Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 4189 (MAD)

Ramachandran v. Sulaiman

2014-11-11

P.DEVADASS

body2014
Judgment : Disappointed plaintiff in view of the dismissal of the suit in O.S.No.520 of 2006 by the trial Court/1st Additional District Munsif, Tirunelveli and dismissal of first appeal in A.S.No.25 of 2010, by the Principal Sub Judge, Tirunelveli, directed this Second Appeal. 2. Plaintiff laid up the said suit for recovery of principal amount of Rs.50,000/- together with interest on the footing of Ex.A.1 Promissory Note dated 20.09.2003. He issued Ex.A.3, suit notice dated 17.08.2006, which was replied to by the defendants under Ex.A.5. It is further alleged that since no money was paid, the suit has been instituted. 3. The defendants resisted the suit raising several contentions. The principal among them are that the suit is barred by time, because of material alteration in Ex.A.1, it is invalid under Section 87 of the Negotiable Instruments Act, the very execution of Ex.A.1 has not been proved and the signatures in Ex.A.1 are not of defendants and on the alleged date of execution of Ex.A.1, the 1st defendant was elsewhere (alibi), namely, was working in Tamilnadu Civil Supplies Corporation Office in Theni. 4. The trial Court rejected the plea of bar of limitation and also the plea of material alteration, however, it concluded that the plaintiff had not proved the due execution of Ex.A.1 by examining independent witness and the plaintiff has not specifically pinpointed the actual scribe of Ex.A.1, whether it was 1st defendant or 2nd defendant and ultimately dismissed the suit. 5. The very same conclusion has been reached by the first appellate Court, resulting in dismissal of the first appeal. 6. Under these circumstances, the Second Appeal has been directed by the appellant. 7. According to the learned counsel for the appellant, Ex.A.1 is dated 20.09.2003. The suit has been filed on 20.09.2006. So, it is within time. Even taking the alteration in Ex.A.1 as such, it will not benefit the plaintiff and thus it is not a material alteration. 8. The learned counsel for the appellant would submit that both the Courts below have rightly rejected the plea of bar of limitation and also the plea of material alteration. 9. The learned counsel for the appellant would also submit that there is no law that a promissory note should be attested by a witness. In this case, admittedly, there is no attestor. 9. The learned counsel for the appellant would also submit that there is no law that a promissory note should be attested by a witness. In this case, admittedly, there is no attestor. In such circumstances, adding and padding and parading of witnesses to prove the fact-in-issue, namely, execution of Ex.A.1 is not necessary. The due execution has been duly proved through the testimony of P.W.1. 10. In the facts and circumstances of the case, the plea as to limitation being a vain attempt, the respondents /defendant did not pursue it here. However, they focussed their full attention on the plea of material alteration in Ex.A.1. 11. The learned counsel for the respondents would also add that the person who is in possession/holder of the instrument has to explain to the Court as to how the alterations are crept in in Ex.A.1, but the plaintiff did not do so. 12. The learned counsel also would submit that if a negotiable instrument shows material alteration, it would be another instrument than the instrument executed with the common intention of both the parties. 13. The learned counsel for the respondent would cite VYTHINATHAN VS. MURUGAYYA PADAYACHI AND ANOTHER (1985 TNLJ 265) and certain portions of commentary in V.R.Manohar & W.W. Chitaley's 'THE AIR MANUAL, CIVIL AND CRIMINAL 5TH EDITION' based on the decisions reported in AIR 1935 MAD 40 (40) and AIR 1940 PC 160 (163) and submitted that the fact that material alteration do not advance the interest of the holder of the instrument would not wash out the plea of material alteration. 14. Thus, the learned counsel for the respondents would submit that Ex.A.1 is invalid because of material alterations therein and such an instrument cannot be enforced in a Court of law. 15. Exs.X.1 and X.2 would show that on the date, namely, 20.09.2003, on which Ex.A.1 is alleged to have been executed, actually the 1st defendant was doing his job in Theni. 16. The learned counsel for the respondents further contended that the respondents are in affluent circumstances, they have no necessity to borrow money from the plaintiff, a die hard money lender. 17. I have anxiously considered the rival submissions, perused the evidence on record, the impugned judgments of the Courts below and also the decisions cited by the learned counsel for the respondents. 18. As per the plaint pleadings, Ex.A.1 is dated 20.09.2003. 17. I have anxiously considered the rival submissions, perused the evidence on record, the impugned judgments of the Courts below and also the decisions cited by the learned counsel for the respondents. 18. As per the plaint pleadings, Ex.A.1 is dated 20.09.2003. The suit was filed on 20.09.2006. Both the Courts below took the stand that the date of the instrument, namely, 20.09.2003 is to be excluded, then the suit is in time. In the circumstances, rightly the respondents have not perused the plea of bar of limitation here. 19. Ex.A.1 is stated to have been jointly executed by the spouses defendants 1 and 2. In Ex.A.1 no attesting witness has been named. It is nobody's case that it has been attested. There is no law that a promissory note is required to be attested. A promissory note like Ex.A.1 cannot be stated to be flawed for not being attested by a witness. 20. The 1st defendant is stated to be a man of much means, a rich man, so, he has no need to borrow money from anybody, much less, the plaintiff, a money lender. When persons started living beyond their means, whether rich or poor, they go for borrowing. We cannot subscribe to the view that rich man will never borrow nor have no need to borrow from others. 21. The defendants have denied their signatures in Ex.A.1. There being no attestors to Ex.A.1, P.W.1 alone has to depose. 22. A fact-in-issue need not be proved by the quantity of witnesses but qualitative. Even if a sole witness has deposed whose evidence is such that it can be preferred than the evidence of number of witnesses, who are liars, there is no wrong in relying the sole testimoney. Thus, proof of a fact is by way of qualitative evidence and not by head count of witnesses (See Section 134, Evidence Act, 1872). 23. The trial Court as well as the first appellate Court came to the conclusion that execution has not been proved because no independent witness has been examined. 24. In all cases, when a person came to Court to depose to support the case one way or other, he will be interested. Independent witness is expected to corroborate the evidence of a witness in material particulars. An independent witness is a witness, who has no interest in the subject matter. 24. In all cases, when a person came to Court to depose to support the case one way or other, he will be interested. Independent witness is expected to corroborate the evidence of a witness in material particulars. An independent witness is a witness, who has no interest in the subject matter. He is neither for the plaintiff nor for the defendant. He has come to the Court to assist the Court to unravel the truth. He is a guest of the Court. 25. The trial Court as well as the first appellate Court approached the matter like a criminal case. It is an admitted fact that there is no attestor to Ex.A.1. In such circumstances, expecting more witness will give scope for bringing liars and coached up witnesses to the Court. 26. Reading the evidence of P.W.1 shows that it is consistent and it contains material particulars as to the execution of Ex.A.1. No significant dent has been made in his cross-examination by the defendants. In such circumstances, we can act upon his sole testimony. Thus, execution of Ex.A.1 has been proved by the plaintiff. 27. The gravamen of the charge as against the plaintiff is that the date in Ex.A.1 has been materially altered. 28. As per the plaint pleadings and the evidence of the plaintiff, it was executed on 20.09.2003. Ex.A.1 is dated 20.09.2003. We have examined Ex.A.1. There is alteration in the date, namely, 21' appears to have been corrected as 20'. There is no corresponding Tamil year. The other corrections in Ex.A.1 is inconsequential in nature. 29. Section 87 of the Negotiable Instruments Act runs as under: "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; and any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration there of." 30. Generally, the word 'alteration' means change, a 'material alteration' is not mere change. The word 'material' denotes 'very important'. Generally, the word 'alteration' means change, a 'material alteration' is not mere change. The word 'material' denotes 'very important'. So far as Section 87 of the Negotiable Instruments Act is concerned, the material alteration is such that the alteration changes the legal character of the instrument, it involves the validity of the document, enforceability of the instrument. 31. In VYTHINATHAN VS. MURUGAYYA PADAYACHI AND ANOTHER (1985 TNLJ 265), when an instrument was stated to be affected by material alteration, it would mean that it is a different instrument than the one intended, executed by the borrower. 32. The language employed in Section 87 of the Negotiable Instruments Act shows that an alteration could be made with the consent of the opposite party. Any alteration with their common intention will not be material alteration. However, any alteration made to the vital part of the instrument, without such consent, is a material alteration. 33. The alteration complained of in Ex.A.1 is of two types. First one relates to alteration in the date. Second one is insertion of prefix to the name of the father of the plaintiff. The second is a mere, routine correction. It would not change the legal character of the instrument. It will not extend its period of enforceability. However, the first one is with reference to the date in Ex.A.1. It is a material aspect in Ex.A.1 because it is concerned with enforcing the liability under Ex.A.1. 34. In VYTHINATHAN (supra) it was observed as under: "Whether the change be prejudicial or beneficial to the maker does not in the least matter. So long as it is not the same instrument as the defendant executed and there has been an alteration which might well be considered material even though ultimately it may not have the consequence that was intended, it is open to the defendant to say that the instrument that he gave has ceased to be of any force by reason of the alteration." 35. Further, the digest of the cases collected and published in THE AIR MANUAL, CIVIL AND CRIMINAL 5TH EDITION with reference to Section 87 of the Negotiable Instruments Act is noteworthy. They runs as under: "1. Further, the digest of the cases collected and published in THE AIR MANUAL, CIVIL AND CRIMINAL 5TH EDITION with reference to Section 87 of the Negotiable Instruments Act is noteworthy. They runs as under: "1. The principle upon which suits based on instruments which are materially altered are dismissed is not the interest of the party who is found to have executed the document but the interest of justice in general and this principle is equally applicable in India. AIR 1953 Mad 40 (40). 2. The effect of making a material alteration without the consent of the party bound is exactly the same as that of cancelling the deed. The avoidance of the deed is not retrospective and does not revest or reconvey any estate or, interest in property which passed under it. And the deed may be put in evidence to prove that such estate or interest so passed or for any other purpose than to maintain an action to enforce some agreement therein contained. AIR 1940 PC 160 (163) " 36. Now looking at the first part of the alteration in Ex.A.1, namely, the date of instrument in the light of the legal position seen above, and when it was established that it was not done with the consent of the defendants, it would be a material alteration, which would fall under Section 87 of the Negotiable Instruments Act, which made the instrument void instrument. No one can enforce a void instrument in a Court of law. 37. Thus, both the Courts have not properly approached the plea of invalidity of Ex.A.1 as it being caught by the vice of material alteration on the anvil of Section 87 of the Negotiable Instruments Act and they have reached wrong conclusion. Thus, Ex.A.1 is invalid because of the material alteration therein. 38. In view of the foregoings, this Second Appeal fails and it is dismissed and the judgments and decrees of the Courts below are upheld on different reasonings. In the facts and circumstances, parties are directed to bear their respective costs in this Second Appeal.