Sri P. Srinivasa Rao, ASCJ

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IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE

ANANTHAPURAMU

PRESENT:- Sri P.Srinivasa Rao,

Additional Senior Civil Judge, Ananthapuramu.

Thursday, this the 23rd day of July, 2019.

ORIGINAL SUIT NO.336/2012

Between :

Dhoddi Subbireddy s/o Chinna Narayanappa @ Chinna Narayana Reddy, 50 years, Hindu, Cultivation, Akkampalli Village, Ananthapuramu Rural.

... Plaintiff.

And

1.G. Ramakrishna Reddy, 60 years,

2. G. Adinarayana, 58 years, Both are sons of Narayana Reddy, Hindu, Cultivation, Rachanapalli, Ananthapuramu Rural.

... Defendants.

This suit coming on 1.7.2019for final hearing before me in the presence of Sri G. Ram Gopal, Advocate for the plaintiff, and of Sri

C. Adisesha Reddy, advocate for the defendants, and upon hearing both sides and upon perusal of the available material on record this court delivered the following :-

JUDGMENT

The plaintiff filed the suit against the defendants for partition of plaint schedule property into three equal shares and to allot one such share to him with metes and bounds and for costs of the suit.

02. The plaint averments are, in brief, as follows:- 2

One Doddi Pedda Narayanappa @ Doddi Pedda Narayana

Reddy, Doddi Chinnappa and Doddi Narayanappa are sons of Doddi

Pedda Subbanna and they constitute Hindu undivided joint family and enjoying schedule land to an extent of Ac.5-05 cents in S.No.155-4 situated in Rachanapalli village having jointly inherited. Doddi Pedda

Narayanappa died issue less and Doddi Chinnappa died unmarried.

Doddi Chinna Narayanappa @ Chinna Narayana Reddy died about 10 years back leaving behind him the plaintiff as his sole heir. During the life time of Doddi Chinna Narayanappa, who is father of plaintiff, he was in joint possession and enjoyment of his 1/3rd joint share with his brothers during their life time. While it was so, Doddi Pedda

Narayanappa @ Doddi Pedda Narayana Reddy and Doddi

Chinnappa brought into existence a document in respect of

plaint schedule property in favour of the grandfather of

defendants by name Krishna Reddy. The father of plaintiff constituted as joint owner towards his 1/3rd share with the defendants and their predecessors. The defendants are co-owners of the

plaintiff and the plaint schedule property is in joint possession

and enjoyment of the plaintiff and defendants. The 1/3rd share

of the plaintiff in the schedule property is not affected. The plaintiff felt that it is no longer safe and congenial to continue joint with defendants and made several demands to the defendants for amicable partition and separate possession of his joint 1/3rd share in the plaint schedule property but the defendants are evading on some pretext or the other conceding rights of his client’s 1/3rd share in the schedule property. Hence, the plaintiff issued legal notice on 23.1.2012 and the 3 defendants received the notice and did not come forward for partition and the defendants issued reply notice with false and vague allegations. Hence, the plaintiff is constrained to file the suit.

3.The 2nd defendant contested the suit by filing a written statement and the same is adopted by the first defendant. The main averments of the written statement of the 2nd defendant are that the plaint suit schedule property is their absolute property and on 28.4.1936 the paternal grandfather of the defendants by name Guggilla Pedda

Krishna Reddy had purchased the said property for valuable consideration of Rs.100/- from Chinnappa and Pedda Narayanappa sons of Pedda Subbaiah and ever since the date of sale itself their grand father was put into possession and enjoyment of the suit schedule property. The grandfather of the defendants purchased the schedule property 76 years back and ever since from the said date their grand father had been in possession of the schedule property and after his demise their father was in possession of the schedule property and thereafter they are in exclusive, uninterrupted, continuous possession and enjoyment of the schedule property. Thereafter, on 17.4.2012 the defendants being brothers got divided the schedule property along with other properties by way of registered partition deed bearing No.1839/2012 and ever since the defendants are enjoying their respective shares as per the partition deed. The grand father of the defendants Krishna Reddy enjoyed the plaint schedule property as absolute owner from the date of purchase and after his life time his son Narayana Reddy succeeded his share and died about 2 years back from then onwards, the defendants being successors and 4 sole legal heirs of Narayana Reddy got devolved the suit schedule property and enjoying the same. The revenue records, 1-B register, adangals contain the names of the defendants grandfather, father and themselves as owners. As the 1st defendant is elder one, he is managing the joint family properties and this defendant continued in joint family consisted of his brother by virtue of his employment as teacher happened to be at the place of employment, the pattadar passbook and title deed was granted in favour of his brother, 1st defendant. The father of the plaintiff or his father have no manner of right over the schedule property and the schedule property is not liable for partition and there are no merits in the suit. Hence, the suit is liable to be dismissed with costs.

4. Basing on the above pleadings, on 11.7.2013 my learned predecessor-in-office has framed the following issues for trial.

1. Whether the plaintiff was a member of joint family of original owner of property?

2.Whether the registered partition deed dt.17.4.12 is

binding upon plaintiff?

3.Whether the plaintiff is entitled for 1/3rd share in the

suit schedule property? 4.To what relief?

5.On behalf ofthe plaintiff, PWs.1 and 2 are examined and got marked Exs.A1 to A3. PW.1/D. Subbi Reddy is the plaintiff and PW.2/J.

Krishna Murthy is witness. Ex.A1 is resettlement register extract obtained under R.T.I., Act., Ex.A2 is legal notice dt.23.1.12 and Ex.A3 is reply notice dt.14.2.2012.

6.On behalf of defendants, the 2nd defendant himself examined as

DW.1 and got marked Exs.B1 to B11. Ex.B1 is served copy of legal 5 notice issued by the plaintiff, Ex.B2 is copy of reply notice issued by the defendants, Ex.B3 is certified copy of registered sale deed dt.28.4.1936, Ex.B4 is original registered partition among the defendants, Ex.B5 is original pattadar passbook issued to D.1, Ex.B6 is original pattadar passbook issued to D.2, Ex.B7 is original Kissan Credit

Card passbook issued to D.1, Ex.B8 is true copy of adangal extract obtained through mee-seva, Ex.B9 is true copies of form-1B (ROR-2 in

Nos) obtained through mee-seva, Ex.B10 is copies of earlier adangal extracts through RTI Act, Ex.B11 is encumbrance certificate-2 in No., dt.23.2.2012 and 21.2.2012.

7.Heard arguments on behalf of the plaintiff as well as the learned counsel for the defendants.

ISSUES 1 to 3 :-

8.These three issues are inter-connected with each other and accordingly, these three issues are taken-up for joint discussion to avoid repetition and for the sake of brevity.

9.I have carefully perused the oral and documentary evidence adduced by the plaintiff and defendants. As seen from the material on record, there is no dispute that Doddi Pedda Narayanappa @ Doddi

Pedda Narayana Reddy, Doddi Chinnappa and Doddi Narayanappa are siblings and Doddi Pedda Subbanna is their father. It is also not in dispute that Doddi Pedda Narayanappa @ Doddi Pedda Narayana

Reddy was died without children long back and Doddi Chinnappa was unmarried and he also died long back and the father of the defendant 6 by name Doddi Chinna Narayanappa died 40 years back prior to filing of the suit. There is no dispute that the defendants are siblings and

Guggilla Pedda Krishna Reddy is their paternal grand father and

Guggilla Narayana Reddy is their father. It is also not in dispute that

Guggilla Pedda Krishna Reddy, who is the paternal grand father of defendants had purchased the schedule property from Doddi Pedda

Narayanappa @ Doddi Pedda Narayana Reddy, Doddi Chinnappa under the registered sale deed, dated 28-04-1936.

10.The case of the plaintiff is that the plaint schedule property is ancestral property and his father Doddi Chinna Narayanappa @ Chinna

Narayana Reddy had 1/3 rd joint share in the schedule property and his father died about 10 years back leaving behind him as his sole heir. It is further case of the plaintiff that his father Doddi Chinna

Narayanappa was in joint possession and enjoyment of his 1/3rd share along with his two brothers and his paternal uncles executed a document in favour of the grandfather of the defendants without informing to his father and his father had 1/3rd share in the schedule property and he is co-owner along with defendants and he is in joint possession and enjoyment of the schedule property. It is also the case of the plaintiff that he approached the defendants several times and requested for partition of his joint 1/3rd share but the defendants declined to do so and at that stage he filed the suit for partition of plaint schedule property into three shares and to allot his 1/3rd share in the schedule property. On the other-hand, the case of the defendants is that the schedule property is not the ancestral property and it is their exclusive property and the plaintiff was never in joint possession and enjoyment of the schedule property and he is not at all 7 co-owner of the schedule property and he has no manner of right and interest over the schedule property. It is further case of the defendants their paternal grand father Krishna Reddy had purchased the schedule property from his vendors Doddi Pedda Narayanappa @ Doddi Pedda

Narayana Reddy, Doddi Chinnappa under registered sale deed, dated 28-04-1936 for valuable consideration and since then he had been in possession of the schedule property and thereafter his father Narayana

Reddy inherited the schedule property and they succeeded the schedule property and some other properties and thereafter, they partitioned their family properties through registered partition deed,

dated 17-04-2012 and since then they have been in enjoying their

properties including the schedule property and the plaintiff has no manner of right or interest over the schedule property and the schedule property is not liable for partition and hence, the suit is to be dismissed.

11.The plaintiff filed the suit for partition contending that the sit schedule property is his joint family property and his father had undivided 1/3rd share in the schedule property. The defendants denied the case of the plaintiff in toto. It is well settled that a property

cannot be presumed to be the joint family property merely

because of existence of joint family and the burden of proving

the property to be joint family property always lies on the

person who so asserts. In view of the above circumstances, the entire burden lies on the plaintiff to prove that schedule property is his joint family property and the schedule property is liable for partition and he has 1/3rd share.

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12.To prove his case, the plaintiff himself examined as PW.1 and filed his examination-in-chief in the form of chief-affidavit and wherein

PW.1 reiterated the plaint averments. As such the examination-in-chief of PW.1 is nothing but replica of plaint and therefore, there is no need to discuss the chief-examination of PW.1 to avoid repetition and for the sake of brevity. In support of his evidence, he also examined PW.2-

J.Krishnamurthy and in his evidence he supported the case of the plaintiff. PWs. 1 and 2 testified that the schedule property is the ancestral property of plaintiff and the grandfather of defendants obtained a document from the brothers father of PW-1 and the father of PW-1 had undivided 1/3 rd share in the schedule property and accordingly, the plaintiff is co-owner along with defendants and he is entitled 1/3rd share in the schedule property. The learned counsel for the defendants has cross-examined PWs.1 and 2. In his cross- examination PW-1 stated that he does not know who died before whom among three brothers viz., Pedda Narayanappa, Chinna Narayanappa and Nadipi Chinnappa. He stated that there is no proof showing that

Doddi Pedda Narayanappa was also called as Pedda Narayana Reddy.

and he does not know the date and month of sale of suit property in favour of grand father of defendants and also particulars of document of sale and he did not see the sale deed said to have been executed in favour of grand father of defendants and so he cannot state the particulars of schedule. In cross-examination, PW-1 also made it clear that there is no adangal and 1-B(10-1) either in his name or in his father’s name in respect of suit property and there is no record to show that his father during his life time challenged the sale deed 9 executed by his brothers in favour of grand father of defendants. He clearly admitted that for the last 50 years the names of his father, grandfather and himself were not mentioned in the records in respect of suit property. He denied the suggestion that Ex.A1 resettlement register is old one and it has no relevancy at present. He stated that he does not know whether the defendants have partitioned their family property along with suit schedule property. He admitted that the grandfather of defendants had been in possession of the schedule property and thereafter, the father of the defendants and defendants have been in possession of the schedule property. He stated that as the possession of suit property is with the defendants, he requested the defendants to give it back to him. He admitted that the names of defendants are mutated in revenue record in respect of suit property and they were issued pattadar passbook and titled deed. He denied the suggestion that he is no way concerned with suit property and that as the prices of suit land has been hiked, he filed this frivolous suit to have wrongful gain and to harass the defendants. PW-2 in his cross- examination stated that he is general merchant in Akkampalli and he is doing business and the father of the plaintiff has no other name except

Pedda Narayana Reddy and Dhoddi Pedda Narayana Reddy died more than 50 years back prior to his joining in that village. He cannot say the month and year of the death of said Pedda Narayana Reddy and

Dhoddi Chinna Narayanappa died about 50 years back i.e., after 6 months of his joining in the village and he does not know when Dhoddi

Chinnappa died. He stated that he does not know the boundaries of schedule property. He denied the suggestion that the plaintiff has no right in the schedule property and the plaintiff is not entitled to 1/3rd 10 share in the schedule property and that he is deposing false at the instance of the plaintiff. In support of his oral evidence, the plaintiff also relied upon Exs.A1 to A3. Ex.A1 is resettlement register extract obtained under R.T.I., Act and it shows that the particulars of the pattadars of lands in Rachanapalli village and the names of father of plaintiff and his brothers are mentioned but it does not reveal that the schedule property is ancestral property of the plaintiff. Ex.A2 is legal notice dt.23.1.12 issued by the plaintiff to the defendants and Ex.A3 is reply notice dt.14.2.2012 issued by the defendants to the plaintiff and they are self-styled documents.

13.To rebut the case of defendants, the second defendant examined himself as DW-1. DW-1 filed his evidence in the form of chief-affidavit and wherein he reiterated the written statement averments substantially and therefore, there is no need to discuss the chief- examination of DW-1 once again to avoid unnecessary repetition. The learned counsel for the plaintiff has cross-examined DW-1. In cross- examination, DW.1 stated that he does not know whether the schedule property originally belonged to Doddi Subbanna and said Dhoddi Pedda

Narayana, Dhoddi Chinnappa and Dhoddi Chinna Narayanappa are sons of Dhoddi Pedda Subbanna. He admitted that the names of

Dhoddi Pedda Narayana, Dhoddi Chinnappa and Dhoddi Chinna

Narayanappa are mentioned in diglot. He denied the suggestion that the schedule property is joint family property of above said three persons. He admitted that Pedda Narayanappa died issueless,

Chinnappa died unmarried. He know Chinna Narayanappa but he does 11 not know his father’s name. He admitted that the plaintiff is son of

Chinna Narayana Reddy and in Kapu community Narayanappa also called as Narayana Reddy. He denied the suggestion that the father of the plaintiff had joint right and share in the schedule property as he is not executant of sale deed dt.28.4.1936. He also denied the suggestion that the plaint schedule property is joint family property of plaintiff and he is having 1/3rd share in the schedule property and during life time of Chinna Narayana Reddy, father of plaintiff demanded for partition of schedule property into three shares and after his demise, the plaintiff also demanded the defendants for allotment of his 1/3rd share in the schedule property and they went on postponing and accordingly, the plaintiff filed the suit.

14.In support of his ocular evidence, the defendants relied on

Exs.B1 to B11 documents. Ex.B1 is served copy of legal notice issued by the plaintiff and Ex.B2 is copy of reply notice issued by the defendants. There is no dispute in respect of issuance of legal notice and reply notice in between the parties under Exs.B1 and B2 and therefore, there is no need to go deep into the said contents of Exs.B1 and B2. Ex.B3 is certified copy of registered sale deed dt.28.4.1936 and the said document goes to show that Chinnappa and Narayanappa sold away the schedule property to the grandfather of defendants for a sale consideration of Rs.100/-. Ex.B4 is original registered partition among the defendants dated 29-02-2012 and it reveals that the defendants were partitioned their family properties including schedule property under register partition deed. Ex.B5 is original pattadar passbook issued to D.1, Ex.B6 is original pattadar passbook issued to 12

D.2, Ex.B7 is original Kissan Credit Card passbook issued to D.1, Ex.B8 is true copy of adangal extract obtained through mee-seva, Ex.B9 is true copies of form-1B (ROR-2 in Nos) obtained through mee-seva,

Ex.B10 is copies of earlier adangal extracts through RTI Act and Ex.B11 is encumbrance certificate-2 in No., dt.23.2.2012 and 21.2.2012. There is no dispute about Exs.B5 to B11 and the plaintiff himself admitted the said documents. Exs.B5 to B11 would clearly goes to the defendants are in possession and enjoyment of schedule land along with other lands as per the partition deed. The plaintiff himself admitted in his cross-examination about the possession of the defendants in the schedule property and therefore, there is no need to delve deep into the contents of Exs.B5 to B11.

15.I have minutely perused the evidence and material brought on the record. The plaintiff consistently stated that the schedule property is the joint family property of his father and his father had undivided 1/3rd share in the schedule property. Except the self-serving testimony of PW-1 there is no acceptable material before the Court to show that the schedule property is the joint family property of his father. It is no doubt true that the plaintiff also examined the witness as PW-2 and he stated that the schedule property is joint family property of the plaintiff and it is brought on record that the senior paternal uncles of plaintiff sold away the schedule property to the paternal grandfather of the defendants on 28.4.1936 much prior to PW-2 migrated to the village of plaintiff. It is also brought on record that the father and senior paternal uncles of plaintiff died more than 50 years back and then this Court is unable to understand how can say PW-2 that the schedule property is 13 joint family property of the plaintiff. Ex.A3 is the prime and vital document in this case. The entire case revolves around the said document. The said document is of the year 1936 and the said 1936 year document reveals that the property covered under it is the property of executants of it and it is not at all recited in the said document that the said property is the joint family property of the father of the plaintiff and in such circumstances, the plaintiff has no right claim the partition of the said property. Another added dimension to negate the case of the plaintiff is that by the year 1936 the plaintiff was not born and it appears that he was born in the 1960's and in that legal scenario the plaintiff has no right to seek partition of the schedule property which was sold in the year 1936 itself i.e., nearly 26 years

before the birth of plaintiff. Much before his birth his senior paternal

uncles sold away the schedule property to the paternal grandfather of the defendants and that too the father of the plaintiff also maintain silence and he died at about 50 years back. But, he was not at all raised his voice and questioned the sale of the schedule property by his brothers during his life time. If really the schedule property was joint family property definitely, the father of the plaintiff would have objected the alleged sale or knock the doors of justice, but the same cannot be happened, which paves this Court come to conclusion that the schedule property was not the joint family property. The plaintiff failed to prove his joint ownership and possession over the schedule property. The plaintiff also miserably failed to prove his case. On the other-hand, the defendants by exhibiting Exs.B3 to B11 clearly substantiate their defence that the schedule property is their excessive property.

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16.Viewed from any angle, this Court is of the considered view that the plaint schedule land is not the joint family property of the plaintiff and there is no joint family and the plaintiff and the registered partition deed entered by the defendants is true, valid and binding on the plaintiff. This Court is also of the view that the plaintiff has no manner of right and interest over the schedule property and accordingly, he has no right to seek for partition of the schedule property. Hence, the plaintiff is not entitled any share in the schedule property. I answered the issues 1 to 3 against the plaintiff and in favour of the defendants.

ISSUE No.4

17.In view of my findings in issues 1 to 3 against the plaintiff and in favour of the defendants, the suit of the plaintiff is liable to be dismissed. I held the issue accordingly.

18.In the result, the suit is dismissed without costs.

Typed to my direct dictation, corrected and pronounced

by me in open court on this the 23 rd day of July, 2019.

Addl. Senior Civil Judge, Ananthapuramu

Appendix of evidence

Witnesses examined for

Plaintiff: Defendants:

PW.1: D. Subbi Reddy DW.1:G. Adinarayana Reddy. PW.2: J. Krishna Murthy.

Exhibits marked for plaintiff:

Ex.A1: Resettlement register extract obtained under R.T.I., Act, Ex.A2: Office copy of legal notice dt.23.1.12, 15

Ex.A3: Reply notice dt14.2.2012.

Exhibits marked for defendants:

Ex.B1: Served copy of legal notice issued by the plaintiff, Ex.B2: Copy of reply notice issued by the defendants, Ex.B3: Certified copy of registered sale deed dt.28.4.1936, Ex.B4: Original registered partition among the defendants, Ex.B5: Original pattadar passbook issued to D.1, Ex.B6: Original pattadar passbook issued to D.2, Ex.B7: Original Kissan Credit Card passbook issued to D.1, Ex.B8: True copy of adangal extract obtained through mee-seva, Ex.B9: True copies of form-1B (ROR-2 in Nos) obtained through mee-seva, Ex.B10: Copies of earlier adangal extracts through RTI Act, Ex.B11: Encumbrance certificate-2 in No., dt.23.2.2012 and 21.2.2012.

ASCJ

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IN THE COURT OF THE ADDL.SENIOR CIVIL JUDGE:

ANANTHAPURAMU

Present: P. Srinivasa Rao, Senior Civil Judge,

Ananthapuramu.

Monday, this the 22nd day of July, 2019.

O.S.No.534 of 2014

Between:

Mallempudi Surya Prakash S/o Late Veera Narappa, 57 Years, Hindu, Bondalavada village, Narpala Mandal, Ananthapuramu District.

….Plaintiff.

A N D

N. Mustafa s/o N. Bashu, 40 years, Muslim, Business, D.No.28-1- 77-2(6), Sangamesh Circle, Ananthapuramu.

….Defendant.

This suit coming on 19.7.2019 for final hearing before me in the presence of Sri K. Rama Mohan Reddy,

Advocate for the plaintiff and that of Sri K.L. Nagarjuna

Guptha, Advocate for the defendant and having stood over for consideration to this day the Court delivered the following:

J U D G M E N T

Suit for recovery of money of Rs.3,69,600/- being the

principal and interest due on two promissory notes and for costs.

2.The plaint averments, in brief, are as follows:-

On 1.10.2013 the defendant borrowed an amount of

Rs.3,00,000/- from the plaintiff for his family and business necessities and executed ‘A’ and ‘B’ marked promissory notes each for Rs.1,50,000/- in favour of the plaintiff promising to repay the debt with interest at the rate of 24% per annum. Thereafter, in-spite of several demands made by the plaintiff, the defendant did not discharge the suit debt. The plaintiff got issued legal 2 notice on 7.7.2014 demanding the defendant to repay the pronote amount but he did not repay the same. Hence, the suit.

3.The defendant resisted the suit by filing a written statement. His case, in brief, is as follows:-

The material allegations made in the plaint by the plaintiff are not true, valid and sustainable in law. The defendant is no way connected with the plaintiff. The approached Y. Mohammadi working as J.A.O., in A.P.S.E.B., at Ananthapuramu who is one of the witness to the suit pronotes and requested to give

Rs.1,50,000/- and said Mohammadi accepted to give loan on condition precedent that the defendant should execute three pronotes for single debt and if the borrowed amount paid by the defendant, Mohammadi promised that he will not utilize the other two pronotes. Accordingly, Mohammadi brought 3 pronotes and asked the defendant to sign in blank pronotes but this defendant refused to sign and later Mohammadi asked the defendant to write only the amount as Rs.1,50,000/-, date in figures and words as 1-10-2013 on the top and the amount in figures and words in the middle of all the pronotes and also to sign on the revenue stamps and other signatures at the end of the pronotes and the defendant accepted the same and signed as stated by Mohammadi and Mohammadi gave Rs.1,50,000/- to the defendant and the defendant repaid the same amount to

Mohammadi with interest.. The defendant requested

Mohammadi to tore the pronotes but he torn one pronote only and assured the defendant not to utilize the other two pronotes which were kept in his locked in the bank and he will tore them later. The defendant trusted his words and kept quite. The said 3

Mohammadi fraudulently and dishonestly with intet to have wrongful gain connived with the plaintiff who is his friend and created the pronotes and filed this suit psed as 1st witness and also as scribe. The said Mohammadi did not file the suit as he is government employee and crated the pronotes in the name of plaintiff. The defendant astonished while he received the notice.

The plaintiff has no individual capacity to lend such huge amount either to this defendant or any body and the alleged pronotes are not supported bny any cash consideration and are not at all admissible in evidence. There is no cause of action for the suit and hence, the suit is to be dismissed with costs.

4.On the above pleadings, my learned predecessor has framed the following issues for trial :-

1. Whether the A and B marked pronotes

dt. 1.10.2013 are true, valid and binding

on the defendant?

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

3. To what relief?

5.On behalf of the plaintiff, Pws.1 and 2 are examined and got marked Exs.A1 to A4. PW.1/M. Surya Prakash is the plaintiff and PW.2/Y. Mohammad is the scribe of Exs.A1 and A2. Exs.A1 and A2 is promissory note, dated 1.10.2013, Ex.A2 is promissory note, dated 1.10.2013, Ex.A3 is office copy of legal notice dt.7.7.2014, Ex.A4 is postal receipt.

6.On behalf of the defendant, he himself examined as D.W.1.

No documentary evidence was adduced on his behalf.

7.Heard arguments on both sides.

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ISSUES 1 and 2 :-

8. Since the issues 1 and 2 are inter-related with each other they are taken-up together for joint discussion to avoid repetition and for the sake of brevity.

9.I have gone through the oral and documentary evidence brought on the record. The case of the plaintiff is that the defendant borrowed an amount of Rs.3,00,000/- from him on 1.10.2013 and executed Exs.A1 and A2 each for Rs.1,50,000/- and subsequently he failed to repay the same along with interest @ 24% per annum, accordingly he filed the suit for recovery of amount covered under Exs.A1 and A2. The plaintiff got issued legal notice to the defendant on 7.7.2014 demanding to repay the suit amount but the defendant failed to repay the same. On contra, the case of the defendant is that he never executed

Exs.A1 and A2 nor borrowed Rs.3,00,000/- from the plaintiff and he borrowed an amount of Rs.1,50,000/- from Mohammad, scribe of Exs.A1 and A2 and on condition of said Mohammad, the defendant issued 3 pronotes and he signed in pronotes and discharged the said amount and Mohammad torn one pronote and kept remaining two poronotes and got filed the suit in the name of plaintiff by creating the suit promissory notes with a view to have wrongful gain. According to the defendant, the suit promissory notes are forged and fabricated document.

10.In view of the defendant has denied the very suit transactiondated 1.10.2013, the entire burden lies on the plaintiff to show that the defendant has borrowed an amount of

Rs.3,00,000/-. To establish his case, the plaintiff himself entered into witness box and examined as PW.1 and wherein he reiterated the plaint averments in verbatim. As such, the 5 examination-in-chief of PW.1 is nothing but replica of plaint. PW.1 was cross-examined at length and in cross-examination PW.1 stated that he is having Ac.14-00 cents of land and he is not doing money lending business but he can lend money to the persons who approached him and he used to collect 24 % interest. He further stated that Exs.A1 and A2 were scribed by

Mohammadi and he is doing job in electricity department and he was residing opposite to his house. He denied the suggestion that the scribe gave money to the defendant. He stated that he lent Rs.3,00,000/- to the defendant in his house at Sainagar,

Ananthapuramu and the defendant executed Exs.A1 and A2 in his favour each for Rs.1,50,000/-. He denied the suggestion that he obtained 3 empty pronotes from the defendant on 1.10.2013.

He further denied that the defendant repaid Rs.1,50,000/- and he also torn the pronote and gave assurance to the defendant that he will hand over remaining two pronotes to the defendants but did not handed over to him and got filed the suit with false allegations with a view to cheat him and also to extract money from him.

11.To prove his case, the plaintiff has strongly relied on the evidence of PW.2. He also placed heavy reliance on Exs.A1 and

A2 suit promissory notes. Exs.A1 and A2 are the primary documents in this case. I have carefully perused Exs.A1 and A2.

A perusal of Exs.A1 and A2 discloses that on 1.10.2013 the defendant has borrowed a sum of Rs.3,00,000/- under Exs.A1 and A2 from the plaintiff each for Rs.1,50,000/-. Exs.A1 and A2 further discloses that PW.2 was scribe of Exs.A1 and A2 and one

Ghouse Basha was attestor of Exs.A1 and A2. The said promissory notes also reveal that the signatures of the defendant 6 as executant. Ex.A3 is office copy of legal notice issued by the plaintiff to the defendant demanding him to repay the pronotes amount. Ex.A4 is postal receipt for serving the legal notice on the defendant. PW.2 who is the scribe of Exs.A1 and A2 also testified that the defendant borrowed Rs.3,00,000/- from the plaintiff in his presence and he scribed Exs.A1 and A2 and the defendant put his signatures on Exs.A1 and A2 in his presence and stated that one Ghouse Basha was attestor of Exs.A1 and

A2. In cross-examination, PW.2 clearly stated that he is working as Assistant Accounts Officer in Electricity Department and he admitted that he did not mention about his employment in his affidavit and he got acquaintance with the defendant and he is not his relative and the plaintiff gave amount to the defendant and the defendant executed two pronotes on that date. He denied the suggestion that the plaintiff obtained 3 pronotes fro the defendant and the defendant discharged the amount to the plaintiff and the plaintiff failed to return the pronotes to the defendant and got filed the false suit. He denied the suggestion that he is giving false evidence in favour of the plaintiff. Though, the learned counsel for the defendant cross-examined PW.2, nothing could be elicited in favour of the defendant and he stood very well in his cross-examination. The evidence of PW.2 is consistent and convincing and nothing is elicited in his cross- examination to discredit his testimony. It is brought on record that PW.2 is friend of PW.1 and he is having very close acquaintance with PW.1 and on that ground the evidence of PW.2 cannot be discarded and much can be given on that ground.

12.The plaintiff as PW.1 clearly stated that on 1.10.2013 the defendant has borrowed Rs.3,00,000/- from him in the presence 7 of PW.2, who was the scribe of Exs.A1 and A2 promissory notes, and subsequently the defendant failed to repay the same.

Except some denial suggestions, nothing is found in his evidence to deny his testimony. He denied the suggestion that obtained 3 pronotes from the defendant and the defendant discharged the amount of Rs.1,50,000/- and he torn the pronote and assured that he will had over two pronotes but did not handed over to him and he forged his signatures and created Exs.A1 and A2 for wrongful gain. The presence of PW.2 is spoken by the plaintiff and his evidence is clinching. PW.1 was suggested that the defendant have not borrowed money from him and created

Exs.A1 and A2 for the purpose of the suit. But, PW.1 denied the said suggestion. PW.2 who is said to be independent witness unequivocally along with PW.1 in one voice testified that in his presence the defendant has received an amount of Rs.3,00,000/- from the plaintiff and executed Exs.A1 and A2 each for

Rs.1,50,000/- and this witness also identified his signature and stated that the defendant put his signatures on Exs.A1 and A2 as executant of the said pronotes. The defendant did not choose to challenge the signatures on Exs.A1 and A2 nor produced any positive material before the Court in order to show that the suit pronotes are forged, fabricated and not supported by any consideration nor executed for availing loan. If the borrower denies the execution of the pronotes, then the option left for the plaintiff (creditor) is to produce the documents for the purpose of inspection. Exs.A1 and A2 are primary documents. The recitals in Exs.A1 and A2 clearly show that the defendant has borrowed a sum of Rs.3,00,000/- from the plaintiff. The execution of the said documents cannot be viewed with suspicion until unless some evidence is brought by the executor. If at all plaintiff has got any 8 intention either to harass the defendant or to make wrongful gain from him he would have claimed the higher amount than the amount mentioned in the suit promissory notes.

13.Section 118 of Negotiable Instruments Act deals with certain special rules of evidence and presumptions and precludes certain pleas raised any particular circumstance. The presumption incorporated under the Section is not absolute, it can be rebutted by direct or circumstantial evidence or even on presumption of law or fact. The presumption under the section is only applicable when the execution of Negotiable instrument is proved when denied by the maker. This section provides for nothing more than the rule that a promissory note prima facie imports consideration for the value. Here, in the instant case, no motive is made out against the scribe PW.2 to speak falsehood against the interest of the defendant and in favour of plaintiff.

Similarly, no motive is attributed or made out to the plaintiff for filing any falsehood against the defendant for recovery of such huge amount. The plaintiff on the face of consistent oral evidence of Pws.1 and 2 in respect of execution of, able to prove execution of Exs.A1 and A2 in favour of the plaintiff by the defendant for valid consideration of Rs.3,00,000/- paid under

Exs.A1 and A2. The evidence of PW.1 and PW.2 coupled with

Exs.A1 and A2 would clearly go to show that on 1.10.2013 the defendant has borrowed Rs.3,00,000/- from the plaintiff and executed Exs.A1 and A2 each for Rs.1,50,000/-. So, therefore, the plaintiff satisfactorily discharging the initial burden. Thus, the plaintiff’s burden initially stands discharged.

14.Now, I will turn to the case of the defendant.The case of the defendant is that he did not borrow any amount from the 9 plaintiff and the plaintiff created Exs.A1 and A2 with a view to extract money from them and the plaintiff created the suit pronotes with the help of alleged scribe. To rebut the case of the plaintiff, the defendant himself examined as DW.1 and filed his evidence in the form of chief-affidavit and re-iterated the averments of the written statement. The defendant denied that on 1.10.2013 he borrowed Rs.3,00,000/- from the plaintiff and executed Exs.A1 and A2. In cross-examination he denied the suggestion that he never borrowed a sum of Rs.3,00,000/- from the plaintiff. The material on record and evidence of PW.2 also goes to show that the defendant got well acquaintance with the plaintiff. It clearly appears that the defendant took false plea with a view to avoid the payment of pronotes amount to the plaintiff. Though the defendant took the defence that Exs.A1 and

A2 were forged and fabricated and the signatures on Exs.A1 and

A2 does not belongs to him, he failed to prove the same and he did not take any steps that Exs.A1 and A2 were forged and fabricated documents. This court is unable to understand how the pronotes are forged. Except bald and untenable version of

DW.1 in this regard, there is no tangible material whatsoever

before the Court to show that the defendant was not borrowed

money of Rs.3,00,000/- from the plaintiff. If at all, the plaintiff wants to extract more money from the defendant by forging the signatures on promissory notes, certainly, he would have gone for more amount rather than small amounts. Though the defendant took forged plea, no serious attempts were made on his behalf nor any cogent evidence is let in to prove the forgery of Exs.A1 and A2 or the circumstances under the which the plaintiff is interested to create such documents to file the suit with false claim. Mere suggestions to the witnesses would not 10 suffice the defendant himself admitted that his signatures on

Exs.A1 and A2 pronote and therefore, the alleged forgery of pronotes is completely ruled out. Therefore, there is no force in the evidence of DW.1 in contending that the plaintiff has forged and fabricated Exs.A1 and A2. Mere denial of execution of the documents does not by itself discharge the onus. Moreover, the evidence is required to be proved that the plaintiff has created false documents by forging Exs.A1 and A2. Except self-serving testimony of DW.1 in this regard, there is no tangible evidence to substantiate the above said contentions and hence this Court finds no substance in the contention of the learned counsel for the defendant. The defendant also not adduced any independent evidence to show that the plaintiff has filed false suit against them to take some vengeance and that PW.2 is highly interested witness in favour of plaintiff. Except the self-serving testimony of

DW.1, ther is no iota of material before the Court to show that previously, he borrowed money from PW.2 and executed 3 pronotes in his favour and later, he discharged the amount and

PW.2 failed to return the pronotes and got filed the suit through the plaintiff. The defendant also failed to file the alleged pronotes executed in favour of PW.2 by him. That apart, there is no positive or concrete evidence before the Court to show that there was money transaction between the defendant and PW.2. In the absence of strong evidence, it becomes difficult to accept that

Exs.A1 and A2 are forged documents. In the light of plea of forgery of Exs.A1 and A2, there is heavy burden on the defendant to discharge that plea and they cannot be allowed to run away. In the absence of positive evidence, it has to be necessarily concluded that it is the defendant who has executed

Exs.A1 and A2 and borrowed the amount of Rs.3,00,000/- from 11 the plaintiff under Exs.A1 and A2. Thus, the evidence of PW.2 coupled with Exs.A1 to A4 is enough to hold that the suit pronotes under Exs.A1 and A2 were executed by defendant in favour of plaintiff on receiving the said amount of Rs.3,00,000/-.

Once the initial burden is discharged by the plaintiff on presenting the pronotes Exs.A1 and A2, then the onus shifted to the defendant to resist by producing transparent evidence. But, he did not produce any acceptable evidence to deny the plaintiff's case. In the circumstances, I am not inclined to believe the version of the defendant in this regard. Thus, with the above evidence on record, the plaintiff successfully proved his case that the defendant has borrowed an amount of Rs.3,00,000/- from him and executed Exs.A1 and A2 each for Rs.1,50,000/- in his favour. Once, the execution is proved, the onus shifts on to the defendant to disprove the same and to prove the plea of forgery of Exs.A1 and A2. As stated above, the defendant has failed to discharge his burden shifts on him. Thereby, the plaintiff clearly proved his case that the defendant borrowed an amount of

Rs.3,00,000/- from him on 1.10.2013 and executed Exs.A1 and

A2 and later failed to pay the amount.

15.On a careful consideration of the oral and documentary evidence adduced by both parties, this Court is of the considered view that the defendant has borrowed Rs.3,00,000/- from the plaintiff on 1.10.2013 and executed Exs.A1 and A2, as deposed by PW.1 and PW.2. Thus, the suit pronote is not rank forged and it is true, valid and binding on the defendant. It, therefore, follows that the plaintiff is entitled to recover the suit amount from the defendant with subsequent interest as prayed for. Accordingly, I answered these two issues positively in favour of the plaintiff and 12 against the defendant.

ISSUE NO.3:-

16.In view of my finding on issues 1 and 2 in favour of the plaintiff and against the defendant, the suit of the plaintiff is liable to be decreed.

17.In the result, the suit is decreed with costs for Rs.3,69,600/- in favour of the plaintiff against the defendant, with subsequent interest @ 12%p.a., from the date of filing of suit till the date of decree and @ 6% p.a., from the date of decree till realization on the principal amount of Rs.3,00,000/-.

Typed to my dictation, corrected and pronounced by me on this the 22 th day of July, 2019.

Addl.Senior Civil Judge,

Ananthapuramu.

Appendix of evidence

Witnesses examined

For Plaintiff: For defendant:

P.W.1: M. Surya Prakash.D.W.1:N. Mustafa. PW.2: Y. Mohammad.

Exhibits marked for Plaintiff:

Ex.A1: ‘A’ marked promissory note, dated 1.10.2013. Ex.A2: ‘B’ marked promissory note, dated 1.10.2013. Ex.A3: Office copy of legal notice dt.7.7.2014. Ex.A4: Postal receipt.

Exhibits marked for defendant:

-Nil-

ASCJ 13

1

IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE::

ANANTHAPURAMU

Present. P.Srinivasa Rao,

Addl. Senior Civil Judge, Ananthapuramu

Monday, this the 22nd day of July, 2019.

ORIGINAL SUIT No.216 of 2016

Between:

Thammineni Vasantha Naidu s/o T. Peddaiah, Hindu, 45 years, Hindu, Business, D.No.6-537-4A, Opp. To Coco Cola Godown, Ramnagar, Ananthapuramu.

….Plaintiff.

A N D

G. Eswar Reddy S/o G. Nallapa Reddy, Hindu, 50 years, Flat No.202, Fantasy Residency, Ramnagar, Ananthapuramu, Lecturer, Govt. Vocational Junior College, New Town, Ananthapuramu, now working at Govt.Vocational Jr.College, Kuppam, Chittoor District.

....Defendant.

This suit coming on 19.7.2019 before me for hearing in the presence of Sri N.P. Sreenivasulu, Advocate for the plaintiff and that of Sri C. Surendranatha Reddy,

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

J U D G M E N T

Suit for recovery of money of Rs.4,38,000/- being the

principal and interest due on a suit promissory note dt.5.5.2014

and for costs.

2.The plaint averments are, in brief, as follows:-

On 5.5.2014 the defendant has borrowed an amount of

Rs.3,00,000/- from the plaintiff for his family necessities promising to repay the debtwith interest at the rate of 24% per 2 annum and executed pronote in favour of the plaintiff.

Thereafter, in-spite of repeated demands, the defendant did not pay any amount. Then the plaintiff issued legal notice dt.9.2.2016 demanding the defendant to repay the amount and the notice was returned as unserved to the defendant. Hence the suit.

3.The defendant resisted the suit and filed written statement

His case, in brief, is as follows:-

The material allegations made in the plaint by the plaintiff are not true, valid and sustainable in law and the suit is not maintainable. The plaintiff and the witness are running chit funds and illegal finance business and created this false pronote and filed this suit. The plaintiff has no capacity to lend such huge amount and the defendant has no necessity to borrow the amount from the plaintiff and this defendant. The plaintiff never made any demands to the defendant and no legal notice was received by him. There is no cause of action to file the suit and the court fee paid not not correct and the interest claimed is excess and accordingly, prayed the Court to dismiss the suit with exemplary costs.

4.Basing o the above pleadings, my learned predecessor has framed the following issuesfor trial :-

(1) Whether the suit pronote dt.5.5.2014 is

true, valid and binding on the defendant?

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

(3) To what relief?

5.On behalf of the plaintiff, Pws.1 and 2 are examined and got marked Exs.A1 to A4. PW.1/Vasantha Naidu is the plaintiff 3 and PW.2/M. Vijaya Bhaskar is the scribe to the suit pronote.

Ex.A1 is suit promissory note dated 5.5.2014, Ex.A2 is office copy of legal notice dt.9.2.2016, Ex.A3 is returned postal cover with acknowledgment.

6.Ins-pite of granting ample time, the defendant failed to cross-examine PW.2 and accordingly, the cross-examination of

PW.2 by the defendant side treated nil. The defendant also failed to adduce either oral or documentary evidence in support of his case.

7.Heard arguments on both sides.

ISSUES 1 and 2:-

8.I have carefully perused the oral and documentary evidence adduced by the plaintiff. The case of the plaintiff is that the defendant has borrowed a sum of Rs.3,00,000/- on 5.5.2014 from him agreeing to repay the said amount with interest @ 24% p.a. and executed suit pronote in his favour and in-spite of demands, the defendant did not repay the said amount. In order to establish his case, plaintiff examined himself as PW.1 and filed his examination-in-chief in form of chief affidavit and reiterated the plaint averments. As such, the examination-in-chief of PW.1 is replica of plaint. In support of his case he also relied upon Exs.A.1 to A3. Ex.A.1 is suit pronote, dt 5.5.2014. Ex.A.1 reveals that the defendant has borrowed

Rs.3,00,000/- from the plaintiff on 5.5.2014 agreeing to repay it with interest at 24 % p.a. It is further evidence of PW.1 that the defendant in-spite repeated demands failed to repay the amount.

Ex.A2 is legal notice dt.9.2.2016, Ex.A3 is returned postal cover 4 with acknowledgement. Ex.A2 shows that the plaintiff issued legal notice to the defendant demanding to repay the amount borrowed by him. Ex.A3 shows that the notice issued to the defendant was returned unserved. Ex.A1 clinchingly goes to show that the defendant has availed loan of Rs.3,00,000/-. In- spite of demands the defendant did not repay the said amount.

According to the defendant, he never executed Ex.A1 nor borrowed the amount covered under Ex.A1 from the plaintiff and the plaintiff forged the signatures of the defendant with the help of attestor and created Ex.A1 for wrongful gain. His case is that the suit promissory note under Ex.A1 is created and fabricated for the purpose of the suit to extract money from him for wrongful gain. PW.1 in his cross-examination stated that he is doing real estate business and also tomato commission agent.

He further stated that he lent Rs.3,00,000/- to the defendant in his house on 5.5.2014 and filed the suit against him for recovery of the said amount. He further stated that at the time of transaction himself, defendant, Vijayabhaskar Chowdary and

Gangadhar Naidu were present and Vijaya Bhaskar Naidu scribed

Ex.A1 and he also demanded the defendant to repay the amount and also issued legal notice to the defendant on 9.2.2016 and only one revenue stamp was affixed on the pronote and the defendant put his two signatures on Ex.A1. He admitted that the defendant is a Government lecturer. He denied the suggestion that the the defendant is a Government lecturer and he has no need to borrow money from him and Ex.A1 is created and forged document and the signatures in Ex.A1 does not belong to the defendant and he is deposing false. In support of his case, PW.1 also examined PW.2/Vijaya Bhaskar Chowdary, Scribe of the suit pronote. PW.2 in his evidence deposed that the defendant herein 5 borrowed the amount of Rs.3,00,000/- on 5.5.2014 and at the time of execution of pronote, the plaintiff, defendant, one M.

Ganghdar Naidu and himself were present and he scribed the suit pronote and the defendant signed on the revenue stamp and underneath the revenue stamp in pronote in English and M.

Gangadhar Naidu signed as attestor. In-spite of granting ample time, the defendant failed to cross-examine PW.2.

9.In view of the defendant has denied the very suit transaction under Ex.A1, therefore, the burden lies on the plaintiff to show that the defendant has availed loan of

Rs.3,00,000/- on 5.5.2014 and executed Ex.A1.

10. In support of his ocular evidence, the plaintiff also strongly placed reliance on Exs.A1 to A3. Ex.A1 is the primary document in this case. I have carefully perused Ex.A1. A perusal of Ex.A1 it discloses that on 5.5.2014, the defendant has borrowed a sum of Rs.3,00,000/- and executed Ex.A1 in favour of the plaintiff. Ex.A1 further discloses that PW-2 is scribe of Ex.A1.

The said pronote under Ex.A1 also discloses the signatures of executants/defendant at the relevant column. P.W.1 in his evidence clearly testified that the defendant has borrowed the amount covered under Ex.A1 from him and executed Ex.A1 in his favour and thereafter the defendant failed to repay the pronote amount. PW.2 also clearly supported the case of the plaintiff. It appears that he is independent witness. His evidence is consistent and convincing and there is no reason to disbelieve his evidence and his evidence is clinchingly corroborating with the evidence in respect of suit transaction under Ex.A1 and his 6 evidence is inspiring the confidence of the Court. In-spite of cross-examination of PW.1, no material particulars elicited in favour of the defendant. Except some denial suggestions, nothing is found in his evidence to deny the testimony of PW-1.

The evidence of PW-1 is consistent and convincing and nothing is elicited in his cross-examination to discredit his testimony. The evidence of PW-1 clinchingly corroborated with the recitals of

Ex.A1 and also with the evidence of PW.2. It clearly appears that the evidence of PW-1 is trustworthy and I do not find any reason to disbelieve his evidence. The defendant did not choose to challenge the signatures on Ex.A1 nor examined any witness in order to show that the suit pronote under Ex.A1 is forged, created and not supported by any consideration nor executed for availing loan. If the borrower denies the execution of the pronote, then the option left for the plaintiff (creditor) is to produce the document for the purpose of inspection. Ex.A1 is primary document. The recitals in Ex.A1 clearly shows that the defendant borrowed a sum of Rs.3,00,000/- on 5.5.2014. The execution of the said document under Ex.A1 cannot be viewed with suspicion until unless some evidence is brought by the executor. The evidence of P.Ws1 and 2 coupled with Exs.A1 to A3 would clearly go to show that the defendant have borrowed

Rs.3,00,000/- on 5.5.2014 from the plaintiff and executed Ex.A1.

The plaintiff on the face of consistent oral evidence of Pws.1 and 2 in respect of execution, able to prove the execution of Ex.A1 in favour of the plaintiff by the defendant for valid consideration under Ex.A1. Thus, the plaintiff's burden initially stands discharged. Therefore, the plaintiff satisfactorily discharging the burden lies on him.

7

11.Be that as it may, the defendant denied the execution of

Ex.A1 suit promissory note. The defendant denied the suit transaction. He specifically pleaded that Ex.A1 is created document. Though the defendant took the defence that the suit pronote is forged and created, he failed to prove the same and he did not take any steps that the Ex.A1 is created. Ex.A1 is the suit promissory note executed by the defendant. The defendant alleged forgery, but he did not take steps to establish the same.

The defendant has denied the signatures on the Ex.A1. On the plea of forgery of his signatures on the Ex.A1, the defendant invited the shifting of burden. However, no serious attempts were made on his behalf nor any cogent evidence is let in to prove the forgery of Ex.A1 or the circumstances under which the plaintiff is interested to create such document and to file the suit with false allegations. The defendant did not adduce any rebuttal evidence so as to substantiate his contention. More so, the defendant remained ex-parte and the defendant also failed to enter into witness box and adduce any evidence on his behalf. In the absence of any positive evidence to the above allegations, the same cannot be considered and the contentions in the written statement cannot be sustained. The defendant has also not adduced any independent evidence to show that the plaintiff has filed a false suit against him to take some vengeance and that PW.2 highly interested witness in favour of the plaintiff. In the absence of strong evidence, it becomes difficult to accept that Ex.A1 is a created document. More over, the defendant did not enter into witness box in support of their pleadings. Thereby, avoided the cross-examination by the other side. This by itself is sufficient to draw an adverse inference against them U/s 114(g) of Indian Evidence Act, holding that the case set up by the 8 defendant in his written statement is false. Since Ex.A1 suit promissory note is Negotiable Instrument, presumption under

Section 118 of Negotiable Instrument Act were invoked. The defendant except taking the defence of forgery and created in his written statement failed to establish the same by rebutting such presumptions. He failed to lead any rebuttable evidence.

Mere denial of execution of the document does not by itself discharge the onus. Once the burden is discharged by the plaintiff on presenting the pronote-Ex.A1 then the onus shifted to the defendant to resist by producing transparent evidence. As already stated, the defendant did not adduce either oral or documentary evidence to deny the case of the plaintiff. In the circumstances, I am not inclined to believe the version of the defendant in this regard.

12.What emerges from the above discussion is that the defendant executed Ex.A1 after borrowing the amount covered under Ex.A1. Therefore, in the above circumstances, this Court is of considerable view that Ex.A1 is not fabricated and forged document and Ex.A1 is true, valid and binding on the defendant.

It, therefore, follows that the plaintiff is entitled to recover the suit amount from the defendant with subsequent interest as prayed for. I answered these issues in favour of the plaintiff and against the defendant.

ISSUE No.3:-

13. In view of my finding on Issues 1 and 2 in favour of the plaintiff, the suit of the plaintiff is liable to be decreed.

9

14.In the result, the suit is decreed with costs directing the defendant to pay a sum of Rs.4,38,000/- together with subsequent interest @ 12% p.a., from the date of filing of the suit till the date of decree and thereafter @ 6% p.a. till the date of realization on adjudged amount Rs.3,00,000/-.

Typed to my dictation by the Stenographer-II corrected and

pronounced by me in open Court, this the 22nd day of July, 2019.

Addl. Senior Civil Judge, Ananthapuram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For defendant:

PW-1: T. Vasantha Naidu.-None- PW.2: M. Vijaya Bhaskar.

EXHIBITS MARKED FOR PLAINTIFF:

Ex.A1: Suit promissory note, dt 5.5.2014. Ex.A2: Office copy of legal notice dt.9.2.2016. Ex.A3: Returned postal cover with acknowledgement.

EXHIBITS MARKED FOR DEFENDANT:

-Nil-

A.S.C.J

1

IN THE COURT OF THE ADDL. SENIOR CIVIL JUDGE,

ANANTAPURAMU

Present:- Sri P.Srinivasa Rao,

ADDL. SENIOR CIVIL JUDGE, ANANTAPURAMU.

Tuesday the 23rd day of July, 2019.

OS No.608/2015

Between:

State Bank of India(ADB), rep. By its branch manager, Ananthapuramu. …..Plaintif

And

Gooty Venkateswaramma w/o Lakshminarayana, Hindu, Cultivation, Julakaluva village, Singanamala Mandal, Ananthapuramu District.

….Defendant.

This suit is coming on 22.7.2019 for final hearing before me in the presence of Sri N.R.K. Mohan, Advocate for the plaintiff/bank and the defendant remained ex-parte and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

The plaintiff-bank filed the suit against the defendant for recovery of the suit amount of Rs.8,04,274/- and for costs.

2.The plaint averments in brief are as follows:

The defendant has approached the Plaintiff-Bank for a loan of

Rs.4,50,000/- (Cash loan of Rs.50,000/- and term loan of Rs.4,50,000/-) and on scrutiny the Plaintiff-Bank has sanctioned the loan to the defendant. The defendant agreed to repay the loan amount with interest at 10.75% p.a., subject to fluctuations in the rate of interest apart from terms and conditions of the bank and the defendant has executed 2 hypothecation agreement on 25.2.2005 and he also executed registered mortgage deed on 18.2.2005 in favour of Plaintiff-Bank towards security of loan amount by mortgaging the plaint schedule property. The defendant has availed loan facilities but became defaulter in payment of installments. Later, in spite of repeated demands made by the Plaintiff-

Bank, the defendant has not paid any amount either towards principal or interest. Hence, the suit for recovery of amount.

3.The defendant resisted the suit by filing a written statement. His case, in brief, is as follows:-

The material allegations made in the plaint by the plaintiff are not true and correct and they are created for the purpose of the suit. The plaintiff never made demands and the officer who signed the plaint is not authorized to sign the plaint and to prosecute the case and the account extract filed is not correct. The payments made towards the debt are not deducted and if the amounts paid by the defendant are deducted no amount will be due to the Plaintiff-Bank. The plaintiff is not entitled to recover the suit amount and the interest claimed is very excessive and the suit claim is barred by time and as such the suit is liable to be dismissed with costs.

4.Basing on the above pleadings, the following issues were settled for trial:-

1.Whether the plaintiff is entitled for recovery of suit

amount under registered mortgage deed dt.18.2.2005?

2.To what relief?

5.On behalf of the Plaintiff-Bank, PW.1 is examined and Exs.A1 to A3 are marked. PW.1/T. Mahalakshmamma is Branch Manager of Plaintiff- 3

Bank. Ex.A1 is hypothecation agreement dt.25.2.2005, Ex.A2 is registered mortgage deed dt.18.2.2005 and Ex.A3 is account extract.

6.PW.1 examined on 16.4.2019 and the suit is coming for cross- examination of PW.1 since 23.4.2019 and in-spite of granting more than 3 months time the defendant and his counsel failed to cross-examine

PW.1. On 22.7.2019 the defendant called absent and no representation.

It appears that the defendant has no interest to proceed cross- examination of PW.1. In view of the above circumstances, this Court has no other option except to set the defendant ex-parte.

7.Heard the learned counsel for the plaintiff.

ISSUE No.1 :-

8.I have carefully gone through the oral and documentary evidence brought on the record.The case of the Plaintiff-Bank is that the defendant having availed loan of Rs.4,50,000/- and executed Exs.A1 and

A2 in its favour promising to repay the debtwith interest at the rate of 10.75% per annum. It is further case of the Plaintiff-Bank that in-spite of demands, the defendant failed to pay the amount and accordingly, the defendant committed default in payment of loan amount. According to the defendant, he neither borrowed any loan from the Plaintiff-Bank nor executed any documents in favour of the Plaintiff-Bank and he also stated that Ex.A3 is not correct. In the suit on hand, there is no dispute that the defendant availed loan of Rs.4,50,000/- from the Plaintiff-Bank and executed Exs.A1 and A2 in favour of the Plaintiff-Bank. The main contention of the defendant is that he discharged some of the loan amount and the payments not deducted by the Plaintiff-Bank and the 4 rate of interest also exorbitant and the statement of account is not correct and prayed to dismiss the suit.

9.To prove its case, the Plaintiff-Bank examined its Manager/T.

Mahalakshmamma as PW.1. PW.1 filed his examination-in-chief in the form of chief-affidavit wherein he reiterated the plaint averments in verbatim. As such the examination-in-chief of PW1 is nothing but replica of plaint and therefore there is no need to discuss the examination-in- chief of PW.1 to avoid repetition and for the sake of brevity. In support of its case, the Plaintiff-Bank relied on Exs.A1 to A.3. Ex.A1 shows that the defendant had approached the Plaintiff-Bank for a loan of Rs.4,50,000/- and the Plaintiff-Bank granted loan of Rs.4,50,000/- to the defendant after executing hypothecation deed and agreed to repay the loan amount with interest at 10.75% p.a. Ex.A2 reveals that the defendant has executed registered mortgage deed on 18.2.2005 by mortgaging the plaint schedule property in favour of Plaintiff-Bank towards security of the loan amount. Ex.A3 reveals that the defendant is due an amount of Rs.8,04,274/- as per account extract. PW-1 was not cross-examined by the learned counsel for the defendant in-spite of granting 3 months time and in view of the above circumstances, this Court feel that the defendant has no interest to proceed with the cross-examination of PW.1 and hence he was set ex-parte. The evidence of PW-1 clinchingly corroborated with the recitals of Exs.A1 to A3. It clearly appears that the evidence of PW-1 is trustworthy and I do not find any reason to disbelieve his evidence. PW.1 is a responsible Bank officer and there is no reason to disbelieve his evidence and the evidence of PW.1 inspired confidence of the court. The defendant simply pleaded that he paid some of the loan amount and the same was not deducted and the 5 statement of account is not correct. However, the defendant did not enter into witness box in support of his pleadings. He also failed to file the alleged receipts before the Court to show that he paid some of the loan amount to the Plaintiff-Bank. Except pleading of the defendant, there is no iota of positive material before the Court to show that the defendant paid part payments to the Plaintiff-Bank and that amounts are not shown in the account extract. The defendant failed to appear before the court and did not adduce any rebuttal evidence so as to substantiate his contentions. More so, the defendant also failed to enter into witness box and adduce any evidence on his behalf. In the absence of any positive evidence to the above allegations, the same cannot be considered and the contentions in the written statement cannot be sustained. The defendant has also not adduced any independent evidence to show that the Plaintiff-Bank has filed a false suit against him. In the absence of strong evidence, it becomes difficult to accept that Exs.A1 and A2 are fabricated documents. More over, the defendant did not enter into witness box in support of his pleadings. This by itself is sufficient to draw an adverse inference against him U/s 114(g) of Indian

Evidence Act, holding that the case set up by the defendant in his written statement is false. In the above circumstances, I am not inclined to believe the version of the defendant in this regard. Exs.A1 and A2 clearly established that the defendant loan of Rs.4,50,000/- from the plaintiff-bank and executed Ex.A2 on 18.2.2005 towards security of the loan transaction. In view of the above circumstances, this Court finds no substance in the contention of the learned counsel for the defendant that the defendant was paid part of the loan amount to the

Plaintiff-Bank. Equally, there is no material before the court to show that the account extract filed by the Plaintiff-Bank under Ex.A3 is not correct.

6

Ex.A3 is the copy of the account extract filed by the Plaintiff-Bank and it is prepared in accordance with Banker’s Book of Evidence Act and the loan account of the defendant was maintained by the Plaintiff-Bank in the normal course of bank. The defendant in the written statement did not spell out as to how Ex.A3 is not correct. As already noticed, defendant did not adduce any positive evidence to show that Ex.A3 is not correct and he also not ventured into witness box. The presumption is that copy of bank account is true and valid until contrary is proved.

But, in the instant case, the defendant was not adduced any evidence to rebut the above presumption and as such, it has been taken that the entries found therein are true and correct. Ex.A3 is account extract and it reveals that the defendant is due an amount of Rs.8,04,274/- as per account extract. The evidence of PW.1 and the documents marked by the plaintiff under Ex.A1 to A.3 are intact, un-rebutted and remained unchallenged. PW.1 is a responsible Bank officer and there is no reason to disbelieve his evidence and the evidence of PW.1 inspired confidence of the court. In the light of the evidence of PW.1 coupled with Exs.A1 to

A.3 it has to be held that the Plaintiff-Bank is entitled to recover the suit debt from the defendant along with interest. The plaintiff-bank is entitled preliminary decree as prayed. The point is answered accordingly.

ISSUE NO.2:

12.In the result, the suit is decreed with costs for Rs.8,04,274 /- in favour of the Plaintiff-Bank against the defendant, with subsequent interest @ 12% per annum from the date of filing of suit till the date of decree and @ 6% per annum from the date of decree till realization on the principal amount of Rs.4,50,000/-. Preliminary decree is passed for 7 sale of mortgaged property, if the amount is not paid within 6 months, redeeming the mortgaged property; on such failure, Plaintiff-Bank is entitled to apply for final decree for sale of mortgaged property for realization of the decretal amount.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open Court, this the 23rd day of July, 2019.

Addl. Senior Civil Judge, Anantapuramu.

Appendix of Evidence

Witnesses examined for

Plaintif-Bank: Defendant:

PW 1: T. Mahalakshmamma -Exparte- Manager.

Exhibits marked for Plaintif-Bank:

Ex.A1: Hypothecation agreement dt.25.2.2005, Ex.A2: Registered mortgage deed dt.18.2.2005, Ex.A3: Account extract.

Exhibits marked for defendant:

-Nil-

A.S.C.J.

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1

lIN THE COURT OF THE ADDL. SENIOR CIVIL JUDGE,

ANANTHAPURAMU

Present:- Sri P.Srinivasa Rao,

ADDL. SENIOR CIVIL JUDGE, ANANTHAPURAMU.

Tuesday the 23rd day of July, 2019.

OS No.456/2017

Between:

Canara Bank, rep. By its Branch Manager, Saradanagar, Ananthapuramu. …..Plaintif

And

N. Nagabhushana s/o N. Chandrayudu, 47 years, Hindu, M/s Sasank Food Products,D.No.21/6-176, Postal Colony, Ananthapuramu District ….Defendant.

The suit is coming on this day for final hearing before me in the presence of Sri A.N. Guru Prasad, Advocate for the Plaintiff-Bank and the defendant remained ex-parte, and having stood over for consideration till this day, this court made the following:

JUDGMENT

The Plaintiff-Bank filed the suit against the defendant for recovery of the suit amount of Rs.11,84,591/- and for costs.

2.The plaint averments, in brief, are as follows:

The defendant has approached the Plaintiff-Bank for term loan of

Rs.21,85,000/- and agreed to abide all terms and conditions of the bank.

On scrutiny Plaintiff-Bank sanctioned the said loan to the defendant on 26.3.2015 and O.D loan of Rs.1,90,000/-. The defendant agreed to repay the same in 69 monthly installments commencing from 26.6.2015 with interest at 10.90% p.a. The defendant has executed application form for loans to Micro and Small Enterprises(MSEs) on 26.3.2015 and also 2 executed agreement of hypothecation on 26.3.2015 for Rs.21,85,000/-, cash credit agreement for Rs.1,90,000/- and also executed composite loan agreement for Rs.23,75,000/- on 23.6.2015. The plaintiff has opened account in its bank in favour of defendant and the defendant and permitted to operate the same. The defendant has failed to repay the loan amount and as per account extract, the defendant is liable to pay Rs.11,84,591/-. Hence, the suit.

3.The defendant remained ex-parte.

4. On behalf of the Plaintiff, PW.1 is examined and Exs.A1 to A3 are marked. PW.1/ K. Narayanaswamy is Branch Manager of Plaintiff-Bank.

Ex.A1 is application form for loans to Micro and Small Enterprises(MSE’s) dt.26.3.2015, Ex.A2 is agreement-cum-deed of hypothecation dt.26.3.2015, Ex.A3 is cash credit agreement dt.26.3.2015, Ex.A4 is composite loan agreement dt.26.3.2015, Ex.A5 is acknowledgement of debt and security dt.26.3.2015 and Ex.A6 is statement of account.

5. Heard the learned counsel for the plaintiff.

6. Now the Point for determination is:-

Whether the Plaintif-Bank is entitled to recover the suit amount as prayed for?

Point:

7. I have carefully perused the oral and documentary evidence adduced by the Plaintiff-Bank. It is the case of the plaintiff that the defendant has borrowed a sum of Rs.21,85,000/- towards term loan and

Rs.1,90,000/- O.D loan from the Plaintiff-Bank agreeing to repay the said amount with interest @ 10.90% p.a., and executed application form for 3 loans to Micro and Small Enterprises(MSE’s) dt.26.3.2015, agreement- cum-deed of hypothecation dt.26.3.2015, cash credit agreement dt.26.3.2015, composite loan agreement dt.26.3.2015 and acknowledgement of debt and security dt.26.3.2015 in its favour and later the defendant failed to repay the same, despite the demands made by the bank and accordingly the plaintiff is constrained to file the suit.

8. To prove its case, the Plaintiff-Bank examined its Branch

Manager/K. Narayana Swamy as PW.1. PW.1 filed his examination-in- chief in the form of chief-affidavit wherein he reiterated the plaint averments in verbatim. As such the examination-in-chief of PW1 is nothing but replica of plaint and therefore there is no need to discuss the examination-in-chief of PW.1 to avoid repetition and for the sake of brevity. In support of its case, the Plaintiff-Bank relied on Exs.A1 to A6.

Ex.A1 is application form for loans to Micro and Small Enterprises(MSE’s) dt.26.3.2015, Ex.A2 is agreement-cum-deed of hypothecation dt.26.3.2015, Ex.A3 is cash credit agreement dt.26.3.2015, Ex.A4 is composite loan agreement dt.26.3.2015, Ex.A5 is acknowledgement of debt and security dt.26.3.2015 and Exs.A1 to A5 shows that the defendant had approached the Plaintiff-Bank for a loan of Rs.21,85,000/- and the Plaintiff-Bank granted loan of Rs.21,85,000/- towards term loan and Rs.1,90,000/- towards O.D loan to the defendant after executing the above said documents in favour of Plaintiff-Bank for security of the loan amount. Ex.A6 is statement of account and it reveals that the defendant is due an amount of Rs.11,84,591/-. The defendant did not choose to contest the matter and he remained ex-parte. Therefore, the evidence of PW.1 and the documents marked by the plaintiff under Ex.A1 to A.6 are intact, un-rebutted and remained unchallenged. PW.1 is a 4 responsible Bank officer and there is no reason to disbelieve his evidence and the evidence of PW.1 inspired confidence of the court. In the light of the evidence of PW.1 coupled with Exs.A1 to A.6 it has to be held that the Plaintiff-Bank is entitled to recover the suit debt from the defendant along with interest. The defendant being the principal borrowers are liable to pay the suit amount. The point is answered accordingly.

10. In the result, the suit is decreed with costs directing the defendant to pay a sum of Rs.11,84,591/- together with subsequent interest at 12% p.a., from the date of filing of the suit till the date of decree and thereafter at 6% p.a till the date of realization on the sum adjudged.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open Court, this the 23rd day of July, 2019.

Addl.Senior Civil Judge, Ananthapuramu.

Appendix of Evidence

Witnesses examined for

Plaintif-Bank: defendant:

PW 1: K. Narayana Swamy -Ex-parte- Branch Manager.

Exhibits marked for Plaintif-Bank:

Ex.A1: Application form for loans to Micro and Small Enterprises(MSE’s) dt.26.3.2015, Ex.A2: Agreement-cum-deed of hypothecation dt.26.3.2015, Ex.A3: Cash credit agreement dt.26.3.2015, Ex.A4: Composite loan agreement dt.26.3.2015, Ex.A5: Acknowledgement of debt and security dt.26.3.2015 Ex.A6: Statement of account.

Exhibits marked for defendant:

-Nil-

A.S.C.J.

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