IN THE COURT OF THE I ADDL.SENIOR CIVIL JUDGE : VIJAYAWADA
PRESENT: SRI S.SRINIVASA RAO,
PRINCIPAL SENIOR CIVIL JUDGE
MONDAY THIS THE 19TH DAY OF OCTOBER 2020
O.S.No.138/2019
Between:
Nuthangi Venkata Narasaimha Rao S/o China Nagaiah, Hindu, aged 40 years, resident of Dr. No 2110/389B, 3rd line, Srinagar colony, Vijayawada . …Plaintiff.
And
Puli Pulla Reddy S/o Pulla Reddy, Hindu, aged 53 years C/o Alla Anji Reddy, 4trh line, Priyadarsini Colony, Sangatigunta, Guntur District . …Defendant.
This suit is coming on 05.10.2020 before me for hearing in the presence of Sri Ch.Ajay Kumar, Advocate for plaintiff, and defendant remained exparte having stood over to this day for consideration, this
Court delivered the following :
JUDGEMENT
1.This suit is filed for the relief of granting preliminary mortgage decree for the amount of Rs 4,89,113/ in respect of the plaint schedule property and also to pass money decree for an amount of Rs 15,49,000/.
2. The brief averments of the plaint are that :
The defendant approached the plaintiff to lend an amount of Rs 4,70,000/ for the purpose of discharging his debt due to M/s Shriram
Transport Finance Limited Governorpet, Vijayawada. The plaintiff have paid Rs 4,70,000/ to the said Company on behalf of the defendant 2 through NEFT/RTGS on 1762019 from the account No 864420100110405 through Bank of India Gandhinagar Branch,
Vijayawada. For security of the debt, the defendant executed a registered non possessory mortgage deed dt 1862019 bearing document No 7082/2019 on the file of Sub Registrar, Vijayawada mortgaging the defendant's immovable vacant house site property in an extent of 235.55 Sq. yards situate at Vidyadharapuram, Vijayawada i.e plaint schedule property and the defendant delivered his title deed i.e Registered sale deed dt 21122011 bearing document No 8372/2011 on the file of Vijayawada District Registrar office to the plaintiff.
3.The plaintiff further submitted that on 862019 the defendant again approached the plaintiff stating that he is having some more debts to be discharged and that he owed an amount of Rs 5,00,000/ to Sri Nuthangi Venkata Narayana who lent the amount by way of two cheques in July 2018 and also owed Rs 5,00,000/ to Sri
Adusumilli Venkata Rathaiah and Rs 5,00,000/ to Sri Thiruveedhi
Hari Krishna of Vijayawada against 2 pronotes, that they have been pressuring the defendant for discharge of the debt due by him that the defendant already registered a mortgage deed for the amount owed by him for an amount of Rs 4,70,000/ that the defendant already delivered the title deed pertaining to the mortgaged property to the plaintiff, that the property is worth more than Rs 25,00,000/ in the market so saying the defendant requested the plaintiff to relieve him of the principal debts due to them amounting to Rs 15,00,000/ further saying that the defendant settled the dues to principal amounts with 3 them. The plaintiff discharged the debts amounting to Rs 15,00,000/ due to the above said Nuthangi Venkata Narayana and A.Venkata
Rathaiah and T.Hari krishna. Thus the defendant owed an amount of
Rs 15,00,000/ apart from the mortgage debt to the plaintiff. The defendant executed a demand promissory note on 3062019 in favour of the plaintiff at Vijayawada for the amount of Rs 15,00,000/ thus owed by the defendant, agreeing to repay the same with interest at 24% p.a. payable either to the plaintiff or his order on demand. It is further submitted that the defendant is making hectic efforts to evade the debts and is trying to alienate the mortgaged property. Hence the plaintiff got issued a regd. legal notice dt 982019 to the defendant demanding him to discharge the debts with interest at 24% p.a. and also demand promissory note debt of Rs 15,00,000/ along with interest at 24% p.a. and the same is returned unserved. Hence the suit.
4.The defendant remained exparte since inception.
5.Inorder to prove his case the plaintiff himself is examined as
PW1 and also examined P.Ws 2 to 4 and also marked Exs.A1 to A10 .
6.Heard the arguments.
7.Now the points for consideration are
1. Whether the plaintiff is entitled for the relief of preliminary mortgage decree in respect of plaint schedule property as prayed for ?
2. Whether plaintiff is entitled for the recovery of money decree for Rs 15,49,000/ under promissory note dt 3062019 as prayed for ?
3. To what relief?
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8.Points .1 and 2 :
During the course of trial the plaintiff as P.W.1 in his evidence reiterated the averements of the plaint and marked Exs.A1 to A10.
Ex.A1 is the original simple mortgage deed dt 1862019, Ex.A2 is the original registered sale deed in the name of the defendant delivered to the plaintiff at the the time of registration of the mortgage deed dt 21 122011. Ex.A3 is the net copy of the encumbrance certificate dt 68 2019. Ex.A4 is the original promissory note executed by the defendant in consideration of discharge of the defendant debt by the plaintiff dt 3062019. ExA5 is the defendant discharged pronote. Ex.A6 is the defendant discharged pronote. Ex.A7 is the Bank statement of N.
Venkata Narayana showing on payment of Rs 5,00,000/ by way of two cheques to the defendant. Ex.A8 is the office copy of legal notice got issued by the plaintiff Counsel to the defendant dt 98208. Ex.A9 is the postal receipt for the said notice dt 1082019. Ex.A10 is the returned registered cover with acknowledgment due of the defendant.
9. So far as the evidence of P.W.2 and P.W.3 is concerned, the plea of the plaintiff is P.Ws 2 and 3 are attesters of the mortgage deed executed by the defendant in favour of the plaintiff for the schedule property. P.Ws 2 and 3 categorically supported the version of the plaintiff in respect of all the material aspects with regard to the execution of simple registered mortgage and passing of consideration thereunder and identified the said document Ex.A1. So far as the evidence of P.W.4 is concerned, the specific plea of P.W.4 is the entire 5 transaction of suit pronote was happened in his presence and P.W.4 is the scribe of said pronote. In the evidence of P.W.4 he categorically supported the version of plaintiff in respect of execution of the suit promissory note and passing of consideration thereunder and he identified the said pronote scribed by him as Ex.A4.
10.So when the evidence of P.Ws. 1 to 4 and Exs A1 to A10 are read together it is establishing the case of the plaintiff. On the other hand the defendant remained exparte since inception. So the evidence of P.Ws 1 to 4 and Exs A1 to A10 remained unchallenged. There is no material on record to say that P.Ws. 1 to 4 are deposing false. So when the evidence of P.Ws 1 to 4 and Exs.A1 to A10 are taken into consideration, the plaintiff clearly established his case and he is entitled for the relief of preliminary mortgage decree as well as money decree. Accordingly these two points are answered.
11.Issue No.3 :
In the result, this suit is decreed granting preliminary mortgage decree for an amount of Rs 4,89,113/ with subsequent interest on
principal amount of Rs.4,70,000/ at 12% per annum from the date of
suit till date of decree and thereafter at 6% per annum from the date of decree till realization in respect of plaint schedule property and the time for redemption is THREE MONTHS .
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12.In the result, this suit is decreed for an amount of Rs 15,49,000/ with subsequent interest on principal amount of
Rs.15,00,000/ at 12% per annum from the date of suit till date of decree and thereafter at 6% per annum from the date of decree till realization .
Dictated to the Personal Assistant, transcribed by her, corrected
and pronounced by me in the open Court on this the 19th day of October 2020.
PRINCIPAL SENIOR CIVIL JUDGE
VIJAYAWADA
Appendix of Evidence
Witness examined
For plaintiff :For defendant :
PW1:Nuthangi Venkata Narasimha Rao P.W.2Thiruveedhi Hari krishna
P.W.3Gaduputi Mallikharjuna Rao P.W.4Boyapati Srinivasa Rao
Documents marked
For plaintiff:
Ex.A11862019Original Registered possessory Mortgage Deed . Ex.A2Original Regd.sale deed in the name of the defendant delivered to the plaintiff at the time of registration of the document,d t 2112 2011. Ex.A3682019Net copy of encumbrance certificate
Ex.A4Original pronote executed by the defendant in consideration of discharge of defendant's debts by the plaintiff. Ex.A5 Original discharged pronote executed by the defendant.
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Ex.A6Original discharged pronote executed by the defendant.
Ex.A7Bank statement of N. Venkata Narayana showing payment of Rs 5,00,000/ by way of 2 cheques to the defendant.
Ex.A8dt 982018Office copy of legal notice .
Ex.A9Postal receipt. Ex.A10Returned registered cover with ack. due of the defendant.
For defendant:
Nil
PSCJ/VJA 8
IN THE COURT OF THE I ADDL.SENIOR CIVIL JUDGE : VIJAYAWADA
PRESENT: SRI S.SRINIVASA RAO,
PRINCIPAL SENIOR CIVIL JUDGE
MONDAY THIS THE 19TH DAY OF OCTOBER 2020
O.S.No.138/2019
Between:
Nuthangi Venkata Narasaimha Rao S/o China Nagaiah, Hindu, aged 40 years, resident of Dr. No 2110/389B, 3rd line, Srinagar colony, Vijayawada . …Plaintiff.
And
Puli Pulla Reddy S/o Pulla Reddy, Hindu, aged 53 years C/o Alla Anji Reddy, 4trh line, Priyadarsini Colony, Sangatigunta, Guntur District . …Defendant.
This suit is coming on 05.10.2020 before me for hearing in the presence of Sri Ch.Ajay Kumar, Advocate for plaintiff, and defendant remained exparte having stood over to this day for consideration, this
Court delivered the following :
…Defendant.
Suit for recovery of 4,89,113/ being the principal and interest due under Registered Mortgage Deed over the plaint schedule property bearing Doc.No.7082/2019 on the file of Joint SubRegistrar, Vijayawada 9 executed by the defendant in favour of plaintiff for 4,70,000/ on 186 2019 and repayable with interest at 24% per annum and for suit costs.
Plaint presented on20.08.2019Plaint numbered on20.08.2019.
Value of the suit for the purpose of Court fee and jurisdiction is `4,89,113/ under S.50(1) of APCF and SV.Act on which a Court fee of 7326/ is paid under S.20 of the said act.
Cause of action for the suit arose on 1762019, Vijayawada when and where the Registered Mortgage Deed over the plaint schedule property bearing Doc.No.7082/2019 on the file of SubRegistrar, Vijayawada was executed by the defendant in favour of plaintiff for ` 4,70,000/ on 1862019, and suit is within time and within the jurisdiction of this Court.
This suit is coming on 05.10.2020 before me for hearing in the presence of Sri Ch.Ajay Kumar, Advocate for plaintiff, and defendant, and this Court doth order and decree:
It is hereby declared that the amount due to the plaintiff on the mortgage bond/charge mentioned in the plaint calculated up to this the 14th day of September, 2012 is the sum of ` 7,56,250/. towards suit amount, the sum of ` 1,42,333/ (127333+15000) towards interest on the principal amount of ` 5,00,000/at the rate of 12%p.a., from the date of suit i.e., 09.02.2010 till date of decree ie., 14.03.2012, and thereafter at 6% per annum from the date of decree ie., 14.03.2012 till redemption i.e., 14.09.2012, the sum of Rs.22,410/ towards costs of this suit awarded to the plaintiff making in all the sum of ` 9,20,993/ (756250 + 142333 + 22410), and the defendants do bear her own costs of Rs. Nil.
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2. AND IT IS HEREBY ORDERED AND DECREED AS FOLLOWS::::
1. that the defendant do pay into court on or before 19th day of January 2021 or of any later date up to which time for payment may be extended by the court the said sum of 4,89,113/ with subsequent interest at 12%p.a., from the date of the suit till the date of decree and thereafter @ 6% p.a. from the date of the decree till realization on the principal amount of ` 4,70,000/ from the date of redemption till the date of realization in respect of plaint schedule property.
ii) that on such payment and on payment thereafter before such date as the court may fix of such amount as the court may adjudge due in respect of such costs, of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11 of order XXXIV of the first schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into court of all documents in his possession or power relating to the mortgaged/charged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, recovery or retransfer the said property free from the said mortgage clear of and from all encumbrances created by the plaintiff or any person claiming under him or any person under whom the claims and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.
3.And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff may apply to the court for a final decree for the sale of the mortgaged/charged property; and on such application being made, the mortgaged/charged property or a sufficient part thereof shall be directed to the sold; and for the purposes of such sale the plaintiff shall produce before the court or such officer as it appoints all documents in his possession or power relating to the mortgage property.
4.And it is hereby further ordered and decreed that the money realized by such sale shall be paid into court and shall be duly applied (after deduction there from of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit and in payment of any amount which the court may adjudge due to the plaintiff in respect of such costs of the suit, and such costs, charges and expenses as may be payable under rule 10, together which such subsequent interest as may be payable under rule 11 of Order XXXIV of the first schedule to the C.P.C.,1908, and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.
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5.And it is hereby further ordered and decreed that, if the money realized by such sale shall not be sufficient for payment in full or the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the defendant for the amount of the balance; and that the parties are at liberty to apply to the court from time to time as they may have occasion, and on such application or otherwise the court may give such directions as it thinks fit.
(Plaintiff schedule copy attached to the decree)
Given under my hand and the seal of this Court this the 14th March, 2012.
I ADDL.SENIOR CIVIL JUDGE
VIJAYAWADA.
MEMO OF COSTS
S.No.ParticularsPlaintiff 1Vakalat 2.00 2Stamp on plaint 10,026.00 3Advocate fee 12,194.00 4Process 63.00 5Writing charges. 50.00 6Typing charges. 75.00 TOTAL 22,410.00
I ASCJ/VJA