K. Prabhakar,learned Counsel for Petitioners/Plaintiffs and Sri K. Koteswara Rao, learned counsel for respondent/defendant and the matter having stood over for consideration till this day, this court made the following:-

IA.No.15 of 2021 in OS.No.250/2021Page 2 of 14

2

ORDER

1. This petition is filed by the petitioners under Sec.8 of the Arbitration and Conciliation Act 1996 with a request to the court to refer the matter to

Arbitration and direct the respondent to substantiate its alleged claim before

Arbitrator as per Clause No.33 incorporated in the Special Terms and

Conditions of the purchase orders.

2.Notice given to the respondent. Counter filed by it. Heard the learned counsel for both parties. Ex.P1 and P2 and Ex.R1 to R8 are marked. Perused the record.

3.The petitioners contended that the suit is filed for Recovery of amount of Rs.34,35,733/- against the petitioners. All the allegations mentioned in the plaint are false. The respondent approached the petitioners in the year 2014 and agreed to supply electrical motors. In pursuance of the same petitioners placed purchase orders containing special terms and conditions in respect of said motors by Purchase Order No.161000863, dated 08-12-2016 and 1610100868, dated 09-05-2016 for supply of the same. The respondent supplied the motors of issuing the invoices against the purchase orders. All the payments were received by the respondent. There is privity of contract between both parties and transaction continued till 2019. As per the original purchase orders both parties are bound by the Special Terms and Conditions but the respondent filed the suit before this court by suppressing the purchase orders wherein Arbitration Clause was incorporated. The respondent intentionally not filed the purchase orders in order to claim the jurisdiction of Civil Court instead of referring the dispute between the both

IA.No.15 of 2021 in OS.No.250/2021Page 3 of 14

3 parties to the Arbitrator. The suit is filed with all the false allegations and if at all any grievance or claim the respondent intended to agitate it must go to

Arbitration otherwise purpose of incorporating such clause No.33 in the purchase will be defeated. Hence requesting the court to refer the matter to

Arbitrator by returning the plaint.

4.The respondent company contended in the counter that there is no

Arbitration Agreement between both the parties as contemplated U/Sec.7 of

Arbitration and Conciliation Act. An Arbitration agreement may be in the form of Arbitration clause in a contract or in the form of separate agreement signed by both parties. In the present suit the respondent supply the material on receiving the purchase orders only and items were delivered to the petitioner under a valid tax invoices but there is no agreement with regard to an Arbitration Clause either in the tax invoices or in the purchase orders.

Hence Sec.8 of Arbitration Act does not apply in the present suit. Now the petitioners pressing into a new plea of special terms and conditions which format was not signed by the respondent company. Therefore there is no valid arbitration agreement. Hence requesting the court to dismiss the petition.

5.THE POINT FOR DETERMINATION IS :-

“Whether the plaint is liable to be returned by referring the

matter to Arbitration as prayed by the petitioners?”

The learned counsel for petitioners filed written arguments and argued that suit is filed for Recovery of amount of Rs.34,35,733/- against the petitioners. All the allegations mentioned in the plaint are false. The

IA.No.15 of 2021 in OS.No.250/2021Page 4 of 14

4 respondent approached the petitioners in the year 2014 and agreed to supply electrical motors. In pursuance of the same petitioners placed purchase orders containing special terms and conditions in respect of said motors by purchase order No.161000863, dated 08-12-2016 and 1610100868, dated 09- 05-2016 for supply of the same. The respondent supplied the motors of the issuing the invoices against the purchase orders. All the payments were received by the respondent. There is privity of contract between both parties and transaction continued till 2019. As per the original purchase orders both parties are bound by the Special Terms and Conditions but the respondent filed the suit before this court by suppressing the purchase orders wherein

Arbitration Clause was incorporated. The respondent intentionally not filed the purchase orders in order to claim the jurisdiction of Civil Court instead of referring the dispute between the both parties to the Arbitrator. Hence requesting the court to refer the matter to Arbitrator by returning the plaint.

He filed Ex.P1 and P2. Ex.P1 is the Original Purchase Order bearing

No.1610100863, dated 08-12-2016, Ex.P2 is the Original Purchase Order bearing

No.1610100868, dated 09-12-2016 in support of his oral arguments.

6.He referred the following citations :-

1. Pennar Seeds Corporation vs. A.P. State Seeds Development

Corporation Ltd., Hyderabad and another reported in 2008 (5) ALD

154.

Held in para 21 that “a matter decided by the then Chief Justice

of this Court under Arbitration and Conciliation Act, 1996, wherein it

was observed that a clause in the agreement with the heading

“Arbitration” it merely provides that Courts at Hyderabad shall have

jurisdiction to entertain any suit and further that arbitration if any

IA.No.15 of 2021 in OS.No.250/2021Page 5 of 14

5

shall also be at Hyderabad and it is not an arbitration clause and

further observed that Court can refer the case to the arbitration if

there is an arbitration clause in the agreement and in the absence of

arbitration clause the question of referring the matter does not

arise.”

2. Fishermen Co-operative Society vs. Fishermen Co-operative

Society reported in 2008 (1) ALD 803 in Hon’ble High Court of Andhra

Pradesh.

Held in para 11 that “Careful reading of the pleadings before the

trial Court as well as this Court and after hearing the learned

counsel for both the parties, it is clear that the objection raised by

the plaintiff society is not with regard to the existence of the

agreement dated 29.03.2007 as such. As rightly observed by the

court below, it was not the case of the plaintiff Society that K.

Prabhakar, whose signature was appended on the agreement was

not the President of the plaintiff society. It was also not their case

that his signature was forged. As a matter of fact, the plaintiff

society was represented by its President Kesari Prabhakar in the

main suit and the main suit and the plaint was signed by him

representing the society. Whether such agreement is binding on the

society or not is a question which can be agitated before the arbitral

Tribunal as provided under Section 16 of the Act and it is not

necessary for the Judicial authority to recored any finding thereon in

an application under Section 8 of the Act.”

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6

3.Sai Engineering Contractors, Railway Contractors, Tirupathi vs.

Union of India and others reported in 2009 (5) ALD 570.

Held in para 17 that “Therefore, even if every page of the

contract agreement between applicant and respondent is not

signed, both of them are bound by arbitration clause because as

mentioned supra, GCC and SCC by reason of binding covenant in

contract agreement itself form part of contract. Therefore, the

dispute is not arbitrable in view of clause 21 of SCC. Though, other

questions are raised by both parties, this court is not inclined to go

into them as the dispute itself cannot be referred to arbitration in

view of clause 21 of SCC.”

7.On the other hand the learned counsel for respondent filed written arguments and argued that there is no Arbitration Agreement between both the parties as contemplated U/Sec.7 of Arbitration and Consideration Act. An

Arbitration agreement may be in the form of Arbitration clause in a contract or in the form of separate agreement signed by the both parties. In the present suit the respondent supplied the material on receiving the purchase orders only and items were delivered to the petitioner under a valid tax invoices but there is no agreement with regard to an Arbitration Clause either in the tax invoices or in the purchase orders. Hence Sec.8 of Arbitration Act does not apply in the present suit. Now the petitioners pressing into a new plea of special terms and conditions which format was not signed by the respondent company. Therefore there is no valid arbitration agreement.

Hence requesting the court to dismiss the petition. He filed Ex.R1 to R8.

Ex.R1 is the Original Certificate of incorporation, dated 06-07-2020, Ex.R2 is the

Original Authorization letter dt. 01-09-2021, Ex.R3: is the Original Board Resolution

dt. 04-03-2021, Ex.R4 is the Copy of statement of account for the period from 01-04-

IA.No.15 of 2021 in OS.No.250/2021Page 7 of 14

7 2016 to 31-03-2017, Ex.R5 is the Original GPA, dt. 03-11-2018, Ex.R6 is the Original demand notice, dt. 19-03-2021, EX.R7 is the (3) postal receipts, Ex.R8 is the (3) acknowledgements in support of his oral arguments.

8.He referred the following citations:

1.Wellington Associates Ltd., vs. Kirit Mehta reported in Hon’ble

Supreme Court of India.

Held in para that “This point raises a question as to the scope of section 16 on the one hand and section 11 on the other.

Before referring the said section, I shall refer to the relevant

clauses 4 and 5 in the two agreements dated 15-08-1995. They read

as follows: “Clause 4: It is hereby agreed that, if any dispute arises

in connection with these presents, only courts in Bombay would have

jurisdiction to try and determine the suit and the parties hereto

submit themselves to the exclusive jurisdiction of the courts in

Bombay.”

Clause 5: It is also agreed by the between the parties that any

dispute or differences arising in connection with these presents may

be referred to arbitration in pursuance of the Arbitration Act, 1947,

by each party appointing one arbitrator and the arbitrators so

appointed selecting an umpire. The venue of arbitration shall be at

Bombay.”

Suffice it to say, that the words ‘may be referred’ used in

clause 5, read with clause 4, lead me to the conclusion that clause 5

is not a firm or mandatory arbitration clause and in my view, it

postulates a fresh agreement between the parties that they will to

IA.No.15 of 2021 in OS.No.250/2021Page 8 of 14

8

go to arbitration. Point 2 is decided accordingly against the

petitioner. Point 3:

2. Sh. Pavel Garg. vs. Sh. Sunil Sood Coram reported in Hon’ble

Himachal Pradesh High Court.

Held in para 21 that “Clause 29 of terms and conditions for

allotment and sale provides jurisdiction of High Court of Himachal

Pradesh or Courts subordinate to it, a forum for resolution of

dispute. Same terms and conditions have been provided in clause 53

of the Buyer’s Agreement, whereas arbitration clause 28 of terms

and conditions for allotment and sale has not bee re-iterated in the

Buyer’s Agreement.”

Held in para 27 that “Therefore, I find that in the Buyer’s

Agreement, arbitration clause, which is prerequisite condition for

invoking the provisions of Section 8 of the Act, does not exist,

therefore, present application filed by defendant is devoid of merit.

In any case, if plea of incorporation of arbitration clause 28 of terms

and conditions for allotment and sale is accepted, then also on

applying ratio of law propounded in Kirti Mehta’s case, as there will

be two options available for resolution of dispute, unless consented

by another party (herein plaintiff), the dispute cannot be referred for

arbitration.”

9.On hearing to the both sides and on perusal of the record. It is pertinent to mention that originally the suit is filed for Recovery of money by the respondent company/plaintiff company for a sum of Rs.34,35,733/-

IA.No.15 of 2021 in OS.No.250/2021Page 9 of 14

9 together with interest @ 18% p.a. against the petitioners/defendants alleging that the defendants company approached the plaintiff with a request to supply the industrial motors. Basing on the assurance and guarantee given by the defendant No.2 and 3 on behalf of defendant No.1 the plaintiff supplied the motors as per the purchase orders. The defendants account is a running account right from 2014 onwards and made part payments till 15-05-2019.

As per the statement of account as on 15-05-2019 an amount of

Rs.24,30,234/- is outstanding balance amount liable to be paid by the defendants. During the year 2014-2019 the defendants made transactions with plaintiff on credit basis but the defendants failed to pay the outstanding bills which are due to the plaintiff. Hence plaintiff company issued legal notice on 19-03-2021 and defendants received legal notice but neglected to pay the outstanding balance amount. They are liable to pay amount of

Rs.24,30,234/- is together interest @ 18% p.a. from 15-05-2019 to 31-08- 2020 which in total is Rs.34,35,733/- and the suit is filed for Recovery of the said amount together with interest.

10.A brief reading of the pleadings in the plaint goes to show that the respondents company supplied industrial motors based on the purchase orders placed by the petitioners company. It is important to mention that the respondents company did not file those purchase orders before this court but they filed the certificate of incorporation marked as Ex.R1, authorization letter as Ex.R2, Board Resolution as Ex.R3 to make entitle the authorized person to file the present suit on behalf of the plaintiff. The suit is numbered for recovery of amounts by virtue of documents filed by the respondent company i.e., the details of voucher numbers the amounts paid by the petitioners on different dates marked as Ex.R4 which also elicit the balance outstanding

IA.No.15 of 2021 in OS.No.250/2021Page 10 of 14

10 amount payable by the petitioners. Ex.R5 is the original GPA filed by the plaintiff. The Ex.R6 is the legal notice issued to the petitioners, postal receipts under Ex.R7 and acknowledgement cards under Ex.R8. The Ex.R6 to

R8 show that a legal notice was issued to the petitioners. However all the above documents do not elicit the details of the transactions between both the parties basing on which the petitioners placed the purchase orders and the respondent company supplied the material.

11.The petitioners herein urged before the court that there is an Arbitration

Clause in the purchase orders placed by the petitioners before the respondent company for purchasing the Industrial Motors and there is a continuity of sale transactions till 2019 between both parties. The petitioners filed Ex.P1 and

P2. Ex.P1 is the purchase order, dated 08-12-2016 vide purchase order

No.1610100863 which elicits that the material supplied by the respondent company, the description of it, the cost of the same together with tax details.

In the second page of such purchase order under Ex.P1 there is a mention of special terms and conditions which continued upto page No.6. In page No.5 of Ex.P1 clause No.33 was incorporated mentioned as any dispute or difference what so ever arise between the parties shall be settled by

Arbitration in accordance with the Rules of Arbitration and Award passed shall be binding on the parties. If award is not satisfied by any of the parties, the aggrieved party may take the legal shelter within the jurisdiction of

Hyderabad courts only. Therefore there is a separate and independent clause mentioned for Arbitration. The terms and conditions are part of purchase order, though it is not signed by both the parties. Ex.P2 is another purchase order dt.09-12-2016 vide purchase order No.1610100868 which is also on the similar lines as that of Ex.P1 for a different transaction of purchase of material

IA.No.15 of 2021 in OS.No.250/2021Page 11 of 14

11 from the respondent company. It was specifically pleaded in the plaint in para

No.III (A) that the respondent company supplied the industrial motors as per the purchase orders placed by the petitioners and Ex.R6 legal notice also mentioned above such purchase orders. It is necessary to mention that Ex.R4 is the details of transactions between both the parties and amounts liable to be paid by the petitioners. It is not the case of respondent company that

Ex.P1 and P2 were never placed before respondent company and it has not supplied any material based on Ex.P1 and P2 and Ex.P1 and P2 were never acted upon by both the parties. Hence the Ex.P1 and P2 have to be considered along with terms and conditions appended to the purchase orders.

Therefore the terms and conditions are binding on both the parties.

12.It is the condition of the respondent company that there is no specific and separate Arbitration Agreement which has to be in the form of arbitration clause in a contract or in the form of separate agreement signed by the both parties. To support its contention it has referred the 1st citation held by

Hon’ble Supreme Court. But this court is of opinion that the facts in the

above citation are different from the facts in the present suit as the clause

No.IV and V as mentioned in the above citation are not having mandatory arbitration clause and the said clauses postulate a fresh agreement required if the parties intended to go for arbitration. In the present suit the clause

No.33 of the terms and conditions in Ex.P1 and P2 purchase orders is clear that the parties shall settle their disputes by approaching the arbitrator and only after the matter is decided by the arbitrator and passing of award by him the aggrieved party can challenge such award by initiating the legal action.

Therefore the above citation is not relevant to the fact in the present suit.

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12

13.The learned counsel for the respondent company while arguing the matter referred the 2nd citation filed by the respondent and contended that there must be intention of both parties to have arbitration clause in the agreement. In the above citation rendered by Hon’ble Himachal Pradesh High

Court it was discussed that “it was never intention of the parties to have arbitration clause in the agreement and deliberately arbitration clause was not incorporated in this agreement and only clause No.53 was mentioned to resolve the dispute provided the jurisdiction of Hon’ble High Court and Sub-

Ordinate Courts. The clause No.29 referred in the above citation of the terms and conditions for allotment and sale mentioned in clause No.53 of Buyer’s

Agreement where as arbitration clause 28 of terms and conditions were allotment and sale has not been re-iterated in the Buyer’s Agreement, therefore the arbitration clause shall not become the part and parcel of

Buyer’s Agreement.” He further argued that both parties not signed on the

Ex.P1 and P2 therefore there is no agreement between both the parties for referring the matter to Arbitration. But this court is unable to accept the argument of learned counsel for respondent company as clause No.33 of

Ex.P1 and P2 mentioned the intention of both parties to approach the arbitrator for resolving their disputes. The respondent company basing on

Ex.P1 and P2 supplied the industrial motors. Therefore when the material is supplied by respondent company based on the purchase orders of the petitioners this itself shows that the respondent company also had intention of invoking the arbitration clause No.33 of Ex.P1 and P2. Further more the learned counsel for the petitioner referred the 3rd citation held by Hon’ble

High Court of Andhra Pradesh on 06-08-2009 that signatures of both parties not necessary on each page of the Contract Agreement and when Arbitration

Clause is part of the contract it is binding on the parties. Therefore the

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13 citation referred by the learned counsel for the respondent company is not helpful to support the contention of the respondent. The citation referred by the learned counsel for the petitioner aptly suits to the facts in the present suit.

14.It is significant mention that the learned counsel for the petitioners vehemently argued that the respondent company by suppressing the purchase orders filed the suit for recovery of amounts only to conceal the fact of arbitration clause in the terms and conditions of the purchase orders.

Without invoking the Sec.8 of Arbitration and Conciliation Act the respondent company directly filed the suit. As per the 1st citation referred by the learned counsel for the petitioners if there is any arbitration clause in the contract parties must refer the matter to arbitration. The 2nd citation also supports the said contention. Therefore the above citations are relevant to the facts in the present suit. It is not explained by the respondent in its counter why it has not filed Ex.P1 and P2 along with the other documents filed by it at the time of filing of the suit. When it is specifically pleaded by the petitioner that the purchase orders were intentionally suppressed the respondent ought to have given explanation at least during arguments. But no such explanation was submitted nor denied the fact that Ex.P1 and P2 were acted upon by the respondent and material was supplied to the petitioners. Therefore the respondent company is bound by the terms and conditions of Ex.P1 and P2 and it must approach the Arbitrator as per the provisions of Arbitration and

Conciliation Act as clause 33 of terms and conditions mandates both parties to invoke the arbitration prior to approaching any court of law. Hence the suit has to be referred to the arbitration by returning the plaint. Therefore the petition is allowed. Accordingly this point is answered.

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14

15. In the result, the petition is allowed with costs. The plaint is returned by referring the matter to the Arbitrator appointed by both parties as chosen by them.

(Typed by Typist on my dictation corrected and pronounced by me in open Court, on this the 29th day of April, 2022)

IX Additional Senior Civil Judge FAC Senior Civil Judge, at Malkajgiri, Ranga Reddy District

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERFOR RESPONDENTS

- NIL-

EXHIBITS MARKED

FOR PETITIONERS

Ex.P1: is the Original purchase order bearing No.1610100863, dated 08-12-2016 Ex.P2: is the Original purchase order bearing No.1610100868, dated 09-12-2016

FOR RESPONDENT

Ex.R1: is the Original Certificate of incorporation, dated 06-07-2020 Ex.R2: is the Original Authorization letter dt. 01-09-2021 Ex.R3: is the Original Board Resolution dt. 04-03-2021 Ex.R4: is the Copy of statement of account for the period from 01-04-2016 to 31-03- 2017 Ex.R5: is the Original GPA, dt. 03-11-2018 Ex.R6: is the Original demand notice, dt. 19-03-2021 EX.R7: is the (3) postal receipts Ex.R8: is the (3) acknowledgements

IX Additional Senior Civil Judge, FAC Senior Civil Judge, at Malkajgiri, Ranga Reddy District.