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2012 DIGILAW 292 (MAD)

Narayanasami Padayachi (Died) v. Anbazhagan

2012-01-19

M.VENUGOPAL

body2012
Judgment :- 1. The Appellant (Legal Representative of the Plaintiff) has preferred the present Second Appeal as against the Judgment and Decree dated 20.01.1998 in A.S.No.218 of 1994 passed by the Learned District Judge, Cuddalore in affirming the Judgment and Decree dated 29.04.1994 made in O.S.No.95 of 1993 passed by the Learned Principal Sub Judge (I/c), Cuddalore. 2. The First Appellate Court viz., the Learned District Judge, Cuddalore in A.S.No.218 of 1994 (filed by the father of the Appellant/Plaintiff) while passing the Judgment on 20.01.1998 has observed that "in this case the year was found to have been altered from 1987 to 1989, to suit the convenience of the plaintiff. A loop was subsequently found connected to the top of the letter "7" so as to make it appear as "9". Thus, the year 1987 was altered as 1989 etc., and opined that the trial Court rightly dismissed the suit and resultantly dismissed the Appeal with costs. 3. Earlier, before the trial Court, in the main suit on behalf of the Plaintiff, witnesses P.Ws.1 and 2 have been examined and Exs.A1 to A4 have been marked. On the side of the Defendant, witness D.W.1 has been examined and no documents have been marked. 4. The trial Court, on an appreciation of the oral and documentary evidence available on record, has come to a categorical conclusion that the date of promissory note is a material portion of it and any alteration of such date will normally avoid the pronote and has come to the consequent conclusion that the suit pronote has been materially altered viz., the year 1987 has been altered into 1989 and further held that the suit is clearly barred by time and dismissed the suit with costs. 5. At the time of admission of the Second Appeal, this Court has formulated the following Substantial Questions of Law 1 to 3:- 1) Whether in Law the Courts below did not err in ignoring the presumption under Section 118 of the Negotiable Instruments Act that Ex.A1 is true, since the Defendant had admitted to executing it? 2) Whether in Law the Courts below are right in overlooking that the onus is on the Defendant to prove discharge and that he had not at all proved it by any evidence? 2) Whether in Law the Courts below are right in overlooking that the onus is on the Defendant to prove discharge and that he had not at all proved it by any evidence? 3)Whether in Law, the Lower Appellate Court is right in failing in its duty as the final Court of facts and evidence to give an independent finding as to whether there is material alteration in Ex.A.1? 6. The Contentions, Discussions and Findings on Substantial Questions of Law 1 to 3:- According to the Learned counsel for the Appellant (Legal representative of the Deceased Plaintiff), the trial Court as well as the Appellate Court should have seen that when execution of the pronote is admitted by the Defendant (since deceased), it is for him to prove the discharge and also that the suit pronote, Ex.A1 dated 28.10.1989, as seen through naked eye is not an altered one. 7. The Learned counsel for the Appellant urges before this Court that the Defendants (since deceased) plea of discharge of the purported pronote of the year 1987 is not barred by any evidence on record. 8. Lastly, it is the submission of the Learned counsel for the Appellant that the First Appellate Court has merely proceeded on presumption and assumptions and as such, the Judgment and Decree of the First Appellate Court in A.S.No.218 of 1994, dated 20.01.1998 are vitiated in law. 9. Per contra, it is the contention of the Learned counsel for the Respondents (Legal Representatives of the Deceased Defendant) that both the Courts below have rightly come to the correct conclusion that Ex.A1, suit pronote dated 28.10.1989, suffers from material alteration and in fact, both the Courts have categorically held that the year 1987 in Ex.A1, Pronote dated 28.10.1989, has been altered namely, the year 1987 has been altered into 1989 and filed the suit. Therefore, the concurrent findings need not be interfered with by this Court. 10. A perusal of the Plaint averments in the main suit (filed by the Appellant/plaintiff deceased) reads that on 28.12.1989, the Defendant (since deceased) has executed a pronote in favour of one Sarojammal for a sum of Rs.15,000/-and has received the sum mentioned therein, agreeing to repay the said sum together with principal and interest at the rate of rupees one for rupees hundred per month. Further, the said Sarojammal on 17.12.1992, has made-over the Ex.A1., suit pronote, dated 28.12.1989, to and in favour of the Plaintiff (since deceased) and a notice dated 22.12.1992, has been issued to the deceased Defendant demanding the payment of the suit amount and since the Defendant (later deceased), during his life time, has not paid the suit amount, a suit has been laid for recovery of a sum of Rs.19,055.25 etc. 11. The Defendant (since deceased), during his lifetime, has filed a written statement making an averment that in the year 1987, he borrowed a sum of Rs.5,000/- from the plaintiff and executed a pronote for Rs.15,000/-as the rate of interest demanded by the plaintiff has been 36% further, it is the stand of the defendant that he discharged the said pronote by paying the entire amount in few months. Also, the Plaintiff (deceased) has not returned that pronote and represented that it has been misplaced and now he under stands that the Plaintiff (since deceased) has corrected the year 1987 into 1989. As such, there is a material alteration which vitiated the suit pronote. Moreover, a plea is also taken that the suit is barred by limitation. The assumption of suit pronote dated 17.12.1992 is false and the same has been made to provide a colour of reality. 12. In view of the rival stand taken by the parties, this Court, for better appreciation of merits of the case, refers to the evidence of P.W.1, P.W.2 and D.W.1, to promote substantial cause of justice. 13. It is seen from the evidence of P.W.1 (Daughter of deceased Plaintiff) that her father is not in a position to walk and also not able to speak and therefore, he has made-over the pronote, Ex.A1 for which he received a sum of Rs.15,000/-and that Ex.A1, Pronote has been written in the year 1989 and that one Thangaraju has been signed as witness in the document. 14. Added further, P.W.1, in her evidence, proceeds to depose that Ex.A1, suit pronote has been written by her father and the Defendant who has executed a pronote in the year 1987 has settled the amount under the said pronote and it is not correct to state that the said pronote has not been returned and later the year of the pronote has been changed as 1989 and the suit has been filed. 15. 15. P.W.1 adds in her evidence that she has not received the amount at the time of making over the Ex.A1, pronote by her father in her favour and in the made-over of Ex.A2 she has signed and during the year 1987 the suit pronote has not been executed and only in the year 1989 the suit pronote has been executed. 16. P.W.2(witnesses to Ex.A1, suit pronote) in his evidence has deposed that Ex.A1, suit pronote has been written by Narayanasamy and in his presence the Defendant(later deceased) has signed in the pronote and it is not correct to state that the suit pronote has been written in the year 1987 and later it has been altered/corrected as 1989 and that Ex.A1, pronote has been executed by the Defendant during the year 1989. 17. P.W.2(in his cross examination) has deposed that the year 1989 which is mentioned in Ex.A1, pronote has been written by Narayanasamy and that Narayanasamy has signed in Ex.A1, suit pronote by affixing his signatures, putting date, month and year and there is no difference in marking the year 1989 in Ex.A1 and also the signature made by the said Narayanasamy in the bottom of the pronote. That apart, it is the specific evidence of P.W.2(witness to Ex.A1, pronote) that the alteration as 1989 made in the pronote is the method of writing of said Narayanasamy. 18. D.W.1(deceased Defendant) in his evidence has deposed that he has executed a pronote in favour of Sarojammal and that he has received a loan of Rs.5,000/-and executed a pronote during the year 1987 and for the loan of Rs.5000/- received by him interest of 36% has been aggrieved upon and that he has executed the pronote for Rs.15,000/- and during the sixth month of the year 1988 he has settled a sum of Rs.5,000/- principal together with interest and has settled the accounts but the plaintiff has not delivered the pronote and he has represented that he has misplaced the pronote and he informed him that he will hand over the same after searching for it. 19. 19. D.W.1 in his evidence has gone further and has deposed that for the loan taken during the year 1987, the year has been altered as 1989 and a suit has been filed and that the year 1987 has been altered as 1989 and the suit has been filed and at any point of time he has not received a sum of Rs.15,000/-and that he has not executed the pronote during the year 1989. 20. It is to be noted that Section 118 of the Negotiable Instruments Act generally raises presumption to negotiable instrument like pronote till the contrary is established. Before a presumption could be drawn, it must be admitted or proved that a pronote has been executed. Normally, when the execution of pronote is admitted there arises a presumption as per Section 118(a) of the Negotiable Instruments Act, 1881. However, the said presumption is an rebuttal one either through circumstantial evidence or by any presumption of fact drawn as per the Section 114 of Indian Evidence Act. 21. As a matter of fact, Section 118 of the Negotiable Instruments Act only speaks of for consideration it does not mention consideration as mentioned in the Negotiable Instrument Act, in the considered opinion of this Court. It is not in dispute that Ex.A1, promissory note is a Negotiable Instrument. As per Section 114 of the Indian Evidence Act 1872, the Court may presume the execution of pronote which it feels likely to have taken place regard being had to the normal course of events human conduct, public and private business, in their relation to the facts of the given case. Whether a statutory presumption is reputed in a given case by the rest of the evidence is inadmittedly a question of fact. At this stage, this Court pertinently points out Section 87 of the Negotiable Instruments Act 1881, speaks of Material Alteration. It is not for every alteration that vitiates the instrument/avoids the instrument. Indeed, alteration must be of such character that vitiates or avoids the instrument, if it changes its legal effect or its scope as means of evidence. The material alteration is one which varies the rights of the parties, liabilities, or legal position of the parties ascertained by the deed in its original state etc. Material alteration can be made by a new insertion that did not form part of the document originally executed. 22. The material alteration is one which varies the rights of the parties, liabilities, or legal position of the parties ascertained by the deed in its original state etc. Material alteration can be made by a new insertion that did not form part of the document originally executed. 22. As far as the present case is concerned, the stand taken by the Respondents (Legal Representatives of the deceased Defendant) is that in the suit pronote, the year 1987 has been corrected as 1989 and further, with the assumption of the suit pronote dated 17.12.1992 is a false one. 23. Drawing the attention of this Court to Ex.A1, Pronote, it is the contention of the Learned counsel for the Respondents that in the instrument letter No.7 has been corrected as No.9 and therefore, the suit pronote suffers from the plea and material alteration which necessarily finds the instrument and also varied the rights and liabilities of parties to which they have not originally created upon. It cannot be gainsaid that over the revenue stamp under Ex.A1, suit pronote, the Defendant (deceased) has signed and below the revenue stamp also he has affixed the signature in Tamil and below his signature two witnesses signatures viz., one Thangasamy and Narayanasamy are found. The witness Thangasamy is none other than P.W.2, who has been examined as witness before the trial Court. The suit pronote has been written by Narayanasamy, father of Sarojaammal viz., P.W.1. It is true that the said Narayanasamy, father of P.W.1, has not been examined as witness before the trial Court. Both the trial Court as well as the First Appellate Court have merely concentrated on the aspect that the year 1987 has been altered 1989 and further the trial Court has observed that letter No.7 has been altered into No.9 and it can be seen by a naked eye and has come to a conclusion that there is a material alteration in the suit pronote and has dismissed the suit. 24. But the First Appellate Court, viz., the Learned District Judge, Cuddalore while dealing with the First Appeal in A.S.No.218 of 1994 filed by the Plaintiff(deceased) as clearly held in its judgment in paragraph 9 that "A loop was subsequently found connected to the top of the letter "7" so as to make it appear as "9". Thus, the year 1987 was altered as 1989 etc. Thus, the year 1987 was altered as 1989 etc. viewed in that perspective, it has come to the consequent conclusion that the trial Court has rightly dismissed the suit and dismissed the Appeal with costs. 25. Coming to the aspect of plea of alteration projected strenuously by the Learned Counsel for the Respondents in Ex.A1, suit pronote, this Court points out that it is the specific case of the Defendant that he has not executed the suit pronote and has not received any amount from Sarojammal. Actually, during the year 1987 he has borrowed a sum of Rs.5,000/- from the plaintiff and executed a pronote for Rs.15,000/- together with interest at 36% per annum and further he has discharged the said suit pronote by paying the entire amount in few months. It is to be borne in mind that both the trial Court as well as the First Appellate Court have looked into Ex.A1, suit pronote through its naked eyes and have opined that letter No.7 has been altered as letter No.9 and also the First Appellate Court has by a loop so subsequently found connected to the top of the letter 7. Though as per Section 73 of the Indian Evidence Act, a Court of law is entitled to compare the disputed signature in a document with that of the admitted signature of a party, the said comparison is unsafe and hazardous for the simple reason that Court is not a expert as per Section 45 of the Indian Evidence Act. Of course, apart from the evidence and report of the Handwriting Expert, the Court can rely upon the rest of evidence available in a given case and come to an independent conclusion. Though a vehement plea has been taken on behalf of the Respondent that letter No.7 in the year of the suit pronote has been altered into No.9, this Court on this aspect is of the considered opinion that if really the pronote has been executed by the Defendant (deceased) during the year 1987, then, there is no necessity or need for P.W.2 witness to Ex.A1, pronote to affix his signature and to mention the date clearly as 28.12.1989. The very fact that P.W.2 (one of the witnesses to Ex.A1, pronote) and the scribe of the pronote Narayanasamy have affixed their signature in the suit pronote by mentioning the date as 28.12.1989, this Court comes to an irresistible conclusion that Ex.A1, suit pronote does not suffer from any material alteration and Ex.A1, suit pronote is a valid instrument, as opined by this Court. In short, Ex.A1, suit pronote, does not suffer from the viceof material alteration as per section 87 of the Negotiable Instruments Act. 26. As regards, the plea that the suit promissory note, Ex.A1 which has been assigned as per Ex.A2 made-over dated 17.12.1992 is a false one and the said made-over has been made only with a view to provide colour of reality, it is to be pointed out by this Court that even though P.W.1, Sarojammal in her evidence has stated tin cross examination that for Ex.A2, made-over no amount has been received by her, this Court clearly holds that the non-receipt of money or otherwise is a matter only between the concerned two persons, an internal matter or inter se matter as per Section 59 of the Negotiable Instruments Act, 1881. Ex.A2 is not vitiated. Even as per Section 9 of the Negotiable Instruments Act, the Ex.A2 made-over of Ex.A1 pronote is a valid one. 27. Lastly, in regard to the plea taken in the written statement that the suit is barred by limitation, it is to be pointed out that Ex.A2, made-over is dated 17.12.1992 and the suit has been filed originally on 04.01.1993 and since the suit is filed within a period of three years, the plea of limitation taken on the side of the Respondents is negatived and rejected by this Court. Thus, this Court holds that Ex.A1, Suit pronote does not suffer from any material alteration and Ex.A1, Suit pronote has been validly executed by the Defendant (deceased) on 28.12.1989 and that for the suit pronote, the Defendant (deceased) has not paid any amount towards principal and interest. Thus, this Court holds that Ex.A1, Suit pronote does not suffer from any material alteration and Ex.A1, Suit pronote has been validly executed by the Defendant (deceased) on 28.12.1989 and that for the suit pronote, the Defendant (deceased) has not paid any amount towards principal and interest. The presumption to be raised under Section 118 of the Negotiable Instruments Act has not been properly appreciated by the trial Court as well as the First Appellate Court and the rebuttable presumption in regard to the passing of consideration has not been in the instant case proved by the Defendant(deceased) or his heirs to the effect that Ex.A1, pronote has not been supported by any consideration and further the Defendant has also not discharged his burden of establishing the fact that he has discharged the suit pronote claim and further both the Courts have come to an incorrect finding as regards Ex.A1 material alteration. Accordingly, all the Substantial Questions of Law 1 to 3 are so answered. Consequently, the Second Appeal filed by the Appellant/plaintiff succeeds. 28. In the result, the Second Appeal is allowed, leaving the parties to bear their own costs. The Judgment and Decree of the First Appellate Court in A.S.No.218 of 1994 dated 20.01.1998 and the trial Court Decree in O.S.No.95 of 1993 dated 29.04.1994 are hereby set aside to prevent an aberration of justice. The respondents (as Legal Representatives of the deceased Defendant) herein are directed to pay the suit pronote amount, Ex.A1, of Rs.15,000/-, dated 28.12.199 together with interest at 12% per annum from the date of Ex.A1, pronote, till this date of decree being passed by this Court. Thereafter the Respondents (as Legal Representatives of the deceased Defendant) are directed to pay interest at 6% per annum till date of realisation together with proportionate costs. The Respondents (Legal Representatives of the Defendant) are granted three months time to pay the amount.