Smt. S.sujatha

1 OS 1595/2016

IN THE COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE,

VISAKHAPATNAM

Present: Smt.S.Sujatha, I Additional Senior Civil Judge,

Tuesday, this the 29th day of November, 2022

ORIGINAL SUIT NO.1595/2016

Between

1.Kagitala Venkata Bangaru Reddy, S/o late Atchanna, aged 51 years, Hindu, business, R/o.D.No.4-28-7/1, Kagitalavari veedhi, Pedawaltair, Visakhapatnam-17.

2.Kagitala Govinda Reddy, S/o late Atchanna, aged 45 years, Hindu, R/o.D.No.4-28-7/1, Kagitalavari veedhi, Pedawaltair, Visakhapatnam-17.

...Plaintiffs.

And

1.Kagitala Ramanamma, W/o late Appalareddy, aged 44 years, Hindu,R/o.D.No.4-28-8, Kagitalavari veedhi, Pedawaltair, Visakhapatnam.

2.Darmala Aruna, W/o Shankar Reddy, aged 28 years, R/of: rest –do--

3.Bandi Anitha, W/o Bandi John Reddy, aged 26 years, R/of: --rest do--

4.Kagitala Bhagyasri, D/o late Appalareddy, aged 22 years, Hindu,R/o. --rest--do--

5.Kagitala Ramana, S/o late Lakshman Rao, aged 54 years, Hindu,R/o.D.No.4-28-8/1, Kagitalavari veedhi, Pedawaltair, Visakhapatnam.

6.Darapu Varalakshmi, W/o late Satyanarayana, aged 56 years, Hindu, R/at: D.No.4-6-27, Bharatveedhi, Near new railway station, Rajahmundry.

7.Sappa Lakshmi, W/o late Satyanarayana, aged 41 years, Hindu, R/o.D.No.4-28-8/1, Kagitalavari veedhi, Pedawaltair, Visakhapatnam.

8.Dungi Polamamba, W/o Anand Reddy, aged 31 years, Hindu, R/at: D.No.4-38-7/1, Munsif vari street, Pedawaltair, Visakhapatnam.

.... Defendants

2 OS 1595/2016

This suit coming on 28-11-2022 for final hearing before me in the presence of Sri.G.M.Reddy, Advocate for the plaintiffs and Sri.J.A.Naidu &

Smt.N.Sakunthala, Advocates for defendants 1 to 7, and the matter having stood for consideration till this day, this Court delivered the following:-

JUDGMENT

1.This is a suit filed for partition of the plaint schedule property into three equal halves by metes and bounds and to allot one such share to the plaintiffs; and adjudging the registered sale deed dated 13th August, 2014 bearing document No.2042/14 stands in the name of 7th defendant as null and void; send a copy of the decree to the Sub-Registrar, Gopalapatnam, Visakhapatnam to make a note of the same in their respective books; for mandatory injunction directing the defendants 1 to 4 and 7 to remove the illegal constructions made in the 1st floor, middle portion of the suit schedule property within the time specified by the Hon’ble court and in case the defendants fails to remove the constructions, the plaintiffs may be permitted to remove the same through the court law and law recover the costs from the defendants and for costs.

2.The brief averments of neat copy of the plaint are as follows:-

The plaintiffs submit that originally the plaint schedule property is a

Gramakantham land occupied by the forefathers of the plaintiffs and the same was devolved from one generation to another generation by succession and finally the same was succeeded by late Kagitala Appala Swamy. Kagitala Appala Swamy was survived by three sons, viz Kagitala Kagitala Atchanna, Kagitala Ramulu and

Kagitala Lakshmana Rao. The wife of Kagitala Appalaswamy predeceased him.

During the life time of late Appalaswamy, he constructed thatched house with his own earnings. The corporation allotted Door numbers and levied tax in his name, however he was exempted from paying the property tax since he is an ex- serviceman. Later the said Appala Swamy inducted his three sons viz., the eldest son by name Kagithala Atchanna was inducted in the Western portion, bearing 3 OS 1595/2016

D.No.4-28-7/1, the 2nd son Ramireddy was inducted in the middle portion, bearing

D.No.4-28-8 and in the eastern side portion, bearing D.No.4-28-8/1, his younger son Lakshmanarao was inducted. The said Appalaswamy used to stay with his eldest son Atchanna i.e., the father of the plaintiffs. During 1972 the said Kagitala

Appalaswamy passed away intestate leaving his three sons to succeed the plaint schedule property. Thereafter, his three sons jointly made alternations for their convenient living by changing the roof with RCC slab and started enjoying the same in as it is condition without partitioning the schedule property by metes and bounds. The father of the plaintiffs passed away on 4-7 1994. His brothers Rami

Reddy passed away during 1986 and Lakshman Reddy during 1992. After their demise the plaintiffs as well as defendants 1 to 6 being class I legal heirs succeeded the suit schedule property since, the wives of Rami Reddy and

Lakshmana Reddy predeceased their respective husbands' Analogous to their fathers, the plaintiffs as well as defendants 1 to 6 have been enjoying the respective portions in which they were inducted along with their respective fathers' without partitioning the schedule property by metes and bounds. The plaintiffs are sons of late Kagitala Atchanna. Late Kagitala Ramireddy was blessed with a son by name Kagitala Appalareddy who was also died leaving his wife and daughters as legal heirs to succeed his estate, i.e., defendants numbers 1 to 4 and defendant numbers 5 and 6 are children of late Kagitala Lakshmana reddy. While so, the 1st defendant herein inducted the 7th defendant as tenant in the middle portion of the schedule property, during 2014 on the premise that the said portion is not accommodating her entire family for which the other coparceners' could not object the same since all the three portions are irregular in sizes extent, and measurements. Surprisingly, on 30th November, 2016 the plaintiffs received copy of the caveats got issued by the 7" defendant herein contending that she purchased the portion in the schedule property bearing No:4-28-8 from the defendants 1 to 4.

i.e., wife and children of late Appalareddy by means of registered sale deed 4 OS 1595/2016 bearing No: 2042/14 and the plaintiffs have been creating obstacles in her construction activity. It is submitted that the suit schedule property is an ancestral property and it was not partitioned among the coparceners in equal halves by metes and bounds till now. The property tax for the suit schedule property is being paid in the name of late Kagitala Appalaswamy till now. It is a fact that the legal heirs of late Kagitala Appalareddy are entitled for a share in the plaint schedule property, nevertheless they are precluded from making any kind of alienations in respect of schedule property without there being legal partition among the co heirs.

The defendants 1 to 4 in collusive conspiracy with the 7th defendant manipulated the impugned Sale deed to defeat the plaintiffs, the perusal of the document itself establishes that the same was got registered by mentioning wrong survey Number i.e., No: 33 instead of mentioning the Original Survey No 30. Therefore the Sale deed is a fraudulent, nominal, sham and collusive without consideration made to defeat the rights of the other co-sharers to defeat the legitimate right of seeking partition in the schedule property. The said deed is therefore is void in law and opposed to public policy as it would defeat the provisions of Hindu Succession Act if the same was allowed to prevail and remain intact The and document will not convey any title to the respondent much less the better, since neither wife of late

Appalareddy nor his children have any exclusive right to execute sale deed in respect of ancestral property without partitioning the same by metes and bounds.

Therefore the plaintiffs have reasonable apprehensions that the said sale deed, if left outstanding may cause them serious injury of jeopardizing their rights and affect their legal remedies. The existing building in the suit schedule premises is very old and separated by common walls and the same was constructed with bricks masonry and not built up with RCC columns. Upon which the 7th defendant is making attempts to raise illegal constructions highhandedly without even obtaining necessary approvals from the Municipal Corporation as such the plaintiffs objected the 7th defendant form raising any kind of illegal constructions in the suit 5 OS 1595/2016 schedule property as the building is very old and will not withstand the proposed load. More so it is within the knowledge of the defendants that there is likely hood of danger not only to the property but also to the lives of the inhabitants. Since the plaintiffs have been staying in the other portions of the schedule property with their children they have reasonable apprehension that the acts of the defendants will endanger the human lives living in the other portions of the schedule property.

Despite of that the defendants did not heed their request and attempted to make constructions in the schedule property on 4-12-2016, immediately the plaintiffs approached the III town police station seeking protection to curb the illegal activities of the 7th defendant, the police instead of curbing the illegal activities of the 7th defendant detained the plaintiffs in the police station to accommodate the defendants to proceed with the constructions. With the aid of the police the 7th defendant conveniently laid slab in the middle portion on the existing 5 inches walls available on either side of the building without even laying supportive pillars. On 7.12.2016 they have approached the commissioner of police Visakhapatnam complaining illegal acts of the defendants, but the police advised that the dispute is civil in nature they cannot meddle with the dispute and advised the plaintiffs to approach the civil court for appropriate remedies. Under those circumstances, the plaintiffs have no other go, except to stretch their hands before the Hon'ble court for renderence of justice by way of seeking partition of the suit schedule property into three equal halves and for allotment of one share to the plaintiffs besides seeking cancellation of the impugned sale deed fabricated in the name of the 7th defendant and for mandatory injunction for removal of illegal constructions. 8th defendant is the younger sister of the plaintiffs, but she has agreed to forego her right in the schedule property as the plaintiffs have performed her marriage after the expiry of their father by spending substantial amounts and considerable gifts were presented besides paying dowry etc in the manner befitting to their status and thereby they have incurred substantial debts to discharge family obligations. That 6 OS 1595/2016 apart she withdrew the amounts lying in the name of her mother in Andhra Bank

Waltair Branch Visakhapatnam towards her share agreeing to forego her right in the schedule property However, the name of the 8 the defendant was included as proposed party to this suit and no relief is claimed against her. Hence the suit.

3.1st Defendant filed written statement which is adopted by the defendants 2 to 7 stating that the allegations mentioned in the plaint are all not true and correct. Further contending that plaint schedule property is the ancestral property and the same is partitioned among three brothers namely Kagithala

Atchanna, Ramulu and Laxmana Rao who are the children of late Appalaswamy on on 06-05-1983 itself by way of un-registered partition deed before the elders of the caste and well wishers. They made individual constructions in their respective shares and enjoying the same by the plaintiffs as well as the defendants. They also mutated the house tax in their respective names long back. The plaintiffs and 5th defendants family raised first floor long back then the defendants 1 to 4 in their share. Moreover the 1st defendant asked the other family members that she intended to sell the property of D1 to D4 share to perform the marriages to the children as her husband is no more and they asked the 1st defendant to purchase the property for low price and hence she sold the same to the 7th defendant, because she offered best price. Only with an intention to harass the widow 1st defendant and her daughters the plaintiffs filed the false case to get the wrongful gain etc., and more over the 7th defendant constructed the first floor by altering the existing asbestos cement sheet shed only on the existing ground floor and only with eye sore the plaintiffs filed the suit concealing the facts. There is no cause of action for the suit and the alleged documents are fabricated one and hence the suit is liable to be dismissed. Hence prays to dismiss the suit.

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

1. Whether the plaintiffs are entitled for partition of plaint schedule 7 OS 1595/2016 property into three equal halves and allotment of one such share to the plaintiffs?

2. Whether the plaintiffs are entitled for adjudging the registered sale deed

dated 13-08-2014 as null and void?

3. Whether the plaintiffs are entitled for mandatory injunction directing the defendants 1 to 4 and 7 for removal of construction made in the first floor middle portion of plaint schedule property?

4.To what relief?

5.Heard both sides:-

6.ISSUE Nos.1 to 4:-

On trial, 1st plaintiff is examined as PW.1 wherein he reiterated the plaint averments that his forefathers have occupied the suit schedule property about several decades back which was devolved from one generation to another and finally on his paternal grandfather late Kagitala Appala Swamy. Later during his lifetime he constructed three portioned thatched house with his own earnings and inducted his three sons namely Kagitala Atchanna in the Western portion bearing

D.No.4-28-7/1, Rami Reddy in the middle portion bearing D.No.4-28-8 and

Lakshmana Rao in the Eastern side portion bearing D.No.4-28-8/1 among which plaintiffs are the children of the said Kagitala Atchanna. During his lifetime, the said

Appala Swamy stayed with plaintiffs till his death and passed away in the year 1972 intestate leaving behind his three sons. Thereafter, his three sons jointly made alternations for their convenient living by changing the roof with RCC slab and started enjoying the same without partitioning the schedule property by metes and bounds. While so, father of PW.1 died on 04-07-1994, paternal uncle of PW.1,

Rami Reddy passed away in the year 1986 and Lakshman Reddy in the year 1992.

After their demise the plaintiffs and defendants 1 to 6 succeeded the suit schedule property as legal heirs. While so, 1st defendant inducted 7th defendant as tenant in the middle portion of the suit schedule property during the year 2014. Surprisingly, 8 OS 1595/2016 on 30-11-2016 plaintiffs have received a copy of caveat issued by 7th defendant stating that she purchased the portion of schedule property bearing No.4-28-8 from the defendants 1 to 4. Upon it, 7th defendant also made attempts to raise illegal constructions for which plaintiffs approached police and they have not taken any action on that they have filed the present suit for partition the schedule property and also I.A.770/2016 for grant of temporary injunction against 7th defendant restraining from making constructions wherein ad-interim injunction orders passed are in force.

In support of his oral contention, demand notice dated 01.10.2004, dt.26.11.2013 marked as Ex.A1 and Ex.A2. Served copy of petition dated 10.11.2016 marked as Ex.A3. Certified copy of sale deed dated 13.08.2014 marked as Ex.A4. Copy of report dated 07.12.2016 marked as Ex.A5 and the photographs marked as Ex.A6 to Ex.A9 along with CD.

7.Though PW1 deposed in her chief on par with the plaint averments but as he has not turned up for his cross examination his entire chief is eschewed from record. Except PW1’s evidence there is no other evidence adduced on behalf of the plaintiffs. Thereby there is no evidence by plaintiffs to prove their case as per plaint.

8.On the other hand, 1st defendant is examined as DW1, wherein she reiterated the written statement averments admitting to the extent that the plaint schedule property succeeded by Kagitala Appala Swamy who survived by his three sons Atchanna, Ramulu and Lakshmana Rao. During the lifetime of Appala

Swamy, he has constructed three portioned thatched house and inducted his three sons in each portion. Further in the year 1972, the said Appala Swamy passed away intestate leaving behind his three sons who succeeded the plaint schedule property. Thereafter, his three sons made alteration for their respective sharers for their convenient living. Subsequently, on 04-07-1994 father of plaintiffs passed away and his brothers Rami Reddy passed away during the year 1986 and 9 OS 1595/2016

Lakshman Reddy during the year 1992. DW1 further deposed that plaintiffs are the second wife children of Appala Swamy and first wife having son and the said son having wife and three children, they are not added as parties in the suit proceedings. While so, after the death of husband of DW1 Appala Reddy she sold first floor portion to 7th defendant to perform the marriage of her daughter. On that the plaintiffs got eye sore and filed the present suit to harass her and her family members and the plaintiffs are no way concerned with her share of house. DW1 further deposed that as the plaint schedule property is already partitioned among three sons of Appala Swamy, and again the present suit for partition is not maintainable.

9.To this evidence of DW1 in chief there is no cross examination conducted by the plaintiffs inspite of DW1 present in the witness box and offered herself for cross examination. Thereby chief evidence of DW1 remained unchallenged by the plaintiffs.

10.Upon perusing the evidence on record though plaintiffs filed suit for partition of the plaint schedule property which is acquired by Kagitala Appala Swamy and after him his three sons Kagitala Atchanna, Rami Reddy and Lakshmana Rao who succeeded the same and contending that there is no partition taken place but absolutely there is evidence placed by the plaintiffs to that effect. There is no evidence on behalf of the plaintiffs to prove the plaint averments. On the other hand the evidence of DW1 which categorically goes to show that the said Kagitala

Appala Swamy during his life time constructed three portions of house and inducted his three sons in the said three portions separately who subsequently made alterations and have been residing separately. Therefore, the plaint schedule property though ancestral property of three sons of Kagitala Appala Swamy in view of partitioning the same each son have been in possession and enjoyment of the respective shares. It is further evidence of DW1 that she is wife of Appala Reddy who is son of Rami reddy and D2 to D4 are her daughters. To perform the marriage 10 OS 1595/2016 of her elder daughter she sold 1st floor portion which fell to the share of above said

Rami Reddy to 7th defendant which became eye sore to plaintiffs and filed this suit.

Therefore, plaintiffs have not placed any material before the Court to prove that the plaint schedule property is still joint and on the other hand, the evidence of DW1 to the fact of partition of plaint schedule among the three sons of late Kagithala

Apalaswamy during his life time itself and each of the sons lived separately as deposed in her chief evidence remained unchallenged goes to show that plaintiffs not able to prove their case. Thereby, plaintiffs are not able to prove that they are entitled for partition of the schedule property and in view of failure to prove the partition they are not entitled for the relief of adjudging the registered sale deed, dt.13.08.2014 as null and void and mandatory injunction of directing the defendants 1 to 4 and 7th defendant for removal of constructions in the first floor middle portion of plaint schedule. Accordingly issues 1 to 3 answered against the plaintiffs.

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

Dictated to the Stenographer, transcribed by her, corrected and pronounced

by me in open Court, this the 29th day of November, 2022.

I ADDITIONAL SENIOR CIVIL JUDGE,

VISAKHAPATNAM.

Appendix of evidence No. of witnesses examined for

Plaintiffs: Defendants:

PW.1 : K.Venkata Bangaru Reddy (Eschewed) DW.1: Kagitala Ramanamma

No. of exhibits marked for

Plaintiffs:

Ex.A1 Original demand notice dated 01-10-2004.

Ex.A2 Original demand notice dated 26-11-2013.

Ex.A3 Served copy of caveat petition dated 10-11-2016.

11 OS 1595/2016

Ex.A4 Certified copy of sale deed bearing No.2042 dt:13-08-2014.

Ex.A5 Copy of report dated 07-12-2016.

Ex.A6 to Ex.A9 are Photographs along with CD.

Defendants:

Nil.

I ASCJ/VSP 12 OS 1595/2016

Date of presentation: 19-12-2016 Date of filing:19-12-2016

IN THE COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE,

VISAKHAPATNAM

Present: Smt.S.Sujatha, I Additional Senior Civil Judge,

Tuesday, this the 29th day of November, 2022

ORIGINAL SUIT NO.1595/2016

IN THE COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE,

VISAKHAPATNAM

Present: Smt.S.Sujatha, I Additional Senior Civil Judge,

Tuesday, this the 29th day of November, 2022

ORIGINAL SUIT NO.1595/2016

Between

1.Kagitala Venkata Bangaru Reddy, S/o late Atchanna, aged 51 years, Hindu, business, R/o.D.No.4-28-7/1, Kagitalavari veedhi, Pedawaltair, Visakhapatnam-17.

2.Kagitala Govinda Reddy, S/o late Atchanna, aged 45 years, Hindu, R/o.D.No.4-28-7/1, Kagitalavari veedhi, Pedawaltair, Visakhapatnam-17.

...Plaintiffs.

And

1.Kagitala Ramanamma, W/o late Appalareddy, aged 44 years, Hindu,R/o.D.No.4-28-8, Kagitalavari veedhi, Pedawaltair, Visakhapatnam.

2.Darmala Aruna, W/o Shankar Reddy, aged 28 years, R/of: rest –do--

3.Bandi Anitha, W/o Bandi John Reddy, aged 26 years, R/of: --rest do--

4.Kagitala Bhagyasri, D/o late Appalareddy, aged 22 years, Hindu,R/o. --rest--do--

5.Kagitala Ramana, S/o late Lakshman Rao, aged 54 years, Hindu,R/o.D.No.4-28-8/1, Kagitalavari veedhi, Pedawaltair, Visakhapatnam.

6.Darapu Varalakshmi, W/o late Satyanarayana, aged 56 years, Hindu, R/at: D.No.4-6-27, Bharatveedhi, Near new railway station, Rajahmundry.

13 OS 1595/2016

7.Sappa Lakshmi, W/o late Satyanarayana, aged 41 years, Hindu, R/o.D.No.4-28-8/1, Kagitalavari veedhi, Pedawaltair, Visakhapatnam.

8.Dungi Polamamba, W/o Anand Reddy, aged 31 years, Hindu, R/at: D.No.4-38-7/1, Munsif vari street, Pedawaltair, Visakhapatnam.

.... Defendants

This is a suit filed for partition of the plaint schedule property into three equal halves by metes and bounds and to allot one such share to the plaintiffs; and adjudging the registered sale deed dated 13th August, 2014 bearing document No.2042/14 stands in the name of 7th defendant as null and void; send a copy of the decree to the Sub-Registrar, Gopalapatnam, Visakhapatnam to make a note of the same in their respective books; for mandatory injunction directing the defendants 1 to 4 and 7 to remove the illegal constructions made in the 1st floor, middle portion of the suit schedule property within the time specified by the Hon’ble court and in case the defendants fails to remove the constructions, the plaintiffs may be permitted to remove the same through the court law and law recover the costs from the defendants and for costs.

Value of the suit for the purpose of Court fee and jurisdiction is Rs.7,60,249/-, and a court fee payable thereon is Rs.10,126/- however Rs.200/- paid theron under Section 34 (2) (ii), for the relief of cancellation Rs.16,000/- and fee of Rs.10,626/- is paid thereon under Section 37 and for relief of mandatory injunction suit is valued at Rs.50,000/- and a court fee Rs.2,386/- is paid thereon under section 26 (c) of the APCF and S.V.Act.

This suit coming on 28-11-2022 for final hearing before me in the presence of Sri.G.M.Reddy, Advocate for the plaintiffs and Sri.J.A.Naidu & Smt.N.Sakunthala, Advocates for defendants 1 to 7, and the matter having stood for consideration till this day, this Court doth order; and

DECREE

1. that the suit be and the same is hereby dismissed; and

2. that there be no costs.

(Copy of plaint schedule property is herewith enclosed).

Given under my hand and the seal of the Court, this the 29th day of November, 2022.

I ADDL. SENIOR CIVIL JUDGE

VISAKHAPATNAM

14 OS 1595/2016

Memorandum of costs --No cost memo is filed on either side--

For plaintiffs:For defendants :- Rs. ps.Nil.

Stamps on Vakalat 3-00 Stamp on plaint 13,212-00 ------------------- Institution Costs 13,215-00 certified-------------------

I ASCJ/VSP

O.S.976/2016/IASCJC/VSP

IN THE COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE,

VISAKHAPATNAM

Present: Smt.S.Sujatha I Additional Senior Civil Judge,

Tuesday, this the 18th day of October, 2022

ORIGINAL SUIT NO.976/2016

Between:

M/s.PBL Transport Corporation Pvt. Ltd., Company - Incorporated under the Companies Act., having its registered office at D.No.47-10-13, 1st Floor, Rednam Plaza, Dwarakanagar, Visakhapatnam, rep. By its Managing Director Sri.P.Rajesh, S/o Ramaiah Gupta, Hindu, aged 45 years.

... Plaintiff.

And:

M/s.Apollo Fiege Integrated Logistics Pvt., Ltd., a company incorporated under Companies Act, 1956, having its registerfed office at Apollo Towers, Plot No.20, Sector-44, Gurgaon, Haryana-122002, having its branch office at D.No.31-33-115, Ground floor, Darani Apartment, Assam Gardens, Neelamma Vepachettu, Opp. Mamatha press, Visakhapatnam.

... Defendant.

This suit coming on 15.09.2022 for final hearing before me in the presence of Sri.M.Ramdas, Advocates for the plaintiff and Sri.P.Sreenivas

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

JUDGMENT

1.This is a suit filed for recovery of a sum of Rs.2,27,595.53ps with subsequent interest @ 24% p.a., from the date of the suit till its realization and for costs of the suit.

2.The brief averments of the plaint are as follows:-

The plaintiff is a company incorporated under the Companies Act, 1956 and is carrying en business, inter alia in transportation of cargo by road

O.S.976/2016/IASCJC/VSP

and handling of the same. Defendant is also carrying on the same business.

While so, for the purpose of transportation of containerized cargo by road from their nominated yards at Vizag to Jindal Steel Ltd., Jajpur in the State of Odisha defendant negotiated the rates with the plaintiff at Visakhapatnam and finalized the same as well as other terms and conditions for the carriage. Accordingly, in pursuance thereto, defendant issued a total number of six work orders to the plaintiff between 27.12.2014 and 01.09.2015 at Visakhapatnam for transportation of the cargo. Plaintiff duly transported the cargo from the

CFS/Yard nominated by the defendant at Vizag to Jindal Steel Ltd., Jajpur

Odisha as per the terms of work orders and raised invoices from time to time.

Plaintiff was also sending bills from time to time for payment for the works executed. While so, by 15.10.2015 defendant became liable to pay an amount of Rs.91,54,101/- towards transportation charges. Plaintiff therefore addressed a letter to the defendant expressing their anguish for not paying the amount due in spite of several e-mails and demanded immediate payment of the same as they were in financial difficulties. Thereafter defendant sent an undated letter contending that the amount due is only Rs.57.78 lakhs. In response to the same

Plaintiff sent a reminders dated 08.09.2015, 19.09.2015 and 30.09.2015 thereby making it clear that they are not willing to accept the contention of the defendant. The defendant from time to time sent debit notes unilaterally for the amount totaling Rs.6,34,500/- thereby retaining detention charges from the bills of the Plaintiff and paid an amount of Rs.15,56,909/- only leaving a balance of

Rs.75,97,192/-. Plaintiff once again addressed a letter dated 20.11.2015 demanding the defendant to make immediate payment of the balance amount.

After receiving the above mentioned letter defendant made part payment of an amount of Rs.29,53,313/- leaving a balance of Rs.46,43,874/-. Therefore

O.S.976/2016/IASCJC/VSP

Plaintiff once again addressed a letter dated 12.12.2015 to the defendant demanding payment of amount of Rs.46,43,874/-. As there was no response to the same plaintiff was constrained to address another letter dated 14.01.2016 demanding immediate payment of balance amount. Having received the same defendant sent an e-mail dated 19.01.2016 to the plaintiff stating that they were willing to pay Rs.34,81,728/-provided a no due certificate and balance conformation was given by the Plaintiff as per their format attached to the email.

The same was also intimated to the Plaintiff by the officials of the defendant over phone. Taking advantage of the fact that Plaintiff already completed the transportation work and huge amount due by them and in case the Plaintiff refused to issue the certificate the same would lead to a long legal battle and even the admitted amount would not be paid and also due to the financial crunch and under those compelling circumstances Plaintiff issued the certificate as demanded. On receipt of the no due certificate an amount of Rs.34,81,728/- was remitted by the defendant into the account of the plaintiff on 21.01.2015 leaving a balance of Rs. 11,22,117/-.

3. The plaintiff thereafter addressed a letter dated 22.01.2015 to the defendant explaining the circumstances under which the no due certificate was issued and also demanding the payment of balance amount of Rs.11,22,117/-.

Though the defendant duly received the letter, failed to respond to the same. As the conduct of the defendant made it very clear that they have no intention to pay the balance amount due and thus having been left with no other alternative the Plaintiff is filing this suit for recovery of Rs.11,55,780/- comprising

Rs.11,22,117/- being the principal amount due and the balance being the interest thereon at 18% per annum from 22.01.2016 to 22.03.2016. Hence the

Suit.

O.S.976/2016/IASCJC/VSP

4.The brief averments of the written statement filed by defendant are as follows:-

Defendant denies the material allegations made in the plaint and submits that the material allegation made in the plaint are neither true in fact nor tenable under law and the plaintiff is put to strict proof of each and every allegation which is not specifically admitted or denied herein. At the outset the suit is not maintainable under law as the plaintiff did not come with clean hands without disclosing the true facts to the Hon'ble court for achieving unlawful gain, as such the suit is liable to be dismissed in limine. The material averments in para III (a) of the plaint that the plaintiff company incorporated under the companies Act 1956 and is carrying a business inter alia in transportation of cargo by road and handling of the same, the defendant is also carrying on the same business may be true. The allegations in para III (b) of the plaint that while so, for the purpose of transaction of containerized cargo by road from their nominated yards at Vizag to Jindal Steel Limited Jajpur in the State of

Odisha defendant negotiated the rate with the plaintiff at Visakhapatnam and finalized the same as well as other terms and conditions for the carriage, accordingly in pursuance thereto defendant issued a total number of six work orders to the plaintiff between 27.12.2014 and 1.9.2015 at Visakhapatnam for transportation of the cargo are all hereby denied as false the plaintiff has to strict proof of the same. The allegations in para III (b) of the plaint that plaintiff duly transported the cargo from the CFS/yard nominated by the defendant at

Vizag to Jindal Steel Ltd., Jajpur, Odisha as per the terms of work orders and raised invoices from time to time, plaintiff was also sending bills from time to time for payment for the works executed, while so by 15-10-2015 defendant became liable to pay an amount of Rs.91,54,101/- towards transportation

O.S.976/2016/IASCJC/VSP

charges plaintiff therefore addressed a letter to the defendant expressing their anguish for not paying the amount due inspite of several emails and defendant demanded immediate payment of th same as they were in financial difficulties, thereafter defendant sent an undated letter contending that the amount due is

Rs.57,78 lakhs in response to the same plaintiff sent a remainders dated 8-9- 2015, 19-9-2015 adn 30-9-2015 thereby making it clear that they are not willing to accept the contention of the defendant, the defendant from time to time sent debit notes unilaterally for the amount totalling Rs.6,34,500/- thereby retaining detention charges from the bill of the plaintiff and paid an amount of

Rs.15,56,909/- only leaving a balance of Rs.75,97,192/- plaintiff once again addressed a letter dated 12-12-2015 to the defendant demanding payment of amount of Rs.46,43,874/- as there was no response to the same plaintiff was constrained to address another letter dated 14.1.2016 demanding immediate payment of balance amount, having received the same defendant sent an email

dated 19.01.2016 to the plaintff stating that they were willing to pay

Rs.34,81,728/- provided a no due certificate and balance confirmation was given by the plaintiff as per their format atached to the Email after, the same was also initimated to the plaintiff by the officials of the defendant over phone, taking advantage of the fact that plaintiff already completed the transportation work and huge amount due by them and in case the Plaintiff refused to issue the certificate the same would lead to a long legal battle and even the admitted amount would not be paid and also due to the financial crunch and under those compelling circumstances Plaintiff issued the certificate as demanded. On receipt of the no due certificate an amount of Rs.34,81,728/- was remitted by the defendant into the account of the plaintiff on 21.01.2015 leaving a balance of Rs. 11,22,117/- are all hereby denied as false.

O.S.976/2016/IASCJC/VSP

5.The bills raised by the plaintiff are totally false and baseless. The plaintiff sent the bills to this defendant from time to time is also false. No documents are filed by the plaintiff that establish the claims of the plaintiff. The plaintiff is a well trained cheater as couldbe seen from the averments of the plaint as well as the documents filed by his clearly shows his attitude is to achieve an unlawful gain from the defendant. The plaintiff by its own free will and consent signed the certificate dated 20-01-2016 and 21-01-2016 . Copy of the certificate dated 20-01-2016 and 21-01-2016 are filed. For the sake of argument it is submitted that the plaintiff has himself stated that there were payment of Rs.15,56,909/- adn Rs.29,53,313/- made by the defendant to theplaintiff which clearly goes to establish that there was no with holding of payments. The material allegations made in para(d) of the plaint that the plaintiff there after addressed a letter dated 22-1-2016 to the defendant explaining the circumstances under which the no due certificate was issued and also demanding the payment balance amount of Rs.11,22,117/- though the defendant duly received the letter failed to respond to the same, as the conduct of the defendant made it very clear that they have no Intention to pay the balance amount due and thus having been left with no other alternative the plaintiff is filing the suit for recovery of Rs.11,55,780/- comprising Rs.11,22,117/- being the principal amount due and the balance being the interest thereon at 18% per annum from 22.1.2016 to 22.3.2016 are all hereby denied as false the plaintiff is put to strict proof of the same. This defendant submits that there is no compulsion for the plaintiff by this defendant at any point of time. The plaintiff executed a certificate dated 20.01.2016 to the defendant company and the contents are of the said certificate is as follows: "Now we agree to accept

Rs.34,81,728/-as full and final settlement against the above payable and hence

O.S.976/2016/IASCJC/VSP

no amount is receivable as on 20.1.2016 and we will not make any claim in future". This certificate is sufficient for the entire suit is liable to be dismissed.

The plaintiff suppressed the letters that they have executed to this defendant.

Having received the amounts from the defendant the plaintiff deliberately cheated in order to achieve an unlawful gain from this defendant. As such the suit is liable to be dismissed for misrepresentation of fact. Further the plaintiff executed another letter on 21.01.2016 to the defendant whereby the plaintiff admitted that the settlement amount was accepted settling all kinds of claims and that plaintiff relinquish all rights to take any action or initiate any proceeding and that the no due certificate is given by out of our own will, free from any misrepresentation or coercion. There is no cause of action for the suit the entire story was created by the plaintiff for the purpose of this suit.This suit is filed only to achieve an unlawful gain from the defendant though they executed a letter of no due certificate. That there is no case for the plaintiff and the entire averments are created by the plaintiff for the purpose of this suit. Therefore, prays the

Hon’ble court to dismiss the suit with exemplary costs.

6.Basing on the above pleadings, the following issues framed for trial.

1. Whether the plaintiff executed a certificate dated 20-01-2016 to the defendant towards full and final settlement?

2. Whether the plaintiff is entitled to recover the suit amount as prayed for?

3. To what relief?

7.`1On trial manager of the plaintiff’s bank is examined as PW1 and through him Ex.A1 to A6 marked. On other hand no evidence either oral and documentary pur-forth by the defendant.

6.As seen from the chief evidence of PW1, it goes to show that on

O.S.976/2016/IASCJC/VSP

the request of defendant on dt.03.11.2015 for sanction of car loan to purchase

Swift Dezire car the plaintiff bank sanctioned loan of Rs.8,50,000/- to the defendant on 20.11.2015 vide sanction letter dt.20.11.2015 wherein defendant agreed to repay the loan amount 84 monthly installments of Rs.14,200/-. per month and interest. On that defendant executed loan cum hypothication agreement on 20.11.2015 in favour of plaintiff bank and hypothicated car bearing number AP31 DJ2115. Subsequently defendant became irregular in payment of installments as such the loan account of defendant became NPA dt.20.08.2017 as per RBI guidelines ultimately plaintiff bank issued lawyers notice. dt.26.12.2017 to the defendant demanding him to repay the entire balance outstanding amount but inspite of receiving the said notice by the defendant on 27.12.2017 he neither respondent or repaid the amount. Further

PW1 deposed that as per the statement of account the outstand amount of

Rs.8,41,773/- as on 18.04.2018 is due by the defendant to the plaintiff. Hence the suit for recovery of the same.

Accordingly issues answered.

11.In the result, suit is decreed with costs against the defendant for a sum of Rs.12,27,595.53 (Rupees Twelve Lakhs twenty seven thousand five hundred and ninety five and fifty three paise only) with interest at the rate of 18% p.a., from the date of suit till the date of decree and thereafter at the rate of 6% p.a. from the date of decree till the date of realization.

Dictated to the Stenographer, corrected and pronounced by me in open

Court, this the 18th day of October, 2022.

I ADDL. SENIOR CIVIL JUDGE,

VISAKHAPATNAM.

O.S.976/2016/IASCJC/VSP

Appendix of evidence

No. of witnesses examined for: Plaintiff:Defendant:

PW1: V.TirupathiraoDW.1: K.V.Satyanarayana Reddy

No. of documents marked for: Plaintiff:

Ex.A1 work order by defendant to the plaintiff dated 27-12-2014

Ex A2 work order by defendant to the plaintiff dated 27-03-2015

EX.A3 work order by defendant to the plaintiff dated 01-05-2015

Ex A4 work order by defendant to the plaintiff dated 01-06-2015

Ex A5 work order by defendant to the plaintiff dated 01-07-2015

Ex. A6 work order by defendant to the plaintiff dated 01-08-2015

Ex A7 Letter by defendant to plaintiff.

Ex A8 downloaded copy of E-mail by plaintiff to defendant dated 19-09-2015

Ex A9 downloaded copy of E-mail by plaintiff to defendant dated 30-09-2015

Ex.A10 downloaded copy of E-mail by plaintiff to defendant dated 14-10-2015

Ex.A11 downloaded copy of E-mail by plaintiff to defendant dated 19-10-2015

Ex.A12 office copy of letter addressed by plaintiff to defendant dated 15.10.2015.

Ex.A13 office copy of letter addressed by plaintiff to defendant along with acknowledgment dated 20-11-2015.

Ex.A14 office copy of letter addressed by plaintiff to defendant dated 12.12.2015

Ex.A15 downloaded copy of E-mail by plaintiff to defendant dated 06-02-2016

Ex A16 office copy of letter addressed by plaintiff dated 22-01-2016

Defendant:

Ex.B1 certificate dated 21-01-2016

Ex.B2 certitificate dated 20-01-2016

I ASCJ/VSP

O.S.976/2016/IASCJC/VSP

Date of presentation: 03-08-2016 Date of filing:09.08.2016

IN THE COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE,

VISAKHAPATNAM

Present: Smt.S.Sujatha I Additional Senior Civil Judge, Tuesday, this the 18th day of October, 2022

ORIGINAL SUIT NO.976/2016

Between:

M/s.PBL Transport Corporation Pvt. Ltd., Company - Incorporated under the Companies Act., having its registered office at D.No.47-10-13, 1st Floor, Rednam Plaza, Dwarakanagar, Visakhapatnam, rep. By its Managing Director Sri.P.Rajesh, S/o Ramaiah Gupta, Hindu, aged 45 years.

... Plaintiff.

And:

M/s.Apollo Fiege Integrated Logistics Pvt., Ltd., a company incorporated under Companies Act, 1956, having its registerfed office at Apollo Towers, Plot No.20, Sector-44, Gurgaon, Haryana-122002, having its branch office at D.No.31-33-115, Ground floor, Darani Apartment, Assam Gardens, Neelamma Vepachettu, Opp. Mamatha press, Visakhapatnam.

... Defendant.

This is a suit filed for recovery of a sum of Rs.2,27,595.53ps with subsequent interest @ 24% p.a., from the date of the suit till its realization and for costs of the suit. Value of the suit for the purpose of Court fee and jurisdiction is Rs.12,27,595.53/- and a court fee of Rs.14,726/- is paid under Sec.20 r/w.Art.I

(b) & (c) of Schedule I of A.P.C.F and S.V.Act., 1956. This suit coming on 15.09.2022 for final hearing before me in the presence of Sri.M.Ramdas, Advocates for the plaintiff and Sri.P.Sreenivas Advocate for defendant and the matter having stood over for consideration till this day, this Court doth order; and

DECREE

1. that the suit be and the same is hereby dismissed; and

2. that there be no order as to costs.

Given under my hand and the seal of the Court, this the 18th day of October, 2022.

I ADDL. SENIOR CIVIL JUDGE

VISAKHAPATNAM

O.S.976/2016/IASCJC/VSP

Memorandum of costs

For plaintiff:For Defendants: Rs. ps. Vakalat 2-00--No cost memo is filed-- Plaint fee 14,726-00 Process fee 65-00 Advocate fee 27,000-00 Typing charges 100-00 Clerk wages 100-00 --------------- Costs certified Rs.41,993-00 ---------------- I ASCJ/VSP

O.S.976/2016/IASCJC/VSP

IN THE COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE,

VISAKHAPATNAM

Present: Smt.S.Sujatha I Additional Senior Civil Judge,

Tuesday, this the 18th day of October, 2022

ORIGINAL SUIT NO.976/2016

Between:

M/s.PBL Transport Corporation Pvt. Ltd., Company - Incorporated under the Companies Act., having its registered office at D.No.47-10-13, 1st Floor, Rednam Plaza, Dwarakanagar, Visakhapatnam, rep. By its Managing Director Sri.P.Rajesh, S/o Ramaiah Gupta, Hindu, aged 45 years.

... Plaintiff.

And:

M/s.Apollo Fiege Integrated Logistics Pvt., Ltd., a company incorporated under Companies Act, 1956, having its registerfed office at Apollo Towers, Plot No.20, Sector-44, Gurgaon, Haryana-122002, having its branch office at D.No.31-33-115, Ground floor, Darani Apartment, Assam Gardens, Neelamma Vepachettu, Opp. Mamatha press, Visakhapatnam.

... Defendant.

This suit coming on 15.09.2022 for final hearing before me in the presence of Sri.M.Ramdas, Advocates for the plaintiff and Sri.P.Sreenivas

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

JUDGMENT

1.This is a suit filed for recovery of a sum of Rs.2,27,595.53ps with subsequent interest @ 24% p.a., from the date of the suit till its realization and for costs of the suit.

2.The brief averments of the plaint are as follows:-

The plaintiff is a company incorporated under the Companies Act, 1956 and is carrying en business, inter alia in transportation of cargo by road

O.S.976/2016/IASCJC/VSP

and handling of the same. Defendant is also carrying on the same business.

While so, for the purpose of transportation of containerized cargo by road from their nominated yards at Vizag to Jindal Steel Ltd., Jajpur in the State of Odisha defendant negotiated the rates with the plaintiff at Visakhapatnam and finalized the same as well as other terms and conditions for the carriage. Accordingly, in pursuance thereto, defendant issued a total number of six work orders to the plaintiff between 27.12.2014 and 01.09.2015 at Visakhapatnam for transportation of the cargo. Plaintiff duly transported the cargo from the

CFS/Yard nominated by the defendant at Vizag to Jindal Steel Ltd., Jajpur

Odisha as per the terms of work orders and raised invoices from time to time.

Plaintiff was also sending bills from time to time for payment for the works executed. While so, by 15.10.2015 defendant became liable to pay an amount of Rs.91,54,101/- towards transportation charges. Plaintiff therefore addressed a letter to the defendant expressing their anguish for not paying the amount due in spite of several e-mails and demanded immediate payment of the same as they were in financial difficulties. Thereafter defendant sent an undated letter contending that the amount due is only Rs.57.78 lakhs. In response to the same

Plaintiff sent a reminders dated 08.09.2015, 19.09.2015 and 30.09.2015 thereby making it clear that they are not willing to accept the contention of the defendant. The defendant from time to time sent debit notes unilaterally for the amount totaling Rs.6,34,500/- thereby retaining detention charges from the bills of the Plaintiff and paid an amount of Rs.15,56,909/- only leaving a balance of

Rs.75,97,192/-. Plaintiff once again addressed a letter dated 20.11.2015 demanding the defendant to make immediate payment of the balance amount.

After receiving the above mentioned letter defendant made part payment of an amount of Rs.29,53,313/- leaving a balance of Rs.46,43,874/-. Therefore

O.S.976/2016/IASCJC/VSP

Plaintiff once again addressed a letter dated 12.12.2015 to the defendant demanding payment of amount of Rs.46,43,874/-. As there was no response to the same plaintiff was constrained to address another letter dated 14.01.2016 demanding immediate payment of balance amount. Having received the same defendant sent an e-mail dated 19.01.2016 to the plaintiff stating that they were willing to pay Rs.34,81,728/-provided a no due certificate and balance conformation was given by the Plaintiff as per their format attached to the email.

The same was also intimated to the Plaintiff by the officials of the defendant over phone. Taking advantage of the fact that Plaintiff already completed the transportation work and huge amount due by them and in case the Plaintiff refused to issue the certificate the same would lead to a long legal battle and even the admitted amount would not be paid and also due to the financial crunch and under those compelling circumstances Plaintiff issued the certificate as demanded. On receipt of the no due certificate an amount of Rs.34,81,728/- was remitted by the defendant into the account of the plaintiff on 21.01.2015 leaving a balance of Rs. 11,22,117/-.

3. The plaintiff thereafter addressed a letter dated 22.01.2015 to the defendant explaining the circumstances under which the no due certificate was issued and also demanding the payment of balance amount of Rs.11,22,117/-.

Though the defendant duly received the letter, failed to respond to the same. As the conduct of the defendant made it very clear that they have no intention to pay the balance amount due and thus having been left with no other alternative the Plaintiff is filing this suit for recovery of Rs.11,55,780/- comprising

Rs.11,22,117/- being the principal amount due and the balance being the interest thereon at 18% per annum from 22.01.2016 to 22.03.2016. Hence the

Suit.

O.S.976/2016/IASCJC/VSP

4.The brief averments of the written statement filed by defendant are as follows:-

Defendant denies the material allegations made in the plaint and submits that the material allegation made in the plaint are neither true in fact nor tenable under law and the plaintiff is put to strict proof of each and every allegation which is not specifically admitted or denied herein. At the outset the suit is not maintainable under law as the plaintiff did not come with clean hands without disclosing the true facts to the Hon'ble court for achieving unlawful gain, as such the suit is liable to be dismissed in limine. The material averments in para III (a) of the plaint that the plaintiff company incorporated under the companies Act 1956 and is carrying a business inter alia in transportation of cargo by road and handling of the same, the defendant is also carrying on the same business may be true. The allegations in para III (b) of the plaint that while so, for the purpose of transaction of containerized cargo by road from their nominated yards at Vizag to Jindal Steel Limited Jajpur in the State of

Odisha defendant negotiated the rate with the plaintiff at Visakhapatnam and finalized the same as well as other terms and conditions for the carriage, accordingly in pursuance thereto defendant issued a total number of six work orders to the plaintiff between 27.12.2014 and 1.9.2015 at Visakhapatnam for transportation of the cargo are all hereby denied as false the plaintiff has to strict proof of the same. The allegations in para III (b) of the plaint that plaintiff duly transported the cargo from the CFS/yard nominated by the defendant at

Vizag to Jindal Steel Ltd., Jajpur, Odisha as per the terms of work orders and raised invoices from time to time, plaintiff was also sending bills from time to time for payment for the works executed, while so by 15-10-2015 defendant became liable to pay an amount of Rs.91,54,101/- towards transportation

O.S.976/2016/IASCJC/VSP

charges plaintiff therefore addressed a letter to the defendant expressing their anguish for not paying the amount due inspite of several emails and defendant demanded immediate payment of th same as they were in financial difficulties, thereafter defendant sent an undated letter contending that the amount due is

Rs.57,78 lakhs in response to the same plaintiff sent a remainders dated 8-9- 2015, 19-9-2015 adn 30-9-2015 thereby making it clear that they are not willing to accept the contention of the defendant, the defendant from time to time sent debit notes unilaterally for the amount totalling Rs.6,34,500/- thereby retaining detention charges from the bill of the plaintiff and paid an amount of

Rs.15,56,909/- only leaving a balance of Rs.75,97,192/- plaintiff once again addressed a letter dated 12-12-2015 to the defendant demanding payment of amount of Rs.46,43,874/- as there was no response to the same plaintiff was constrained to address another letter dated 14.1.2016 demanding immediate payment of balance amount, having received the same defendant sent an email

dated 19.01.2016 to the plaintff stating that they were willing to pay

Rs.34,81,728/- provided a no due certificate and balance confirmation was given by the plaintiff as per their format atached to the Email after, the same was also initimated to the plaintiff by the officials of the defendant over phone, taking advantage of the fact that plaintiff already completed the transportation work and huge amount due by them and in case the Plaintiff refused to issue the certificate the same would lead to a long legal battle and even the admitted amount would not be paid and also due to the financial crunch and under those compelling circumstances Plaintiff issued the certificate as demanded. On receipt of the no due certificate an amount of Rs.34,81,728/- was remitted by the defendant into the account of the plaintiff on 21.01.2015 leaving a balance of Rs. 11,22,117/- are all hereby denied as false.

O.S.976/2016/IASCJC/VSP

5.The bills raised by the plaintiff are totally false and baseless. The plaintiff sent the bills to this defendant from time to time is also false. No documents are filed by the plaintiff that establish the claims of the plaintiff. The plaintiff is a well trained cheater as couldbe seen from the averments of the plaint as well as the documents filed by his clearly shows his attitude is to achieve an unlawful gain from the defendant. The plaintiff by its own free will and consent signed the certificate dated 20-01-2016 and 21-01-2016 . Copy of the certificate dated 20-01-2016 and 21-01-2016 are filed. For the sake of argument it is submitted that the plaintiff has himself stated that there were payment of Rs.15,56,909/- adn Rs.29,53,313/- made by the defendant to theplaintiff which clearly goes to establish that there was no with holding of payments. The material allegations made in para(d) of the plaint that the plaintiff there after addressed a letter dated 22-1-2016 to the defendant explaining the circumstances under which the no due certificate was issued and also demanding the payment balance amount of Rs.11,22,117/- though the defendant duly received the letter failed to respond to the same, as the conduct of the defendant made it very clear that they have no Intention to pay the balance amount due and thus having been left with no other alternative the plaintiff is filing the suit for recovery of Rs.11,55,780/- comprising Rs.11,22,117/- being the principal amount due and the balance being the interest thereon at 18% per annum from 22.1.2016 to 22.3.2016 are all hereby denied as false the plaintiff is put to strict proof of the same. This defendant submits that there is no compulsion for the plaintiff by this defendant at any point of time. The plaintiff executed a certificate dated 20.01.2016 to the defendant company and the contents are of the said certificate is as follows: "Now we agree to accept

Rs.34,81,728/-as full and final settlement against the above payable and hence

O.S.976/2016/IASCJC/VSP

no amount is receivable as on 20.1.2016 and we will not make any claim in future". This certificate is sufficient for the entire suit is liable to be dismissed.

The plaintiff suppressed the letters that they have executed to this defendant.

Having received the amounts from the defendant the plaintiff deliberately cheated in order to achieve an unlawful gain from this defendant. As such the suit is liable to be dismissed for misrepresentation of fact. Further the plaintiff executed another letter on 21.01.2016 to the defendant whereby the plaintiff admitted that the settlement amount was accepted settling all kinds of claims and that plaintiff relinquish all rights to take any action or initiate any proceeding and that the no due certificate is given by out of our own will, free from any misrepresentation or coercion. There is no cause of action for the suit the entire story was created by the plaintiff for the purpose of this suit.This suit is filed only to achieve an unlawful gain from the defendant though they executed a letter of no due certificate. That there is no case for the plaintiff and the entire averments are created by the plaintiff for the purpose of this suit. Therefore, prays the

Hon’ble court to dismiss the suit with exemplary costs.

6.Basing on the above pleadings, the following issues framed for trial.

1. Whether the plaintiff executed a certificate dated 20-01-2016 to the defendant towards full and final settlement?

2. Whether the plaintiff is entitled to recover the suit amount as prayed for?

3. To what relief?

7.`1On trial manager of the plaintiff’s bank is examined as PW1 and through him Ex.A1 to A6 marked. On other hand no evidence either oral and documentary pur-forth by the defendant.

6.As seen from the chief evidence of PW1, it goes to show that on

O.S.976/2016/IASCJC/VSP

the request of defendant on dt.03.11.2015 for sanction of car loan to purchase

Swift Dezire car the plaintiff bank sanctioned loan of Rs.8,50,000/- to the defendant on 20.11.2015 vide sanction letter dt.20.11.2015 wherein defendant agreed to repay the loan amount 84 monthly installments of Rs.14,200/-. per month and interest. On that defendant executed loan cum hypothication agreement on 20.11.2015 in favour of plaintiff bank and hypothicated car bearing number AP31 DJ2115. Subsequently defendant became irregular in payment of installments as such the loan account of defendant became NPA dt.20.08.2017 as per RBI guidelines ultimately plaintiff bank issued lawyers notice. dt.26.12.2017 to the defendant demanding him to repay the entire balance outstanding amount but inspite of receiving the said notice by the defendant on 27.12.2017 he neither respondent or repaid the amount. Further

PW1 deposed that as per the statement of account the outstand amount of

Rs.8,41,773/- as on 18.04.2018 is due by the defendant to the plaintiff. Hence the suit for recovery of the same.

Accordingly issues answered.

11.In the result, suit is decreed with costs against the defendant for a sum of Rs.12,27,595.53 (Rupees Twelve Lakhs twenty seven thousand five hundred and ninety five and fifty three paise only) with interest at the rate of 18% p.a., from the date of suit till the date of decree and thereafter at the rate of 6% p.a. from the date of decree till the date of realization.

Dictated to the Stenographer, corrected and pronounced by me in open

Court, this the 18th day of October, 2022.

I ADDL. SENIOR CIVIL JUDGE,

VISAKHAPATNAM.

O.S.976/2016/IASCJC/VSP

Appendix of evidence

No. of witnesses examined for: Plaintiff:Defendant:

PW1: V.TirupathiraoDW.1: K.V.Satyanarayana Reddy

No. of documents marked for: Plaintiff:

Ex.A1 work order by defendant to the plaintiff dated 27-12-2014

Ex A2 work order by defendant to the plaintiff dated 27-03-2015

EX.A3 work order by defendant to the plaintiff dated 01-05-2015

Ex A4 work order by defendant to the plaintiff dated 01-06-2015

Ex A5 work order by defendant to the plaintiff dated 01-07-2015

Ex. A6 work order by defendant to the plaintiff dated 01-08-2015

Ex A7 Letter by defendant to plaintiff.

Ex A8 downloaded copy of E-mail by plaintiff to defendant dated 19-09-2015

Ex A9 downloaded copy of E-mail by plaintiff to defendant dated 30-09-2015

Ex.A10 downloaded copy of E-mail by plaintiff to defendant dated 14-10-2015

Ex.A11 downloaded copy of E-mail by plaintiff to defendant dated 19-10-2015

Ex.A12 office copy of letter addressed by plaintiff to defendant dated 15.10.2015.

Ex.A13 office copy of letter addressed by plaintiff to defendant along with acknowledgment dated 20-11-2015.

Ex.A14 office copy of letter addressed by plaintiff to defendant dated 12.12.2015

Ex.A15 downloaded copy of E-mail by plaintiff to defendant dated 06-02-2016

Ex A16 office copy of letter addressed by plaintiff dated 22-01-2016

Defendant:

Ex.B1 certificate dated 21-01-2016

Ex.B2 certitificate dated 20-01-2016

I ASCJ/VSP

O.S.976/2016/IASCJC/VSP

Date of presentation: 03-08-2016 Date of filing:09.08.2016

IN THE COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE,

VISAKHAPATNAM

Present: Smt.S.Sujatha I Additional Senior Civil Judge, Tuesday, this the 18th day of October, 2022

ORIGINAL SUIT NO.976/2016

Between:

M/s.PBL Transport Corporation Pvt. Ltd., Company - Incorporated under the Companies Act., having its registered office at D.No.47-10-13, 1st Floor, Rednam Plaza, Dwarakanagar, Visakhapatnam, rep. By its Managing Director Sri.P.Rajesh, S/o Ramaiah Gupta, Hindu, aged 45 years.

... Plaintiff.

And:

M/s.Apollo Fiege Integrated Logistics Pvt., Ltd., a company incorporated under Companies Act, 1956, having its registerfed office at Apollo Towers, Plot No.20, Sector-44, Gurgaon, Haryana-122002, having its branch office at D.No.31-33-115, Ground floor, Darani Apartment, Assam Gardens, Neelamma Vepachettu, Opp. Mamatha press, Visakhapatnam.

... Defendant.

This is a suit filed for recovery of a sum of Rs.2,27,595.53ps with subsequent interest @ 24% p.a., from the date of the suit till its realization and for costs of the suit. Value of the suit for the purpose of Court fee and jurisdiction is Rs.12,27,595.53/- and a court fee of Rs.14,726/- is paid under Sec.20 r/w.Art.I

(b) & (c) of Schedule I of A.P.C.F and S.V.Act., 1956. This suit coming on 15.09.2022 for final hearing before me in the presence of Sri.M.Ramdas, Advocates for the plaintiff and Sri.P.Sreenivas Advocate for defendant and the matter having stood over for consideration till this day, this Court doth order; and

DECREE

1. that the suit be and the same is hereby dismissed; and

2. that there be no order as to costs.

Given under my hand and the seal of the Court, this the 18th day of October, 2022.

I ADDL. SENIOR CIVIL JUDGE

VISAKHAPATNAM

O.S.976/2016/IASCJC/VSP

Memorandum of costs

For plaintiff:For Defendants: Rs. ps. Vakalat 2-00--No cost memo is filed-- Plaint fee 14,726-00 Process fee 65-00 Advocate fee 27,000-00 Typing charges 100-00 Clerk wages 100-00 --------------- Costs certified Rs.41,993-00 ---------------- I ASCJ/VSP

O.S.13/2017, Dt : 19-04-2023 1 PSCJC/VSP

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AT

VISAKHAPATNAM

Present :S.Sujatha

Principal Senior Civil Judge

Visakhapatnam.

Wednesday, this the 19th day of April, 2023.

Original Suit No.13/2017

Between : Vegesna Venkatapathi Raju, S/o late Satyanarayana Raju, Hindu, aged 71 years, resident of 49-54-3/1/6, Flat 401, Om Vigneswara The Pearl, Ballaya Sastry Layout, Visakhapatnam-530 013. … Plaintiff

A n d :

1. Pothina Prakasa Rao, S/o late Naganna, aged 63 years, resident of K.Nagarapalem, Nagarapalem Village, Kapuluppada Revenue Village, Bheemunipatnam Mandal, Visakhapatnam District.

2. Pothina Ramana, S/o late Naganna, aged about 48 years, resident of K.Nagarapalem, Nagarapalem Village, Kapuluppada Revenue Village, Bheemunipatnam Mandal, Visakhapatnam District.

3. Pothina Naresh @ Nagaraju, S/o late Ramasuri, aged 27 years, resident of K.Nagarapalem, K.Nagarapalem Village, Kapuluppada Revenue Village, Bheemunipatnam Mandal, Visakhapatnam District. … Defendants

This suit is coming on 17-04-2023 for final hearing before me in the presence of Sri.K.Rama Kireeti, Advocate for the Plaintiff and of Sri.Ch.Venkateswara Rao, Advocate for the Defendants and having stood over for consideration till this day, this Court made the following :

J U D G M E N T

1.This is a suit filed by plaintiff against defendants for grant of permanent injunction restraining defendants, their men, agents, supporters etc. from interfering with plaintiff’s possession and enjoyment of suit schedule property (A to C) along with costs of suit and for grant of such other relief or reliefs as the

Court may deem fit and proper in the circumstances of the case.

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

O.S.13/2017, Dt : 19-04-2023 2 PSCJC/VSP

Plaintiff is absolute owner of plaint schedule properties having purchased an extent of Ac.0.26cents in survey No.303/4P of Kapuluppada and Ac.0.23 ½ cents in survey No.303/6P of Kapuluppada i.e. plaint “A” schedule property under a registered sale deed, dt.22-04-2008, an extent of Ac.0.12 ½ cents in survey

No.303/4P of Kapuluppada and Ac.0.04cents in survey No.303/5P of

Kapuluppada i.e. plaint “B” schedule property under a registered sale deed, dt.30- 04-2008, an extent of 25sq.yds. in survey No.303/4P and 303/5P of Kapuluppada i.e. plaint “C” schedule property under a registered sale deed, dt.24-10-2008 from his vendor R.Vijaya Lakshmi. Since then, he has been in possession and enjoyment of plaint schedule properties by constructing compound wall. Further, the revenue authorities also issued pattadar passbook and record of rights in his favour for the plaint schedule properties except “C” schedule property as the land is in square yards. He further averred that his name is also mutated in the revenue records such as adangal and 1-B wherein his name is shown as in possession ever since 2008. When the defendants tried to encroach into same but he resisted their attempts. The defendants got issue lawyer’s notice, dt.01-08-2016 to the plaintiff for which he had issue reply notice, dt.22-08-2016. While so, when he deployed men to repair the shed in the schedule property, the defendants came there stopped the work. They also threatened him and the labour with dire consequences. He further averred that due to his old age he cannot personally stop their attempts and police refused stating that it is civil dispute which constrained him to file the present suit for permanent injunction to restrain the defendants.

3. The averments of the written statement filed by 1 st defendant which is adopted by defendants 2 and 3 in brief are as follows :

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(a)The defendants denied all the material averments made in the plaint and submitted that 1st defendant’s great grandfather Pothina (late) Naganna who is ancestor of defendants having properties of agricultural lands and houses in

Kapuluppada apart from land in survey No.303, after his demise his five sons viz.

Peda Appalaswamy, China Appalaswamy, Seethaiah, Narasimma and Ramayya got oral partition among themselves wherein China Appalaswamy got properties in survey Nos.303/5, 323, 303/6, 330 in Kapuluppada along with some other properties. After demise of China Appalaswamy his sons Sanyasi and Narisamma succeeded his properties. After their demise their sons Sanyasi Rao and

Appalaraju sons of Pothina Sanyasi and Appalanaidu son of Pothina Narisimma succeeded the said properties.

(b)While the matter stood thus, Hari and Rama (minor children) and

Lakshmi wife of Sanyasi Rao, Sundara Rao and Narasinga Rao sons of

Appalanaidu falsely executed GPA and sale deeds to the vendor of plaintiff

R.Vijayalakshmi by mentioning survey No.303/4 for an extent of Ac.0.42cents though they have no right.

(c)After demise of 1st defendant’s great grandfather Pothina (late)

Naganna, his fifth son Pothina Ramayya got properties in survey No.03/4, patta

No.313 of an extent of Ac.0.42cents of Kapuluppada and after demise his sons

Naganna i.e. 1st defendant’s father, Appa Rao and Narasimma succeeded the property and in turn in an oral partition among his above brothers, 1st defendant’s father Naganna got Ac.0.42cents in survey No.303/4, patta No.313 of

Kapuluppada and the same is reflected in settlement land register of Kapuluppada in the name of Ramayya. Later pattadar passbook issued in the name of 2nd

O.S.13/2017, Dt : 19-04-2023 4 PSCJC/VSP

defendant by the revenue authorities, while the matter stood thus original pattadar passbook was lost and a report lodged at Bheemunipatnam Police and the police issued not traced certificate, dt.26-01-2017. The settlement land register clearly shows the name of vendor’s vendor’s ancestor Pothina China Appalaswamy, S/o

Pothina Naganna having properties in survey Nos.303/5 and 303/6 only. The plaintiff has no possession and title or any manner of right over the plaint schedule property. Thus, prayed to dismiss the suit with costs.

4. Basing on the pleadings of both parties, this Court has framed the following issues for trial :

1. Whether the plaintiff is in possession and enjoyment of the plaint schedule properties A, B, C ?

2. Whether defendants are interfering with the possession and enjoyment of the plaintiff over plaint schedule property, whether the said interference is warranted ?

3. Whether the plaintiff is entitled to the relief of permanent injunction against defendants 1 to 3 ?

4. To what relief ?

5. ISSUES 1 to 3 :On trial plaintiff is examined as PW.1 wherein he reiterated the plaint pleadings and his evidence in nutshell is that he has purchased plaint “A, B and C” schedule property under a registered sale deeds, dt.22-04- 2008, dt.30-04-2008 and dt.24-10-2008 respectively from his vendor Rathamsetty

Vijayalakshmi, since then he has been in possession and enjoyment of plaint schedule property by constructing a compound wall. Further, the revenue authorities also issued pattadar passbook and record of rights in his favour for the

O.S.13/2017, Dt : 19-04-2023 5 PSCJC/VSP

plaint schedule property. As “C” schedule property is converted into non- agricultural purpose pattadar passbook not issued for the said extent. Further his name is also mutated in the revenue records such as adangal and 1-B ever since 2008. While so, the defendants who are residents of the same village hatched a plan to grab the property and tried to encroach into same, however he resisted their attempts. They also got issue lawyer’s notice, dt.01-08-2016 with false averments for that PW.1 had issue reply notice, dt.22-08-2016. Further when he deployed men to repair the shed in the schedule property, the defendants their men interfered and stopped the work. They have also threatened PW.1 with dire consequences, unable to resist their highhanded activities, he filed the present suit for permanent injunction to restrain them.

6.In support of his oral contention, original registered sale deed, dt.22-04-2008, original registered sale deed, dt.30-04-2008, original registered sale deed, dt.24- 10-2008, pattadar passbook, record of rights book, certified copy of No.3 adandal, certified copy of 1-B, lawyer’s notice, dt.01-08-2016, reply notice, dt.22-08-2016, office copy of letter, dt.17-03-2017, endorsement, dt.18-07-2018 issued by

Tahsildar, Bheemunipatnam, postal acknowledgment of Tahsildar and postal acknowledgment of R.D.O. marked as Ex.A1 to Ex.A13 respectively.

7.To this chief evidence of PW.1 though the defendants contested the suit by filing written statement but not chosen to cross-examine PW.1, thereby the chief evidence of PW.1 remained unchallenged by the defendants.

8.No further evidence adduced on behalf of plaintiff.

9.On the other hand, though the defendants filed written statement denying plaint averments and claiming the right, title and possession over the plaint

O.S.13/2017, Dt : 19-04-2023 6 PSCJC/VSP

schedule property but none of them chosen to come to the witness box to speak about written statement averments and offered themselves to be cross-examined by the plaintiff inspite of affording sufficient opportunity to them by the Court.

Thereby there is no evidence on behalf of the defendants recorded.

10.Upon perusing the evidence of PW.1 coupled with Ex.A1 to Ex.A3 it goes to show that plaintiff appears to have purchased the plaint A, B, C schedule property under Ex.A1 to Ex.A3 respectively wherein the recitals of the sale deeds goes to show that he was inducted into possession by his vendor, so Ex.A1 to Ex.A3 clearly speaks the plaintiff’s possession over the plaint schedule property.

However, though Ex.A4 to Ex.A7 filed by plaintiff except an extent of

Ac.0.04cents in survey No.303/5A which is part of schedule under Ex.A2 which is part of “B” schedule of the plaint schedule, the other extent of plaint A, B, C schedule not found in Ex.A4 to Ex.A7, so except the said extent which is part of plaint “B” schedule as there is no other extent of plaint schedule in the said documents they are not relevant to consider plaintiff’s possession. Hence, for the said extent of the plaint schedule Ex.A4 to Ex.A7 are not in support of the plaintiff’s version. The other documents under Ex.A8 and Ex.A9 which are lawyer’s notices goes to show that there was exchange of notices between the parties claiming the right, title and possession of the plaint schedule. Further

Ex.A10 which is office copy of letter, dt.17-03-2017 under Right to Information

Act, 2005 goes to show that plaintiff addressed a letter to the Station House

Officer, Bheemunipatnam P.S. with regard to the complaint lodged by 2nd defendant about his loss of passbook for the land in survey No.303/4 for which the concerned police issued information to PW.1 stating that the complaint lodged by

O.S.13/2017, Dt : 19-04-2023 7 PSCJC/VSP

2nd defendant to the police about the loss of his passbook is misrepresentation and already the passbook cancelled by revenue authorities whereas Ex.A11 which is endorsement, dt.18-07-2008 issued by Tahsildar, Bheemunipatnam along with scanned copy of 1-B register goes to show that the said pattadar passbook cancelled in favour of 2nd defendant, thereby the version of plaintiff that he has been in possession and enjoyment of the plaint schedule property having purchased the same under Ex.A1 to Ex.A3 can be believed by virtue of Ex.A1 to

Ex.A3 and defendants have been interfering with his possession of the plaint schedule property. Since said evidence of PW.1 in his chief is not challenged by defendants.

11.Though the defendants have contested the suit claiming the title and possession as against the plaintiff but no such evidence either oral or documentary put forth by them. Hence, the written statement averments without any proof cannot be considered. When the defendants did not choose to enter into the witness box to prove the contentions raised by them in the written statement, a presumption can be drawn U/Sec.114 (g) of Indian Evidence Act that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.

12.Therefore, the chief evidence of PW.1 coupled with Ex.A1 to Ex.A13 which remained unchallenged by the defendants goes to show that they have admitted the version of plaintiff and that the documents under Ex.A1 to Ex.A3 proving the possession over the plaint schedule property by the plaintiff. Thereby, this Court is of the view that it is a fit case where the defendants can be restrained from interfering with the peaceful possession and enjoyment of plaint schedule property

O.S.13/2017, Dt : 19-04-2023 8 PSCJC/VSP

by the plaintiff by granting of permanent injunction. Accordingly, issues 1 to 3 are answered in favour of the plaintiff and against defendants.

13. ISSUE NO.4 :In the result, suit is decreed with costs by granting of permanent injunction in favour of the plaintiff as against the defendants, their men, agents, supporters etc. from interfering with plaintiff’s possession and enjoyment of plaint schedule property (A to C).

(Typed to my dictation by Stenographer, corrected and pronounced by me in the open Court, this the 19th day of April, 2023).

Sd/- S.SUJATHA

Principal Senior Civil Judge,

Visakhapatnam.

Appendix of evidence

No. of witnesses examined for

For Plaintiff : For Defendants :

PW.1 : V.Venkatapathi RajuNONE

No. of documents marked for

For Plaintiff : Ex.A1 : Original registered sale deed, dt.22-04-2008. Ex.A2 : Original registered sale deed, dt.30-04-2008. Ex.A3 : Original registered sale deed, dt.24-10-2008. Ex.A4 : Pattadar passbook in the name of plaintiff. Ex.A5 : Record of rights book in the name of plaintiff. Ex.A6 : Certified copy of No.3 adandal, dt.02-08-2016. Ex.A7 : Certified copy of 1-B, dt.02-08-2016. Ex.A8 : Lawyer’s notice, dt.01-08-2016. Ex.A9 : Reply notice, dt.22-08-2016. Ex.A10 : Office copy of letter, dt.17-03-2017 along with information given by police, dt.15-04-2017. Ex.A11 : Endorsement, dt.18-07-2018 issued by Tahsildar, Bheemunipatnam. Ex.A12 : Postal acknowledgment of Tahsildar, Bheemunipatnam. Ex.A13 : Postal acknowledgment of R.D.O., Visakhapatnam. For Defendants : -NIL-

Sd/- S.SUJATHA

Principal Senior Civil Judge,

Visakhapatnam.

O.S.13/2017, Dt : 19-04-2023 9 PSCJC/VSP

Date of Presentation : 04-01-2017 Date of Filing : 04-01-2017

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AT

VISAKHAPATNAM

Present :S.Sujatha

Principal Senior Civil Judge

Visakhapatnam.

Wednesday, this the 19th day of April, 2023.

Original Suit No.13/2017

Between : Vegesna Venkatapathi Raju, S/o late Satyanarayana Raju, Hindu, aged 71 years, resident of 49-54-3/1/6, Flat 401, Om Vigneswara The Pearl, Ballaya Sastry Layout, Visakhapatnam-530 013. … Plaintiff

A n d :

1. Pothina Prakasa Rao, S/o late Naganna, aged 63 years, resident of K.Nagarapalem, Nagarapalem Village, Kapuluppada Revenue Village, Bheemunipatnam Mandal, Visakhapatnam District.

2. Pothina Ramana, S/o late Naganna, aged about 48 years, resident of K.Nagarapalem, Nagarapalem Village, Kapuluppada Revenue Village, Bheemunipatnam Mandal, Visakhapatnam District.

3. Pothina Naresh @ Nagaraju, S/o late Ramasuri, aged 27 years, resident of K.Nagarapalem, K.Nagarapalem Village, Kapuluppada Revenue Village, Bheemunipatnam Mandal, Visakhapatnam District. … Defendants

This is a suit filed by plaintiff against defendants for grant of permanent injunction restraining defendants, their men, agents, supporters etc. from interfering with plaintiff’s possession and enjoyment of suit schedule property (A to C) along with costs of suit and for grant of such other relief or reliefs as the Court may deem fit and proper in the circumstances of the case.

Value of the suit for the purpose of Court fee and jurisdiction is Rs.10,50,000/- and a Court fee of Rs.17,778/- is paid U/Sec.26 (c) of A.P.C.F. and S.V.Act.

This suit is coming on 17-04-2023 for final hearing before me in the presence of Sri.K.Rama Kireeti, Advocate for the Plaintiff and of Sri.Ch.Venkateswara Rao, Advocate for the Defendants and the matter having stood over for consideration till this day, this Court doth order and passed the following :

O.S.13/2017, Dt : 19-04-2023 10 PSCJC/VSP

D E C R E E

1. that the suit be and the same is hereby decreed granting permanent injunction in favour of the plaintiff as against the defendants, their men, agents, supporters etc. from interfering with plaintiff’s possession and enjoyment of plaint schedule property (A to C); and

2. that the defendants do also pay to the plaintiff a sum of Rs.62,250/- (Rupees sixty-two thousand two hundred and fifty only) towards costs of the suit.

(A copy of the suit schedule is herewith attached)

Given under my hand and the seal of this Court, this the 19th day of April, 2023.

Sd/- S.SUJATHA

Principal Senior Civil Judge,

Visakhapatnam.

MEMORANDUM OF COSTS

For Plaintiff : For Defendant :

Stamps on VakalatRs.2-00 No costs memo filed.

Stamps on PlaintRs.17,778-00

Stamps on PetitionsRs.4-00

Process FeeRs.200-00

Advocate FeeRs.33,200-00

Junior Advocate FeeRs.11,066-00

Total Costs AllowedRs.62,250-00

Sd/- S.SUJATHA

Principal Senior Civil Judge,

Visakhapatnam.

O.S.689/2017, Dt : 19-04-2023 1 PSCJC/VSP

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AT

VISAKHAPATNAM

Present :S.Sujatha

Principal Senior Civil Judge

Visakhapatnam.

Wednesday, this the 19th day of April, 2023.

Original Suit No.689/2017

Between : Gannamraju Kanaka Mahalakshmi, W/o Chinna Rama Murthy, Hindu, aged 36 years, D.No.24-139/3, Padmavathi Nagar, Shipyard layout, Vepagunta Post, Visakhapatnam-17. … Plaintiff

A n d :

1. Kola Vara Lakshmi, W/o Suryanarayana, Hindu, aged 47 years, D.No.62-7- 11, Jawahar Nagar, Sriharipuram, Malkapuram Post, Visakhapatnam-11.

2. Kola Arun Kumar, S/o Suryanarayana, Hindu, aged 27 years, D.No.62-7- 11, Jawahar Nagar, Sriharipuram, Malkapuram Post, Visakhapatnam-11.

3. Kola Suresh Kumar, S/o Suryanarayana, Hindu, aged 24 years, D.No.62-7- 11, Jawahar Nagar, Sriharipuram, Malkapuram Post, Visakhapatnam-11. … Defendants

This suit is coming on 18-04-2023 for final hearing before me in the presence of Sri.G.Ramachandra Raju, Advocate for the Plaintiff and of Sri.L.Srinivasa Varma, Advocate for the Defendants and having stood over for consideration till this day, this Court made the following:

J U D G M E N T

1.This is a suit filed by the plaintiff against the defendants 1 to 3 for recovery of a sum of Rs.10,20,000/- with subsequent interest at 24% p.a. from the date of filing of the suit till the date of realization along with costs of the suit and for such other relief or reliefs which the Court deems fit and proper in the circumstances of the case.

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

The 1st defendant being mother and defendants 2 and 3 being children together borrowed an amount of Rs.6,00,000/- from plaintiff on 19-07-2014 for

O.S.689/2017, Dt : 19-04-2023 2 PSCJC/VSP

their family necessities and to clear sundry debts by executing suit promissory at the residence of plaintiff agreeing to repay the same with interest at 24% per annum as and when demanded by her. But inspite of repeated demands made by her, the defendants did not choose to pay any amount. On that plaintiff got issue legal notice, dt.23-05-2017 to defendants which are returned as “addressee left hence returned to sender”, which constrained her to file the present suit.

3. The averments of the written statement filed by 1 st defendant which is adopted by defendants 2 and 3 in brief are as follows :

The defendants denied all the material averments made in the plaint except the relationship between the defendants and contended that since 14 years they never resided in the address mentioned by the plaintiff, as such no notice served on them. They further submitted that the defendants borrowed an amount of

Rs.1,00,000/- from the husband of plaintiff and as per his demand they put their signatures on empty non-judicial stamp paper. They paid interest regularly and cleared the debt amount and demanded for return of empty non-judicial stamp paper. But husband of plaintiff expressed his inability to return back as misplaced.

Believing his version they kept mum but after receipt of summons and notices from Court they came to know that plaintiff projected false story by fabricating the non-judicial stamp paper which was with her husband to harass them for wrongful gain. They further submitted that in view of insufficient stamp duty the promissory note is not admissible in evidence. Thus prayed to dismiss the suit with costs.

4. Basing on the pleadings of both parties, this Court has framed the following issues for trial :

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1. Whether the suit promissory note is not taken into evidence as alleged by the defendants ?

2. Whether the suit promissory note is true, valid and binding on the defendants ?

3. Whether the plaintiff is entitled to the suit amount as prayed for ?

4. To what relief ?

5.On trial plaintiff is examined as PW.1 and PW.2 who is said to be attestor of suit promissory note is examined on his behalf. Ex.A1 to Ex.A5 marked. On behalf of defendants, no evidence either oral or documentary put forth before the

Court.

6.Heard. Perused the entire material on record.

7. ISSUES 1 to 3 :

The evidence of PW.1 in chief in nutshell is that defendants being mother and children respectively together borrowed an amount of Rs.6,00,000/- from her on 19-07-2014 for their family necessities and to clear sundry debts by executing suit promissory at the residence of PW.1 agreeing to repay the same with interest at 24% per annum as and when demanded by her. But inspite of repeated demands made by her, the defendants did not choose to pay any amount. On that

PW.1 got issue legal notice, dt.23-05-2017 to defendants which are returned as “addressee left hence returned to sender”, which constrained her to file the present suit.

8.In support of her oral contention, Ex.A1 to Ex.A5 marked. Ex.A1 is promissory note, dt.19-07-2014. Ex.A2 is office copy of lawyer’s notice, dt.23-

O.S.689/2017, Dt : 19-04-2023 4 PSCJC/VSP

05-2017. Ex.A3 to Ex.A5 are returned postal covers with acknowledgments of defendants 1 to 3 respectively.

9.The evidence of PW.2 is also on the same lines as that of PW.1 in chief examination about defendants borrowing amount from PW.1 by executing Ex.A1.

Further he deposed that the entire transaction took place in his presence for which he signed as attestor in Ex.A1.

10.Though PW.1 and PW.2 present in the witness box and offered themselves for cross-examination but defendants having filed written statement and contested the suit not chosen to cross-examine PW.1 and PW.2. Thereby the chief evidence of PW.1 and PW.2 remained unchallenged. On the other hand, though the defendants have filed written statement but not chosen to put forth any evidence in support of the written statement averments. Thereby the written statement averments remained as pleadings without proof by evidence.

11.Upon perusing the evidence of PW.1, it goes to show that the defendants 1 to 3 being mother and children respectively jointly borrowed a sum of

Rs.6,00,000/- from her on 19-07-2014 for their family necessities and to clear sundry debts and jointly executed Ex.A1 agreeing to repay the same with interest at 24% per annum. Subsequently, the defendants failed to repay the debt, inspite of repeated demands made by her. As the defendants did not choose to repay the amount covered under Ex.A1, the present suit is filed by PW.1. The borrowing of amount by defendants and execution of Ex.A1 by them in his presence and his attesting Ex.A1 is spoken by PW.2. This evidence of PW.1 and PW.2 which remained unchallenged by the defendants goes to show that defendants admitted the same. Further, as the defendants did not choose to enter into the witness box

O.S.689/2017, Dt : 19-04-2023 5 PSCJC/VSP

to prove the contentions raised by them in the written statement, a presumption can be drawn U/Sec.114 (g) of Indian Evidence Act that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Therefore, the contentions raised by the defendants remained as pleadings without proof which can’t be considered. Therefore, the plaintiff is entitled to recover the suit claim from defendants jointly as prayed for.

Accordingly, issues 1 to 3 are answered in favour of the plaintiff and against defendants.

12. ISSUE NO.4 :

In view of the findings given by this Court on issues 1 to 3, this Court holds that the plaintiff is able to establish the suit claim and therefore, the plaintiff is entitled to get a decree for recovery of money as prayed for.

13.In the result, the suit is decreed with costs and the defendants 1 to 3 jointly do pay to the plaintiff a sum of Rs.10,20,000/- (Rupees ten lakh twenty thousand only) with subsequent interest at 12% per annum from the date of filing of the suit till the date of decree and thereafter at 6% per annum from the date of decree till the date of realization on principal amount of Rs.6,00,000/- (Rupees six lakh only).

(Typed to my dictation by Stenographer, corrected and pronounced by me in the open Court, this the 19th day of April, 2023).

Sd/- S.SUJATHA

Principal Senior Civil Judge,

Visakhapatnam.

Appendix of evidence

No. of witnesses examined for

For Plaintiff : For Defendants :

PW.1 : G.Kanaka MahalakshmiNone PW.2 : V.Mohan Rao

O.S.689/2017, Dt : 19-04-2023 6 PSCJC/VSP

No. of documents marked for

For Plaintiff :

Ex.A1 : Promissory note, dt.19-07-2014.

Ex.A2 : Office copy of lawyer’s notice, dt.23-05-2017.

Ex.A3 to Ex.A5 : Returned postal covers with acknowledgments of defendant 1 to 3 respectively.

For Defendants : - N I L -

Sd/- S.SUJATHA

Principal Senior Civil Judge,

Visakhapatnam.

O.S.689/2017, Dt : 19-04-2023 7 PSCJC/VSP

Date of Presentation : 10-07-2017 Date of Filing : 10-07-2017

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AT

VISAKHAPATNAM

Present :S.Sujatha

Principal Senior Civil Judge

Visakhapatnam.

Wednesday, this the 19th day of April, 2023.

Original Suit No.689/2017

Between : Gannamraju Kanaka Mahalakshmi, W/o Chinna Rama Murthy, Hindu, aged 36 years, D.No.24-139/3, Padmavathi Nagar, Shipyard layout, Vepagunta Post, Visakhapatnam-17. … Plaintiff

A n d :

1. Kola Vara Lakshmi, W/o Suryanarayana, Hindu, aged 47 years, D.No.62-7- 11, Jawahar Nagar, Sriharipuram, Malkapuram Post, Visakhapatnam-11.

2. Kola Arun Kumar, S/o Suryanarayana, Hindu, aged 27 years, D.No.62-7- 11, Jawahar Nagar, Sriharipuram, Malkapuram Post, Visakhapatnam-11.

3. Kola Suresh Kumar, S/o Suryanarayana, Hindu, aged 24 years, D.No.62-7- 11, Jawahar Nagar, Sriharipuram, Malkapuram Post, Visakhapatnam-11. … Defendants

This is a suit filed by the plaintiff against the defendants 1 to 3 for recovery of a sum of Rs.10,20,000/- with subsequent interest at 24% p.a. from the date of filing of the suit till the date of realization along with costs of the suit and for such other relief or reliefs which the Court deems fit and proper in the circumstances of the case.

Value of the suit for the purpose of Court fee and jurisdiction is Rs.10,20,000/- and a Court fee of Rs.12,626/- is paid U/Sec.20 r/w Sch-I, Art.I (b) and (c) of A.P.C.F. and S.V.Act.

This suit is coming on 18-04-2023 for final hearing before me in the presence of Sri.G.Ramachandra Raju, Advocate for the Plaintiff and of Sri.L.Srinivasa Varma, Advocate for the Defendants and the matter having stood over for consideration till this day, this Court doth order and passed the following :

O.S.689/2017, Dt : 19-04-2023 8 PSCJC/VSP

D E C R E E

1. that the defendants 1 to 3 jointly do pay to the plaintiff a sum of

Rs.10,20,000/- (Rupees ten lakh twenty thousand only) with subsequent interest at 12% per annum from the date of filing of the suit till the date of decree and thereafter at 6% per annum from the date of decree till the date of realization on principal amount of Rs.6,00,000/- (Rupees six lakh only);

and

2. that the defendants 1 to 3 jointly do also pay to the plaintiff a sum of

Rs.13,162/- (Rupees thirteen thousand one hundred and sixty-two only) towards institutional costs of the suit.

Given under my hand and the seal of this Court, this the 19th day of April, 2023.

Sd/- S.SUJATHA

Principal Senior Civil Judge,

Visakhapatnam.

MEMORANDUM OF COSTS

For Plaintiff : For Defendants :

No costs memo filed by either side.

Stamps on VakalatRs.2-00

Stamps on PlaintRs.12,626-00

Stamps on PetitionRs.1-00

Process FeeRs.533-00

Total Institutional Rs.13,162-00 Costs Allowed

Sd/- S.SUJATHA

Principal Senior Civil Judge,

Visakhapatnam.