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2009 DIGILAW 4657 (MAD)

P. S. Sekar v. K. Panchatcharam

2009-11-03

R.BANUMATHI

body2009
Judgment :- Challenging concurrent findings of Courts below dismissing the plaintiffs suit on Promissory Note, unsuccessful plaintiff has filed this Second Appeal. 2. The case of plaintiff is that defendant has borrowed a sum of Rs.30,000/-and executed Ex.A1 Promissory Note on 23.08.1998 agreeing to repay the amount with interest at the rate of 24% p.a. Since the defendant has not paid the amount, after issuing pre-suit notice, plaintiff has filed the suit for recovery of Rs.51,600/- along with interest at the rate of 12% p.a. 3. The defendant resisted the suit contending that Promissory Note was executed in the year 1995 and not on 23.08.1998 as pleaded by the plaintiff. Before filing the suit, plaintiff issued notice (Ex.B1) dated 06.07.2001 for which defendant sent reply notice (Ex.B2) on 11.07.2001. According to defendant even in Ex.B2 notice, he has clearly averred that he had executed the Promissory Note only in 1995 and not in the year 1998. Main defence of the defendant is that there was material alteration in the suit Promissory Note and the plaintiff has altered the year as 1998 making the suit within the period of limitation. 4. Upon consideration of evidence, trial Court held that even in Ex.B2 notice, the defendant has clearly stated that he had executed Promissory Note in favour of plaintiff only in the year 1995 and not in the year 1998. The trial Court further held that there was no sufficient material evidence on the side of plaintiff to prove that the Promissory Note was executed in the year 1998 and on those findings, trial Court dismissed plaintiffs suit. 5. Being aggrieved by the dismissal of suit by trial Court, the appellant / plaintiff filed Appeal in A.S.No.15 of 2006. Referring to xerox copy of the Promissory Note filed along with Written Statement, lower Appellate Court held that the year in Ex.A1 Promissory Note has been altered and that in view of the material alteration, plaintiff is not entitled to the relief and confirming the findings of trial Court, lower Appellate Court dismissed the Appeal. 6. Challenging concurrent findings of Courts below, unsuccessful plaintiff had filed this Second Appeal. At the time of admission, following substantial questions of law were framed for consideration:- "1. 6. Challenging concurrent findings of Courts below, unsuccessful plaintiff had filed this Second Appeal. At the time of admission, following substantial questions of law were framed for consideration:- "1. Whether the judgment and decree of the Courts below are sustainable in law for want of considering the oral evidence of DW.1, admitting execution in his cross examination and to decide the issue as per the presumption of law as provided in Section 118 of the Negotiable Instruments Act? 2. Whether the judgment and decree of the lower Appellate Court is sustainable in law in comparing the Ex.A1, pronote with that of unmarked xerox copy of the pronote submitted along with the Written Statement to conclude the vital issue as to the date of execution of pro-note? 3. Whether the Courts below are right in resting the burden of proof upon the plaintiff to prove that the year in suit pronote, Ex.A1 was corrected by PW.1 at the instance of defendant, especially in the light of presumption under Section 118 of the Negotiable Instruments Act?" 7. The learned counsel for appellant/plaintiff Mr.Ayyadurai contended that once execution is proved by plaintiff, Courts below ought to have raised the presumption under Section 118 of the Negotiable Instruments Act, shifting the burden on the defendant to adduce rebuttal evidence. It was further contended that defendant has failed to adduce any evidence to substantiate his plea that the Promissory Note was executed only in the year 1995. It was further contended that Courts below failed to consider the question and analyse the evidence in the light of Section 118 of the Negotiable Instruments Act. In support of his contention, the learned counsel placed reliance upon the judgments of this Court reported in 2007 (4) CTC 81 (Ramasamy ..vs.. Kamalammal) and 2007 (4) CTC 122 (K.Chinnasamy ..vs.. Sivagamiammal). 8. Countering the arguments, learned counsel for respondent submitted that Courts below have recorded concurrent findings as to alteration in the year of Promissory Note and the concurrent findings cannot be interfered with. 9. In the Written Statement, defendant admitted that he borrowed Rs.30,000/- in 1995 and executed Promissory Note in 1995. The main defence of the defendant is that year in Promissory Note (Ex.A1) has been materially altered as 1998 so as to bring the suit within the period of limitation in 2001. 9. In the Written Statement, defendant admitted that he borrowed Rs.30,000/- in 1995 and executed Promissory Note in 1995. The main defence of the defendant is that year in Promissory Note (Ex.A1) has been materially altered as 1998 so as to bring the suit within the period of limitation in 2001. As held by Courts below, earlier even in Ex.B2 notice (11.07.2001), defendant has clearly stated that he has executed the Promissory Note only in the year 1995 and not in 1998. Along with Written Statement, defendant has also filed xerox copy of the Promissory Note. By perusal of the same, it is clear that the date of Promissory Note is 23.08.1995. On the other hand, if we look at Ex.A1 Promissory Note apparently there is a correction correcting 5 as 8. Referring to xerox copy of the Promissory Note filed along with Written Statement and the evidence of DW.1 and also Ex.B1, Courts below rightly recorded concurrent findings that there is material alteration in Ex.A1 Promissory Note so as to bring the suit within the period of limitation. The concurrent findings recorded by Courts below cannot be interfered with. 10. In AIR 1940 Privy Council 160 (Nathu Lal ..vs.. Mt. Gomti Kuar) material alteration has been explained as under:- "A material alteration is one which varies the rights, liabilities, or legal position of the parties ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally expressed." An alteration of a Negotiable Instrument is material if it changes its legal effect or its scope as means of evidence; it is material if it might easily affect a partys substantial rights whether such result actually follows or not, and even though the change is abandoned by the party in whose favour it was intended to operate. 11. In most cases, date is very material in calculating date of execution of Promissory Note and more often fixes the limitation within which the plaintiff will have to sue. But it cannot be said that an alteration in date is always material irrespective of its effect upon the rights, liabilities or legal position of the parties. 11. In most cases, date is very material in calculating date of execution of Promissory Note and more often fixes the limitation within which the plaintiff will have to sue. But it cannot be said that an alteration in date is always material irrespective of its effect upon the rights, liabilities or legal position of the parties. Whether the alteration in the date/year is a material alteration effecting the rights and liabilities of the parties would depend upon facts and circumstances of each case. In this case, suit was filed in the year 2001 (O.S.No.188 of 2001 on the file of Subordinate Judge, Kancheepuram). Ex.A1 Promissory Note was executed in the year 1995 and suit filed in the year 2001 was clearly time barred. The plaintiff has intentionally altered the year of execution only to bring the suit within the period of limitation. Such alteration materially affects the rights and liabilities of the defendant. Upon analysis of evidence, Courts below recorded concurrent findings as to material alteration on Ex.A1 Promissory Note. The concurrent findings do not suffer from any serious infirmity warranting interference exercising jurisdiction under Section 100 CPC. 12. The judgment of lower Appellate Court in A.S.No.15 of 2006 on the file of Subordinate Judge, Kancheepuram, dated 29.09.2006 arising out of dismissal of suit filed by the plaintiff in O.S.No.449 of 2004 on the file of Principal District Munsif, Kancheepuram, dated 211. 2005 is hereby confirmed and the Second Appeal is dismissed. In the circumstances, there is no order as to costs.