HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

JUDGMENT

Heard Sri Kondaparthi Srinivas, learned counsel for the appellant and Sri M.Kiran Reddy, learned counsel for respondent. Perused the material available on record.

2. This Appeal Suit is filed aggrieved by an ex parte judgment and decree, dated 06.11.2021 passed by the Court of the Agent to Government, Bhadrachalam Kothagudem (hereinafter referred to as “Agent to Government”), in O.S.No.122 of 2019.

3. The appellant herein is the defendant and the respondent herein is the plaintiff in the suit, which was filed for recovery of money basing on the promissory note. For convenience, hereinafter the parties will be referred to as they are arrayed in the suit.

4. Brief facts of the case are that out of acquaintance, the defendant approached the plaintiff and borrowed an amount of Rs.2,50,000/- from him on 21.11.2017 for personal needs with a promise to repay the same with interest @ 24% p.a., and executed the promissory note dated 21.11.2017 to that effect; that in spite of repeated demand, the defendant did not repay the said amount and avoiding the payment on some pretext or other; that subsequently, plaintiff issued legal notice dated 10.09.2018, however, there was no response from the defendant and therefore, the plaintiff filed the suit.

4.1. During the pendency of the suit, plaintiff filed his proof affidavit and Exs.A1 to A3 were marked on 06.11.2021. The defendant remained ex parte and therefore, the Agent to Government decreed the suit ex parte on the same day i.e., 06.11.2021. Aggrieved by the ex parte judgment and decree dated

06.11.2021, the present Appeal Suit is filed by the defendant.

5. Learned counsel for the appellant/defendant had contended that defendant never borrowed the amount from the plaintiff and she never executed any promissory note, much less the suit promissory note in favour of the plaintiff and the alleged signature contained in the promissory note does not belong to her and the same was fabricated and created by the plaintiff for ulterior motives. He further contended that defendant has no knowledge about filing of the suit and no summon was served on the defendant in the suit and consequently, she has no opportunity to defend the suit; that in the judgment dated 06.11.2021 passed in O.S.No.122 of 2019, the Agent to Government has not even mentioned about the service of summons/notice to the defendant and by simply stating that ‘the defendant remained ex parte, decreed the suit and the same is liable to be set aside as no opportunity was given to the defendant to defend the case.

5.1. He further contended that only after knowing about receipt of Garnishee Warrant issued in E.P.No.9 of 2024 in O.S.No.122 of 2019 by the employer of the defendant, defendant approached the Agent to Government and filed copy application to furnish certified copies of documents in the suit and E.P., and thereafter, he filed the present appeal suit.

5.2. Learned counsel for appellant/defendant had contended that the Agent to Government had erred in decreeing the suit ex parte without affording an opportunity to the defendant to defend the case; that the Agent to Government erred in not verifying the fact whether the suit summons was served on defendant properly or not; that the Agent to Government ought to have seen that no notice served to the defendant.

6. Per contra, learned counsel for the respondent/plaintiff had contended that the Agent to Government having defendant remained ex parte has rightly decreed the suit; that summons was issued to the defendant by the Agent to Government in the suit on 03.12.2019 and the same was returned unserved with an endorsement ‘refused’ on 12.12.2019; that mere refusal to receive summons amounts to service of summons; that even though summons were served, defendant did not choose to appear in the said suit and considering the fact that defendant remained ex parte, the Agent to Government has rightly decreed the suit by examining the plaint