Smt. V.Lakshmi Rajyam

Senior Civil Judge

Senior Civil Judge`s Court, Kavali (Taluka) · Nellore · Andhra Pradesh

Smt. V.Lakshmi Rajyam, Senior Civil Judge, is posted at Senior Civil Judge`s Court, Kavali (Taluka), Nellore, Andhra Pradesh, India. 104 court orders on record since 2018. 5 judgments with full text available. Primarily handles OS, H, AS cases.

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OS/75/2013

Gatamaneni Malakondiah vs Dandigiri Venkateswarlu

31 Jan 2019

O.S. No. 75 of 2013 31-012019

IN THE COURT OF THE SENIOR CIVIL JUDGE : KAVALI

Present: Smt.V.Lakshmi Rajyam,

Senior Civil Judge, Kavali

Thursday, the 31st day of January, 2019

O.S.No. 75 of 2013

Between:- Gatamaneni Malakondiah, Son of late Chenchaiah, Aged about 75 years, Hindu, Cultivation, residing at Chintaladevi village & Post, Kondapauram Mandal, SPSR Nellore District. … PLAINTIFF

And: Dandigiri Venkateswarlu, Son of Ramachandraiah, Hindu, Aged about 40 years, Hindu, Cultivation, residing at Chintaladevi village & Post, Kondapuram Mandal, SPSR Nellore District. … DEFENDANT

This suit came up before me on 25-01-2019 for final hearing in the presence of Sri G. Rajendra Vara Prasad, Advocate for the plaintiff and that Sri Y. Janaki Ramaiah, advocate for the defendant, and upon hearing, having stood for consideration till this day, this court delivered the following:

J U D G M E N T

The plaintiff herein filed this suit for recovery of sum of

Rs.1,50,960/- alleging that the defendant borrowed an amount of

Rs.1,11,000/- from him on 19-04-2010, executing a promissory note on the above said debt, promising to repay the same with interest at 24% (claimed at

O.S.No. 37 of 2014 Dated: 11-12-2018

12%) per annum and that the defendant failed to discharge the said promissory note.

2. Brief averments of the plaint are as follows:

The plaintiff averred that on 19-04-2010, the defendant had borrowed an amount of Rs.1,11,000/- from him at Chintaladevi village of

Kondapuram Mandal, executing a promissory note promising to repay the same with interest @ 24% per annum and received cash consideration on the same day and thereafter in spite of repeated demands made by him personally, the defendant did not discharge the said promissory note debt and as such, the plaintiff is entitled for the suit claim of Rs.1,50,960/- with subsequent interest and costs.

3. On receipt of summons, the defendant made his appearance and

Sri Y. Janakiramaiah, advocate, filed vakalathnama on behalf of defendant.

The defendant filed a detailed written statement denying all the allegations made in the plaint. However, he admitted that he had executed the suit promissory note on 19-04-2010 in favour of the plaintiff for Rs.1,11,000/- from the plaintiff on 19-04-2010. The defendant contended that the suit promissory note is one of the renewal promissory notes executed by the defendant for the previous debts. He contended that he borrowed an amount of

Rs.15,000/- from the plaintiff on 04-09-1988 and executed a promissory note on the even date undertaking to repay the same with interest at 24% per annum. He further contended that his mother borrowed an amount of

Rs.10,000/- from the plaintiff on 22-04-2010 and executed a promissory note on the even date. He contended that both the said promissory notes as well as the suit promissory notes were scribed by one Bala Narasimham. He contended that as his mother became very old, the plaintiff wanted him to take over the said liability and as such, the defendant agreed. He contended that on 27-12-1999, he paid an amount of Rs.10,000/- and likewise, on 21-07-2001, he paid the amount of Rs.3,500/- and that those part payments were endorsed

O.S.No. 37 of 2014 Dated: 11-12-2018

on the back side of the promissory note, dated 04-09-1988 on the respective dates. He contended that subsequently, the interest was calculated and renewal promissory notes were obtained on 29-04-2004 by calculating the interest with compound rate at 24%. He contended that subsequently, there were two renewal promissory notes and the suit promissory note is a renewal promissory note for the sum arrived at after calculating the interest for every three years. He contended that the principal amount borrowed by his mother was Rs.10,000/-, where the principal amount borrowed by him was

Rs.15,000/- and further as his mother and he are agriculturists, they are liable to pay only 12 ½ % per annum towards the interest of both the promissory notes. He further contended that he had paid Rs.10,000/- on 27-12-1999 and

Rs.3,000/- on 21-07-2001 and both the payments made by him for the amount borrowed by his mother, the same would come to Rs.53,813-36 Ps. Whereas, the debt for the amount of Rs.10,000/- borrowed by him, coupled with the interest would come to Rs.76,363-14ps. He further contended that regarding the payments, the amount paid on 27-12-1999 with interest @ 12 ½ % till 19- 04-2010n comes to Rs.12,848-88ps including the principal and as such, the total amount will be Rs.22,848-88. He further contended that regarding the payment of Rs.3,500/- made on 21-07-2001, the interest thereon come to

Rs.4,70,330/- including the interest, the amount comes to Rs.8,200-30ps. He further contended that after deducting the said amount, the balance amount payable to the plaintiff is only Rs.27,696-80ps and that he has no objection for the suit being decreed for the said amount of Rs.27,696-80ps., with costs.

4. He further contended that the plaintiff filed this suit knowing fully well that the suit promissory note is a renewal promissory note and that the under suit promissory note and earlier promissory notes, the amount mentioned was not lent in cash and as such, it is not open to the plaintiff to claim an amount of Rs.1,11,000/- as principal amount and to claim interest.

He further contended that as the plaintiff filed this suit in evasion of provision of relief of Act 4 of 1938, the plaintiff is not entitled for claiming the suit

O.S.No. 37 of 2014 Dated: 11-12-2018

amount under Section 21(a). Hence, he sought for decreeing the suit for an amount of Rs.27,696-80ps only with costs.

5. Basing on the above pleadings, the following issues are settled by my learned predecessor are as follows:

(i) Whether the suit promissory note is not supported by

consideration and came into existence under the circumstances stated by the

defendant?

(ii) Whether the plaintiff is entitled for the decree as prayed for?

(iii) To what relief?

6. As seen from the record, as the first issue framed shows that the burden of proof likes on the defendant, the defendant/Dandigiri

Venkateswarlu examined himself as Dw.1 and further got examined one N.

Bala Narasimha as Dw.2 and got marked Exs.B1 to B4. After the closure of the defendant’s side evidence, the plaintiff/Gatamaneni Malakondaiah examined himself as Pw.1 and further got examined one Nara Sudhakar, one of the attestors of the suit promissory note as Pw.2 and got marked the suit promissory note as Ex.A1.

7. Heard arguments on both sides and perused the record.

8. Issue Nos.1 and 2:-

During the course of trial, as noted above the defendant started the trial, by examining himself as Dw.1 and further got examined one Narayana

Bala Narasimham as Dw.2 and got marked Exs.B1 to B4. Even though the defendant started the trial of this suit, as this suit is based on a promissory note, it is necessary to extract the evidence of the plaintiff and his witnesses

before going into the evidence of the defendant and his witnesses.

9. The plaintiff/Gatamaneni Malakondaiah examined himself as

Pw.1 and further got examined one Narra Sudhakar Rao as Pw.2 and got

O.S.No. 37 of 2014 Dated: 11-12-2018

marked Ex.A1. Pw.1/Gatamaneni Malakondaiah filed chief affidavit in lieu of his examination in chief and it is nothing but a reiteration of the contents of his plaint. In such evidence, Pw.1 deposed that the defendant borrowed an amount of Rs.1,11,000/- from him on 19-04-2010 by executing Ex.A1 promissory note in his favour agreeing to repay the same with interest at 24% per annum. He further deposed that the suit promissory note was scribed by

Narayana Bala Narasimham(Dw-2) and then, he read over the contents in his presence and in the presence of the defendant and attestors i.e., Narra

Sudhakar Rao (Pw.2) and Yanamala Malakondaiah and then, he passed consideration of Rs.1,11,000/- to the defendant. He deposed that the defendant received the said consideration and then, he signed on the suit promissory note and thereafter, the attestors and the scribe signed on it. He deposed that subsequently, when he demanded the defendant to pay back the amount borrowed by him, the defendant while admitting his liability, postponed the same on some pretext or other, but he did not pay any amount. He deposed that the defendant is an agriculturist and as such, the interest is claimed at 12% per annum in the place of 24% per annum. He deposed that as the defendant did not discharge the suit promissory note debt, he filed this suit for claiming Rs.1,50,960/- along with interest and costs.

10. Pw.2/ Narra Sudhakar, who is one of the attestors of the suit promissory note, filed his chief affidavit in lieu of his examination in chief and in such evidence, he supported the version of Pw.1. He deposed that the defendant borrowed an amount of Rs.1,11,000/- from the plaintiff on 19-04- 2010 and executed the suit promissory note on the same day in favour of the plaintiff agreeing to repay the same with interest at 24% per annum. He deposed that the suit promissory note was scribed by Narayana Bala

Narasimham. He deposed that he along with Yanamala Malakondaiah attested the suit promissory note to prove his contention. The plaintiff filed and got marked the original suit promissory note dated 19-04-2010 for Rs.1,11,000/- executed by the defendant in favour of the plaintiff as Ex.A1. The contents of

O.S.No. 37 of 2014 Dated: 11-12-2018

the written statement shows that the defendant had admitted about the execution of the suit promissory note in favour of the plaintiff on 19-04-2010 for Rs. 1,11,000/-. However, the contention is that the said Rs.1,11,000/- was not passed on him on 19-04-2010 and that Ex.A1 promissory note is a renewal promissory note.

11. As noted above, as the burden of proof for proving the issues lies on the defendant, the defendant got examined himself as Dw.1 and examined one Narayana Bala Narasimham, the scribe of the suit promissory note as Dw- 2 and got marked Exs.B1 to B4.

12. Dw.1/Dandigiri Venkateswarlu filed his chief affidavit in lieu of his examination in chief and it is nothing but a reiteration of the contents of his written statement. In such evidence, Dw.1 while admitting the execution of the suit promissory note, categorically denied the passing of consideration of

Rs.1,11,000/- to him on 19-04-2010. According to Dw.1, he borrowed an amount of Rs.15,000/- from the plaintiff and executed a promissory note (Ex.B1) on 04-09-1998 agreeing to repay the same with interest at 24% per annum. He further deposed that his mother borrowed a sum of Rs.10000/- from the plaintiff and executed a promissory note. He deposed that as his mother became very old, the plaintiff wanted him to take over the said liability and he agreed thereby.

13. He deposed that he paid an amount of Rs.10,000/- on 27-12-1999, and another sum of Rs.3,500/- on 21-07-2001 and endorsed both the payments on the back side of Ex.B1 vide Exs.B2 and B3 respectively. He deposed that subsequently, interest was calculated and renewal promissory note was obtained on 29-04-2004 calculating interest at compound rate @ 24% per annum. He deposed that Exs.B1 and B4 were scribed by Narayana Bala

Narasimham(Dw.2) and he is the scribe of Ex.A1, promissory note also. He deposed that the calculations have been made on the back side of Exs.B1 and

B4 promissory notes by Bala Narasimham. He further deposed that

O.S.No. 37 of 2014 Dated: 11-12-2018

subsequently, there were two renewals and suit promissory note is the latest renewal promissory note dated 19-04-2010. He deposed that the amount mentioned in the suit promissory note was not borrowed by him, but it represents earlier borrowing by him and his mother. He deposed that both of them are agriculturists, and as such, they are liable to pay only 12 ½ % per annum simple interest on the principal sums. He deposed that both the payments have been endorsed. He further deposed that the principal sum of

Rs.15,000/- coming to Rs.58,813-36 paise, the amount of Rs.1000/- borrowed by his mother comes to Rs.22,560-38ps, totaling to Rs.76,636-74 paise. He deposed that regarding the payment made in a sum of Rs.10,000/- on 27-09- 1999, the amount comes to Rs.12,848-88 and totally it comes to Rs.22,8848-

88. He further deposed that regarding the payment of Rs.3,500/- made on 21- 02-2001, the amount comes to Rs.4,703-30ps including the interest and the balance payable to the plaintiff is only Rs.27,696-80ps and that, he has no objection to pass decree for the said amount of Rs.27,696-80 paise with costs in favour of the plaintiff.

14. The defendant after examining himself filed a petition for issuing summon to Dw.2 and the said petition was allowed by way of order dated 25- 02-2016 in I.A.No. 113 of 2016. Subsequently, summons were issued to

Dw.2/Narayana Bala Narasimhmam, who made his appearance on 14-06-2018 and gave evidence deposing that he knows both the parties to the suit and that

Ex.B1-promissory note was scribed by him on 04-09-1998 on the request of both the parties to the suit. He deposed that Ex.B4-promissory note was scribed by him on 22-04-2000 on the request of both the parties. He deposed that he is a scribe of the suit promissory note dated 19-04-2010 on the request of both the parties and that both parties alone were present at the time of

Ex.B1, B4 and Ex.A1. He deposed that in his presence, no attestor signed on

Exs.B1, B4 and on Ex.A1 and no consideration was passed in his presence between the parties to the suit. He deposed that according to them, Ex.A1 was

O.S.No. 37 of 2014 Dated: 11-12-2018

a fresh promissory note executed by the defendant by cancelling Exs.B1 and

B4 promissory notes.

15. To prove his contention, the defendant filed and got marked the original promissory note dated 04-09-1998 for Rs.15,000/- executed by the defendant in favour of the plaintiff as Ex.B1, the payment endorsements dated 27-12-1999 for Rs.10,000/- and payment endorsement dated 21-07-2001 for

Rs.3,500/- as Exs.B2 and B3 respectively and the original promissory note

dated 22-04-2000 for Rs.10,000/- executed by the mother of the defendant in

favour of the plaintiff as Ex.B4.

16. Considering the above evidence of Dw.1, Dw.2, Pw.1, Pw.2,

Ex.A1 and Exs.B1 to B4, admittedly, in this suit, the plaintiff averred that the defendant borrowed an amount of Rs.1,11,000/- on 19-04-2010 and executed the suit promissory note agreeing to repay the same with interest at 24% per annum. The defendant contended that when he was examined as Dw.1, denied all the allegations made in the plaint, but categorically admitted the execution of Ex.A1. Hence, once the defendant admits the execution of Ex.A1- promissory note, it is for the defendant to prove that no consideration was passed under the suit promissory note. The defendant as noted above examined himself as Dw.1 and also got examined Dw.2. It is his specific contention that Ex.A1 is the latest renewal promissory note. The defendant was cross examined by the plaintiff and in such cross examination, Dw.1 categorically admitted that there is no mention in Ex.A1, that it is a renewal promissory note of Exs.B1 and B4.

17. Likewise, Dw.2, who is the scribe of the suit promissory note and

Exs.B1 and B4 also admitted that in Ex.A1, there is no specific mention that it was executed for discharging the balance amount of Exs.B1 and B4.

According to Dw.1, after execution of Ex.B1 and B4, he had paid Rs.10,000/- on 27-12-1999 and Rs.3,5000/- on 21-07-2001 to the plaintiff and got

O.S.No. 37 of 2014 Dated: 11-12-2018

endorsed the same on the back side of Exs.B1 by way of Exs.B2 and B3 payment endorsements.

18. A perusal of Ex.B2/payment endorsement dated 27-12-1999 shows that one Dandigiri Ramanamma signed under it, but not the plaintiff or the defendant. Furthermore, Ex.B4 does not contain any such endorsement.

Admittedly, Ex.B4 is the latest promissory note when compared to Ex.B1. If at all, the defendant had made no payments in respect of Exs.B1 or B4 and if at all, Exs.B1 and B4 are not-discharged promissory notes, they have to be in hands of the plaintiff, instead of the defendant. But the record shows that it is the defendant who produced Exs.B1 and B4. No creditor would give back the promissory note, if the debt is not discharged by the borrower. Furthermore,

19. Dw.2 during his cross examination, categorically admitted that

Ex.B1 promissory note was returned to the defendant only after discharge of debt by the defendant to the plaintiff. Hence, when Dw.2 himself admits that

Ex.B1 promissory note was returned to the defendant, after discharging the debt by the defendant to the plaintiff, the question of execution of the suit promissory note as a renewal promissory note does not arise. Furthermore, according to Dw.1, Exs.B1 and B4 and Ex.A1 were scribed by Dw-2. In fact,

Dw.1 during his cross examination deposed that the calculations made on the back side of Exs.B1 and B4 by Dw.2 only. Dw.1 admitted that there is a difference in the writing in Ex.B4 with that of the calculations made on the back side of Ex.B4. Likewise, he admitted that the same pen was used for the calculations made beneath Exs.B-3 and calculations made on the back side of

Ex.B4. He voluntarily deposed that both the writings are tallying with Bala

Narasimham. He further admitted that there is difference of writing in Ex.B2 with that of the calculations made beneath Ex.B3 and the calculations made on the back side of Ex.B4. He voluntarily deposed that both the writings belong to Bala Narasimham. Hence, according to the above evidence of Dw.1,

O.S.No. 37 of 2014 Dated: 11-12-2018

the writings found in Exs.B1 to B4 and the calculations were made by Dw.2.

However, categorically Dw.2 deposed in contrary.

20. According to Dw.2, though he scribed Ex.B1, the calculations and the endorsements on the back side of Ex.B1 were not made by him and he does not know about it. Likewise, he admitted that Ex.B4 was scribed by him.

However, he deposed that the calculations shown in Ex.B4 are not made by him. Hence, there is a contradiction between the evidence of Dw.1 and Dw.2.

While Dw.1 deposed that the writings and calculations mentioned in Exs.B1 to B4 were made by Dw.2, Dw.2 deposed that the calculations and endorsement found on the backside of Exs.B1 and B4 were not made by him.

If at all, Dw.2 did not make the said calculations, who made those calculations is not clear. The very admission made by Dw.2 that Ex.B1-promissory note was returned to the defendant after discharging the debt by the defendant to the plaintiff, shows that the so called calculations and endorsements found on the back side of Exs.B1 and B4 were made either by the defendant or some others present related to him, but not by DW2 or the plaintiff. The defendant vehemently contended that no cash consideration of Rs.1,11,000/- was passed to him on the date of execution of Ex.A1, promissory note. Furthermore, even

Dw.2 during his chief examination deposed that no attestor was present and no consideration was passed in his presence on the dates of execution of

Exs.B1, B4 and A1 promissory notes between the parties, during his cross examination, he admitted that Ex.A1 was scribed by him and that he had read over the contents of Ex.A1 to the parties and that the defendant admitted the contents of Ex.A1 in his presence and signed on it in his presence. He further deposed that he signed on Ex.A1 after the attestors signed. Hence the above evidence of Dw.2 which was recorded on 01-10-2018 clearly shows that there were attestors present at the time of execution of Ex.A1 and that the defendant admitted the contents of Ex.A1 in his presence.

O.S.No. 37 of 2014 Dated: 11-12-2018

21. Admittedly, a perusal of Ex.A1, shows that the defendant signed on Ex.A1 as if he received the cash consideration of Rs.1,11,000/- on 19-04- 2010 itself. Hence, when the defendant could not prove that the suit promissory note is a renewal promissory note of Exs.B1 and B4, considering the evidence of Dw.1 and Dw.2, it must be held that Ex.A1 was executed by the defendant on 19-04-2010, while receiving Rs.1,11,000/- from the plaintiff.

Hence, the evidence of Pws.1 and 2, Ex.A1 coupled with the admissions made by Dw.1, and Dw,.2 during their cross examination, prove that Ex.A1 was executed by the defendant on 19-04-2010 while receiving the cash consideration of Rs.1,11,000/- in the presence of attestors and scribe. Hence, the plaintiff could prove the suit promissory note is a valid and genuine one, whereas, on the other hand, the defendant could not prove that it is devoid of consideration. Hence, issue Nos. 1 and 2 are answered in favour of the plaintiff and against the defendant.

22. Issue No.3:-

Considering the findings to the issues 1 and 2, the plaintiff by examining himself as Pw.1 and by examining one of the attestors of Ex.A1 as

Pw.2 and by marking Ex.A1, could prove the suit claim and as such, the suit is entitled to be decreed.

23. In the result, the suit is decreed with costs in favour of the plaintiff and against the defendant directing the defendant to pay an amount of

Rs.1,50,960/-(Rupees One lakh, Fifty thousand, Nine hundred and Sixty only) with further interest @12 % per annum from the date of the filing of the suit till the date of decree and thereafter @ 6% from the date of decree till the date of realization on the principal amount of Rs.1,11,000/-.

Dictated to stenographer Gr.I, transcribed by her, corrected and

pronounced by me in the open Court on this the 31st day of January, 2019.

Senior Civil Judge, Kavali.

O.S.No. 37 of 2014 Dated: 11-12-2018

Appendix of Evidence

Oral Evidence

For Plaintiff: Pw.1 : G. Malakondaiah,

Pw.2 : N. Sudhakar

For Defendant:

Dw.1 : D. Venkateswarlu Dw.2 : N. Bala Narasimham

Documentary Evidence

For Plaintiff:

Ex.A1: Promissory note dated 19-04-2010, executed by the defendant in favour of Plaintiff for Rs.1,11,000/-

For Defendant:

Ex.B1 : promissory note dated 04-10-1998

Ex.B2 : Part payment endorsement dated 27-12-1999 on Ex.B1

Ex.B3 : Part payment endorsement dated 21-07-2001 on Ex.B1

Ex.B4 : Promissory note dated 22-04-2000

Senior Civil Judge

Kavali.

OS/72/2010

Muli Narasimha Reddy vs Kallagunta Rama Subba Naidu

28 Jan 2019

O.S.No. 72 of 2010 Dated: 28-01-2019

IN THE COURT OF THE SENIOR CIVIL JUDGE:KAVALI

Present: Smt.V.Lakshmi Rajyam,

Senior Civil Judge, Kavali

Monday, the 28th day of January, 2019

O.S.No. 72 of 2010

Between:

1. Mule Narasimha Reddy S/o Penchala Reddy, Hindu, Aged about 58 years, Agriculturist

2.Mule Penchala Reddy S/o Penchala Reddy, Hindu, Aged about 50 years, Agriculturist Both are residents of Nagulavaram village, Bogole Mandal, SPSR Nellore District. ….Plaintiffs And:

1. Kallagunta Rama Subba Naidu (died) S/o Rama Naidu, Hindu, agriculturist, aged 78 years, Retired Munsif, R/o Bogole village, Bogole Mandal, SPSR Nellore District.

2.Kallagunta Venkata Vara Prasad, S/o Rama Subba Naidu, Hindu, agriculturist, aged 50 years, R/o Bogole village, Bogole Mandal, SPSR Nellore District.

3.Kallagunta Krishnavenamma Wife of Rama Subba Naidu, Hindu, agriculturist, aged 70 years, R/o Bogole village, Bogole Mandal, SPSR Nellore District.

4.Kallagunta Srinivasulu, Son of Rama Subba Naidu Hindu, agriculturist, aged 47 years,

O.S.No. 72 of 2010 Dated: 28-01-2019

R/o Bogole village, Bogole Mandal, SPSR Nellore District. (Defendants 3 and 4 are added as per orders in I.A.No.447 of 2018, dated 25102018)

....Defendants

This suit came up on 28012018, before me for final disposal

before me in the presence of Sri A. Prasad Reddy, Advocate for the plaintiffs

and of Sri Y. Janaki Ramaiah, Advocate for the defendants and upon hearing, having stood over for consideration till today, this court delivered the following:

J U D G M E N T

The plaintiffs filed this suit for grant of permanent injunction restraining the defendants 1 and 2, their men, friends and relatives from ever interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and for costs of the suit.

(i) It is pertinent to note that, during the pendency of the suit, the first defendant died, his legal representatives were added as defendants 3 and 4 vide order dated 25102018 in I.A.No.447 of 2018.

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

The plaintiffs averred that they are the absolute owners of the suit schedule property and that they are brothers. They averred that the second defendant is the son of the first defendant. They further averred that the suit schedule property i.e., Ac.3.00 of dry land in 627 with patta No. 211 situated at Nagulavaram village of Bogole Mandal originally belonged to

Papana Anki Reddy, and that the plaintiffs purchased the same from Papana

Anki Reddy by way of registered sale deed dated 02091995 for a valuable consideration of Rs.21,000/ and since the date of purchase, they have been in

O.S.No. 72 of 2010 Dated: 28-01-2019

peaceful possession and enjoyment of the same, till today. They averred that their names have been mutated in the revenue records regarding the suit schedule property and that they have obtained the pass books and title deeds separately regarding their respective shares i.e., Ac.1.50 cents each. They further averred that the second plaintiff availed loan for purchasing the paddy harvesting machine from Indian Overseas Bank, Bogole and that he had deposited the original sale deeds, Pattadar Pass book and title deeds one year back. He further averred that the first defendant who is working as Munsif for the villages of Nagulavaram and Bogole, personally gave a Pattadar Pass

Book and title deed in favour of the plaintiffs and that the first defendant is not having any right over the suit schedule property, but since last 3 days, prior to the filing of this suit, the defendants have been proclaiming in the village, they will obstruct the plaintiffs from cultivating the suit schedule property. They averred that in the year 2009, the plaintiffs have cut the eucalyptus trees and also intending to remove the sumps of the eucalyptus trees in the suit schedule property, for which, the defendants started proclaiming that they will obstruct the same. The plaintiffs averred that the plaintiffs have paid the taxes and also obtained 1B and adangal from the

VRO, Nagulavaram village. Hence, the plaintiffs filed this suit for grant of permanent injunction restraining the defendants their men, friends and relatives from ever interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and for costs of the suit.

3.On receipt of summons, the defendants 1 and 2 made their appearance and Sri Y.Janaki Ramaiah, Advocate filed vakalathnama on behalf of defendants. The first defendant filed his written statement and the same was adopted by the second defendant. As noted above, during the pendency of the suit, the first defendant died. His legal representatives were added as D3 and D4 vide order dated 25102018 in I.A.No. 447/2018 and summons were issued to the defendants 3 and 4. The record shows that even

O.S.No. 72 of 2010 Dated: 28-01-2019

though, summons were served to the defendants 3 and 4 personally on 1712 2018 they did not choose to appear before this court and as such, they were set exparte to the proceedings.

4.In such written statement, the first defendant denying all the allegations made in the plaint and contended that the plaintiffs 1 and 2 are the own brothers and that the first plaintiff is managing the affairs of the 2nd plaintiff. They contended that the extent of the suit schedule property is not true and that the extent of land shown in the suit schedule property belonged to one Nidamanuru Kama Naidu as per the diglot issued by the Mandal

Revenue Officer. They contended that the total extent of S.No.627 is Ac.9.72 cents. Out of which, the eastern boundary belonged to Bandi Seshamma and adjoining thereto Gurajala Raghavulu had a land. They further contended that towards western side, there was government donka. They further contended that one Dodda Ganteswara Rao of Bapatla purchased Ac.2.00 cents of land from Gurajala Raghavulu under a registered sale deed dated 04061968 and the property to the eastern side has also been conveyed to Dodda Ganteswara

Rao. They further contended that in order to provide irrigation facilities for the lands, Somasila Channel was dug in an extent of Ac.1.62 cents. The land was acquired as per the award No.26/8586, Dt: 20121985 and compensation has been paid and at the time of acquisition of the said land, subdivisions have been made. They contended that the channel portion is sub divided as S.No.627/2 measuring Ac.1.62 cents and the land to the east is classified as S.No.627/3 measuring Ac.4.65 cents. They further contended for providing channel, an extent of Ac.0.35 cents of land out of the land purchased by Ganteswara Rao, was acquired from the rest of the extent is in

S.No.627/3. They contended that the remaining extent is Ac.1.65 cents and it belongs to Ganteswara Rao. They further contended that subsequently,

Ganteswara Rao died and the property was devolved upon his brothers and children and at that juncture, first defendant negotiated to purchase two acres

O.S.No. 72 of 2010 Dated: 28-01-2019

acquired by Ganteswara Rao under a registered sale deed dated 461988 and at that time, the first plaintiff was present and he raised an objection since

Ac.0.35 cents was acquired for channel, the remaining extent of land is

Ac.1.65 cents alone has to be sold and not Ac.2.00 cents and that the legal representative of Ganteswara Rao and the first defendant negotiated to purchase the two items from the registered sale deed i.e., item No.1 comprising of S.No. 265 and Item No.2 comprising of Ac.1.65 cents out of

Ac.4.65 cents surrounded by Somasila channel on the east and the land of the plaintiffs on the west. They contended that the said sale deed was also filed by the first plaintiff for himself and on behalf of second plaintiff. They further contended that in so far as the land in S.No. 267/1 to an extent of

Ac.1.65 cents is concerned, the first defendant was delivered possession of the sald land and the extent of land was included in the pass book of the first defendant along with other lands. They further contended that the first defendant also acquired the land in S.No.627/3. They further contended that in so far as the land in S.No.627/1 to an extent of Ac.1.65 cents, the plaintiffs have nothing to do with the said land. They contended that the second defendant has nothing to do with the land in S.No.267/3 to an extent of

Ac.3.00 cents. They further contended that the first defendant filed 1(B) in respect of S.No.267/2, measuring Ac.1.50 cents, which is a channel. But both these documents along with the adangal extracts have been fabricated in collusion with the village revenue officers just before filing of the suit. They contended that the plaintiffs have nothing to do with the land in S.No.267/2 or 267/3 which is to the east of the channel belonging to the first defendant, measuring Ac.1.65 cents. They contended that pass books are issued in favour of the plaintiffs and that the first defendant signed the pass books.

They further contended that they are not aware about the plaintiffs hypothecating the suit schedule property in Indian Oversea Bank, Bogole for purchasing the harvest machine by depositing the original sale deeds. They admitted that the first defendant is working as a village munsif. They further

O.S.No. 72 of 2010 Dated: 28-01-2019

contended that the eastern side boundary of the plaint schedule is shown as channel, but it is not correct and that it should be the land of the first defendant as it is mentioned in the sale deed, which is known to the plaintiffs, but the plaintiffs have mischievously filed this suit taking advantage of the incorrect recitals in their sale deeds. They contended that the defendants have never interfered with the peaceful possession and enjoyment of the land of the plaintiffs which is situated to the western side of the land of the first defendant, but the plaintiffs have mischievously filed this suit by showing the eastern boundary as a channel only with an object of annexing the land of the first defendant. They further contended that the plaintiffs have obtained injunction orders on 07062010 and taking advantage of the same, plaintiffs have mischievously removed the old ridge of the first defendant on the western side of the lands and put it at a distance on the eastern side and encircled thereby Ac.0.90 cents situated on the western side of the land of the first defendant. They contended that the suit for bare injunction is not maintainable and that the plaintiffs have instituted the suit by suppressing the fact of their attestation of sale deed by the first plaintiff and several other facts and obtained injunction orders by fabricating the documents. They contended that the first defendant is only concerned with that Ac.1.65 cents purchased by him adjoining the channel on the west and that he never claimed any part of the plaintiff’s land and on the other hand, the plaintiffs under the guise of injunction orders obtained on fabricated documents are harassing the first defendant in enjoying Ac.1.65 cents which belong to him.

Hence, they sought for dismissal of the suit with costs.

5.Basing on the pleadings of both parties, the following issues were settled for trial by my learned predecessor:

1. Whether the plaint schedule and the boundaries mentioned in the plaint are correct?

2. Whether the plaintiff is entitled for the relief of Permanent injunction against the defendant in respect of the suit schedule

O.S.No. 72 of 2010 Dated: 28-01-2019

property?

3. To what relief?

6.During the course of trial, the second plaintiff Muli Penchala

Reddy, got examined himself as Pw.1 and he filed his chief affidavit in lieu of his examination in chief and got marked Exs.A1 to A7. It is pertinent to note that at that juncture, when the matter was posted for cross examination of Pw.1, the learned counsel for the 2nd defendant reported no instructions and as such, the cross examination of Pw.1 was treated as Nil. The learned counsel for the plaintiff reported no further evidence and as such, plaintiffs side evidence was closed and consequently, the defendant side evidence was also closed.

7.Heard arguments of the learned counsel for the plaintiffs.

8.Issue Nos.1 and 2:

To prove the above said issues, the plaintiffs got examined the second plaintiff/Mule Penchala Reddy as Pw.1. Pw.1 filed his chief affidavit in lieu of his examination in chief and in such evidence, he had reiterated the contents of the plaint. In such evidence, Pw.1 deposed that he along with the first plaintiff purchased the suit schedule property from Papana Anki Reddy on 02091995 by way of registered sale deed (Ex.A6) for a valuable consideration of Rs.22,000/ and from the date of purchase, he and the first plaintiff have been in peaceful possession and enjoyment of the same. He deposed that the plaint schedule property is in the joint possession of himself and the first plaintiff and their names have been mutated in the revenue records and both himself and the first plaintiff obtained Pattadar Pass Book and title deeds separately regarding the suit schedule property each to an extent of Ac.1.50 cents. He deposed that he availed a loan for purchase of paddy harvesting machine from Indian Overseas Bank, Bogole and he deposited the original sale deed and the also pattadar pass book and title

O.S.No. 72 of 2010 Dated: 28-01-2019

deeds with the bank. He deposed that the first defendant was working as

Munsif for Nagulavaram and Bogole villages and he personally issued pattadar passbook and title deed in favour of the plaintiffs. He deposed that the first defendant is not having any manner of right over the suit schedule property, but the first defendant by manipulating the revenue records and some documents, started proclaiming in the village that he will obstruct the possession of the plaintiff over the plaint schedule property. He deposed that in the year 2009, he along with the first plaintiff have cut the Eucalyptus trees in the plaint schedule property and before filing of the suit, while they were intending to remove the stumps of Eucalyptus trees, the defendants attempted to obstruct them from doing so. He deposed that he had also paid cist to the revenue department vide Exs.A4 and A5. He deposed that the defendants are not in possession and enjoyment of the plaint schedule property and that he and the first plaintiff have been in peaceful possession and enjoyment of the same and that the defendants filed written statement only with false and frivolous allegations to grab the suit schedule property.

9.To prove his contention, Pw.1 filed and got marked Exs.A1 to

A7. Considering the above evidence of Pw.1, Exs.A1 to A7 and the plaintiffs of both parties, admittedly, the first defendant died and his legal representatives who were added as Defendants 3 and 4 remained exparte to the proceedings. The 2nd defendant who was contesting the suit, admittedly also did not choose to rebut the evidence of Pw.1 and the learned counsel for the defendant No.2 reported no instructions on 24012019 and the cross examination of Pw.1 was recorded as nil. Hence, it has to be determined whether the plaintiffs by examining Pw.1 and by filing Exs.A1 to A7 could prove the suit claim or not. Admittedly the suit schedule property is consisting of Ac.3.00 cents of dry land situated in S.NO.627/3 with patta

No.211 bounded by Somasila Project channel on the east, the land of

Kallagunta Madhu Babu to some extent and the land of plaintiffs to some

O.S.No. 72 of 2010 Dated: 28-01-2019

extent, purchased from Ganteswara Rao towards south, land of

Chellamcherla Subba Reddy to some extent and Indupuru Tirupathi Reddy to some extent purchased from Singaiah on west and Somasila Project canal towards North. Pw.1 had filed and got marked Exs.A1 to A7. Ex.A1 is the pattadar passbook pertaining to the first plaintiff and it shows that the first plaintiff owns Ac.1.50 cents of dry land in S.No.627 of Nagulavaram village.

Likewise, Exs.A2 is the 1B extract issued by the Revenue Divisional

Officer, Bogole, BitIII issued in the name of the first plaintiff and it shows that the S.No. is shown as 627/2 to an extent of Ac.1.50 cents. Ex.A3 is the village Account No.3 Adangal and it shows that it was issued in the name of the first plaintiff for an extent of Ac.1.50 cents in S.No.627/2. Ex.A3 pertains to the year 2010 in which this suit was filed. Exs.A4 and A5 are the land revenue receipts dated 05062010 issued in the name of the plaintiffs and they show that an extent of land was shown as Ac.1.50 cents and the survey number is shown as 627/2 in respect of the first plaintiff and S.No.627/3 in respect of 2nd plaintiff i.e., Pw.1. Ex.P6 is the registered sale deed dated 02 091995 which was executed by Papana Anki Reddy in favour of the plaintiffs and the schedule is shown as Ac.3.00 cents in S.No. 627 of

Nagulavaram village, Bogole mandal. The boundaries of the suit schedule property and Ex.A6 are one and the same. Ex.A7 is the village account No.3 adangal for the year 2010 issued in the name of Pw.1 and it relates to

S.No.627/3 to an extent of Ac.3.50 cents. Ex.A7 shows that only Ac.1.50 cents is in the possession and enjoyment of the second plaintiff i.e., Pw.1.

Hence, Exs.A1 to A7 clubbed together with the suit schedule property, clearly show that the plaintiffs have purchased Ac.3.00 cents in S.No.627 from Papana Anki Reddy by way of Ex.A6, registered sale deed dated 02 091995 and thereby they have been in joint possession of the same and that the pattadar pass book and title deed were obtained in the name of both the plaintiffs separately in respect of Ac.1.50 cents each. Hence, even though in

Exs.A2 to A5 and Ex.A7, there is a mention of S.Nos.627/2 and 627/3,

O.S.No. 72 of 2010 Dated: 28-01-2019

considering the Ex.A6 and the fact that the defendants have not rebutted the evidence of Pw.1, it must be held that the plaintiffs could prove that they are in possession and enjoyment of the suit schedule property. As the averments of the written statement show that the defendants are having dispute regarding the extent of the suit schedule property, there is every necessity to protect the possession of the plaintiffs, as the defendants may trespass or in any manner interfere with the suit schedule property. Hence, in view of afore said circumstances, it is a fit case to protect the possession of the plaintiffs over the suit schedule property granting permanent injunction. Hence, issue

Nos.1 and 2 are answered in favour of the plaintiffs and against the defendants.

10.Issue No.3:

Considering the findings to the issue Nos.1 and 2, the plaintiffs by examining the 2nd plaintiff as Pw.1 and by marking Exs.A1 to A7 could prove that they are in possession and enjoyment of the suit schedule property.

As such, the suit is entitled to be decreed.

11.In the result, the suit is decreed with costs in favour of the plaintiffs and against the defendants, granting permanent injunction restraining the defendants, their men, friends and relatives from ever interfering with the plaintiffs’ peaceful possession and enjoyment over the suit schedule property in any manner.

Dictated to stenographer Gr.I, transcribed by her, corrected and

pronounced by me in the open Court on this the 28th day of January, 2019.

Senior Civil Judge, Kavali.

Appendix of Evidence

Oral Evidence

O.S.No. 72 of 2010 Dated: 28-01-2019

For Plaintiff s: P.W.1: Mule Penchala Reddy

For Defendants: None

Documentary Evidence

For Plaintiff: Ex.A1: Pattadar passbook stands in the name of the 1st plaintiff

Ex.A2:1B extract belonging to Pw.1

Ex.A3:No.3 adangal for the year 2010 issued in the name of 1st plaintiff.

Ex.A4:Cist receipt dt: 562010 issued in the name of Pw.1

Ex.A5:Cist receipt dated 562010 issued in the name of 1st plaintiff

Ex.A6:Registered sale deed dated 02091995 executed by P.Anki Reddy in favour of Plaintiffs

Ex.A7: No.3 adangal for the year 2010 issued in the name of Pw.1.

For Defendants:

Nil

Senior Civil Judge

Kavali.

IP/1/2012

vennelakanti raja ramana rao vs Vspamidimari nagamani

01 Feb 2019

I.P. No. 1 of 2012 Dated: 01-02-2019

IN THE COURT OF THE SENIOR CIVIL JUDGE

at KAVALI.

Present : Smt.V.Lakshmi Rajyam

Senior Civil Judge, Kavali

Friday, this the 1st day of February, 2019.

I.P. No.1/2012

Between :- Sri Vennelakanti Raja Ramana Rao s/o Venkata Krishnaiah Hindu, aged about 60 years r/o Murthysettyvari street Kavali, SPSR Nellore district

..Petitioner/Debtor.

And:

1) Smt.Pamidimarri Nagamani, w/o Subbarao (died), Hindu, aged about 40 years, Provision shop, c/o Ilindra Varadarjan shopping complex, Peddapavani Road, Near Manasa theatre, Kavali, SPSR Nellore district.

2) Smt.Maddali Tripura, W/o Late Srinivasulu, Hindu, aged about 49 years, Business, R/o Ramamurthypeta, Kavali town, SPSR Nellore district.

...Respondents/Creditors.

This petition came up on 3.12.2018 before me for final hearing in the presence of Sri.Potluru Srinivasulu, Advocate for the petitioner and of Sri Y.Janaki Ramaiah and Sri.N.S.Kiran kumar, Advocate for the 1st respondent and the respondent No.2 having remained exparte; and this petition having been stood over till this day for consideration, this Court delivered the following:

O R D E R

The petitioner-V.Raja Ramana Rao filed this petition under

Sec.10 of the Provincial Insolvency Act 1920 seeking to adjudicate him as an 'insolvent'.

I.P. No. 1 of 2012 Dated: 01-02-2019

2. The petitioner-V.Raja Ramana Rao averred that he is a retired employee and suffering from nervous problem and mental depression and that for the purpose of his medical treatment, he had borrowed loans from various persons, including the respondents and subsequently he failed to discharge the same, even though he tried his level best. He averred that the husband of 1st respondent by name

Pamidimarri Subbarao lent Rs.8000/- to him on 7-8-2001 and he had executed a promissory note in favour of the said Subbarao, subsequently due to ill-health, he could not discharge the said debt. He averred that during his life time, the said Subbarao filed a suit in

O.S,288/2004 on the file of Prl.Junior Civil Judge's court, Kavali against the petitioner for recovery of money and obtained decree on 19- 11-2004 for Rs.13,728/-. He averred that subsequently the said

Subbarao died living behind him, the 1st respondent as his legal heir. He contended that after the demise of her husband, the 1st respondent filed an E.P.10/2009 on the file of Prl.Jr.Civil Judge, Kavali for arrest of the petitioner and in the said E.P. he took a plea of no means, but the said

E.P was allowed on merits on 29-11-2011 issuing attest warrant to him.

He averred that subsequently he was arrested and produced before the

Prl Junior Civil Judge's court, Kavali on 28-12-2011 on execution of warrant and that the Court had released him on execution of bond giving liberty to him to file Insolvency Petition by 23.1.2012.

(i) He further averred that he had borrowed an amount of

Rs.2,00,000/- from the 2nd respondent on 3-11-2005 agreeing to repay the same with interest at @ 24% p.a and subsequently he failed to pay the said amount to the 2nd respondent, due to which the 2nd respondent filed a suit O.S.55/2008 on the file of this court and obtained decree against him on 4-2-2010. He averred that aggrieved by the judgment and decree dated 4-2-2010, he preferred an appeal in A.S 81/2010 on the file of Hon'ble VI Addl. District Judge, Nellore and the same is

I.P. No. 1 of 2012 Dated: 01-02-2019 pending. He further averred that he is also indebted to many persons apart from the respondents, but due to his ill-health, he could not discharge such debts. He averred that he has no movable or immovable properties and that the meager pension amount received by him is sufficient for his medicine and food only. He averred that he has no source of income to discharge his debts shown in the 'A' schedule. He averred that his movable and immovable properties are shown in petition 'B' schedule and 'C' schedule respectively. He averred that his liabilities and debts are more that his assets and hence, this petition was filed to declare him as an 'insolvent'.

3. As seen from the record, the respondent No.2 remained exparte. The 1st respondent filed counter denying all the allegations made in the petition. In such counter, she contended that to her knowledge, the petitioner is indebted to her for a sum of Rs.17,691/- towards the decree amount obtained by her deceased husband in

O.S.288/2004 and that the said amount has not been paid. She

contended that she filed E.P.10/2009 on the file of Prl. Junior Civil

Judge, Kavali for arrest and she came to know that the 2nd respondent

filed a suit in O.S.55/2008 and on contest the said suit were decreed and the petitioner preferred an appeal in AS 81/2010 and it is pending.

She further contended that the petitioner retired from service and as per the document filed by her shows that as on 20-8-2010, a sum of

Rs.6,47,760/- has been credited to the account of petitioner. She contended the total amount of debts of the respondents 1 and 2 will be only Rs.3,36,000/- and that the petitioner had all the resources to pay both the debts. She contended that the petitioner instead of discharging the debts, preferred an Apeal in AS 18/2010 and the same is pending.

She contended that the petitioner had suppressed his assets and that he is getting Rs.13,000/-p.m. by way of pension and further he has got movable and immovable properties and as such he in not entitled to be

I.P. No. 1 of 2012 Dated: 01-02-2019 adjudicated as insolvent. Hence she sought for dismissal of the petition with costs.

4. It is pertinent to note that when the matter was posted for enquiry, as the petitioner did not adduce evidence, his evidence was closed on 27-1-2016 and thereafter, the 1st respondent-Pamidimari

Nagamani examined herself as R.W.1 and got marked Ex.R1. The record shows that after closure of the respondents's side evidence, the petitioner filed a petition for reopening his evidence and the same was allowed on 22-11-2016 vide IA.No.794/2016. Subsequently the petitioner-V.Raja Ramana Rao examined himself as PW1, but no documents were not marked in his favour.

5. Heard the Counsels on record and perused the written submissions of the first respondent's counsel.

6. Point for consideration:-

“Whether the petitioner had put forth any justified grounds in

declaring him as an 'insolvent' or not?”

7. Considering the evidence on record, the above point for consideration is required to be answered. Even before I do such exercise, it is necessary to consider the provisions of Section 10 of the

Insolvency Act which reads as follows:

Sec.10. Conditions on which debtor may present insolvency

petition:- (1)A debtor shall not be entitled to present an insolvency petition, unless he is unable to pay his debts and-

(a) his debts, amount of five hundred rupees; or

(b) he is under arrest or imprisonment in execution of the decree of any Court for the payment of money; or

I.P. No. 1 of 2012 Dated: 01-02-2019 (2) A debtor in respect of whom an order of adjudication (whether made under the Presidency Towns Insolvency Act, 1909, or under this Act) has been annulled, owing to his failure to apply, or to prosecute an application for his discharge, shall not be entitled to present an insolvency petition without the leave of the Court by which the order of adjudication was annulled. Such Court shall not grant leave unless it is satisfied either that the debtor was prevented by any reasonable cause from presenting or prosecuting his application, as the case may be, or that the petition is founded on facts substantially different from those contained in the petition on which the order of adjudication was made.

8. As noted above, during enquiry of this petition, initially the 1st respondent-Nagamani examined herself as R.W.1 and she filed an affidavit under Order 18 Rule 4 of CPC which was in tune with her counter. She deposed that her husband filed a suit against the petitioner for recovering an amount due under a promissory note and obtained a decree in OS 288/2004 on the file of District Munisif court, Kavali. She deposed that subsequently her husband died and later on, she filed an

EP 10/2009 in OS.288/2004 on 23-3-2009 for realizing Rs.17,681/-.

She deposed that subsequent to the filing of the EP, the petitioner received an amount of Rs.6,47,760/- as per the proceedings dated 26-4- 2010 and the said amount was credited to his account bearing

No.10905811496 in State Bank of India, Kavali. She deposed that she is filing the certified copy of the account of the petitioner from 17-4- 2007 to 4-8-2011 as found in Ex.R1. She deposed that though the petitioner received the said amount, he had not chosen to pay any single pie towards the decretal amount. She further deposed that the petitioner contested the proceedings in the EP and he was arrested and brought before Prl. Junior Civil Judge's court, Kavali and on his representation that he will file IP, he was released. She deposed that in so far as the 2nd respondent is concerned, the 2nd respondent appears to have obtained a decree for Rs.3,19,000/- and she learnt that some

I.P. No. 1 of 2012 Dated: 01-02-2019 appeal proceedings are pending. She deposed that though the petitioner has got solid cash in his account, he did not pay any amount to the respondents who are the only creditors and their debts come to

Rs.4,00,000/-. She further deposed that, in addition to the above amount, the petitioner is receiving pension of Rs.13,000/-. She deposed that the petitioner mischievously filed this petition having received

Rs.6,47,760/- and as such this petition is an abuse of the process of law.

She deposed that the petitioner is having sufficient means to pay the debts. During her cross examination, she admitted that she did not file documents to show that petitioner is having properties. She deposed that she had filed documents to show that the petitioner got

Rs.5,00,000/- and odd towards retirement benefits and that he is having retirement benefits, pension as well as bank accounts. She denied the other suggestions made by the petitioner. Through her, the statement of account of the petitioner in SBI, Kavali was marked as Ex.R1.

9. After the closure of the respondent side evidence, the petitioner- V.Raja Ramana Rao examined himself as P.W.1. He filed an affidavit under Order XVIII Rule 4 of Civil Procedure Code, which contents are in tune with the contents of the petition. PW1- V.Raja

Ramana Rao sought to declare him as an ‘insolvent’.

10. The learned counsel for petitioner argued that the respondents have not filed any documents to show that the petitioner is having any movable or immovable properties and the same is evident from the evidence of RW1 and as such the petitioner could prove that he is having no means and that he ought to be declared as insolvent.

11. On the other hand, the learned counsel for the 1st respondent filed written arguments /submissions the gist of which is that the respondents by filing Ex.R1 and by cross examining PW1

I.P. No. 1 of 2012 Dated: 01-02-2019 could prove that the petitioner is having sufficient means and that he had failed to discharge their debts. The learned counsel for the respondent No.1 argued that the admissions made by PW1 clearly prove that P.W.1 was having an amount of Rs.6,34,556/- by 4-12-2008 and he had withdrawn Rs.5,95,000/- on the same day and though he could have repaid the debts due to the respondents from the amount withdrawn, PW1 did not do so.

12. Considering the provisions of Sec.10, whenever the debts of the petitioner are more than Rs.500/- and when he is unable to discharge the same, he may apply to be adjudicated as an insolvent.

But, he should substantiate his pleas by evidence. As seen from the provisions of Insolvency Act, the Court is required to make summary enquiry. It need not make detailed enquiry but at the same time, the petitioner has to lead prima facie evidence about genuineness of debts and his incapability in discharging the debts.

13. The evidence of PW1 is sufficient for disposal of this petition. As seen from the petition, the petitioner noted that he borrowed loans from the respondent No.1 and 2 as shown in ‘A’ schedule. A perusal of the 'A' schedule shows that the petitioner is indebted to the respondents 1 and 2 to an amount of Rs.3,37,451/-.

Further he contends that he has no movable or immovable properties and the same was shown in petition 'B' and 'C' schedule properties.

Even though the petitioner contended and when examined as PW1 deposed that he is indebted to several persons including the respondents and that he is not having movable or immovable properties to discharge his debts, categorically during his cross examination, he had deposed that he is a retired work inspector and that he is getting pension of

Rs.15000/- p.m. Further he deposed that the respondents 1 and 2 are alone his creditors. He further admitted that the 1st respondent's

I.P. No. 1 of 2012 Dated: 01-02-2019 husband filed a suit against him in the year 2004 and that the 1st respondent filed EP 10/2009 in OS 288/2004 against him. He deposed that he had shown in the schedule that he is indebted to a tune of

Rs.2,25,000/- to respondents. He deposed that since 2006 he is indebted to 2nd respondent. He admitted that he received retirement benefits through SBI and that an amount of Rs.6,34,556/- was credited into his account on 4-12-2008. He admitted that on the same day, he had withdrawn Rs.5,95,000/-. He further admitted that as on the date of withdrawing the above amount, the two debts due to the respondents 1&2 were in existence and that he had not paid single pie to the respondents out of the amount withdrawn from the bank. He admitted that 1st respondent filed an E P 10/2009 for arrest on the file of Pincipal

Junior Civil Judge’s Court, Kavali and in the said EP, he, the 1st respondent and the bank authorities were examined on 29-11-2011, that the court ordered arrest to him and subsequently he was arrested and produced before the court and thereafter he filed this IP. He admitted that he had not filed any documents in proof that he is suffering from ill health.

14. Considering the above evidence of PW1, it is clear that

PW1 had suppressed many facts, like possessing of Rs.6,34,556/- amount in his bank account, by the date the debts of the respondents were due and that he had no other creditors except the respondents. The admissions made by PW1 coupled with Ex.R1 shows that, by 4-12- 2008 PW1 was having an amount of Rs.6,34,556/- in his bank account as he received retirement benefits, but he did not pay the debts to the respondents. Further more PW1 categorically admitted that on 4-12- 2008 itself he had withdrawn Rs.5,95,000/- but he did not pay any amount to the respondents even though he was indebted to them by that date. The Petiton 'A' schedule shows that PW1 was indebted to the

I.P. No. 1 of 2012 Dated: 01-02-2019 respondents to a tune of Rs.3,37,451/- but PW1 inspite of having bank the sufficient amount in his bank amount by 4-12-2008, did not choose to pay any amount to respondents. The evidence of PW1 further shows that he is getting pension of Rs.15000/- p.m. The debt of the 1st respondent are found in petition 'A' schedule is only Rs.17,651/-, but the petitioner did not choose to repay the same from his pension amount. Further even though the petitioner contended that his pension amount is being utilized for food and medical expenses, he did not produce any document to show that he is suffering from ill health.

Hence it is clear that the petitioner had not approached this Court with clean hands. When such is the fact, the petition cannot be entertained.

Therefore, the petition is liable to be dismissed.

15. In the case T.Chandrasekharaiah Vs. D. Sreeramulu

Chetty and others reported in 2005(1) ALT 407, the Honourable High

Court was pleased to examine the provisions of Insolvency Act extensively with emphasis on Sec.10 and Sec.24 of the Provincial

Insolvency Act. Ultimately, it was held that even though the petitioner, who seeks himself to be declared as an Insolvent need not prove his case beyond reasonable doubt, yet he should lead evidence and or place prima facie material before the Court, so as to facilitate the Court to reach to conclusion that he is an Insolvent. He should place all such material before this Court which would prima facie show that there exists grounds to believe that he is unable to discharge the debts of the respondents and he became insolvent. In a given case, where the contesting respondent(s) emphatically deny the debts of the others respondents or it put it otherwise, the contention of the contesting respondent is that the petitioner had shown fictitious debts, it becomes obligatory for the petitioner to prove about the existence of such debts.

Therefore, the petitioner should necessarily place prima facie material about the existence of all the debts.

I.P. No. 1 of 2012 Dated: 01-02-2019

16. In the instant case, the petitioner averred as if the 1st respondent-Nagamani filed a suit in E.P.10/2009 in O.S.No.288/2004 and when he was arrested in such EP, he took time for filing insolvency petition. He pleaded as if he has no means to discharge. However the admissions made by PW1 coupled with Ex.R1 show that PW1 was having sufficient in his bank account for discharging the debts of the respondents. Further, even though PW1 contended that he is indebted to several other persons, including the respondents, during the cross examination, PW1 deposed that the respondents 1 and 2 are alone his creditors. Thus, evidently, he tried to suppress all material facts.

17. In the case of Chittineni Mohana Rao vs. Jagarlamudi

Subba Rao reported in 2010 (6) ALD 514 it has been held that the proposed insolvent has only to satisfy the Court as to existence of prima facie grounds which in turn must disclose that the assets held by him are not adequate to meet the liabilities. In the case of Dasari

Srihari Rao vs. Talluri Harinadha Babu reported in 2002 (3) ALT 456 (DB)and in the case of S.Siva Rama Rao vs. Suresh Trading

Company reported in 1977 (2) An.W.R. 462, it was held that the debtor has an obligation to satisfy the Court, by furnishing necessary information and any failure in that regard would entail in rejection of the application under Section 25 (2) of the Act. When the ratio of above noted two judgments is considered, it would be evident that the debtor, who seeks to declare himself as an insolvent, should place before the

Court all details of his assets to show that his assets are not adequate to meet his liabilities and that the information furnished by him is true and correct.

18. Considering the above and so also, the above mentioned judgments, it is evident that the petitioner had not approached this

I.P. No. 1 of 2012 Dated: 01-02-2019

Court with clean hands and therefore, the petition is not maintainable.

Further, the evidence on record disclosed that the petitioner had sources of income also to pay the debts. Hence, the petition is liable to be dismissed.

19. In the result, the petition is dismissed but without costs.

Dictated to the typist on laptop, corrected on my laptop and

pronounced by me in the open Court, this the 1st day of February, 2019.

SENIOR CIVIL JUDGE

KAVALI.

APPENDIX OF EVIDENCE.

Oral Evidence

For Petitioner: For Respondents:

P.W.1:V.Raja Ramana Rao R.W.1: P.Nagamani

Documentary Evidence

For Petitioner:

-NIL-

For Respondents:

Ex.R1: Statement of account pertaining to PW1 maintained by SBI, Kavali

SCJ/KVL