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2012 DIGILAW 614 (MAD)

John Thangadurai v. Arul Azir

2012-02-06

P.DEVADASS

body2012
JUDGMENT ( 1. ) THE defendants have directed this second appeal as against the concurrent findings rendered by the trial Court as well as the first appellate Court with regard to Ex.A.1 promissory note. ( 2. ) THE respondent/plaintiff in O.S.No.78 of 2000, on the strength of Ex.A.1 promissory note dated 25.05.1997, sued the defendants, in the Sub-Court, Ambasamudram, since inspite of Ex.A.2 notice, either the principal or the interest has been paid. Before the trial Court, plaintiff let in primary evidence by examining himself as P.W.1 and the attestor as P.W.2. THE trial Court appreciating the oral and documentary evidence, on 03.10.2003, decreed the suit as prayed for. As against that the defendants have approached the first appellate Court/Principal District Court, Tirunelveli in A.S.No.125 of 2004 but met with a failure on 31.01.2005, thus, this second appeal. Mr.S.Kumar, learned counsel for the appellants argued at length questioning the geninuneous and want of proof of execution of Ex.A.1. When we look at the substantial question of law framed, such argument now will not arise, so we shall confine ourselves to the substantial question of law framed. ( 3. ) THE substantial question of law framed in the second appeal relates to non framing of an issue regarding plea of material alteration with reference to the suit promissory note. ( 4. ) THE learned counsel for the appellants referring to T.Kalavathy vs.Veera Exports, Senkuntapuram, Karur, (2001) M.L.J. (Crl.) 309 and Govindaraj and Co. and another vs. THE Nedungadi Bank Limited, calicut, [ (2003) 2 M.L.J. 196 ] submitted that when a negotiable instrument is materially altered, on the basis of it, a claim cannot be made in the Court. In this case, in Ex.A.1, the year 1996 has been altered as 1997, by this, plaintiff tried to escape from the bar of limitation, it is a material alteration, on the basis of such an instrument, a claim cannot be made. THE plea to that effect has been raised in the written statement. However, the trial Court as well as the first appellate Court have missed this vital point. On this aspect, they have not framed an issue, thus, they have not focused their attention on this aspect and that had occasioned the suit being decreed instead of being dismissed. THE plea to that effect has been raised in the written statement. However, the trial Court as well as the first appellate Court have missed this vital point. On this aspect, they have not framed an issue, thus, they have not focused their attention on this aspect and that had occasioned the suit being decreed instead of being dismissed. On the other hand Mr.J.Bharathan, read us para No.5 of the written statement and invited our attention to Order VIII Rule 3 to 5 C.P.C and would submit that a plea in the written statement must be specific, it must contain details and should not be evasive, bald and vague and such is what the nature of the plea in the written statement filed in this case. That apart, looking at Ex.A.1 even straining too much there is no semblance of any alteration. Further, the fact that the very appearance, the wordings and the manner of execution fortify that Ex.A.1 promissory note is not caught by the vice of any alteration much less material alteration. ( 5. ) NOW we shall proceed to answer the substantial question of law. ( 6. ) THERE are several modes by which liability on negotiable instruments get discharged. Chapter VII of Negotiable Instruments Act, 1881 specifically deals with that. One of them is "Material Alteration". It is being dealt with in Section 87 of the Act. ( 7. ) SECTION 87 of the Act runs as under: "Effect of material alteration:- Any material alteration of a 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, unless it was made in order to carry out the common intention of the original parties, Alteration by indorsee:- Any such alteration if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof." The provisions of this SECTION are subject to those of sections 20,49, 86 and 125. ( 8. ) THE phrase "Material Alteration" has not been defined in the Negotiable Instruments Act, 1881. But, it has been explained judicially. In Kaliana Gounder .vs. Palsu Gounder ( AIR 1970 SC 1942 ), it is held as under: "A material alteration is one which varies the rights, liabilities, legal position of the parties as ascertained by the deed in its original state". ( 9. But, it has been explained judicially. In Kaliana Gounder .vs. Palsu Gounder ( AIR 1970 SC 1942 ), it is held as under: "A material alteration is one which varies the rights, liabilities, legal position of the parties as ascertained by the deed in its original state". ( 9. ) IN NATHULAL .VS. GOMTI (AIR 1940 PC 160) it was held that the effect of making a material alteration without consent of the party bound is exactly the same as that of canceling the deed." ( 10. ) FROM the foregoings, it is clear that every alteration in an negotiable instrument will not be material alteration. Any alteration which will have the effect of extending or diminishing the liability thereof or extending its period of limitation or of the ilk will make it material alteration. Such instruments are void instruments. Based on such an instrument, a claim cannot be made, enforced in a Court of law. This is what the ratio of the two decisions cited by the learned counsel for the appellants. There cannot be quarrel over this known proposition of law. Now the question is whether Ex.A.1 promissory note is caught by the said vitiating element. When we look at Ex.A.1 promissory note, which has been written in vernacular language,as rightly pointed out by the learned counsel for the respondent the date of promissory note has been expressed in certain places. At its very beginning it commences with the date 25.05.1997 (in vernacular) and in subsequent places also the said date has been mentioned, precisely, on the revenue stamp. It is also stated that Ex.A.1 promissory note has been written by the defendants themselves. It is stated suya ligitham (in own handwriting). When specific suggestion on the aspect of material alteration as claimed by the defendants was posed to P.W.1 during his cross examination it was summarily dismissed by him as no meaning in it. Thus, in the light of the above, the two courts have concurrently recorded the finding as against the defendants, namely, Ex.A.1 does not contain any alteration much less a material alteration. ( 11. ) NOW we shall see the plea aspect. Pleadings generally consists of pleadings of the plaintiff and of the defendants. It may also include their replies and rejoinders. ( 11. ) NOW we shall see the plea aspect. Pleadings generally consists of pleadings of the plaintiff and of the defendants. It may also include their replies and rejoinders. Order VIII Rule 3 to 5 C.P.C. mandates the defendants to state their case in their written statement clearly, furnishing the required details thereof. There shall not be any evasive or vague plea. The idea being only upon furnishing clear and definite details the other party can properly respond, replicate either by further pleadings or let in proper evidence. Above all, only when the pleadings relating to material proposition of fact and law are clearly given with required details, the Court can raise issue otherwise not, otherwise no necessity or need arises. ( 12. ) NOW, in this case, in para No.5 of their written statement, there is only general denial that the suit is barred by limitation and the promissory note is subject to alteration. No details as to what is the nature of the alteration, whether it relates to date, amount or other vital aspects affecting the validity of the promissory note has been stated in the written statement. So that is also the reason for the trial Court in not framing an issue with regard to material alteration, so also the first appellate Court in not framing a point for determination with regard to the alleged material alteration in the suit promissory note. Although, no issue and no point for determination before the trial Court as well as the first appellate Court since in both the Courts arguments with regard to that point had been advanced during the trial, during the appeal proceedings, both the Courts gave clear cut finding that the suit promissory note is not affected by any material alteration. In the circumstances, the substantial question of law is answered as against the appellants. We find no occasion here to interfere with the concurrent findings of both the Courts. ( 13. ) IN the result, this second appeal fails and it is hereby dismissed. However, in the facts and circumstances, the parties shall bear their own costs in this appeal.