1
IN THE COURT OF III ADDL. SENIOR CIVIL JUDGE::VIJAYAWADA
PRESENT: SMT. S.V.P. SURYACHANDRAKALA
VI ADDL. SENIOR CIVIL JUDGE
FAC III ADDL.SENIOR CIVIL JUDGE, VIJAYAWADA.
SATURDAY, THIS THE 15 TH DAY OF APRIL, 2017.
O.S.244/2014
Between: Union Bank of India, Labbipet Branch,Vijayawada Rep.by its Senior Branch Manager, Valluru Srinivasa Rao, s/o.Sambasiva Rao,aged about 40 yrs.,
Vijayawada. ...PLAINTIFF
A N D 1.Tudumu Pakeeraiah, s/o.Nanaiah, Hindu, Aged about 45 yrs., R/o.Door No.17-6-33A, Khadar Street, Pezzonipet, Vijayawada-3, Krishna District.
2.Vesapogu Syam Sundar Rao, s/o.Bhaskara Rao, Hindu, aged about 49 years, Door No.17-10-3, Purnanandampet, Vijayawada, Krishna District. … DEFENDANT
This Original Suit coming on 17.3.2017 before me for final hearing in presence of Sri A.Yedukondala Rao, Advocate for plaintiff and of Sri B.Satish babu, Advocate for the 1st defendant and of sri Kunuku Rajasekhar, advocate for the 2nd defendant, and the matter having been stood over to this day for consideration, and this court upon hearing both sides and perusing the entire material on record, upon consideration, delivered the following:
J U D G M E N T
1. The Plaintiff’s bank filed the suit against the defendants 1 and 2 for passing preliminary decree in favour of the plaintiff and against the defendant with joint and several liability for a sum of Rs.6,17,226/-.
2. The brief averments of the pleadings of the plaintiff goes to show that the first defendant said to have availed housing loan limit of Rs.4,00,000/- from the plaintiff's bank under letter of sanction agreement on the same day in favour of the plaintiff agreeing to repay the same with interest @ 10.25% p.a. in 174 EMI @ Rs.4,425/- commencing from October, 2006. It was pleaded that the first defendant also said to have executed a demand promissory note on 15.5.2006 for the said sum in favour of the plaintiff agreeing to repay the same with interest @ 10.25% p.a. with monthly rests on demand either to the plaintiff or it was pleaded further that the second defendant said to have stood as guarantor for the liability of the first defendant and said to have executed letter of guarantee on 15.5.2006 for
Rs.4,00,000/- in favour of the plaintiff undertaking for the terms and conditions in repayment of housing loan limit. It was pleaded further that the plaintiff said to have opened loan account No.651/6 (new account
No.545406510000006) in the name of the first defendant under Union Home
Scheme. It was pleaded that the first defendant said to have got released loan proceeds from the plaintiff and said to have purchased semi finished flat
No.FS-D. Sri Sai Venus Enclave with undivided share of square yards 21.0 out of larger extent of square yards 605 in R.S.No.162/13 of Nidamanuru village from the vendor namely Aluru Kumar Babu under registered sale deed dt.16.5.2006 bearing document No.1633/06 on the file of Sub Registrar,
Gunadala and said to have delivered the possession of the said Flat from the vendor with alleged absolute rights and title and subsequently got finished the said flat through a builder with loan proceeds. It was further pleaded by the plaintiff that the first defendant said to have made oral deposit of original of said registered sale deed on 165.2006 the aforementioned documents with the plaintiff on 17.5.2006 with an intention to create security over the said property in favour of the plaintiff and said to have created an equitable mortgage by way of deposit of title deeds as per Sec.58(f) of the Transfer of
Property Act. It was pleaded further that said deposit of title deeds was reduced into writing on 18.5.2006 under a memorandum during the course of banking business, hence contended that the plaintiff had the first charge over the said property b y virtue of said equitable mortgage created by the 3 first defendant by way of deposit of title deeds. It was further contended that the first defendant was irregular in repayment of said loan and said to have committed default, hence the plaintiff’s bank was constrained to declare the said loan as NPA on 31.3.2010 and also said to have initiated proceedings under the secured asset under the provisions of Security
Interest Act,2002. However, the plaintiff said to have considered that filing of the suit was expedient and efficacious remedy for recovery of the debts by judicial determination. Hence, contended that the plaintiff said to have cancelled the above loan and said to have issued a legal notice on 8.8.2013 to the defendants and said to have recalled the amount due under aforementioned loan account. It was contended that the first defendant said to have avoided the service of notice, hence the same was said to have returned with an endorsement dt.10.8.2013 that “left without instructions” and the second defendant said to have received the said notice on 10.8.2013 and both of them did not pay any amount and not given any reply. Hence, the plaintiff is constrained to file the present suit and prayed to pass
Preliminary Decree in favour of the plaintiff and against the defendants jointly and severally etc. Hence, this suit.
3.The first and second defendants filed written statements and denied the allegations made in the plaint. As per the contentions of the first defendant he was an educated person and an employee in LIC of India.
When he was in Vijayawada during 2006 the second defendant said to be the relative of the first defendant said to have met the first defendant and the second defendant said to have introduced the first defendant to one Narala
Vamsikrishna who was said to be none other than the builder and had loan recovery agency with ICICI bank. Said Narala Vamsikrishna said to have asked the first defendant about his I.D.Proof, address proof as well as income proof for the purpose of arranging loan as required by the first defendant, and by believing the words of said Vamsikrishna and the second defendant, the first defendant said to have handed over all the relevant documents belonged to the first defendant in the hands of said Narala Vamsikrishna with a view to obtain personal loan by the first defendant. It was pleaded further that subsequently the defendant No.1 learnt that said Vamsikrishna and his business partner namely Aluru Kumar Babu were dealing with Finance and
Real Estate business in Vijayawada and other places and during the course of their business they said to have made several alleged illegal acts by assuring grant of loans to the people who said to have approached them, thereby many alleged innocent people said to have believed the words of
Vamsikrishna and Aluri Kumar Babu and they were said to have cheated those persons, hence those people said to have lodged a criminal complaint about alleged cheating against said Vamsikrishna, Aluri Kumar Babu and others. It was contended that those persons raised loans from the plaintiff’s bank and other bank by using alleged innocent people who said to have approached for the purpose of purchase of the suit schedule property. It was pleaded further that first defendant never was in possession of the said property and the sale deeds or schedule property was never in possession of the first defendant. It was pleaded further that Aluri Kumar Babu said to have filed a suit O.S.404/14 against Narra Vamsikrishna, plaintiff’s bank and other banks and other people including the first defendant who was said to be the defendant No.19 in the said suit sought for bare injunction in respect of the suit schedule property. It was contended that the first defendant not received any notice from the bank till that day and he came to know about the suit recently. It was further contention of the first defendant that he never signed on alleged documents as alleged by the plaintiffs, he never borrowed any amount and never made any transactions with the plaintiff’s 5 bank. Hence, contended that the plaintiff’s bank was not entitled to claim any amount.
4.The second defendant contended that the plaintiff said to have suppressed the facts and payments and the suit claim made by the plaintiff was not true and correct. It was contended that the documents filed by the plaintiff along with the plaint were not legal, valid and they were untenable.
It was further contention of the second defendant that the plaintiff intentionally got filed the suit by calculating huge amounts by imposing penal interest and other charges, and it was contended that the plaintiff was not entitled to get any relief as prayed. It was contended further that the plaintiff said to have obtained the signatures on the blank printed formats. It was contended further that if the second defendant was not benefited any amount hence not liable either jointly, severally or personally. With aforementioned contentions the second defendant prayed for dismissal of the suit.
5.In view of the rival contentions following issues 1 to 3 were framed for consideration.
1)Whether the 1st defendant availed housing loan from the plaintiff bank by mortgaging the house property and also D2 as guarantor, as contended in the plaint? 2)Whether the plaintiff bank is entitled to recover the entire suit amount from the Defendants 1 and 2 as prayed for ? 3)To what relief ?
5.In support of the claim of the plaintiff a witness said to be the chief manager of the plaintiff’s bank was examined as PW1 by filing chief affidavit and got marked Exs.A1 to A11. Ex.A1 is the original letter of sanction, said to have granted by the plaintiff in favour of the first defendant dt.15.5.2006,
Ex.A2 is the original demand promissory note said to have executed by the first defendant in favour of the plaintiff’s bank on 15.5.2006 for
Rs.4,00,000/-, Ex.A3 is the original housing loan agreement for Rs.4,00,000/- said to have executed by the first defendant in favour of the plaintiff dt.15.5.2006, Ex.A4 is the original letter of guarantee for Rs.4,00,000/- said to have executed by the second defendant in favour of the plaintiff on 15.5.2006, Ex.A5 is the original registered sale deed said to have executed in favour of the first defendant in respect of mortgaged property dt.16.5.2006,
Ex.A6 is the original memorandum reduced into writing by the plaintiff in respect of the deposit of title deeds by the first defendant, dt.18.5.2006.
Ex.A7 is the office copy of registered legal notice said to have issued on behalf of the plaintiff to the defendant dt.8.8.2013. Ex.A8 is the returned cover of the first defendant, Ex.A9 is the postal acknowledgment of the 2nd defendant, Ex.A10 is the statement of account, Ex.A11 is the declaration said to have given by the first defendant. No further evidence is adduced on behalf of the plaintiff. No evidence is adduced on behalf of the defendants.
6.Heard arguments of the plaintiffs and first defendant’s arguments are reported to treat as heard. Hence, the arguments of the first defendant are treated as heard. The second defendant arguments were treated as heard as inspite of opportunities no arguments were submitted for the second defendant.
7.Perused the record. As issues 1 and 2 are inter related to one another, hence they are going to be discussed under one common head. Whatever was pleaded in the plaint was incorporated in the chief examination affidavit of the plaintiff, when a witness said to be the chief manager of the plaintiff’s bank was examined as PW1. In order to establish that the defendants availed loan and the plaintiff’s bank sanctioned the loan, PW1 relied upon Ex.A1 original letter of sanction said to have granted by the plaintiff in favour of the first defendant on 15.5.2006. In order to show that a housing loan agreement was executed by the first defendant, PW1 relied 7 upon Ex.A3 the original housing loan agreement for Rs.4,00,000/- and to show further that a demand promissory note was executed by the first defendant in favour of the plaintiff’s bank on the same day Ex.A2 the demand promissory note said to have executed by the first defendant dt.15.5.2006 was marked. In order to show further that the second defendant stood as guarantor for the said housing loan and executed a guarantee agreement of letter, PW1 relied upon Ex.A4 the original letter of guarantee for Rs.4,00,000/- said to have executed by the second defendant in favour of the plaintiff on 15.5.2006. In order to show prima facie that original registered sale deed said to have executed in favour of the 1st defendant in respect of the mortgaged property was delivered to the plaintiff’s bank, the plaintiff relied upon Ex.A5 the original registered sale deed dt.16.5.2006 said to have executed in favour of the first defendant. The documents in respect of the property were delivered by way of deposit of title deeds. PW1 relied upon Ex.A6 the original memorandum reduced into writing by the plaintiff in respect of deposit of title deeds by the first defendant dt.18.5.2006. So by virtue of the aforementioned documents prima facie shows availing of housing loan and sanctioning of said loan by the plaintiff for which the second defendant said to have stood as guarantor and the first defendant said to have created an equitable mortgage by way of deposit of title deeds and thereby created security in respect of the property covered under Ex.A5 by virtue of Ex.A6 memorandum of deposit of title deeds. No doubt when PW1 said to be the chief manager was examined when he deposed basing upon the record only regarding the things mentioned in the plaint and in his chief affidavit, so in the capacity of official when he gave evidence, his ignorance regarding the things can not lesser the evidentiary value of PW1 to brush aside the claim of the plaintiff. He simply deposed he did not remember the date of legal opinion they obtained by deposing as per the procedure they used to obtain legal opinion before sanctioning of loan. He deposed unless he verified the record, he could not say on the same day of alleged date of application on 15.5.2006 whether the loan was sanctioned as well as he could not say the installment of loan agreed by the first defendant to pay. He deposed he did not remember the monthly installment amount, hence deposed that unless he verified the record, he could not say up to which date the defendant No.1 paid the installment, whether the first defendant made any payment after gap of prior payment. He deposed without the record he could not say, when they demanded the defendant for payment of amount by issuing legal notice. He could not depose the total amount paid by the defendant without verifying the record, when he deposed as above, and pleaded ignorance, and could not depose in the absence of record, at the same time it was also undisputed by the defendants regarding the documents relied upon by PW1 and never contended that those documents were created or not genuine. It was not at all suggested that the defendants never availed any housing loan or the second defendant never stood as guarantor. It was undisputed by way of specific suggestions regarding the signatures on the documents under exhibits. So contrary is not proved by the defendant, Even they did not dispute the documents marked on behalf of the plaintiff. Hence, it is not unreasonable to held that the persons who signed on Ex.A2 demand promissory note and a housing loan agreement under Ex.A3 is none other than the defendant, and he executed the same for valid consideration and also it can be considered the second defendant stood as guarantor under
Ex.A4 and it contains his signatures. So it can be considered the first defendant by way of memorandum of deposit of title deeds under Ex.A6 he created mortgage by way of deposit of title deeds and delivered Ex.A5 original registered sale deed with an intent to create mortgage. So for the 9 recovery of amount said to have due by the defendant, it appears Ex.A7 legal notice was issued by the plaintiff to the defendant on 8-8-2013, but the notice of the 1st defendant was returned under Ex.A8, however the second defendant said to have acknowledged the same under Ex.A9 postal acknowledgment. In order to show certain amount was due by the defendant the plaintiff relied upon Ex.A10 the statement of account. By virtue of Ex.A11 a declaration was given by the first defendant that he was absolute owner of the property and declared that the schedule property was free from all encumbrances, claims or demands. So all kinds of declaration was given under Ex.A11, by giving rights in respect of the plaint schedule property to the plaintiffs and thereby created a mortgage in respect of the plaint schedule property. The first defendant never disputed his signatures on Ex.A11 or any other document so also the second defendant not disputed those documents. Though the first defendant took certain contentions that the second defendant said to have introduced the first defendant to one
N.Vamsikrishna a builder and the first defendant said to have issued relevant documents to said Vamsikrishna but those constructions were not proved.
There was no evidence goes to show that the first defendant was said to have cheated by Vamsikrishna or Aluri Kumar Babu. The first defendant’s contentions were not supported with any documentary proof. Though he contended he never signed on alleged documents of the plaintiff, but he being prudent man who claimed himself as an educated one and an employee in LIC he did not act prudently, he never issued any reply notice and not initiated any action and no police report was given by the first defendant, likewise the second defendant though contended in his written statement regarding alleged suppression of facts and payments by the plaintiff and the suit claim was not true and correct, but in what way the said claim was incorrect and which payment said to have made by the defendant were not reflected in the statement of account was not brought on record.
So from the contentions of the second defendant in one way or other it shows the persons who signed on the loan agreement as well as the agreement of guarantee was none other than the defendants 1 and 2. It was not specifically denied by the second defendant regarding availing loan.
Though he contended that the plaintiff obtained the signatures on the blank formats they being prudent persons can refuse to sign. In one way or other the contentions of the second defendant goes to show as they availed loan hence they said to have made certain payments, but the contentions of the second defendant were not supported with any documentary proof to show that certain payments were made by terms of the payments said to have made by the defendants were not reflected in the statement or account, the statement of account was not true or not binding on the defendants. Even when the legal notice was issued to the defendants under Ex.A7 inspite of receipt of the same under Ex.A9 by the second defendant, second defendant remained quite without initiating any action or issuing any reply notice. If at all the suit claim was incorrect, nothing prevented the second defendant also to agitate his contentions by way of reply notice or by issuing any independent notice or by giving any police report. It can not be considered that without knowing the consequences they simply signed on blank instruments. Contrary was not proved by the defendants and it was not established Ex.A10 statement of account was incorrect. If at all the first defendant’s address was changed it was the obligation of the first defendant to intimate the bank authorities because, as they by showing particular address, they executed the documents. If at all the claim of the plaintiff is wrong, it is not expected the defendants to remain quite without acting prudently. If at all their signatures were obtained on the blank signed documents, they could knew the consequences. They could agitate the 11 demand of the plaintiff and if at all they voluntarily signed, they were estopped from pleading contrary to their conduct in signing the documents.
It was not established by the defendants positively that Vamsikrishna and
Aluri Kumar Babu were behind the litigation or at their instance they signed on the blank documents. In statement of account an amount of
Rs.4,19,236/- was shown as due in the loan account of the defendant together with interest, costs of the legal notice charges the plaintiff filed the suit for Rs.6,17,226/-. The plaintiff by virtue of the testimony of PW1 coupled with exhibits marked has prima facie discharged initial burden n view of not suggesting on behalf of the defendants regarding not availing loan or regarding the contentions raised by them in their written statement it can be considered they have foregone their contentions and their contentions are remained as mere contentions without any basis. Hence it can be considered they did not protest regarding availing the housing loan by mortgaging the house property. It can be considered the second defendant stood as guarantor. So the liability of the second defendant is co-extensive and on par with the first defendant. Even though PW1 deposed that unless he verified the record he could not specifically depose certain things, but it was not at all disputed or denied by way of specific suggestions to PW1 regarding not availing loan by the 1st defendant or not standing as guarantor by the 2nd defendant. Except suggesting, PW1 did not know anything. The documents relied upon by PW1 were undisputed by the defendants. In Ex.A3 housing loan agreement it was executed in respect of the Rs.4,00,000/- amount and the period of installments were shown as 174 months and equated monthly installments were shown as Rs.4425/-. By virtue of Ex.A3 housing loan agreement it can be considered the first defendant bind by himself to the term stipulated under Ex.A3, and the rate of interest was mentioned as 10.25%. It was agreed by virtue of Ex.A3 in case of default or delayed payment to pay the amount in lumpsum and liquidate the said loan account. In view of the defendants not entering into witness box, hence it can be considered the evidence if adduced would be unfavourable to them, hence they intentionally with hold the same. So the presumption can be drawn by virtue of Sec.114 Illustration(g). So there is a clause in Ex.A3 agreement stipulated in Ex.A3 Agreement, in case of breach of terms of conditions of the said agreement, absolute discretion is vested with the plaintiff to recall and demand forthwith the amount due in the loan account together with interest, costs and expenses. Even there is a clause stipulated under ‘T’ of Ex.A3 loan agreement. If there is any delay in exercising or omission to exercise any right by bank upon or any remedy assuring to the bank any default under the agreement it shall not impair any of bank’s rights or remedies or powers and it shall be construed to be waiver thereof or any acquiescence in such default nor shall the action or inaction of the bank in respect any default, affect or in pair any right or power or remedy of the bank in respect any other default. So the bank is vested with the power to recall the advance amount together with interest as well as penal interest in the delayed payments or for default and also by virtue of executing the memorandum of agreement a charge is created in respect of the plaint schedule property. The defendants failed to discharge their onus contrary is not proved, there is no rebuttal evidence to the evidence of the plaintiff.
8.By virtue of Section 118 of Negotiable Instruments Act, Presumptions shall be made; “ a) that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
b) as to date that every negotiable instrument bearing a date was made or drawn on such date;”Section 20 of Negotiable Instruments Act which speaks as follow:
13 “Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in and either wholly blank or having written thereon an incomplete negotiable instrument, be thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.”
10. Until contrary is proved, the court can presume that every negotiable instrument is drawn for valid consideration and the person who signed on the instrument is liable to act upon it.
11.As contrary is not proved hence it can be considered the person who signed on the instrument is none other than the first defendant and he executed the same for valid consideration.
12.By virtue of executing Ex.A4 original guarantee agreement it binds the second defendant until the loan is totally discharged and all the acts done by the first defendant binds the second defendant. As the defendant did not dispute Ex.A1 the sanction letter which shows the loan was sanctioned., even in Ex.A1 there a condition is stipulated regarding levying of 2% interest towards penal interest on the over due installments, In fact the same was accepted by the first defendant by putting signature on Ex.A1 sanction letter, hence it can be considered the claim made by the plaintiff is true so plaintiff is able to .show the 1st defendant availed housing loan by executing documents on given date and the 2nd defendant stood as guarantor.
13.In view of aforementioned observations, as the defendants failed to discharge their onus the things can not only be presumed in favour of the plaintiff but also proved by the plaintiff. When the testimony of PW1 is based on record only when the documents relied upon by PW1 were undisputed even though PW1 pleaded ignorance regarding the things, but the documents speaks itself, hence, the testimony of PW1 can not be brushed aside or ignored merely because he pleaded ignorance regarding certain things. As the first defendant failed to show how the title deeds came into possession of the plaintiff, hence it can be considered the first defendant failed to support his contentions and also the second defendant failed to establish his pleas. They failed to discharge their onus and further failed to support that contending and material evidence is lacking to show the defendants made payments. Hence, it can be considered the amount is due by the the defendants to the plaintiff. Contrary is not shown it entitles the plaintiff bank to recover the suit amount from both the defendants jointly and severally. The purpose of availing loan is housing loan and also pleaded in the plaint that the defendant is nor an agriculturist and d Debt Relief Act is not applicable. Hence it can be considered the defendant is not an agriculturist and Debt Relief Act are not application. The plaint schedule property is situated at Vijayawada and cause of action taken place at
Vijayawada and hence, this court has jurisdiction to deal with the suit. The transaction of availing loan on 15-5-2006, so filing of suit on 30-10-2013 and the suit is filed for mortgage amount hence it can be considered, the suit is rightly filed with the period of limitation prescribed for filing suit based on mortgage debt. Accordingly these issues are answered in favour of the plaintiff and against the defendant.
14.ISSUE NO.2:- In the result, the suit of the plaintiff is preliminarily decreed with costs in favour of the plaintiff and against the defendant for a 15 sum of Rs.6,17,226/- together with interest @ 12% p.a. from the date of suit till the date of decree, thereafter interest @ 6% p.a. on principal sum of
Rs.4,00,000/- from the date of decree till the date of realization against both the defendants jointly and severally. The time of redemption is 3 months.
Dictated to the Gr.I Stenographer, transcribed and typed by her,
corrected and pronounced by me in open court, on this the 15th day of April, 2017.
VI ADDL. SENIOR CIVIL JUDGE,
FAC III ADDL.SR.CIVIL JUDGE,
VIJAYAWADA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF FOR DEFENDANT
PW1: D.Rama Rao - NIL –
DOCUMENTS MARKED
FOR PLAINTIFF: Ex.A1:Original letter of sanction, said to have granted by the plaintiff in favour of the first defendant dt.15.5.2006
Ex.A2:Original demand promissory note said to have executed by the first defendant in favour of the plaintiff’s bank on 15.5.2006 for Rs.4,00,000/-
Ex.A3:Original housing loan agreement for Rs.4,00,000/- said to have executed by the first defendant in favour of the plaintiff dt.15.5.2006.
Ex.A4:Original letter of guarantee for Rs.4,00,000/- said to have executed by the second defendant in favour of the plaintiff on 15.5.2006.
Ex.A5:Original registered sale deed said to have executed in favour of the first defendant in respect of mortgaged property dt.16.5.2006.
Ex.A6:Original memorandum reduced into writing by the plaintiff in respect of the deposit of title deeds by the first defendant, dt.18.5.2006. Ex.A7:Office copy of registered legal notice said to have issued on behalf of the plaintiff to the defendant dt.8.8.2013.
Ex.A8:Returned cover of the first defendant
Ex.A9:Postal acknowledgment of 2nd defendant.
Ex.A10:Statement of account
Ex.A11:Declaration said to have given by the first defendant.
FOR DEFENDANTS:- -NIL-
VI ADDL. SENIOR CIVIL JUDGE,
FAC III ADDL.SENIOR CIVIL JUDGE
VIJAYAWADA.
17
IN THE COURT OF III ADDL. SENIOR CIVIL JUDGE::VIJAYAWADA
PRESENT: SMT. S.V.P. SURYACHANDRAKALA
VI ADDL. SENIOR CIVIL JUDGE
FAC III ADDL.SENIOR CIVIL JUDGE, VIJAYAWADA.
SATURDAY, THIS THE 15 TH DAY OF APRIL, 2017.
O.S.244/2014
Between: Union Bank of India, Labbipet Branch,Vijayawada Rep.by its Senior Branch Manager, Valluru Srinivasa Rao, s/o.Sambasiva Rao,aged about 40 yrs.,
Vijayawada. ...PLAINTIFF
A N D 1.Tudumu Pakeeraiah, s/o.Nanaiah, Hindu, Aged about 45 yrs., R/o.Door No.17-6-33A, Khadar Street, Pezzonipet, Vijayawada-3, Krishna District.
2.Vesapogu Syam Sundar Rao, s/o.Bhaskara Rao, Hindu, aged about 49 years, Door No.17-10-3, Purnanandampet, Vijayawada, Krishna District. … DEFENDANTs
Suit for recovery of Rs.6,17,266/- being the principal and
interest due by the defendant No.1 to the plaintiff Bank on a
housing loan availed by the 1st defendant under the guarantee of the 2nd defendant on 15-5-2006 for Rs 4,00,000/- repayable with interest at 9% per annum and for costs. The 1st defendant
deposited his title deed in favour of the plaintiff to create an
equitable mortgage
2.Plaint presented on: 30.10.2013
3.Value of the suit for the purposes of court fees and
jurisdiction U/s.50 of APCF & SV Act is Rs.6,17,266/- on which a
court fee of Rs.8,626/- was paid U/s.31 r/w. Sch.1, Art.1(c) of
APCF & SV Act.
The cause of action arose for the suit on and from 15.5.2006 when the first defendant made his application to the plaintiff- bank for sanction of housing loan to purchase flat No FF-D in the apartment named as Sri Sai Venus Enclave in Nidamanuru
Village, on15-5-2006 when the plaintiff-bank sanctioned the loan facility on the very same day when the first defendant executed demand promissory note and housing loan agreement agreement of hypothecation and the 2nd defendant executed deed of guarantee in favour of the plaintiff bank and on 16-5-2006 When D1 purchased the flat under a registered sale deed 1633/2006andon 17-5-2006 when D1 deposited his title deed with the plaintiff to create an equitable mortgage infavour of the plaintiff bank when the 1st defendant made last payment of Rs5000/- on 7-9-2009and later committed default and on 8-8-2013 when the plaintiff bank got issued legal notice to the 1st defendant and on 10-8-2013 when D1 got returned the same and D2 received the legal notice and did not pay any amount and give any reply and where the transaction took place and the mortgage properties are situated which is within the jurisdiction of this court.
5. This Original Suit coming on 17.3.2017 before me for final hearing in presence of Sri A.Yedukondala Rao, Advocate for plaintiff and of Sri B.Satish babu, Advocate for the 1st defendant and of sri Kunuku Rajasekhar, advocate for the 2nd defendant, and the matter having been stood over to this day for consideration, and this court upon hearing both sides and perusing the entire material on record, upon consideration, doth order and decree....
(A)It is hereby declared that the defendants do pay the amount jointly and severally to the plaintiff-Bank and on the mortgage bond/ charge of Defendant No1 mentioned in the plaint calculated from 30-10-2013 up to this the 5th day of July, 2017 (three months redemption from the date of decree), the sum of Rs.6,17,266/- 19 towards suit amount, the sum of Rs.1,66,000/- towards interest at 12% pa. from the date of suit till the date of decree, and the sum of Rs.12,000/- towards interest at 6% p.a. from the date of decree till the date of redemption on principal amount of Rs.4,000,000/- the sum of Rs.24,525/- towards costs of this suit awarded to the plaintiff bank making in all the sum of Rs.8,19,791/- and the defendants do bear his/their own costs of Rs.NIL-. Time for redemption is 3 months.
And
2.AND IT IS HEREBY ORDERED AND DECREED AS FOLLOWS::::
athat the defendants do pay jointly and severally into court on or before 15th day of July, 2017, or of any later date up to which time for payment may be extended by the court the said sum of Rs.8,19,791/- future interest at 6%p.a., on the said principal amount of Rs.4,00,000/- from the date of redemption till the date of realization and on default, the plaintiff-Bank shall apply the sale of hypothecation.
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 re-transfer 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 defendants 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.
21
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 rule10, 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.
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.
Given under my hand and the seal of the court this the 15th day of April, 2017.,
VI ADDL.SENIOR CIVIL JUDGE,
FAC III ADDL.SENIOR CIVIL JUDGE,
VIJAYAWADA.
MEMO OF COSTS
PLAINTIFF DEFENDANT
Rs. Ps. Rs. Ps.
1.Stamp on plaint8626-00-
2.Stamp on power2-00-
3.STAMP ON petitions2-00
3.Stamp on Process100-00-
4.Advocate fees14,545-00
5.Publication charges 1,050-00-
6.Writing, typing charges 200-00-
TOTAL24,525-0NIL 0
VI ADDL.SENIOR CIVIL JUDGE,
FAC III ADDL.SENIOR CIVILJUDGE,
VIJAYAWADA.
NOTE: The parties should apply as soon as possible for the return of all
exhibits which they may wish to preserve, as the record will
be liable to be destroyed after three years from this date.
Plaint A schedule property 23
All the piece and parcel of un divided and un specified share of an extent of sq yards 16.00 of house site out of larger extent of sq yards 605-60 situated in R.S.No.162/3, Nidamanuru village and panchayat, Krishna District , on the file of District Registrar, Vijayawada EAST(Gunadala) and the larger extent of sq yards 605-60 site within the following boundaries.
EAST: Property of Ainampudi Sankaraiah;
South :Property of Chitgunurpati Satyanarayana to some extent and property of Konduru Seethambaramu to some extent,
West :Property of Hanumantha Rao, and
North:Road.
PLAINT B SCHEDULE PROPERTY.
All that piece and parcel of Flat NoFF-D, First floor, flat with plinth area of sq feet 500.00 with common utilities over water, drainage, passages and stairs etc, at group house namely Sri Sai Venus Enclave constructed at larger extent of schedule A property and the flat with the following boundaries.
EAST: Common corridor and Flat No . FF-C,
SOUTH:Flat NO. FF-E,
WEST: Open to sky , and
NORTH: Flat No.FF-B.
VI Addl.Senior Civil Judge,
FAC III Addl.Senior civil judge,
Vijayawada.