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2014 DIGILAW 3906 (MAD)

S. Russalayyan v. V. Chellaswamy

2014-10-17

P.DEVADASS

body2014
Judgment The defendant in O.S.Nos.172 of 2002 and 73 of 2004 on the file of the Sub Court, Padmanabhapuram, as against whom money decrees have been passed, which have been subsequently upheld by the First Appellate Court/District Judge, Kanyakumari at Nagercoil, in A.S.Nos.62 of 2005 and 73 of 2005 is the appellant. 2. These two Second Appeals have been directed as against the said common judgment. 3. The appellant/defendant and the plaintiff are known persons. Admittedly, as between both, there were some loan transactions. The plaintiff instituted the suit in O.S. No. 73 of 2004 for the recovery of Rs.75,000/- with interest based on Ex.A.7 endorsement dated 22.01.2001. The very same plaintiff instituted another suit in O.S.No.172 of 2002 against the very same defendant for the recovery of Rs.1 lakhs with reference to two dishonored cheques Ex.A1 and A2 issued by the defendant. 4. The defendant filed separate written statements in each suit resisting the suit claim. Practically, his contention is common in both the suits. With reference to Exs.A1 and A2 he pleaded that he had received the money only in the year 1996 and that was also repaid subsequently. However, Exs.A1 and A2 cheques were given to the plaintiff in blank form. Subsequently, the plaintiff filled up and made them Ex.A.1 dated 15.04.2002 and Ex.A.2 14.06.2002. Thus, Exs.A1 and A2 suffers from material alteration. 5. Similarly with reference to Ex.A7 dated 22.01.2001 the defendant took the plea that the borrowal was in the year 1997 and that was also paid back. However, without returning it he had materially altered it by mentioning the date 22.01.2001 and laid up the suits. 6. The trial court disbelieved the plea of discharge made by the defendant for want of proper proof and also refused to accept the version of the defendant that Ex.A1, A2 and A7 were not executed on the dates mentioned therein and thus decreed the suits. When appealed by the defendant they were upheld by the learned District Judge, Kanyakumari at Nagercoil, on the very same reasoning. 7. The main plank of attack of the defendant is that on the basis of Exs.A1 and A2 as well as Ex.A.7 the suits cannot be laid up because there were material alterations and decreeing of the suits on the basis of those documents which are suffering out of material alteration is not sustainable in law. 8. 7. The main plank of attack of the defendant is that on the basis of Exs.A1 and A2 as well as Ex.A.7 the suits cannot be laid up because there were material alterations and decreeing of the suits on the basis of those documents which are suffering out of material alteration is not sustainable in law. 8. The learned counsel for the appellant submitted that even in Ex.A.7 at the top of page, the year 1997 mentioned advances the case of the appellant. The learned counsel for the appellant would also contend that only after issuance of notice from the defendant the plaintiff has hurriedly issued the suit notices and filed the suits. Further, the respondent has filed a police complaint as against the appellant. 9. On the other hand, the learned counsel for the plaintiff/respondent would submit that all the pleas made by the defendant are all in the air as they were not backed by required proof. The theory of execution of the document in the year 1996, 1997 is a concoction and there is no concrete evidence to support such a plea of the defendant. Further, if really his plea was true and there is nothing to show that he took the immediate action to get back his alleged discharged document. The plaintiff has established his case by adducing relevant documentary evidence, namely, Ex.A1, A2 and A7 and also issued suit notices which were not properly replied to by the appellant. In the circumstances, the learned counsel for the respondent would submit that both the courts below have rightly decreed the suits. 10. I have anxiously considered the rival submissions and perused the impugned common judgment and decrees of both the courts below and went through important piece of oral and documentary evidence pointed out by either side. 11. These are money suits of a different kind. The money suits are not on promisery notes but based on non-payment of the borrowal evidenced by Ex.A1 , A2 cheques and execution of certain 'regai' called endorsement Ex.A7. Legally speaking the suits are based on original cause of action. The suits were laid making a plea of borrowal, receipt of the money and non-payment of the same. 12. The money suits are not on promisery notes but based on non-payment of the borrowal evidenced by Ex.A1 , A2 cheques and execution of certain 'regai' called endorsement Ex.A7. Legally speaking the suits are based on original cause of action. The suits were laid making a plea of borrowal, receipt of the money and non-payment of the same. 12. The main focus of the appellant/defendant in the two second appeals is that Ex.A1 and A2 which are cheques and Ex.A7 stated to be an endorsement are caught by vice of material alteration. One distinct feature of these two suits are that the suits are not based on any promisery note or any regular known documents. They have to be rightly termed as suit on original cause of action. The reason being that the payment of the money has been evidenced by Ex.A.1 and A2 cheques and Ex.A7 endorsement. 13. The appellant/defendant in his written statement filed separately in each suit has admitted the borrowels. However, a different version has been pleaded as regards the period of borrowel and they were also discharged. The claim of the plaintiff/respondent is that as against Ex.A1 and A2 cheques were issued in 2002 for Rs.60,000/- and Rs.40,000/-. As regards Ex.A7 endorsement, a specific plea in the written statement is actually the loan of Rs.75,000/- has been obtained in 1997and that was also paid. 14. In as much as the defendant could not defend himself by producing relevant concrete evidence as regards the plea of discharge rightly he had abandoned the same. However, the plea as to material alteration has been pursued. 15. It is not that all the alterations will result in destroying the entire document itself. The alteration should be material in nature. The word 'material' in the legal parlance is that the alteration is such that it will have the effect either extending the liability or changing the complete nature of the document. That would be material alteration in the eye of law. 16. The consequence of a document materially altered is that it will be an invalid document. No suit shall lie on the basis of such a document on the principle of law that an illegality cannot be enforced in a court of law. But the question is that whether facts are ascertained/established for application of the said established principle. 17. 16. The consequence of a document materially altered is that it will be an invalid document. No suit shall lie on the basis of such a document on the principle of law that an illegality cannot be enforced in a court of law. But the question is that whether facts are ascertained/established for application of the said established principle. 17. As stated already, the borrowel is admitted but the period is denied. Plaintiff says that as regards Ex.A1 and A2 it was only in the year 2002 and as regards Ex.A7 it was only in the year 1997. 18. Section 114 of the Indian Evidence Act recognizes consideration of certain ordinary human course of contact. This is what application of Section 114 of Evidence Act. This is the attitude of a reasonable man. A reasonable man shall not be below average. In an ordinary circumstance, if a man naturally takes a particular course of conduct that would be the attitude of a reasonable man and under such circumstances, a rebuttable presumption was introduced. 'May' has been mentioned in Section 114 of Indian Evidence Act. 19. Now in this case, with regard to Ex.A1 and A2 cheques representing Rs.60,000/- and Rs.40,000/- the plea of the defendant/appellant is that he has paid the amount in 1996. As regards Ex.A7 endorsement the amount was paid in the year 1997. 20. Plaintiff took the steps to recover the money in the year 2002 by issuing notice. The defendant who pleads that he has discharged the loan amount in 1996 and 1997 respectively did not issue any notice to the plaintiff calling for the return of the discharged documents nor he made any police complaint as against the plaintiff to the effect that in spite of receiving the money he is keeping the documents. But in fact, the appellant has issued the notice which was just two months prior to the issuance of the suit notice. 21. The learned counsel for the appellant submitted that the appellant and the plaintiff are neighbors and known persons, once there was master and servant relationship between both, under such circumstances, the appellant believed his friend/plaintiff. 22. Friendship is different from money. Money makes even friends as foes. For the sake of money, friends will become enemies. Friendship is different. 21. The learned counsel for the appellant submitted that the appellant and the plaintiff are neighbors and known persons, once there was master and servant relationship between both, under such circumstances, the appellant believed his friend/plaintiff. 22. Friendship is different from money. Money makes even friends as foes. For the sake of money, friends will become enemies. Friendship is different. If really the amounts were discharged he has to get Ex.A1 and A2 which were stated to be in blank forms. In the circumstances, believe the stand of an ordinary and reasonable prudent man, one would reasonably expect a direct and speedy action by the appellant. However, he would say about the material alteration and discharge just prior to 2002 exactly few months before the issuance of suit notice by the defendant. 23. It has been contended by the learned counsel for the appellant that at the top of Ex.A7 there is mentioning of 1997, which would advance his case. Actually the amount under Ex.A.7 was given in 1997. As stated already Ex.A.7 is not an incredible endorsement. That apart, the suit is now termed as the suit on original cause of action. Any piece of paper showing passing consideration is significant. That would be the nature and effect of Ex.A7. Above all the defence already taken by the appellant in his written statement in the year 2002 appears to be a drowning man trying to catch a straw. 24. Considering all the above aspects, naturally we have to concur with the concurrent findings recorded by both the courts below. 25. In view of the foregoings, both the Second Appeals are dismissed. The decrees and judgments of courts below are confirmed. However, no order as to costs.