Sri.V.Srinivas

IN THE COURT OF THE XXVII ADDL. CHIEF JUDGE,

CITY CIVIL COURTS, SECUNDERABAD.

Dated: Wednesday this the 01st day of June, 2016.

Present: Sri. V. Srinivas, XXVII Addl.,Chief Judge, City Civil Courts, Secunderabad.

AS.No. 50 of 2015

Between: M/s. Dulichand Silk Mills Ltd.,

Rep., by its Managing Director. ...Appellant.

(A N D)

1. Smt. Pramila.

2. S. Venkateshwar Rao.

3. S. Nageshwar Rao (died as per LRs).

4. Smt. S. Sandhya.

5. S. Sriram. ... Respondents.

Appeal against the judgment and decree in OS.No.711/2009,

dt. 14.09.2015 on the file of III Senior Civil Judge,

City Civil Courts, at Secunderabad.

Between:

1. Smt. Pramila.

2. S. Venkateshwar Rao.

3. S. Nageshwar Rao (died as per Lrs).

4. Smt. S. Sandhya.

5. S. Sriram. ... Plaintiffs.

(A N D)

M/s. Dulichand Silk Mills Ltd.,

Rep., by its Managing Director. ... Defendant.

This appeal is coming on 02.03.2016 before me for hearing in the presence of Sri. K. Ranganathan, Advocate for appellants/defendant, and of Sri.M.Goverdhan Reddy, Advocate for respondents/plaintiffs, and the matter stood over consideration till this day, this court delivered the following:

J U D G M E N T

1.The appellant/defendant filed this appeal by setting aside the impugned judgment and decree passed by III Senior Civil Judge, City Civil

Court, Secunderabad in OS.No.711/2009, dt. 14.09.2015.

2.For convenience sake the parties are referred to hereinafter as plaintiffs and defendant, as arrayed in the suit.

3.The brief facts of the plaintiffs are that:

a.The plaintiffs are the owners of the building bearing municipal No.1- 8-160/1/1, situated at Prenderghast Road, Secunderabad. The defendant is tenant of shop in ground floor of the premises on monthly rent of Rs.9,840/- per month exclusive of electricity charges. The tenancy is oral, monthly 2 commencing from first date of English Calender month. The defendant at the time of inducting into the said premises kept a sum of Rs.11,025/- as security deposit with the plaintiffs. The plaintiffs requested the defendant to vacate the premises for their personal occupation but defendant postponed the same. The plaintiffs got issued termination notice dt.

12.10.2009 terminating the tenancy on 30.11.2009 to hand over the premises on 01.12.2009, but the defendant failed to vacate the same, as such it is also liable for payment of Rs.30,000/- per month towards damages from 01.12.2009 onwards.

b.During the pendency of the suit, plaintiff No.3 died and his legal heirs added as plaintiffs No. 4 & 5.

c.After receipt of the summons defendant approached the court through their company counsel and filed written statement denying the allegations made against them and taken a stand that, the notice issued by the plaintiffs is not valid as there was a written rental agreement, dt.

14.09.2006 for a period of 11 months setting out the terms effect from 01.04.2006. The said agreement was renewable on enhancement of rent of 20% and it is the clause for termination of tenancy on either side three months notice of writing is required and the plaintiffs are not entitled for damages as prayed for.

4.The defendant filed his written statement admitting that the plaintiffs are the owners and landlords of the premises bearing No.1-8- 160/11/1, situated at Prenderghast Road, Secunderabad, for rent of

Rs.9,840/- per month and also admits a sum of Rs.11,025/- was paid to the plaintiffs by way of refundable deposit at the inception of tenancy.

b.The defendant further denies that the plaintiffs require the property for their personal use and has been dodging to vacate the property on one pretext or the other. This defendant got a suitable reply sent refuting the claim of the plaintiffs. The defendant denies that it got a reply sent with false allegations and there was written rental agreement on 14.09.2006 for 3 a period of 11 months setting out the terms therein. The lease was with effect from 01.04.2006 renewable/extendable on enhancement of rent by 20%.

c.It is further submitted by the defendant that there is a clause for termination of tenancy on either side in the rental agreement. The agreement is terminable on either side giving three months notice in writing. The lease has been orally renewed without executing a fresh deed on the same terms and conditions. Therefore, the condition for termination of tenancy by giving three months notice is applicable still between the parties. It is further summited by the defendant that as the tenancy has not been validly terminated the defendant is entitled to continue to occupy the plaint schedule property on contractual rate of rent. The payment of mesne profits muchless Rs.30,000/- per month does not arise and the premises fetches rent at the rate of Rs.25/- per sq.ft per month is false. Hence, this defendant hereby expressly denies rest of all the adverse allegations made in the plaint and is liable to be dismissed the suit with costs.

5.Additional written statement of the defendant:

The defendant herein filed IA.No.909/2011 seeking permission to file

additional written statement by putting forth a counter claim by an order

dt.26.09.2011 and was pleased to allow the IA.No.909/2011. The defendant submits that as per the document styled as rental lease deed dt.14.09.2006 entered into between the plaintiff No.1 and the defendant the lease is extendable for further period by 20% increase in rent. The defendant is therefore entitled to specifically enforce the agreement dt.14.09.2006.

b.The defendant further submitted that the values the counter claim at

Rs1,41,696/- which is the average annual rent calculated at Rs.11,808/- per month. The defendant directed the plaintiff to execute and register lease deed for a further period of three years with effect from 01.04.2009 to 31.03.2012 on enhancement of rent at Rs.11,808/- per month with costs.

c.The plaintiffs filed rejoinder to the written statement filed by the 4 defendant stating th at, the lease deed was for a period of three years with effect from 01.04.2006 and expendable for further period if the rent is increased 20% over the existing rent. The said lease was lapsed after three years and the defendant did not act upon the said document. The tenancy become a oral and the notice and question of renewal lease for further period etc., does not arise.

6.Basing on the pleadings of both sides the trial court framed the following issues:

1. Whether the defendant is entitled for specific performance of agreement dt. 14.09.2006 ?

2. Whether the relief claimed by the defendant is time barred ?

3. To what relief ?

In view of the contents of the plaint, written statement and rejoinder, it is better to recast the issues in order to dispose the case properly:

1. Whether the plaintiffs are entitled direction directing the defendant to vacant and hand over the vacant physical possession of the suit schedule property ?

2. Whether notice issued by the plaintiffs is not valid for termination of tenancy against the defendant in view of the lease agreement ?

3. Whether plaintiffs are entitled for mesne profits as prayed for ?

4. To what relief ?

7.The trial court upon examination of the oral and documentary evidence on behalf of both sides and upon consideration of arguments advanced on both sides passed the impugned judgment and decree. The suit filed by the plaintiffs against the defendant, the suit is decreed with costs and the plaintiffs are entitled for direction directing the defendant to vacate and handover the suit schedule property within two months from the date of judgment.

8.Aggrieved by the same the defendant preferred the appeal on the grounds that:

1. The judgment and decree passed by the trial court is against law, facts of the case and material on record.

2. The learned judge should have dismissed the suit on the ground of no issuance of a valid notice of termination 5

3. instead of dismissing the suit the learned judge neither framed an

additional issue nor discussed about the counter claim made by

appellant/defendant seeking specific enforcement of the agreement dt.19.09.2006 under the terms of which respondents/plaintiffs agreed to extend the period of tenancy for a further period of three years by collecting rents, at a rate enhanced by 20% over the then existing rent.

4. The learned judge failed to note that an additional written statement was filed by appellant/defendant where under a counter claim was made on payment of additional court fee.

5. The learned judge should have framed an additional issue about the maintainability of the suit even before the expiry of the extended period of tenancy.

6. The learned judge even without framing an additional issue should have given a finding on the counter claim made by appellant/defendant.

7. The learned Judge ought to have considered the counter claim made by appellant/defendant, he would not have decreed the suit.

8. The learned judge was wrong in opining that the quite notice (Ex.A1) is bad and does not confirm either to the terms of tenancy of the possession of law merely on the ground that neither of the parties filed the original lease deed before the said court.

9. The learned judge failed to note that in the light of the admissions made by PW.1 in the cross examination recorded on 16.07.2014 to the effect “it is true as per the lease agreement, you are bound to give three years (wrongly noted as years instead of months) prior notice”.

10.The learned judge failed to see that Sec.106 TP Act stipulates that 15 days notice of termination could be treated as valid only in the absence of an agreement to the contrary.

11. Admittedly in the instant case both the parties to the case clearly admitted that they have agreed to give three months advance notice in writing even though the tenure under the first rental agreement had expired by 31.03.2009.

12. The learned judge failed to see that both the parties have admitted that even though no fresh lease or rental agreement was executed after the expiry of the lease by 31.03.2009, it was agreed that the tenancy would continue on the same terms and conditions as mentioned in Ex.A1 subject to enhancement of rent by 20% over the then existing rent.

6 13.The learned judge failed to note that once the landlords/tenants accepts the rents at an enhanced rate as agreed upon between the parties, it shall be deemed that the respondents/landlords are more keen to collect the rents at an enhanced rate rather than seek the eviction of the tenant.

14.The learned judge failed to see that the respondents/landlords have virtually waived the quit notice by permitting appellant/defendant to stay in the suit schedule property till the filing of the suit on 02.12.2009 and by accepting rents.

15.The learned judge should have held that the landlord never wanted the tenant to vacate as long as the rents are paid on time even at enhanced rents was agreed upon by the parties.

16.The learned judge failed to note that if really the tenancy was terminated under Ex.A1 as claimed by the respondents by efflux of time by 01.04.2009, there was not need to issue a quit notice.

17. The learned judge failed to note that the matters of this nature the intention of the parties whether to terminate the tenancy or keep the tenancy alive could be gathered by the conduct of the parties. If really the landlord did not want the tenancy to continue after the expiry of the period mentioned in the notice (Ex.A1) there was no need either to issue a notice of termination or wait for a period of eight months before filing a suit.

18.The learned trial court judge has not taken into consideration the observations made by the Hon'ble High Court while disposing of

CR.P.No.1332/2015.

19.Though this court has jurisdiction both territorial and pecuniary the appeal since the suit schedule property is located at PG Road,

Secunderabad and the value of the suit as well as a claim in the appeal is less than Rs.5,00,000/-.

9.Now the point that arise for consideration in this appeal is:

1. Whether the trial Court ’s decree and judgment in decreeing the suit is unsustainable and is liable to be set aside and if so; to what extent, this Court while sitting an appeal can interfere with the trial Court’s decree and judgment impugned and with what observations ?

2. To what relief ?

10.Heard both sides.

11.POINT:

In order to answer the above point the following are to be determined.

7

1. Whether the trial court failed to frame additional issue nor discussing the counter claim is erroneous ?

2. Whether defendant placed any evidence to substantiate the counter claim made in the additional written statement ?

3. Whether the counter claim made by defendant is a time barred ?

4. Whether quit notice covered under Ex.A-1 is valid under Law ?

5. Whether 20% increase clause cannot be acted upon in view of absence of any documentary evidence ?

6. Whether even by 31/03/2009 the lease was not expired and it should be extended for three more years ?

7. Whether plaintiff/landlord waived the quit notice by permitting the defendant was stayed in the suit schedule property and landlord is keen to collect rent at enhanced rent rather than seeking eviction ?.

12.For this I closely verified oral and documentary evidence placed

before this court as well as judgment of the lower court. The defendant

admitted Ex.A1 legal notice but for the said notice, he says that he had sent suitable reply to the plaintiff. In the evidence affidavit of DW.1 he says there is a written rental agreement dt.14-09-2006 and placed before the court, but on perusal of entire record there is no such written rental agreement filed into court. Admittedly the original lease effect from 01-04- 2006 and there is a clause that rent is enhanceable by 20% every year and there is a termination clause on either side by giving three months time in writing. But as no document is available on record, it can not be said lease deed is in existence or acceptable. In the absence of a written lease deed, then the lease is an oral one and the settled legal possession is when the lease is oral for this point I am fortified by law reported in AIR 1952

Supreme Court, page-23, in between RAM KUMAR DAS Vs. JAGDISH

CHANDRA DEO, DHABAL DEB AND ANOTHER, wherein it was held that:

“It is not disputed that the contract to the contrary, as contemplated by

Section 106 of T. P .Act, need not be an express contract; it may be implied, but it certainly should be a valid contract. If it is no contract in law, the 8

Section will be operative and regulate the duration of the lease”.

13. 1997(3) SCC 679, in between Satish Kumar Vs. Zarif Ahmed and others, at para 9, their Lordships of Apex Court held that: ‘an unregistered lease deed executed from month to month, for a period not exceeding 11 months, though reduced into writing and possession is delivered to a tenant is not a compulsorily registrable instrument and therefore, the document is admissible in evidence to consider the effect of the immovable property contained therein or to receive as an evidence of any transaction vis-a-vis such property.

14. 2004(5) ALT 542, in M/s GOLD MEDAL, REP. BY ITS SOLE

PROPRIETOR, MOHD.ALI ARIFI (Died) per L.Rs. Vs. SMT.AMEENA

BEGUM THROUGH HER G.P.A., wherein it was held that: ‘the proceedings are pending, therefore the provisions amended under Section 106 of T.P. Act will come into play, under the said provision the lease of any immovable property for any other purpose other than agriculture shall be deemed to a month to month terminable on either lessor or lessee by 15 days notice. Further under Sub-sec.3 of Section 106 of T.P.Act, notice under sub section shall not be invalid and merely because, period of short period of sub section and that the period of notice commence from the notice of receipt of the notice’.

15.If unregistered document of lease/absence of filing of lease deed, it amounts to a lease of month to month and such lease can be determined by a valid quite notice under 106 of T.P.Act. Here the appellant/defendant neither filed the unregistered document of lease nor adduced any evidence to speak the lease with the plaintiff had been extended for three more years as pleaded by him. Apart from it the defendant himself admitted that his tenancy with the plaintiff is a month to month commencing first to end of the month, when that is the case the defendant can not canvass his lease has been extended automatically by paying 20% extra annually or plaintiff has no right to terminate his tenancy nor plaintiff shall issue three months 9 advance notice by terminating the tenancy.

16.The other admitted the facts elicited in the cross examination of DW.1 that he used to pay the rent by way of cheque to the plaintiff and also started depositing the rents into the bank and plaintiff did not inform him to deposit the rents into his bank accounts and that the intention of the plaintiff is to determine the lease between him and the defendant for which only he issued Ex.A1 quit notice. The defendant himself admits plaintiff issued Ex.A1 quit notice on 12-10-2009 by determining the tenancy ended by 30-11-2009 and to handover vacant possession on 01-12-2009 and same is received by him. In those circumstances the defendant cannot canvass that the quit notice is invalid or waved the quit notice by the plaintiff.

17. As already stated above the document styled as rental lease deed dt.14-09-2006 pleaded by the defendant neither placed before the court nor proved the terms thereon before the trial court to accept that there was a rental lease dt.14-09-2006 or the lease is extendable for further period by 20% increase in rent. In the absence of such deed the defendant cannot canvass his lease was not determined nor plaintiff can not determine his lease in view of rental lease dt.14-09-2006. In this connection I would like to mention the main endevour of the defendant is trial court committed an error though he claimed a counter claim and same is not discussed nor any issue framed by the trial court. Since the parties' know about their claim and when evidence is adduced by the parties, absence of framing of issue plea insignificant and that simply because issue is not framed by trial court does not amount to committed a grave error in coming to conclusion that the contention raised by the defendant was not considered.

18.When defendant did not place any evidence to substantiate the counter claim made in the additional written statement he can not be claimed that he is entitled for seeking relief of specific performance. Even the trial court also observed either of the parties have not filed any copy of lease deed before that court as such oral evidence is only a source for 10 discussion and that the trial court while coming to conclusion verified the testimonies of both the parties, concluded that the lease was determined by conduct.

19.The trial court on perusal of cross examination of PW.1 found the

PW.1 in unequivocal terms that there is no lease agreement with a condition of three months notice or acceptance of enhanced rent waives his right. In view of specific evidence stated by PW.1 and when there is no contra evidence lead by defendant I do not find any irregularity committed by trial court in coming to conclusion that the trial court validly determine the lease between the plaintiff and the defendant. It is also relevant to mention DW-1 in his cross examination is admitted that the tenancy is month to month, thereby notice covered under Ex.A1 is a valid one.

20.When Ex.A1quit notice is a valid notice, it amounts to determining the lease and that the contentions advanced by defendant/appellant has no force and cannot be acceptable.

21.For the above reasons, I did not find any irregularity and illegality committed by lower court while decreeing the suit and this court could not find any grounds to setting aside the trial court’s decree and judgment. I do not find any merits to set aside the lower court decree.

In the result the appeal is dismissed by confirming the lower court decree and judgment. No costs.

Typed to my dictation, to Personal Assistant, corrected and pronounced by me in the Open Court on this the 01st day of June, 2016.

XXVII ADDL. CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

Appendix of Evidence Witness Examined Documents marked Nil.

XXVII ADDL. CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

IN THE COURT OF THE XXVII ADDL., CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

Dated: Friday this the 03rd day of June, 2016.

Present: Sri.V. Srinivas, XXVII Addl.,Chief Judge, City Civil Court, Secunderabad.

OS.No. 229 of 2011

Between:

Dr. Suresh Nukala. ... Plaintiff.

(A N D)

1. Smt. P. Shaeen Bhanu.

2. Mohd. Sartaj Khan.

3. Mohd. Sarfaraz Khan.

4. Mohd. Nawaz Khan. ...Defendants.

This suit is coming on 18.04.2016 before me for final hearing in the presence of Sri. K.B. Ramanna Dora, Advocate for plaintiff, and defendants 1 to 4 remained exparte, and the matter stood over consideration till this day, this court delivered the following:

J U D G M E N T

1.This suit is filed by the plaintiff against the defendants 1 to 4 jointly and severally for an amount of Rs.67,82,850/- (Rupees Sixty seven lakhs eighty two thousand eight hundred and fifty only) together with future at the contractual rate of interest @18% per annum from the date of suit till realization.

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

a.The plaintiff's father-in-law and one late P. Shoukath Ali Khan, who is the husband of defendant No.1 and father of defendants 2 to 4 herein were friends and having acquaintance with each other. The plaintiff's father-in-law and his GPA P. Subbaiah has purchased a plot of land from the said Late P. Shoukath Ali Khan about 10 years back and the plot was also registered in his favour. Out of acquaintance having with the plaintiff as well as his father-in-law and GPA holder of the plaintiff P.

Subbaiah, said P. Shoukath Ali Khan had approached the plaintiff herein and requested for financial assistance for investment and development of land of an extent of ac. 6.19 guntas in Sy.No.139, at Doolapally village,

Quthbullapur Mandal, R.R. District.

b.It is further submitted by the plaintiff that it was agreed among 2 the plaintiff and said P. Shoukath Ali Khan and his family members that the said P. Shoukath Ali Khan shall return the said amount to be advanced for their investment by disposing off the land to the prospective purchasers within nine months on the maximum profit margin and in case any delay or unable to repay the amount, they also agreed to execute the sale deed in respect of ac.0.10 gts from the land out of his share.

c.Accordingly, on the understanding entered into between the plaintiff and said P. Shoukath Ali Khan a sum of Rs.37,50,000/- was paid andalsoanagreementstyledasmemorandumof understanding/agreement of sale dt.22.12.2006 was entered in between the said P. Shoukath Ali Khan and plaintiff. The said transaction was within the knowledge and consent of the defendants herein, the GPA holder of the plaintiff and one Sri Rama Raju witnessed the said transaction along with defendant No.3.

d.It is further submitted that the under the memorandum of understanding dt. 22.12.2006 entered with P. Shoukath Ali Khan, he agreed to repay the amount of Rs.37,50,000/- with substantial profit margin within a period of nine months from the date of said agreement.

Even after lapse of nine months said P. Shoukath Ali Khan was not in a position either to repay the amount or to execute the sale deed in respect of ac 0.10 gts as agreed under the MOU dt.22.12.2006. However, he promised to return the said amount with interest @24% per annum. In the meanwhile the said P. Shoukath Ali Khan died in the month of August, 2007.

e.It is further submitted that after demise of P. Shoukath Ali Khan said property, which was purchased and developed out of the funds of the plaintiff and his father-in-law apart from other properties stands in his name were devolved upon the defendants herein being the legal heirs of said P. Shoukath Ali Khan.

f.After demise of said P. Shoukath Ali Khan, the plaintiff and his 3 father-in-law contacted the defendants herein and asked for refund of the amount or to execute sale deed in his favour. The defendant admitted the transaction have promised to return the said amount with interest and the defendant No.2 also by supplementary agreement, dt. 22.01.2008 on his behalf and on behalf of his other family members promised to complete the transaction and time earlier agreed under MOU dt.22.12.2006 be extended till 21.06.2008. Keeping the relationship with P. Shoukath Ali Khan and his family members, the plaintiff agreed to grant time till such time as the defendants came forward to either execute sale deed or to return the money with agreed interest.

g.The defendant failed to adhere to their promise either to repay the amount or to execute sale deed in respect of plot. The plaintiff demanded for their commitment they further sought time to honour their commitment and accordingly 12 months was extended from 21.06.2008 to 20.06.2009 under another supplementary agreement dt. 30.08.2008 in between the plaintiff and defendants 2 & 3 witnessed the said transaction.

h.Inspite of time extended twice, the defendants deliberately avoided to either execute the sale deed or returned the amount with interest. The defendant once again approached the plaintiff and requested for one more year time to honour the commitment and accordingly another supplementary agreement dt.22.07.2009 was executed between the parties.

i.It is also submitted that as the defendants in one way or the other are avoiding to return the money and all the efforts and negotiations through became futile. Ultimately the plaintiff got issued legal notice dt.

24.12.2010 to return the amount of Rs.37,50,000/- alongwith interest @18% from the date of MOU to till realization.

j.The defendants No.2 & 3 while executing the supplementary agreement paid a sum of Rs.5,00,000/- to the plaintiff and also to his father-in-law P. Subbaiah on 03.12.2009 on the complaint lodged against 4 them to the police and which was appropriated by the plaintiff and his father-in-law @Rs.2,50,000/- each. The defendant promised to return the balance amount within six months. Thus, the defendants as on the date of filing the suit are liable to pay Rs.67,82,850/-. Hence, the suit.

3.The defendants No. 1, 3 & 4 filed their written statement alleging that they are the legal heirs and legal representatives of Late P.

Shoukath Ali Khan and the purchase of plot of land by the plaintiff namely

P. Subbaiah who is said to have purchased a plot of land about 10 years back. The notice dt. 24.12.2010 addressed to these defendants and issued from the office of M.M. Goud, Advocate speaks of different facts.

b.It is further contended by the plaintiff that the said P. Shoukath

Ali Khan had covenanted that the amount so advanced for investment shall be returned to the plaintiff by disposing of the land to the prospective purchasers within a period of nine months and maximum profit margin shall be given and in case of any delay or unable to repay the said amount the area of ac 0-10 guntas from out of the land being the share of P.

Shoukath Ali Khan shall be given by way of executed and registered sale deed. This assertion being far from truth and not substantiated in any manner whatsoever and not evidenced by any document remains on record as a bald and a deliberately concocted claim of the plaintiff liable to be rejected by this court. The plaintiff entering into a memorandum of understanding cum agreement of sale dt. 22.12.2006 with P. Shoukath Ali

Khan and a sum of Rs.37,50,000/- being paid by the plaintiff to P. Shoukath

Ali Khan. These defendants not being a party to the said document nor acting as the attesting witnesses had no knowledge of such an execution of the said document by and between the plaintiff and P. shoukath Ali Khan.

Therefore, it is not open to the plaintiff to rope in and implicate these defendants on set up and bald contentions.

c.During his lifetime of P. Shoukath Ali Khan had promised to return the said amount with interest @24% per annum. However, it is a 5 fact that P. Shoukath Ali Khan died in the month of August 2007. The defendants admitting the transaction and promising to return the said amount with interest is wholly a set up and concocted assertion on the part of the plaintiff. These defendants bound by the initial memorandum of understanding cum agreement of sale dt.22.12.2006 nor are liable under the subsequent claimed supplementary agreement said to be executed by the defendant No.2. Therefore, the question of these defendants jointly and severally being liable to pay the claimed outstanding amount of

Rs.67,82,850/- does not arise. The contention of the plaintiff that the cause of action continued with an issuance of the notice dt.24.12.2010 is wholly ill founded as even going by the said date the period of three years had already elapsed from the date of the execution of the MoU cum agreement of sale dt.22.12.2006.

d.Therefore, the plaintiff being aware that the said P. Shoukath Ali

Khan had died in the month of June 2007 waited for a substantial period, thereafter thereby letting pass the statutory period for laying the so called claim for the reimbursement of the amount or for the execution and registration of the sale deed said to have been promised by way of the covenants of the MoU cum Agreement of sale deed 22.12.2006. Therefore, the suit being devoid of merits both on point of facts and opposed to the principles of lawof limitation is to be dismissed in limine with exemplary costs.

4.The defendant No.2 filed his written statement alleging the attesting witness to the Memorandum of understanding cum agreement of sale dt.22.12.2006. He further submits that the father of this defendant late P. Shoukath Ali Khan who held an interest in the landed property being agricultural land admeasuring ac 6-19 guntas in Sy.No.139 of Dhoolapally

Village, Qutuballahpur Mandal, R.R. District, received the claimed sum of money from the plaintiff as investment and not as a loan for the development of the land. The recitals of the MOU clearly sets out the fact 6 that the father of the defendant herein held an extent of ac 0 -10 guntas from out of the 50% share of the aforesaid property belonging to the father of the said defendant, b.It is further submitted that the recitals of MOU that the plaintiff as second party approached the said P. Shoukath Ali Khan, and offered to invest a sum of Rs.37,50,000/- being the costs of undivided extent of Ac 0- 10 guntas from out of 50% share of the father of this defendant. This defendant on his own account had entered into the supplementary agreements which does not go to bind the other legal heirs of late P.

Shoukath Ali Khan being the mother of this defendant and the two brothers who are arrayed as defendants Nos. 1, 3 and 4 in this suit. The cause of action arose in the year 2006 and the present suit filed in the year 2011 clearly beyond the period of limitation and cannot be agitated in the manner as tried to be made out by way of the pleadings of the suit. The suit is devoid of merits both on point of fact and law and is liable to be dismissed.

5. Basing on the pleadings of both sides the following issues were framed :

1. Whether the plaintiff advanced Rs.37,50,000/- to the father of the defendants by name late Shoukath Ali Khan, for any investments or otherwise ?

2. Whether there was any MOU between the plaintiff and the father of the defendants ?

3. Whether the late father of the defendants promised to repay the money to the plaintiff ?

4. Whether the defendants are part to any transaction by and between the plaintiff and late Shoukath Ali Khan ?

5. Whether the defendants are liable for any part of the suit claim ?

6. To what relief ?

6. During the course of trial one P. Subbaiah was examined as PW.1 and got marked Exs.A1 to A6 documents. On closure of the evidence, arguments are heard on both sides.

7.ISSUES No:1 & 2

Under this issue the point involved is to decide that whether late

Shoukath Ali Khan borrowed an amount of Rs 37,50,000/- and same is 7 given as investment purpose. For that, theplaintiff himself examined as

PW.1 to prove the pleadings as mentioned in the plaint. The defendants remained exparte. The unchallenged evidence of PW 1 goes to show that late P. Shoukath Ali Khan had approached the plaintiff herein and requested for financial assistance for investment and development of land of an extent of Ac. 6.19 guntas in Sy.No.139, at Doolapally village,

Quthbullapur Mandal, R.R. District. For which MOU/Agreement of sale,

dt. 22.12.2006 covered under Ex A1 was filed and stated that they entered

in to MOU by the plaintiff and late P. Shoukath Ali Khan. For said fact no contra evidence is placed by the defendants. Thus, it is established by the plaintiff that the plaintiff advanced Rs.37,50,000/- to the father of the defendants by name late Shoukath Ali Khan, for investment and MoU was entered in to. Hence, I answered these issues accordingly.

8.ISSUES No: 3 & 4

Under this issue the point involved is to decide that whether the father of the defendants promised to repay the money to the plaintiff or not. In that connection the PW1 stated in his unchallenged evidence that

Late Shoukath Ali Khan promised to return the said amount with interest @24% per annum. In the meanwhile the said P. Shoukath Ali Khan died in the month of August 2007. It is also stated by the PW1 that after the death of Shoukath Ali Khan, his son entered MOU's covered under ExA2 to

A4 Supplementary agreements dt. 21.01.2008, 30.08.2008, & 22.07.2009 and executed to continue the earlier agreements covered under ExA1.

Though defendants 1, 3 & 4in their written statement contended that theynot being a party to the said document nor acting as the attesting witnesses, had no knowledge of such an execution of the said documents thereby they have no liability. But on close perusal of Ex.A1 to 4, defendant no 3 being witnessed to the transaction but denying in the written statement he has no knowledge of such transaction is nothing but to avoid the liability, and they are speaking falsehood, on other hand unchallenged 8 testimony PW1 speaks of ExA1 to 4, and no contra evidence to disbelieve the testimony of PW1. Moreso, the PW1 said the defendant No. 3 being witnessed the documents covered under ExA1 to A4, and documents also speaking said fact and no contra evidence is there to disbelieve the said fact. Thus, it can be held that plaintiff proved the fact of father of the defendants promised to repay the money to the plaintiff and defendants admitted the documents and they are liable to pay the dues. I answered these issue accordingly.

9. ISSUE No: 5

Under this issue the point involved is to decide that whether the defendants are liable for any part of the suit claim is concerned, the defense taken by the defendants are that the defendants 1,3 and 4 stating that they are not being a party to the said document nor acting as the attesting witnesses had no knowledge of such an execution of the said documents, but the documents filed and marked are otherwise, thus said defense can not be accepted. The other defense taken by them is that defendants admitting the transaction and promising to return the said amount with interest is wholly a set up and concocted assertion on the part of the plaintiff. For that the unchallenged evidence is answer and no contra evidence is placed to deny the testimony of PW1.

10.The other defense put forth by the defendants is that the contention of the plaintiff that the cause of action continued with an issuance of the notice dt.24.12.2010 is wholly ill founded. On that the arguments put forth by the plaintiffs is that the Ex A1 to A4 runs from 22.12.2006, 21.01.2008, 30.08.2008,& 22.07.2009 and those documents were late Shoukath Ali Khan and and after his death by D2 and same is attested by D3. No contra evidence is there to disbelieve the plaintiff. On the other hand on oath the evidence of PW1 speaking the said documents.

So it is for the defendants to disprove them. Till such time those documents are proved and liability can not be disowned by the defendants.

9

11. The contention of the plaintiff that the cause of action continued with an issuance of the notice dt.24.12.2010 isestablished by the PW1 by marking the office copy of legal notice and reply notice issued by the defendants. In this connection I would like to mention that the defendant no 2 admitted in his written statement that on his own account had entered into the supplementary agreements. Which clearly establish they executed supplemental agreements and they cannot canvass that those documents does not bind the other legal heirs of late P. Shoukath Ali Khan has no legal stand as they being the mother of the defendant no 2 and the two brothers who are arrayed as defendants Nos. 1, 3 and 4 in this suit.

Thus, it safely concludes that the defendants are liable for the suit claim. I answered the issue accordingly.

12.ISSUE NO.6:

In the result, the suit is decreed with costs and the liability of the defendants are joint and several and also by directing to pay

Rs.67,82,850/- by D2 personally and suit is also decreed against the estate of late P. Shoukath Ali Khan which is in the hands of D1,D3 and D4 and for the said amount with future interest at 12% from the date of suit till date of realization on the sum of Rs.37,50,000/-.

Typed to my dictation, to Personal Assistant, corrected and pronounced by me in the Open Court on this the 03rd day of June, 2016.

XXVII Addl. Chief Judge, City Civil Court,Secunderabad. Appendix of Evidence Witness Examined.

For Plaintiff. For Defendants. PW.1: P. Subbaiah. None.

Documents marked f or Plaintiff.

Ex.A1: MOU/Agreement of sale, dt. 22.12.2006. Ex.A2:Supplementary agreement dt. 21.01.2008. Ex.A3:Supplementary agreement dt. 30.08.2008. Ex.A4:Supplementary agreement dt, 22.07.2009.

10

Ex.A5:Office copy of legal notice, dt. 24.12.2010. Ex.A6:Reply notice dt. 22.01.2011.

Documents marked for Defendant.

Nil.

XXVII Addl. Chief Judge, City Civil Court,Secunderabad.

IN THE COURT OF THE XXVII ADDL., CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

Dated: Friday the 03rd day of June, 2016.

Present: Sri.V. Srinivas, XXVII Addl.,Chief Judge, City Civil Court, Secunderabad.

OS.No. 212 of 2011

Between:

P. Subbaiah. ... Plaintiff.

(A N D)

1. Smt. P. Shaeen Bhanu.

2. Mohd. Sartaj Khan.

3. Mohd. Sarfaraz Khan.

4. Mohd. Nawaz Khan. ...Defendants.

This suit is coming on 18.04.2016 before me for final hearing in the presence of Sri. K.B. Ramanna Dora, Advocate for plaintiff, and of Sri. Mohd. Shafiuddin, Advocate for defendants No.1 to 4, and the matter stood over consideration till this day, this Court delivered the following:

J U D G M E N T

1.This is a suit filed by the plaintiff against the defendants 1 to 4 jointly and severally for recovery of an amount of Rs. 46,77,104/- together with future contractual rate of interest @18% per annum from the date of suit till realization.

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

a.The plaintiff and one late P. Shoukath Ali Khan who is the husband of the defendant No.1 and father of defendants 2 to 4 herein, were friends and having acquaintance with each other for the last several years and purchased a plot of land from P. Shoukath Ali Khan about 10 years back and the said plot was also registered in his favour. Out of acquaintance the plaintiff and P. Shoukath Ali Khan had approached the plaintiff herein and requested for financial assistance and informed that he is going to layout the land of an extent of 10 ac 00 gts in Sy.No.1 of Hasmathpet Village,

Kukatpally Municipality, R,R. District, and offered to sell a plot of admeasruing 600 sq.yards in the said layout and further informed that if the total consideration is paid in advance he will sell the said property at the rate of Rs.4,000/- per sq.yards and after development he may not give 2 for the said price. Said P. Shoukath Ali and his sons, who used to look after their family business of real estate, impressed upon the plaintiff to totally believe their version and fetching of investment on the plot to be sold by them.

b.It is further submitted that the plaintiff had accepted the proposal of said P. Shoukath Ali Khan and his family members and paid a sum of Rs.24 lakhs and said P. Shoukath Ali Khan shall develop the said land in all aspects as per the HUDA norms and executed the sale deed in favour of the plaintiff of an extent of land admeasuring 600 sq.yards within 18 months.

Accordingly on the understanding entered into between the plaintiff and said P. Shoukath Ali Khan towards the sale consideration of the land and also an agreement dt. 26.12.2005. The said transaction was within the knowledge and consent of the defendants herein and one Sri. Rama Raju witnessed the said transaction alongwith defendant No.2.

c.It is respectfully submitted that after the lapse of 18 months said P.

Shoukath Ali Khan was not in a position either to repay the amount or to execute the same deed in respect of plot of land as promised under agreement dt. 26.12.2005 and P. Shoukath Ali Khan died in the month of

August 2007 and subsequent to demise of P. Shoukath Ali Khan all his assets and business were devolved upon the defendants and he died leaving behind the defendants as his legal heirs and the estates of said P. Shoukath

Ali Khan was devolved upon the defendants. The defendant No.2 acknowledged on behalf of all the family members to pay the debt of the plaintiff, the other defendants who are the legal heirs of the deceased P.

Shoukath Ali Khan did not acknowledged in writing under the supplementary agreement, even though the defendants No.3 witnessed the transaction as attesting witness. The defendants are liable to pay the debt of the plaintiff to an extent of their respective shares over the assets devolved upon them from Late P. Shoukath Ali Khan and the defendant

No.2 is personally liable to pay the suit claim in view of execution of 3 supplementary agreement in favour of the plaintiff. The defendants herein who admitted the transaction have promised to return the amount with interest and the second defendant also by supplementary agreement dt.09.01.2008. The defendants failed to adhere to their promise either to repay the amount or to execute the sale deed in respect of plot of land and sought time, accordingly time extended till 21.07.2010 under another supplementary agreement deed dt. 22.07.2009 executed by defendant No.2 in favour of the plaintiff.

d.It is further elicited that inspite of time twice extended the defendants deliberately avoided to either execute sale deed or to return amount with interest. On enquiries with regard to land offered by the defendants said Shoukath Ali Khan was shocked to know that they even did not acquire any land and deliberately cheated the plaintiff and collected the money from the plaintiff and playing fraud. The defendants in one way or the other are avoiding returning the money and all the efforts and negotiations through mediators, personally became futile. Ultimately the plaintiff got issued legal notice on 24.12.2010 to return the amount of

Rs.24 lakhs alongwith interest @18% per annum from the date of agreement to till realization. The defendants received the said notice but did not reply to the notice dt. 22.01.2011.

e.It is further submitted that while executing the supplementary agreements the defendants 2 & 3 paid a sum of Rs. 5 lakhs to the plaintiff and also to his son-in-law who cheated in the hands of defendant and lodged complaint against them to the police. The amount paid by the defendants on 03.12.2009 was appropriated by the plaintiff and his son-in- law @Rs.2,50,000/- each and promised to return the balance amount within six moths but failed to do so. Thus the balance outstanding amount due by the defendant to the plaintiff is Rs. 46,77,104/-.

3.The defendants No. 1, 3 & 4 filed their written statement alleging that they are the legal heirs and legal representatives of Late P.

4

Shoukath Ali Khan and the purchase of plot of land by the plaintiff namely

P. Subbaiah who is said to have purchased a plot of land about 10 years back. The notice dt. 24.12.2010 addressed to these defendants and issued from the office of M.M. Goud, Advocate speaks of different facts. According to the notice P. Shoukath Ali Khan is said to be an agreement holder for the land in Sy.No.1 by entering into an agreement, dt. 26.12.2005 for a total sale consideration of Rs.24 lakhs for a fixed period of 18 months.

b.It is further contended that the plaintiff has falsely claimed and contended that P. Shoukath Ali Khan and his family members were paid a sum of Rs.24 lakhs and said P. Shoukath Ali Khan died on 02.06.2007 even calculating the time period from the date of agreement being 26.12.2005 till the date of the death of P. Shoukath Ali Khan it works out to 18 months.

Therefore the question arises as to why the plaintiff during the stiuplated period did not insist upon the performance of the part of the contract by said P. Shoukath Ali Khan within the agreed stipulated period of time.

Further till the period of 2010 the plaintiff did not chose to call upon these defendants in any manner whatsoever except when the defendants herein received the notice dt. 24.12.2010 issued on behalf of the defendants. The plaintiff has filed the reply notice issued to the plaintiff through the office

dt. 22.01.2011. The suit is devoid of merits both on point of facts and

opposed to the principles of law of limitation is to be dismissed in limine with exemplary costs.

4.The defendant No.2 filed his written statement alleging that this defendant being the attesting witness to the agreement dt.26.12.2005 admits the execution of the said document and that the father of this defendant Late P. Shoukath Ali Khan who held an interest in the landed property being 10 ac in Sy.No.1, having agreed to purchase the same for valid consideration vide agreement of sale dt. 22.01.2005 from Smt.

Yousufunnisa Begum and received the claimed sum of money from the plaintiff as investment and not as a loan. The other recitals of the 5 agreement clearly made out that certain other requirements were to be fulfilled where after alone the property being 600 sq.yards was to be conveyed by way of conveyance deed in favour of the plaintiff for the sale consideration amount of Rs.24 lakhs as was received by P. Shoukath Ali

Khan.

b.This defendant to avoid the cost of the reputation craves the leave of this court, and the reply notice dt.22.01.2011. In view of the same the plaintiff is neither permitted under law to recover the amount so invested with a preconceived idea and notion of reaping a pecuniary benefit there from by way of the accrued profits as and when so realised for which reasons the plaintiff cannot also be permitted to claim interest on the invested amounts by way of this suit. The suit is devoid of merits both on point of fact and law and is liable to be dismissed.

5. Basing on the pleadings of both sides the following issues were framed :

1. Whether the plaintiff advanced Rs.24,00,000/- to the father of the defendants by name late Shoukath Ali Khan, for any investments or otherwise ?

2. Whether there was any understanding and agreement dt. 26.12.2005 between the plaintiff and the father of the defendants ?

3. Whether the late father of the defendants promised to repay the money to the plaintiff ?

4. Whether the defendants are part to any transaction by and between the plaintiff and late Shoukath Ali Khan ?

5. Whether the defendants are liable for any part of the suit claim ?

6. To what relief ?

6.At the time of trial the plaintiff himself was examined as PW.1 and got marked Exs.A1 to A5. On closure of the evidence, arguments are heard on both sides.

7.ISSUES No.1 & 2:

Under this issue the point involved is to decide that whether late

Shoukath Ali Khan borrowed an amount of Rs 24,00,000/- and same is given as investment purpose. For that, theplaintiff himself examined as

PW.1 to prove the pleadings as mentioned in the plaint. The defendants remained exparte. The unchallenged evidence of PW.1 goes to show that 6 late P. Shoukath Ali Khan had approached the plaintiff herein and requested for financial assistance for investment and development of land of an extent of Ac. 10.00 guntas in Sy.No.1, of Hasmathpet village,

Kukatpally Municipality, R.R. District. For which Agreement, dt.

26.12.2005 covered under Ex A1 was filed and stated that they entered into agreement with the plaintiff and late P. Shoukath Ali Khan. For said fact no contra evidence is placed by the defendants. Thus, it is established by the plaintiff that the plaintiff advanced Rs.24,00,000/- to the father of the defendants by name late Shoukath Ali Khan, for investment and MoU was entered in to. Hence, I answered these issues accordingly.

8.ISSUES No: 3 & 4

Under these issues the point involved is to decide that whether the father of the defendants promised to repay the money to the plaintiff or not. In that connection the PW1 stated in his unchallenged evidence that

Late Shoukath Ali Khan promised to return the said amount with interest @24% per annum. In the meanwhile the said P. Shoukath Ali Khan died in the month of August 2007. It is also stated by the PW1 that, after the death of Late Shoukath Ali Khan, hisson entered Supplementary

Agreement covered under ExA2 & A3 dt. 09.01.2008 & 22.07.2009 and executed to continue the earlier agreements covered under ExA1. Though defendants 1, 3 & 4in their written statement contended that, theyarenot being a party to the said document nor acting as the attesting witnesses, had no knowledge of such an execution of the said documents thereby they have no liability. But on close perusal of Ex.A1 to 3, defendant No. 3 being witnessed to the transaction but denying in the written statement, he has no knowledge of such transaction is nothing but to avoid the liability, and they are speaking falsehood, on other hand unchallenged testimony PW1 speaks of ExA1 to 3, and no contra evidence to disbelieve the testimony of

PW1. More so, the PW1 said the defendant No. 3 being witnessed the documents covered under ExA1 to A3, and documents also speaking said 7 fact and no contra evidence is there to disbelieve the said fact. Thus, it can be held that plaintiff proved the fact of father of the defendants promised to repay the money to the plaintiff and defendants admitted the documents and they are liable to pay the dues. I answered these issue accordingly.

9. ISSUE No.5:

Under this issue, the point involved is to decide that whether the defendants are liable for any part of the suit claim is concerned, the defense taken by the defendants are that the defendants 1,3 and 4 stating that they are not being a party to the said document nor acting as the attesting witnesses had no knowledge of such an execution of the said documents, but the documents filed and marked are otherwise, thus said defense can not be accepted. The other defense taken by them is that defendants admitting the transaction and promising to return the said amount with interest is wholly a set up and concocted assertion on the part of the plaintiff. For that the unchallenged evidence is answer and no contra evidence is placed to deny the testimony of PW1.

10.The other defense put forth by the defendants is that the contention of the plaintiff that the cause of action continued with an issuance of the notice dt.24.12.2010 is wholly ill founded. On that point, the arguments put forth by the plaintiffs is that the Ex A1 to A3 runs from 26.12.2006, 09.01.2008, & 22.07.2009 and those documents were late Shoukath Ali

Khan and after his death by D2 and same is attested by D3. No contra evidence is there to disbelieve the plaintiff. On the other hand on oath the evidence of PW1 speaking the said documents. So it is for the defendants to disprove them. Till such time those documents are proved and liability can fastened on the defendants.

11. The contention of the plaintiff that the cause of action continued with an issuance of the notice dt.24.12.2010 isestablished by the PW.1 by marking the office copy of legal notice and reply notice issued by the defendants. In this connection I would like to mention that the defendant 8

No. 2 admitted in his written statement that on his own account had entered into the supplementary agreements. Which clearly establish they executed supplemental agreements and they cannot canvass that those documents does not bind the other legal heirs of late P. Shoukath Ali Khan has no legal stand as they being the mother of the defendant No. 2 and the two brothers who are arrayed as defendants Nos. 1, 3 and 4 in this suit.

Thus, it safely concludes that the defendants are liable for the suit claim. I answered the issue accordingly.

12.ISSUE NO. 6:

In the result, the suit is decreed with costs and the liability of the defendants are joint and several and also by directing to pay Rs.46,77,104/- by D2 personally and suit is also decreed against the estate of late P.

Shoukath Ali Khan which is in the hands of D1,D3 and D4 and for the said amount with future interest at 12% from the date of suit till date of realization on the sum of Rs.24,00,000/-.

Typed to my dictation, to Personal Assistant, corrected and pronounced by me in the Open Court on this the 03rd day of June, 2016.

XXVII Addl. Chief Judge, City Civil Court,Secunderabad. Appendix of Evidence Witness Examined.

For Plaintiff. For Defendants.

PW.1: P. Subbaiah.None. Documents marked f or Plaintiff.

Ex.A1:Agreement dt.26.12.2005.

Ex.A2:Supplementary agreement dt. 09.01.2008.

Ex.A3:Supplementary agreement dt.22.07.2009.

Ex.A4:Office copy of legal notice, dt. 24.12.2010.

Ex.A5:Reply notice dt.22.01.2011.

Documents marked for Defendants.

Nil.

XXVII Addl. Chief Judge, City Civil Court,Secunderabad.

9

IN THE COURT OF THE XXVII ADDL. CHIEF JUDGE - CUM- CHAIRMAN,

MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL,

CITY CIVIL COURT, SECUNDERABAD.

Dated: Friday this the 03rd day of June, 2016.

Present: Sri.V. Srinivas, XXVII Addl.,Chief Judge, City Civil Court, Secunderabad.

MVOP.No. 100 of 2013

Between:

1. Vudari Satyanarayana.

2. Vudari Yadagiri. (died on 12.01.2015)

3. Vudari Venkat. ( Petitioner No.2 died on 12.01.2015 leaving behind his brother i.e., petitioners No.1 and cousin i.e., petitioner No.3)

... Petitioners.

A N D

1. Nawaday Manohar.

2. ICICI Lombard GIC Ltd.,

Rep., by its Manager Claims. ... Respondents.

This petition is coming on 11.04.2016 before me for hearing in the presence of Sri. Chintala Yadaiah, Advocate for petitioners, and respondent No.1 remained exparte and of Sri. Raj Kumar Grandhi, Advocate for respondent No.2, and the matter stood over consideration till this day, this court delivered the following:

A W A R D

1.The petitioners have made a claim petition for compensation of

Rs. 10,00,000/- U/Sec.166 of MV Act, 1988.

2.The brief averments of the petition are as follows:

a.Petitioners. No.1 & 2 are the sons, petitioner No.3 is the unmarried younger brother of the deceased (Vudari Gopal) who died on 03.12.2012 at about 5.15 a.m., while the deceased was proceeding by walk from his house

Mahabharath Nagar towards Shadan College at Khairathabad side for jogging on the extreme left side of the road with great care and diligence when reached opposite Shadan College at Khairathabad, suddenly one motor cycle bearing No. AP 28 CF 9517 came in a rash and negligent manner with high speed dashed to the deceased. As a result of which the deceased fell down on the road and sustained severe head injury and other injuries to all over the body. Immediately he was shifted to Osmania

General Hospital, Hyderabad on 108 Ambulance and admitted as inpatient on 03.12.2012 and treated conservatively and while undergoing treatment he was succumbed to his injuries on 04.12.2012 at about 7.00 a.m., in

Osmania General Hospital.

b.The deceased was aged about 60 years and he was hale and healthy at the time of accident. Due to the sudden death, the petitioners were put to mental shock and agony. The deceased was retired employee (VRS) in

A.P. Transco TLC MINT Compound at Khairthabad and he was getting pension an amount of Rs.18,487/- per month and contributed the same to the welfare of his family. The deceased was earning person in the family and he was only the bread winner of the family.

c.The deceased person's family consisting of his son and unmarried and handicapped younger brother who are all totally dependents on the income (pension) of the deceased. The future hopes of his family were shuttered down due to the sudden death of the deceased. The PS, Saifabad registered a case U/Sec.337 and later altered to 304-A against the driver of the crime vehicle and the same is pending.

d.The respondent No.1 is the owner and the respondent No.2 is the insurer of the crime vehicle, as such both the respondents are jointly and severally liable to pay the compensation to the petitioners.

3.The counsel for the petitioners filed a memo stating that the

petitioner No.2 died on 12.01.2015 leaving behind his brother i.e.,

petitioner No.1 and petitioner No.3 is the cousin.

4.Respondent No.1 remained exparte.

5.The respondent No.2 filed his counter admits that the policy issued in respect of vehicle motor cycle bearing No. AP 28 CF 9517 in the name of Nawaday Manohar who has insured with this respondent at the material time. The driver of the motor cycle was not holding valid and effective driving license and was not qualified for holding or obtaining such driving license and further has not satisfied the requirements of the Rule

No.3 of the Central Motor Vehicles Rules, 1989. The driver did not possess valid and effective driving license as on the date of accident to drive the vehicle.

b.The respondent No.1 willfully and knowingly has handed over the possession of the vehicle to the said driver who had not possessed valid and effective driving license as on the date of accident and therefore has contravened the proviso of the MV Act and the rules framed thereunder and has committed the breach of the contract and violated the terms and conditions of the policy.

c.It is further denied the deceased was aged 60 years and used to earn a sum of Rs.18,487/- per month and also denied that the entire family are dependent on his income, he also denied the manner of accident as narrated by the petitioner and there is no fault on the part of the driver of motor cycle. Thus, the respondent No.2 company is not liable to indemnify any such acts caused thereunder and therefore the petition is liable to be dismissed as against this respondent No.2. The respondent No.2 submits that the amount of Rs.10 lakhs with interest and costs claimed by the petitioners is more excessive, exorbitant and exaggerated and the petitioner is not entitled for the same from this respondent.

6.Basing on the pleadings of both sides, the following issues are framed :

1. Whether the pleaded accident occurred due to any rash or negligent driving of the vehicle i.e., motor cycle bearing registration No. AP 28 CF 9517 by its rider ?

2. Whether the petitioners are entitled to any compensation and if so, at what quantum and what is the liability of the respondents ?

3. To what relief ?

7. During the trial, petitioner No.1 himself was examined as PW.1 and got marked as Exs.A1 to A10, and also examined PW.2 who is the eye witness to the accident, and the respondent has examined its Legal

Manager by name N. Chandramouleshwar as RW.1 and marked Exs.B1 to

B3 documents. On closure of the evidence arguments were heard on both sides.

8.ISSUE NO.1:

Precisely the case of the petitioners that on 03.12.2012 at about 5.15 a.m., while the deceased (Gopal) was proceeding by walk from his house,

Mahabharath Nagar towards Shadan College at Khairathabad, side for jogging on the extreme left side of the road with great care and diligence when reached opposite Shadan College at Khairathabad, suddenly one motor cycle bearing No. AP 28 CF 9517 came in a rash and negligent manner with high speed dashed to the deceased. As a result of which the deceased fell down on the road and sustained severe head injury and other injuries to all over the body. Immediately he was shifted to Osmania

General Hospital, Hyderabad, on 108 Ambulance and admitted as inpatient on 03.12.2012 and treated conservatively and while undergoing treatment he was succumbed to his injuries on 04.12.2012 at about 7.00 a.m.

9.Admittedly the PW-1 who is the son of deceased Gopal who is not eye witness to the accident. The PW-1 in his cross examination categorically stated as his father did not return to the home after went to morning walk, they gave complaint to the police as their father was missing. Later they came to know that his father (Gopal) met with an accident and succumbed to injuries in RTA. He further deposed they went to Saifabad Police station after confirming his father photo went to mortuary of Osmania General

Hospital, on proper identification took the body of their father.

10.The petitioners also examined one K.Narsing Rao, said to be eye witness to the accident stated in the chief examination on 3-12-2012 at 5.15 a.m., noticed one male person was also walking infront of him, when he reached opp. Shadan college at Khairathabad, on the extreme left side of the road with great care and diligence, suddenly on Motor Cycle bearing

Regn.No.A.P. 28 CF 9517 (Crime vehicle) came in a rash and negligent manner with high speed and dashed to the male person (deceased Gopal).

As a result of which, he fell down on the road and sustained severe head injury and other injuries to all over the body.

11.This witness cross examined at length and nothing found from his evidence to disbelieve his testimony. Even in the cross examination, he consistently stated when he was proceeding for morning walk near

Shadan College, Honda Activa bearing No.AP 28 CF 8517 drove in a rash and negligent manner by a person which was at high speed and dashed the person and the driver of said vehicle ran away from the spot. Thus, from his evidence, his evidence is consistent and clear that accident occurred due to rash or negligent driving of the vehicle i.e., motor cycle bearing registration No. AP 28 CF 9517 by its rider.

12.Besides the above oral evidence, the petitioners filed Ex.A1 to A5 documents, among them Ex.A1 FIR, Ex.A2 Charge sheet speaks that accident occurred due to rash or negligent driving of the vehicle i.e., motor cycle bearing registration No. AP 28 CF 9517 by its rider. The Ex.A4 P.M.E report shows the deceased Gopal died due to head injury. Ex.A5 M.V.I report shows the vehicle AP 28 CF 9517 has no mechanical defect, thus the accident occurred due to rash and negligent driving by N.Prakash driver of Honda Activa bearing No. AP 28 CF 9517.

13.Thus, both oral and documentary evidence clearly speaks that accident occurred due to rash or negligent driving of the vehicle i.e., motor cycle bearing registration No. AP 28 CF 9517 by N. Prakash driver of

Honda Activa bearing no. AP 28 CF 9517. I answer this issue accordingly.

14.ISSUE NO. 2 & 3:

It is admitted by respondent No.2 that the policy which is in question issued in respect of Nawaday Manohar in vehicle motor cycle bearing No.

AP 28 CF 9517 was insured with this respondent at the material time. It is also evident from RW-1 that the policy in question is package policy and it has got third party risk.

15.The only defense took by R2 that the respondent No.1 willfully and knowingly has handed over the possession of the vehicle to the said driver who had not possessed valid and effective driving license as on the date of accident and therefore the driver of the vehicle has contravened the provisions of the MV Act and the rules framed thereunder and has committed the breach of the contract and violated the terms and conditions of the policy. For such defense no worth finding evidence adduced by R2 to accept the same. No doubt R2 examined its legal executive as RW-1 nothing could find to disown rather absolve the liability of compensation payable to claimants.

16.Since policy in question is a package policy and admittedly it has got third party risk the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation payable to the petitioners.

17.Coming to the quantum of compensation is concerned it is specific case of petitioners that the deceased was a retired employee getting a pension of Rs.16,943/- which was his last pension. In this connection the petitioners filed pension letter issued by A.P. Transco covered under Ex.A6 pension certificate issued by A.P. Transco under Ex.A7 filed which speaks the deceased was getting pension of Rs.16,943/- per month.

18.As per P.M.E report deceased was aged about 50 years at the time accident, so the appropriate multiplier factor applicable is “13” as per

Sarala Varma case.

The compensation would be as follows:

Rupees Rupees Monthly income16,943/- Yearly income16,943 x 122,03,316/- Yearly income on deduction of personal 2,03,316/3 67,772/- expenditure by one third Total loss of dependency 67,772 x 138,81,036/- Love and affection (though the dependents 1,00,000/- are major, one of the dependent being mentally challenged and the other is unemployed) Funeral expenses 25,000/- Transport 5,000/- Total compensation10,11,036/-

19.The petitioners are entitled for the above compensation. The respondents No.1 & 2 are jointly and severally liable to pay compensation to the petitioners. These issues are answered accordingly.

20.In the result, the petition is allowed with costs, awarding compensation amount of Rs.10,11,036/- with interest @7.5% per annum from the date of petition till realization.

Petitioners shall deposit the required deficit court fee.

The respondents No. 1 & 2 are jointly and severally liable to pay the compensation to the petitioners.

Out of the compensation amount the petitioner No.1 being the son of the deceased is awarded with Rs.5,11,036/-, petitioner No.3 being the unmarried brother of the deceased is awarded with Rs.5,00,000/-.

On deposit of the compensation the petitioner No.1 is permitted to withdraw an amount of Rs.2,50,000/- with costs and total interest accrued on his share of compensation and the balance amount of Rs.2,61,036/- shall be invested in his name in any nationalized bank of his choice initially for a period of three years or till necessity ceases.

The compensation amount, of the petitioner No. 3 is permitted to withdraw an amount of Rs.2,50,000/- with costs and total interest accrued on his share of compensation and the balance compensation of

Rs.2,50,000/- shall be invested in his name in any nationalized bank of his choice initially for a period of three years till necessity ceases.

Time to deposit is one month. Advocate fee is fixed at Rs.10,000/-.

Typed to my dictation, to Personal Assistant, corrected and pronounced by me in the Open Court on this the 03rd day of June, 2016.

XXVII Addl. Chief Judge, City Civil Court, Secunderabad. Appendix of Evidence Witness Examined.

For petitioners. For respondents.

PW.1: Vaduri Satyanarayana. RW.1: N. Chandramouleshwar. PW.2: K. Narsing Rao. Documents marked f or petitioners.

Ex.A1:Certified copy of FIR. Ex.A2:Certified copy of charge sheet. Ex.A3:Attested copy of inquest report. Ex.A4:Certified copy of PME report. Ex.A5:Certified copy of MVI report. Ex.A6:Pension letter issued by AP Transco. Ex.A7:Pension certificate issued by AP Transco. Ex.A8:Original bank pass book of the deceased. Ex.A9:Copy of physical handicapped certificate of the petitioner No.3. Ex.A10:Death certificate of the deceased issued by the GHMC.

Documents marked for respondents.

Ex.B1:Attested copy of insurance policy. Ex.B2:Office copy of notice. Ex.B3:Postal receipts.

XXVII Addl. Chief Judge, City Civil Court, Secunderabad.

IN THE COURT OF THE XXVII ADDL. CHIEF JUDGE,

CITY CIVIL COURTS, SECUNDERABAD.

Dated: Wednesday this the 01st day of June, 2016.

Present: Sri. V. Srinivas, XXVII Addl.,Chief Judge, City Civil Courts, Secunderabad.

AS.No. 15 of 2011

Between:

J. Rama Rao. ...Appellant.

(A N D)

T. Vijay Kumar. ... Respondent.

Appeal against the judgment and decree in OS.No.775/2008

on the file of I Junior Civil Judge, City Civil Courts,

At Secunderabad.

Between:

J. Rama Rao. ... Plaintiff.

(A N D)

T. Vijay Kumar. ... Defendant.

This appeal is coming on 10.03.2016 before me for hearing in the presence of Sri. S. Pandu, Advocate for appellant, and of Sri. M. Roop Kumar, Advocate for respondent,and the matter stood over consideration till this day, this court delivered the following:

J U D G M E N T

1.The appellant/plaintiff filed this appeal by setting aside the impugned judgment and decree passed by I Junior Civil Judge, City Civil Court,

Secunderabad in OS.No.775/2008, dt. 17.07.2010.

2.For convenience sake the parties are referred to hereinafter as plaintiff and defendant, as arrayed in the suit.

3.The case of the plaintiff is that:

a.The defendant borrowed a sum of Rs.60,000/- from the plaintiff on 26.05.2005 through a cheque No.326991 dt. 26.05.2005 drawn on State

Bank of Mysore, SD Road, Secunderabad, and the same was encashed by the defendant. The defendant also executed a promissory note and passed a receipt as collateral security in favour of the plaintiff in which an undertaking to repay with interest as demanded by the plaintiff. The defendant made part payment and also issued an account payee cheque for

Rs.38,700/- dt. 02.02.2008 when insisted for payment of the loan amount.

2

The said cheque at the instance of the defendant was presented twice for encashment by the plaintiff, but the same was dishonoured for want of sufficient funds. Therefore, the plaintiff got issued a legal notice dt.

23.03.2008 calling upon the defendant to pay the cheque amount of

Rs.38,700/- together with interest @18% per annum. The defendant having received the same neither complied with the demand nor gave any reply.

The interest accrued to Rs.20,898/- upto 25.05.2008. The suit transaction took place with the jurisdiction of this court and hence the suit.

4.The defendant filed his written statement stating that he has borrowed Rs.60,000/- from the plaintiff herein on 27.05.2005 and while issuing the said amount out of that sum of Rs.10,000/- has been deducted towards interest by the plaintiff, subsequently the balance amount of

Rs.50,000/-was paid to be discharged by paying Rs.500/- per day for 100 days. The plaintiff agreed for the proposal of the defendant to pay Rs.300/- only per day. Accordingly, the defendant paid a total amount of Rs.22,600/- upto 13.07.2006 and later due to financial problems, the balance was not paid. The defendant also sustained heavy loss in the business and it is therefore prayed for installments facility to discharge the due amount of

Rs.1,500/- per month.

5.Basing on the pleadings of both sides the trial court framed the following issues:

1. Whether the defendant borrowed Rs.60,000/- from the plaintiff on 26.05.2005 ?

2. Whether there is a devoid of consideration by Rs.10,000/- as contended in the written statement with respect to the principal amount ?

3. Whether the principal amount was borrowed as mentioned in the plaint or in the circumstances as contended in the written statement ?

4. Whether the plaintiff is entitled for the suit claimed amount as prayed for ?

5. Whether the defendant is entitled for the installments ?

6. To what relief ?

6.The trial court upon examination of the oral and documentary evidence on behalf of both sides and upon consideration of arguments advanced on both sides passed the impugned judgment and decree. The 3 suit filed by the plaintiff against the defendants, the suit was partly decreed with proportionate costs. The suit for the rest of the claim is dismissed.

7.Aggrieved by the same the defendant preferred the appeal on the grounds that:

1. The judgment and decree of learned lower court is contrary to the facts of the case and also to the pleadings of the parties.

2. The learned trial court passed the judgment on presumption and assumptions and also against the legal provision and without any evidence before it.

3. The learned trial court failed to see or observe that the defendant has not denied the issuance of cheque No. 051731 for Rs.38,700/- which was dishonoured by the drawee bank.

4. The learned trial court has not considered the implication of issuing the cheque for Rs.38,700/- by the defendant towards discharge of the balance of loan amount only.

5. The learned trial court failed to notice that the defendant never pleaded that the said cheque for Rs.38,700/- is wrongly issued for excess amount than the amount which he has to pay to the plaintiff towards loan transaction.

6. The learned trial court failed to see that there is no evidence on behalf of the defendant that he paid any amount to the plaintiff towards the dishonoured cheque amount.

7. The learned trial court wrongly came to the conclusion that the defendant has to pay Rs.27,400/- t o the plaintiff towards the loan granted by the plaintiff to the defendant.

8. The learned trial court having observed that the loan amount is

Rs.60,000/- paid by the plaintiff to the defendant through a cheque erroneously came to a conclusion that the said Rs.60,000/- includes

Rs.10,000/- towards interest.

9. The learned trial court in one breath held that there is no agreement or contract between the plaintiff and defendant about the rate of interest and in another breath that the defendant paid Rs.10,000/- towards interest to the plaintiff.

10.The learned trial court has not observed that the defendant in his written statement has not denied the claim of the plaintiff about the rate of interest @18% on the principal amount of Rs.60,000/- borrowed by the defendant under a promissory note.

11.The learned trial court has not granted any interest upon the dishonoured cheque amount till the date of suit even according to the 4

Negotiable Instrument Act .

8.Now the point that arise for consideration is:

1. Whether the trial Court’s decree and judgment in decreeing the suit partly is unsustainable and is liable to be set aside and if so; to what extent, this Court while sitting an appeal can interfere with the trial

Court’s decree and judgment impugned and with what observations ?

2. To what relief ?

9.POINT:

The counsel for appellant submit that, the defendant who gave cheques under Ex.A3 is not denying but the trial court without accepting the cheque amount passed the decree for Rs.27,400/- is incorrect. The counsel for appellant further submit that the trial court failed to consider that the implication of issuing cheque for Rs.38,700/- towards discharge of balance and the said cheque was issued for discharge of the balance of the borrowal of the amount by the defendant but not for any other purpose, thereby the trial court ought to have decreed the suit for Rs.38,700/- instead of Rs.27,400/-.

10.The counsel for plaintiff further submitted that, the defendant never pleaded the cheque covered under Ex.A3 is wrongly issued nor he paid the amount covered under Ex.A3 by the defendant. The counsel for plaintiff further submitted that the loan amount is Rs.60,000/- paid by the plaintiff but trial court erroneously came to conclusion said Rs.60,000/- includes

Rs.10,000/- interest.

11.Heard both sides.

12.This court perused entire material evidence. In the present case the original plaintiff by name J. Rama Rao did not enter the witness box but his son by name Srinivasa Prabhu enter the witness box on behalf of the plaintiff and made the following admissions in his cross examination. “the defendant paid total amount of Rs.22,600/- upto 13-07-2006 at his convenience and it was also paid some times on daily basis the minimum 5 amount was paid about Rs.50/-. It was also paid Rs.100/- I read the contents of written statement. It is true the payment made by the defendant were recorded by our family members in a book maintained by the defendant. The book and the entries made therein confronted to me are correct. They are Ex.B1 and B2”.

13.This court perused the written statement of the defendant and in the said written statement the defendant took a specific plea that he has paid

Rs.22,600/- till 13-07-2006 against the loan as reflected in a small pocket note book. The defendant further stated the loan taken by him was

Rs.60,000/- on 26-05-2005 against the promissory note and blank cheque and that after the amount was drawn by bearer cheque, which was issued by the plaintiff, the plaintiff who accompanied him taken Rs.10,000/- from the said amount towards interest and he was supposed to pay Rs.600/- per day for 100 days and on his request plaintiff agreed to receive Rs.500/- per day for 50 days and thereafter Rs.700/- per day 50 days.

14. The defendant further stated whatever transactions transpired between him and the plaintiff were noted in Ex.B1 passbook and the mentioned in detail as Ex.B2. I perused Ex.B1 and B2 and same is accepted by PW-1 who is son of plaintiff and same is in respect of suit transaction and that Ex.B2 clearly speaks Rs.10,000/- which was deducted from

Rs.60,000/- is towards interest. When interest was deducted on the day when principal was given, the plaintiff can not claim interest again from the same again principal amount, so that the trial court taking into consideration of all these facts, the payment of Rs.22,600/- was deducted from Rs.50,000/- and came to conclusion that the balance is only

Rs.27,400/- .

15.When there are no disputes regarding of Rs.60,000/- and admittedly out of the said amount of Rs.60,000/-, Rs.10,000/- was deducted on the day the payment made to the defendant and that even Rs.22,600/- was also paid on a daily payment mode same is accepted by PW-1 who is none other than 6 the son of the plaintiff and admittedly the plaintiff not even enter the witness box and whatever evidence remains before the court is the evidence of son of plaintiff, who is admitting that interest part is already taken by plaintiff on the day when the amount lent to the defendant, so that

I do not find any irregularity committed by the lower court to conclude the amount due from defendant is only Rs.27,400/-.

16.Coming to cheque under Ex.A3 is concerned when there is a positive evidence from PW.1 regarding the payment, again taking advantage of cheque by the plaintiff is not permissible under law. No doubt Ex.A3 cheque has its presumptions but those presumptions are rebuttal and when defendant filed Ex.B1 and B2 and same are admitted by PW.1 who deposed on behalf of plaintiff, now he cannot the question the admissions made by

PW.1 and that the plaintiff ought to have place evidence regarding the cheque covered under Ex.A3. When PW.1 spoke about Ex.B1 and B2 and the entries covered under Ex.B2 are true and correct, again claiming the cheque amount is right and that trial court ought to have considered the cheque is not tenable under law. If plaintiff places any evidence beyond

Ex.B1 and B2 then Ex.A3 cheque will be considered and when Ex.B1 and

B2 speaks against Ex.A3 cheque. The plaintiff is expected to place evidence against Ex.B1 and B2 and in support of Ex.A3. In that angle no evidence put forth by the plaintiff and canvass the trial court went wrong in coming to conclusion regarding the balance due from the defendant.

17. For the above reasons, and on perusal of the lower court judgment, I did not find any irregularity and illegality committed by lower court while decreeing the suit and this court could not find any grounds to setting aside the trial court’s decree and judgment. I do not find any merits to set aside the lower court decree.

7

18.In the result the appeal is dismissed by confirming the lower court decree and judgment. No costs.

Typed to my dictation by Personal Assistant, corrected and pronounced by me in the Open Court on this the day 01st day of June, 2016.

XXVII ADDL. CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.

Appendix of Evidence Witness Examined Documents marked Nil.

XXVII ADDL. CHIEF JUDGE,

CITY CIVIL COURT, SECUNDERABAD.