Dismissed

Thatha Ramachandra Rao v. Puvvada Sanjeeva Rao

Telangana HC10 Mar 2010AS/2148/1992

Case brief

AI extract

What is this about?

The High Court dismissed three appeals. The appellate court upheld the trial court's dismissal of suits for money recovery, ruling that the trial court was correct in finding that defendants had discharged the mortgage debt via receipts and sale proceeds, and was not wrong in dismissing requests for expert opinion on signatures or applying the Agriculturists' Loans Act.

What did the court decide?

The appeals were dismissed with no order as to costs.

Thatha Ramachandra Rao Vs Puvvada… — Contract and Commercial Disputes | Telangana HC (2010)

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THE HON’BLE SRI JUSTICE C.V. RAMULU

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A.S. No. 2147 of 1992, A.S. Nos. 2148 of 1992 AND Tr.A.S. No. 733 of 2005

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COMMON JUDGMENT:

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A.S. No. 2147 of 1992 is filed aggrieved by the common judgment and decree in O.S. No. 75 of 1985 dated 21.12.1991 on the file of learned Principal Subordinate Judge, Ongole. A.S. No. 2148 of 1992 is filed aggrieved by the common judgment and decree in O.S. No. 69 of 1985 dated 21.12.1991 on the file of learned Principal Subordinate Judge, Ongole, and Tr.A.S. No. 733 of 2005 is filed aggrieved by the common judgment and decree in O.S. No. 140 of 1984 dated 21.12.1991 Since the issue involved in these appeals is similar and the respondents-defendants are one and the same, these three appeals are decided by this common judgment.

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For the purpose of convenience, the parties are referred to, as arrayed in Original Suits.

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Appellants are the plaintiffs and respondents are the defendants. The suits – O.S. No. 69 of 1985, 75 of 1985 were filed basing on the mortgage deeds executed by 1^st defendant. The trial Court, vide orders in I.A. Nos. 2106 of 1986 to 2109 of 1988, clubbed together the suits and recorded the evidence in O.S. No. 75 of 1985.

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Since the averments of all the three suits are similar, to avoid repetition, the averments of plaint in O.S. No. 69 of 1975, are, briefly stated, thus:

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1^st defendant, who was the guardian of his late minor son Ranga Rao, borrowed Rs.12,500/- from the plaintiff for their brick factory and family necessities and executed registered mortgage deeds in favour of plaintiff on 20.8.1973, agreeing to pay interest at

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15% per annum, with yearly rests. The minor son Rangarao died after execution of mortgage deeds. 2^nd defendant being mother of Late Ranga Rao was added as a party and thus plaintiff demanded both the defendants to pay the suit debt. As they did not pay the debt amount, plaintiff got issued lawyer notice to 1^st defendant on 19.4.1985. 1^st defendant received the said notice and gave reply on 6.6.1985 with false allegations, while admitting the suit mortgage. Hence the plaintiff filed the suit to recover the suit debt and, as the defendants were not agriculturists, the interest was claimed at the contract rate.

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1^st defendant filed written statement denying the allegations made in the plaint except the fact that the suit mortgage was executed. It was further stated that the alleged amount was not at all paid by the plaintiff and that the father of the plaintiff got executed three mortgage deeds from the defendants for Rs.7,500/-, Rs.12,500/and Rs.15,000/- on the very same date i.e. 20.8.1973, in the name of himself and his minor sons, out of whom plaintiff is one. All those mortgage deeds were presented on 20.8.1973 and they are 1027, 1028 and 1029 of 1973. The 1^st defendant was subscribing private chits with one Nayab Mastan Saheb of Pakirupalem, who was to pay Rs.20,000/- to him and he got paid that amount to the father of plaintiff by Nayab Mastan Saheb on 15.9.1974, for which the father of plaintiff issued a receipt. The 1^st defendant, towards his mortgage debts, sold his house sites of 50 gadies each in T.S. No. 5, Block No.1, Ward No.5 on 17.10.1977 in favour of Katari Venkayamma and Tata Venkateswarlu, brother of plaintiff and the sale consideration of Rs.30,000/- was received by plaintiff’s father towards discharge of mortgage debts. The sale deed in favour of Venkayamma was registered on 17.10.1977, whereas the sale deed in favour of brother of plaintiff was registered on 18.10.1977. Under these two sale deeds, the father of plaintiff received Rs.30,000/- towards discharge of

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mortgage debts, which is borne out by a receipt issued by plaintiff’s father. Further, plaintiff’s father received Rs.2,000/- on 21.2.1975 from 1^st defendant and endorsed to the said effect on reverse of mortgage deed in suit number 140/84. Thus, in total, plaintiff’s father received Rs.52,000/- from 1^st defendant towards discharge of three mortgage deeds. There was no stipulation in the mortgage deed to pay compound interest with yearly rests.

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A memo was filed on behalf of 2^nd defendant adopting

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the written statement filed by 1^st defendant.

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On the basis of the above pleadings, the trial Court framed the following issues, for trial:

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1. Whether the discharge of suit mortgage debt as pleaded in the written statement of D-1 is true?

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2. Whether the defendants are agriculturists and the rate of interest is liable to be scaled down?

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3. Whether the amount claimed by plaintiff is not correct?

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4. To what relief is the plaintiff entitled?

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Subsequently, plaintiff filed amended plaint stating that the defendants are not entitled to the benefits of Act IV of 1988 in view of the provisions under Section 3 and by virtue of exemption under Section 4 of Act IV of 1938. 1^st defendant filed additional written statement contending that the said allegation is not correct and he is entitled to the benefits of Act IV of 1938, as he is an agriculturist.

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On the basis of the above, an additional issue was

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framed as follows:

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“Whether the defendants are entitled to the benefits of Act 4 of 1938”.

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In the same way, issues and additional issue were framed in the remaining two suits also.

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On behalf of plaintiffs, PW-1 was examined and Exs.A-1 to A-15 were marked. Whereas, on behalf of defendants, DWs 1 to 5 were examined and Exs.B-1 to B-5 were marked.

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On an elaborate consideration of the matter in the light of the evidence available on record, both oral and documentary, the trial Court dismissed the suits holding that the appellants-plaintiffs are not entitled to the amounts claimed by them. Hence, these appeals. Learned counsel for the appellant strenuously contended that the lower Court ought to have sent Exs.B-1 and B-2 for expert opinion instead of examining them by itself and coming to the conclusion that the signatures on Exs.B-1 and B-2 are that of the father of plaintiffs and that the defendants need not pay the amounts as claimed by the plaintiffs. Further, in the light of the evidence available on record, the dismissal of suits by the Court below itself is bad and it requires interference by this Court and the appeals are required to be allowed.

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Whereas, learned counsel for the respondents has supported the judgment passed by the trial Court and submitted that the trial Court has critically examined Exs.B-1 and B-2 with that of the signatures of the plaintiff in O.S. No. 140 of 1984 in the plaint as well as the vakalat and rightly came to the conclusion that they are true and binding on the plaintiffs. The evidence available on record, both oral and documentary, also well established that the appellants-plaintiffs are not entitled to the amounts claimed by them. Therefore, the trial Court has rightly considered all the aspects and dismissed the suits filed by appellants-plaintiffs. The appeals are devoid of merit and they may be dismissed.

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Heard both sides and carefully perused the material available on record, including the evidence – both oral and documentary.

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In the entire evidence of PW-1, except stating that he has not executed Exs.B-1 and B-2, there was no other supportive evidence to substantiate the said contention. On the other hand, PW-1 admitted that Nayab Mastan Saheb and Anand Krishna are identifying witnesses for Exs.A-1 to A-3 mortgage deeds and Nayab Mastan Saheb is also an attestor. As rightly pointed out by the Court below, at one stage, PW-1 stated in the cross-examination that he does not know Nayab Mastan Saheb and at another stage he admitted that Nayab Mastan Saheb is an identifying witness. The evidence of PW-1 is full of inconsistencies and does not inspire the confidence of the Court. He did not totally deny the signatures on Exs.B-1 and B-2 when they were shown to him at the time of cross-examination and gave evasive answers. DW-2, who is the scribe of Exs.B-1 and B-2, clearly stated that Nayab Mastan Saheb paid Rs.5,000/- in his presence and that PW-1 executed Ex.B-1 receipt for the balance amount of Rs.15,000/- received by him from Nayab Mastan Saheb. Thus, the evidence of DW-2 is clear to the effect that PW-1 himself got executed Ex.B-1. DW-2 further stated that PW-1 executed Ex.B-2 receipt after receiving Rs.30,000/-, which is the sale consideration under the two sale deeds executed by DW-1. He further stated that he wrote Ex.B-2 receipt only on the instructions of PW-1. Thus, the evidence available on record clearly established that the defendants have received the consideration amounts under Exs.A-1 to A-3 mortgage deeds, as pleaded by the plaintiffs. However, the evidence available on record is clinching to the effect that the discharge pleaded by the defendants for payments of Rs.20,000/- under Ex.B-1 and Rs.30,000/- under Ex.B-2 by sale of the site of 1^st defendant to Venkayamma and Tata Venkateswarlu, son of PW-1, is true and Exs.B-1 and B-2 receipts passed by PW-1 are true and binding on the plaintiffs. Further, there is no evidence to the effect that defendants are cultivating the lands and,

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therefore, the trial Court rightly held that the defendants are not entitled to the benefits of Act IV of 1938 and that admittedly, plaintiffs in O.S. Nos. 69 of 1975 and 75 of 1985 are minors by the date Exs.B-1 and B- 2 receipts were issued by PW-1 on their behalf also and that if the counter interest is calculated on the amount of Rs.52,000/- paid by 1^st defendant under Exs.B-1 and B-2 and Ex.A-4 at the same rate of interest claimed by the plaintiff, with yearly rests, the defendants need not pay any amount to the plaintiffs. Under those circumstances, the Court below was right in holding that the plaintiffs are not entitled to recover any amount. Under those circumstances, dismissal of the suits by the trial Court, holding that the discharge pleaded by the defendants for the payment of Rs.20,000/- through Nayab Mastan Saheb under Ex.B-1 and Rs.30,000/- by sale of his site to Venkayamma and Venkateswarlu, son of PW-1 under Ex.B-2 receipt issued by PW-1 on his behalf and on behalf of plaintiffs in O.S. Nos. 69 of 1985 and 79 of 1985 is true and that the plaintiffs, therefore, are not entitled to the amounts claimed by them, cannot be said to be arbitrary or illegal.

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Further, in the facts and circumstances and in the light of the evidence available on record as stated above, there was no necessity for the trial Court to send Exs.B-1 and B-2 for expert opinion. A bare look at those documents would indicate that the strokes and signatures on the plaint, vakalat and Exs.B-1 and B-2 are essentially the same and they do not give rise to any suspicion. Under those circumstances, the argument advanced by the learned counsel for the appellants that the lower Court ought to have sent Exs.B-1 and B-2 for expert opinion cannot be countenanced.

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In the light of careful examination of oral and documentary evidence available on record, this Court is of the considered opinion that the judgment and decree passed by the trial Court does not suffer from any illegality or irregularity calling for

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interference of this Court in these appeals.

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The appeals are devoid of merit and liable to be dismissed. They are accordingly dismissed. No order as to costs.

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JUSTICE C.V. RAMULU.

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Date: 10-3--2010.

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MVB.

Thatha Ramachandra Rao v. Puvvada Sanjeeva Rao

Case brief

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What did the court decide?

Thatha Ramachandra Rao v. Puvvada Sanjeeva Rao

Case brief

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