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2001 DIGILAW 890 (MAD)

Velmyle Udayar v. Sundaravally

2001-08-09

A.RAMAMURTHI

body2001
JUDGMENT: Defendant in O.S. No.157 of 1987 on the file of District Munsif Court, Dindigul, has preferred the second appeal aggrieved against the judgment and decree made in A.S. No.6 of 1990, dated 12.10.1990 in the file of District Court, Dindigul, reversing the judgment and decree of the trial Court dated 20.4.1989. 2. The case in brief is as follows: The plaintiff filed a suit for recovery of a sum of Rs.7,475 due under a promissory note. The defendant is said to have borrowed a sum or Rs.5,500 from one Rajendran on 17.11.1980 and executed the promissory note under Ex.A-1. The defendant is said to have paid a sum of Rs.5 towards interest and made an endorsement under Ex.A-2, dated 17.11.1983. The said Rajendran, for proper and valid consideration received, assigned Ex.A-1 in favour of the plaintiff under Ex.A-3, dated 15.11.1986. Prior to assignment, the assignor also sent a notice to the defendant, calling upon him to make the payment. The defendant sent a reply under Ex.A-5. Since the defendant has not paid the amount, the assignee/ plaintiff had filed the suit. 3. The defendant denied the execution of Ex.A-1 as well as passing on of consideration. The assignor had no capacity to advance any money and the assignment in favour of the plaintiff is also not true, valid and supported by consideration. The defendant sent a reply to the assignor himself denying the execution and thereafter, knowing fully well that he could not collect any amount had assigned Ex.A-1 in favour of his mother-in-law/ plaintiff. The defendant had dealing with one Ganesan and the loan was also discharged. Now, the assignor and Ganesan joined together had created Ex.A-1. The payment of Rs.5 was made only in the year 1982 and the year was also altered as 1983 to save limitation. The suit claim even if true, is barred by time. There is also material alteration in the endorsement and the suit is liable to be dismissed. 4. The trial Court framed 4 issues and on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-7 were marked. On the side of the defendant, D.Ws.1 and 2 were examined and Ex.B-1 was marked. There is also material alteration in the endorsement and the suit is liable to be dismissed. 4. The trial Court framed 4 issues and on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-7 were marked. On the side of the defendant, D.Ws.1 and 2 were examined and Ex.B-1 was marked. The trial Court dismissed the suit and aggrieved against this, the plaintiff preferred A.S. No.6 of 1990 on the file of the District Court, Dindigul and the learned Judge after hearing the parties, allowed the appeal, set aside the Judgment and decree of the trial Court and the suit was decreed. Aggrieved against this, the defendant has come forward with the present appeal. 5. At the time of admission of this second appeal, the following substantial question of law was framed by this Court. Whether the suit promissory note is suffering from material alteration in the form of endorsement made in Ex.A-2? 6. Heard the learned counsel of both sides. 7. The points that arise for consideration are: (1) Whether Ex.A-1 is true, valid and supported by consideration? (2) Whether there is any material alteration in Ex.A-2 in the year 1983? (3) Whether the plaintiff is entitled to claim any amount? 8.Points: The assignee plaintiff had filed the suit for recovery of the amount due under promissory note Ex.A-1 said to have been executed by D.W.1 in favour of P.W.1, the assignor. According to P.W.1, D.W.1 paid a sum of Rs.5 on 17.11.1983 and an endorsement was made as per Ex.A-2. P.W.1 also sent a notice under Ex.A-4 calling upon the defendant to make payment and the defendant sent a reply under Ex.A-5 denying the execution as well as passing of consideration. Thereafter, P.W.1 had assigned Ex.A-1 in favour of the plaintiff. 9. D.W.1 denied the execution of Ex.A-1 and according to him, he had dealing with one Ganesan and the loan was also discharged on 11.2.1986 and a receipt was taken under Ex.B-1. P.W.1 had no capacity to advance any money and P.W.2 is only the mother-in-law of P.W.1. However, the signature in Ex.A-1 was admitted by D.W.1 and, as such, presumption under Sec.118 of Negotiable Instruments Act can be drawn relating to the passing of consideration and other details. So far as this case is concerned, it is not necessary to go into the question about the execution of Ex.A-1. 10. However, the signature in Ex.A-1 was admitted by D.W.1 and, as such, presumption under Sec.118 of Negotiable Instruments Act can be drawn relating to the passing of consideration and other details. So far as this case is concerned, it is not necessary to go into the question about the execution of Ex.A-1. 10. Learned counsel for the appellant/ defendant mainly pleaded that the suit promissory note is suffering from material alteration in the form of endorsement made in Ex.A-2. It is pertinent to state that even in the reply notice under Ex.A-5 dated 12.3.1986, D.W.1 had taken a plea that the amount of Rs.5 was paid only in the year 1982. Subsequently, in the written statement also, D.W.1 took the very same plea that the payment was made in 1982 and for which, the plaintiff did not file any rejoinder to the same. The burden is only upon the plaintiff to show that Ex.A-2 was executed only in the year 1983 and if the plaintiff fails to establish the same, naturally the suit has to fail on the ground of limitation. 11. Perusal of Ex.A-2 clearly indicates that so far as the year is concerned, it was originally written as 1982 and the year ‘2’ has been altered into ‘3’. It is apparently clear that only to save the limitation and file the suit, the number ‘2’ has been corrected as ‘3’. When the defendant had already taken a plea under Ex.A-5 as well as in the written statement that the payment was made in the year 1982, the burden is heavily upon the plaintiff to show that the alleged payment was made only in the year 1983. In fact, there is an attesting witness to Ex.A-2 but, for reasons best known, the plaintiff has not chosen to examine the said witness. The lower appellate Court simply stated that there is no alteration and this plea has not been raised in the written statement at all. When there is a plea that the payment was made in 1982, whereas according to the plaintiff it was made in 1983, a legal plea can be taken at any point of time when sufficient material has already been provided not only in the reply notice but also in the written statement. When there is a plea that the payment was made in 1982, whereas according to the plaintiff it was made in 1983, a legal plea can be taken at any point of time when sufficient material has already been provided not only in the reply notice but also in the written statement. It is visible to naked eye that the year 1982 has been altered as 1983 and if the alteration is established, I am of the view that the suit claim itself will be barred by time since the suit was instituted on 17.11.1986. Under the circumstance, I am of the view that the lower appellate Court misdirected itself and failed to look into the material alteration made under Ex.A-2 and hence, the finding is perverse, calling for interference. On the other hand, the trial Court in para. 8 of the judgment has clearly discussed about the alteration and came to the conclusion rejecting the claim of the plaintiff. Hence, the points are answered accordingly. 12. For the reasons stated above, the second appeal is allowed and the judgment and decree of the lower appellate Court are set aside and the finding of the trial Court is restored. There will be no order as to costs.