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2011 DIGILAW 3748 (MAD)

Subbaraya Gounder v. Palaniyathal

2011-08-19

R.S.RAMANATHAN

body2011
Judgment :- The unsuccessful defendant is the appellant. The respondent/plaintiff filed the suit for recovery of a sum of Rs.42,020/- on the basis of the promissory note executed by the appellant for a sum of Rs.40,000/- on 3.5.2002. 2. The case of the respondent/plaintiff was that the appellant/defendant received Rs.40,000/- from her and executed a promissory note on 3.5.2002 and thereafter did not pay any amount either towards principal or interest and therefore, the suit was filed for recovery of the said amount. 3. The appellant contested the suit denying the execution of the promissory note and alleged that the promissory note was forged and created by the husband of the respondent and he has not executed any promissory note as alleged by the respondent. 4. The trial court decreed the suit holding that the respondent/plaintiff proved the execution of promissory note by examining the witnesses and also proved her means for providing the consideration of the promissory note and though the appelant denied the execution of the promissory note he has not produced any document for comparing the signature found in the promissory note and on comparing the available signature of the appellant in the promissory note as well as the written statement, the signature found in the promissory note Ex.A1 was found to be that of the appellant and decreed the suit. The Lower Appellate Court also concurred with the findings of the trial court and dismissed the appeal. Hence, the Second Appeal. 5. It is submitted by the learned counsel for the appellant that both the courts without properly appreciating the evidence of PW.2 and PW.3 erred in holding that the execution of the promissory note was proved by the respondent. It is submitted by the learned counsel for the appellant that P.W.1 the respondent had stated that the stamps are affixed at the top of the promissory note and thumb impression was affixed in the bottom and the evidence of PW.1 is contrary to the stamps affixed in the promissory note. According to him, in the promissory note, the stamps are affixed in the bottom and on the right hand side top, thumb impression is found and therefore, the evidence of PW.1 would also prove that she was not aware of the execution of the promissory note in her favour. According to him, in the promissory note, the stamps are affixed in the bottom and on the right hand side top, thumb impression is found and therefore, the evidence of PW.1 would also prove that she was not aware of the execution of the promissory note in her favour. He further contended that PW.2 is the close relatives of PW.1 and PW.2, and PW.3 did not state that the appellant affixed thumb impression on the promissory note and therefore, having regard to the evidence of PW.2 and PW.3, thumb impression must have been affixed later and it amounts to material alteration and on that ground, the courts below ought to have dismissed the suit. 6. On the basis of the submissions made by the learned counsel for the appellant, the following substantial questions of law were framed for consideration. (i) Whether there is any material alteration in Ex.A1 as contended by the appellant so as to make the document illegal. (ii) Whether the respondent/plaintiff proved the execution of promissory note. 7. It is seen from Ex.A1 promissory note that the appellant signed on the stamps affixed at the bottom of the promissory note and on the right hand side top, thumb impression is also found. According to the learned counsel for the appellant that PW.2 and PW.3 did not say the affixing of thumb impression by the appellant and therefore, it is a material alteration in the promissory note and hence, the promissory note cannot be believed and no decree can be passed on the basis of the said promissory note. 8. He relied upon the judgments reported in (1942) 2 MLJ 303 (P.R.Subramania Pattar Vs. Porathana Andi), 2005 (1) CTC 409 (Ayyakannu Gounder Vs. Virudhambal Ammal), and 2007 (1) ALD 790 (Kotipalli Nageswara Rao @ Kotupalli Vs.Yandrapalli Nagaiah) in support of his contention. 9. It is true that when there is material alteration in a negotiable instrument, then the negotiable instrument will become void and no right accrues under the said promissory note. In this case, we have to see whether there is any material alteration. As stated supra, though the appellant disputed the signature in the promissory note, he has not taken any steps to compare the signature found in the promissory note with that of his admitted signature executed prior to the execution of the promissory note. In this case, we have to see whether there is any material alteration. As stated supra, though the appellant disputed the signature in the promissory note, he has not taken any steps to compare the signature found in the promissory note with that of his admitted signature executed prior to the execution of the promissory note. Except the denial in the written statement and in the evidence, no attempt was made by the appellant to prove the signature found in the promissory note was not that of his signature. PW.2 and PW.3 have given evidence about the execution of the promissory note by the appellant. Of course, there are some minor variations in the evidence of PW.2 and PW.3 and has rightly held by the Lower Appellate Court, those variations will not help the appellant and that will not prove that the promissory note was not executed by the appellant. 10. PW.2 in his chief examination has stated clearly that the promissory note was written by PW.3 as per the dictation of the plaintiff/respondent and the appellant signed the promissory note on the stamps affixed in the promissory note and the scribes also signed in the promissory note. In cross examination also he has stated that four stamps were affixed in the promissory note in the bottom and he was not aware of the amount for which the promissory note was executed and in his presence the amount was not paid and there was no thumb impression in the promissory note. 11. PW.3, the scribes also stated in chief examination that as per the dictation of the respondent, he wrote the promissory note and the appellant put his signature on the stamps affixed in the promissory note and thereafter the respondent paid Rs.40,000/- to the appellant and he also signed after PW.2 signed in the promissory note. In the cross examination, nothing has been elicited to disprove his evidence. Therefore, both the courts have rightly held that the execution of the promissory note was proved by the respondent through PW.2, PW.3 and no attempt was made by the appellant to send the promissory note for comparison by an expert and therefore, the respondent has proved the execution of the promissory note by the appellant. I am in full agreement with the conclusion of the courts below with the execution of the promissory note. I am in full agreement with the conclusion of the courts below with the execution of the promissory note. Therefore, the second substantial question of law is answered against the appellant. 12. The learned counsel for the appellant vehemently contended that there is material alteration in the promissory note and according to him, the thumb impression found on the right hand side top of the promissory note alleged to have been put by the appellant would amount to material alteration. 13. I am unable to accept the contention of the learned counsel for the appellant. As per Section 87 of the Negotiable Instruments Act, any material alteration of negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto. But at the same time every unsubstantial alteration is not a material alteration and it is only such alterations as would adversely affect the interests of the other side which can be called material alteration. 14. In this case, even assuming that the thumb impression of the appellant was obtained later, that would not affect the interests of the appellant as the appellant has already signed the document on the stamps affixed in the promissory note. Further, it was not mentioned in Ex.A1 that the thumb impression found on the right hand side top corner of the Ex.A1 was that of appellant. A look at of A1 makes it clear that a thumb impression is found on the right hand side top of the promissory note and it was not stated that it was the thumb impression of the appellant. 15. According to me, by affixing the thumb impression in the promissory note executed by the appellant, no prejudice would be caused to the appellant and even in the absence of such thumb impression, the appellant is liable to pay the amount due and payable to the appellant as the promissory note was executed by him. Further, in the judgment in Krushnacharana Padhi Vs. Gourochandro Dyano Sumamta reported in AIR (1940) Mad 62 referred to the judgment in P.R.Subramania Pattar Vs. Further, in the judgment in Krushnacharana Padhi Vs. Gourochandro Dyano Sumamta reported in AIR (1940) Mad 62 referred to the judgment in P.R.Subramania Pattar Vs. Porathana Andi reported in (1942) 2 MLJ 303 , it was held as follows: "If the legal identity or the character of the instrument has been affected or if the liability has been attempted to have been extended by the alteration, it must be held to be material and this would be so irrespective of the fact whether the alteration is to the prejudice of the promissor or the executant of the instrument or not." 16. Therefore, the presence of thumb impression on the right hand side top of the promissory note Ex.A1, in my opinion, will not amount material alteration and hence the first substantial question of law is answered against the appellant. 17. In the result, the judgement and decree of the Courts below are confirmed and the Second Appeal is dismissed. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is dismissed.