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2022 DIGILAW 784 (MAD)

Herbert David v. A. Selvin

2022-04-01

R.VIJAYAKUMAR

body2022
JUDGMENT (Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the judgment and decree dated 11.10.2018 made in A.S.No.26 of 2017 on the file of the I Additional District Court, Tirunelveli confirming the judgment and decree in O.S.No.288 of 2011 dated 24.11.2016 on the file of the Additional Subordinate Court, Tirunelveli and allow this second appeal.) 1. The defendant is the appellant. 2. The plaintiff has filed O.S.No.288 of 2011 before the Additional Subordinate Court, Tirunelveli for recovery of money for a sum of Rs.4,00,000/- from the defendant based upon a pro-note dated 29.07.2010 said to have been executed by the defendant which is marked as Exhibit A1. The suit was decreed as prayed for by the plaintiff. As against the same, the defendant filed A.S.No.26 of 2017. The learned Additional District Judge, Tirunelveli was pleased to dismiss the appeal. As against the concurrent findings, the present second appeal has been filed by the defendant. 3. According to the plaintiff, the defendant had borrowed a sum of Rs.4,00,000/- on 29.07.2010 agreeing to repay the principal amount along with interest at the rate of 12% per annum on demand. The plaintiff has further contended that he issued a legal notice on 05.09.2011 under Exhibit A2 and the same was returned as refused on 12.09.2011 under Exhibit A3. Hence, the present suit for recovery of money. 4. The defendant has filed a written statement not only admitting the execution of pro-note, but also passing of consideration namely Rs.4,00,000/-. However, the defendant contended that on the same day, he has executed a registered sale deed in favour of the plaintiff under Exhibit B1 with regard to the principal as a security for the borrowal. According to the defendant, he did not receive any consideration for Exhibit B1 sale deed. The defendant has further contended that since a sale deed has been executed in favour of the plaintiff, the interest column in the suit pro-note was left blank at the time of execution. After completion of execution, the defendant requested the plaintiff to hand over a xerox copy of the pro-note. Conceding to the said request, the plaintiff has taken a xerox copy and handed over the same to the defendant. The said xerox copy of the suit pro-note is marked as Exhibit B2. After completion of execution, the defendant requested the plaintiff to hand over a xerox copy of the pro-note. Conceding to the said request, the plaintiff has taken a xerox copy and handed over the same to the defendant. The said xerox copy of the suit pro-note is marked as Exhibit B2. According to the defendant, the interest column has been left blank in the suit pronote at the time of execution and the same has been materially altered by the plaintiff by inserting 12% per annum. Hence the document suffered from material alteration and the defendant is entitled to avoid the said document. Therefore, he prayed for dismissal of the suit. 5. The trial Court after consideration of the oral and documentary evidence, arrived at a finding that the defendant has admitted the execution of the suit pro-note and passing of consideration to a tune of Rs.4,00,000/-. The only defence taken by the defendant is that at the time of execution of the suit pro-note, the interest portion in the printed form of the pro-note, a dash was marked indicating that the loan transaction will not carry any interest. The trial Court questioned the admissibility of Exhibit B2, xerox copy of the pro-note and rejected the contention of the defendant with regard to the material alteration. 6. The trial Court further found that if really the defendant has executed Exhibit B1 sale deed in favour of the plaintiff, he would have raised objection at an earlier point of time and the remedy of the defendant would be elsewhere and not in the present suit for recovery of money. Since the execution of the suit pro-note is admitted, the entire burden is upon the defendant to establish the fact of material alteration. Since the defendant has failed to prove the material alteration, the suit was decreed by the trial Court. 7. The First Appellate Court arrived at a finding that Exhibit B2 xerox copy is admissible in evidence, in view of the fact that the original has been produced on the side of the plaintiff as Exhibit A1. However, the First Appellate Court arrived at a finding that being a xerox copy, Exhibit B2 is more likely to be tampered with and hence, the same cannot be relied upon in order to prove the case of the defendant with regard to material alteration. However, the First Appellate Court arrived at a finding that being a xerox copy, Exhibit B2 is more likely to be tampered with and hence, the same cannot be relied upon in order to prove the case of the defendant with regard to material alteration. Based upon the said findings, the First Appellate Court dismissed the appeal. As against the concurrent findings, the present second appeal has been filed by the defendant. 8. The learned counsel for the appellant has contended that the defendant borrowed a sum of Rs.4,00,000/- from the plaintiff on 29.07.2010 and has executed Exhibit A1 suit pro-note. On the same day, the defendant has executed Exhibit B1 registered sale deed in favour of the plaintiff. According to the learned counsel for the appellant, it was agreed between the parties that as and when the loan amount under Exhibit A1 suit pro-note is repaid, the plaintiff would reconvey the property which was sold under Exhibit B1. Since a sale deed has been executed on the side of the defendant as security, both the parties had agreed that the loan transaction under Exhibit A1 will not carry any interest. 9. The learned counsel for the appellant has further contended that after execution of the suit pro-note, the defendant has requested the plaintiff to give him the xerox copy of the pro-note. Hence, the plaintiff has taken the xerox copy and handed over to the defendant which has been marked as Exhibit B2. According to the learned counsel for the appellant, the xerox copy of the suit pro-note which is marked as Exhibit B2 will indicate that in the interest portion, a dash has been drawn indicating that the transaction will not carry any interest. According to the learned counsel for the appellant, when the original suit pro-note was produced in the Court as Exhibit A1, he came to know that instead of dash in the interest column, 12% has been inserted in the pro-note. The said alteration made by the plaintiff after execution of the suit pro-note is a material alteration attracting Section 87 of the Negotiable Instruments Act, 1881. Hence, he contended that the defendant is discharged from liability in respect of consideration as found in the suit pro-note. 10. The said alteration made by the plaintiff after execution of the suit pro-note is a material alteration attracting Section 87 of the Negotiable Instruments Act, 1881. Hence, he contended that the defendant is discharged from liability in respect of consideration as found in the suit pro-note. 10. The learned counsel for the appellant further contended that the trial Court as well as the Appellate Court have not properly appreciated the contention of the defendant that the suit pro-note has been subjected to material alteration by the plaintiff without consent of the defendant and that too after completion of execution of Exhibit A1 pro-note. Hence, Exhibit A1 pro-note has been referred as a void document. He further contended that since the original pro-note has been marked as Exhibit A1 on the side of the plaintiff, he is entitled to mark a xerox copy as Exhibit B2, in view of the provision under Section 65(a) of Indian Evidence Act, 1872. Hence, he contended that in view of material alteration, Exhibit A1 suit pro-note is a void document and no right flows out of the said document and the suit is liable to be dismissed. 11. Per contra, the learned counsel for the respondent/plaintiff had contended that there is no material alteration at all in Exhibit A1 suit pro-note. The suit pro-note was originally prepared only by the defendant with the assistance of the Advocate at Tirunelveli and thereafter, it was handed over to the plaintiff. He further contended that it is not mentioned at what point of time, the xerox copy was taken. Whether the xerox copy has been taken prior to the completion of the execution or after completion of the execution is doubtful. Hence, Exhibit B2 xerox copy cannot be looked into to arrive at a finding that there is a material alteration on the side of the plaintiff. The defendant has admitted the execution of the suit pro-note and the passing of consideration under suit pro-note. Hence the entire burden is upon the defendant to establish the fact that Exhibit A1 suit pro-note has been subjected to material alteration by the plaintiff. Since the defendant has failed to establish the plea of material alteration, the Courts below were right in granting a decree in favour of the plaintiff. Hence, he prayed for dismissal of the second appeal. 12. I have considered the submissions made on either side. 13. Since the defendant has failed to establish the plea of material alteration, the Courts below were right in granting a decree in favour of the plaintiff. Hence, he prayed for dismissal of the second appeal. 12. I have considered the submissions made on either side. 13. The defendant has specifically admitted the execution of Exhibit A1 suit pro-note and passing of consideration on a sum of Rs.4,00,000/- in the written statement. In his cross examination, the defendant has also admitted that he has received a sum of Rs.4,00,000/- from the plaintiff and he has not repaid the same. Hence, the defendant has not disputed the execution of suit pro-note or the receipt of consideration or non payment of the amount due under Exhibit A1 suit pro-note. 14. The defendant has further contended that on 29.07.2010, he has executed a sale deed in favour of the plaintiff under Exhibit B1. The sale deed was executed without any consideration, but only as a security for the borrowal made by the defendant under Exhibit A1 suit pro-note. Hence, according to the learned counsel for the appellant, the parties have agreed that the defendant need not pay any interest for the suit pro-note, since he has already executed Exhibit B1 sale deed in favour of the plaintiff. The defendant has further contended that in view of the above said agreement between the parties, the interest column in the printed suit pro-note was filled up with a dash indicating that the suit transaction will not carry any interest. However, the plaintiff has chosen to fill it up as 12% p.a. This is nothing but material alteration made by the plaintiff in Exhibit A1 suit pro-note attracting the consequence of Section 87 of Negotiable Instrument Act, 1881. 15. Let as consider whether there is any connection at all between Exhibit A1 suit pro-note and Exhibit B1 sale deed said to have been executed by the defendant in favour of the plaintiff. No doubt, Exhibit A1 suit pro-note and Exhibit B1 sale deed have been executed on the same day namely 29.07.2010. There is no reference under Exhibit B1 sale deed and it has been executed as security for Exhibit A1 pro-note. In fact there is a reference under Exhibit B1 sale deed that a sum of Rs.56,285/- was paid as a sale consideration. There is no reference under Exhibit B1 sale deed and it has been executed as security for Exhibit A1 pro-note. In fact there is a reference under Exhibit B1 sale deed that a sum of Rs.56,285/- was paid as a sale consideration. DW2 has categorically admitted in his cross examination that he is not aware of the fact that the sale consideration for Exhibit B1 sale deed was paid by the plaintiff at Ukkarankottai. That apart, in view of Section 92 of Indian Evidence Act, the defendant will not be entitled to let in any evidence which is contrary to the terms of sale consideration found in Exhibit B1 sale deed. Hence, this Court can safely arrive at a conclusion that the defendant has not established the connection between Exhibit B1 sale deed and Exhibit A1 suit pro-note. 16. The further contention of the defendant is that in view of Exhibit B1 sale deed, the plaintiff has agreed not to charge interest from the defendant for Exhibit A1 suit pro-note. Though there is a pleading in the written statement to the effect that the plaintiff has agreed not to charge interest from the defendant, the defendant has not established the said fact through any oral or other documentary evidence. 17. The main contention of the defendant is that after completion of execution of Exhibit A1 pro-note, the defendant requested the plaintiff to hand over the xerox copy to him. Accordingly, the plaintiff has handed over the xerox copy of Exhibit A1 suit pro-note to the defendant. The said xerox copy has been marked as Exhibit B2 on the side of the defendant. According to the defendant, a comparison of Exhibit A1 suit pro-note and Exhibit B2 xerox copy clearly indicates that only a dash was drawn in the interest column of Exhibit A1 suit pro-note. Thereafter, the plaintiff has chosen to make alteration in the said pro-note by inserting 12% per annum in the interest column. Hence, according to the learned counsel for the appellant, Exhibit A1 suit pro-note suffers from material alteration and it is a void document. 18. As discussed earlier, the plaintiff has not established the connection between Exhibit A1 suit pro-note and Exhibit B1 sale deed. The defendant has also not established that he has not received any sale consideration as per Exhibit B1 sale deed. 18. As discussed earlier, the plaintiff has not established the connection between Exhibit A1 suit pro-note and Exhibit B1 sale deed. The defendant has also not established that he has not received any sale consideration as per Exhibit B1 sale deed. Only if these two aspects are proved by the plaintiff, the question of plaintiff agreeing not to charge interest for Exhibit A1 suit pro-note will arise. But, in the present case, when the defendant has failed to establish any one of the reasons pleaded by him, naturally the case of the defendant with regard to material alteration is not legally acceptable. 19. Exhibit B2 is said to be a xerox copy of Exhibit A1 suit pro-note. According to the plaintiff, the suit pro-note was filled up by the defendant with the assistance of the Advocate and it was handed over to the plaintiff. The defendant has contended that after completion of execution, he has taken the xerox copy. It is settled position of law that a xerox copy of a document can never be received in evidence. A party proposing to produce a secondary evidence has to file an application as contemplated under Section 65 of Indian Evidence Act. He has to satisfy the Court for non-production of the original. In the present case, according to the defendant, the original has already been produced by the plaintiff and hence, he is entitled to produce the xerox copy of the same. 20. It is very easy to tamper with or alter a document when a photo copy is being taken. Any insertion or concealment is possible in a photo copy. Hence, relying upon the photo copy of a document that too for arriving at a finding with regard to material alteration would be a dangerous proposition of law. When the defendant wants to avoid Exhibit A1 pro-note on the ground of material alteration, the entire burden is upon the defendant. Apart from Exhibit B2 xerox copy, no other oral or documentary evidence has been placed by the defendant on record to establish the plea of material alteration. When there is every possibility of tampering with the document when it is photo copied, the Courts below were right in rejecting Exhibit B2 xerox copy. Except Exhibit B2 document, there is no other document on the side of the defendant to establish the alleged material alteration of the suit pro-note. When there is every possibility of tampering with the document when it is photo copied, the Courts below were right in rejecting Exhibit B2 xerox copy. Except Exhibit B2 document, there is no other document on the side of the defendant to establish the alleged material alteration of the suit pro-note. The defendant has admitted the execution of suit pro-note, passing of consideration and non-payment of the same. 21. In view of the above said circumstances, I do not find any ground to interfere in the judgment and decree of the Courts below. There is no question of law much less a substantial question of law that arises for consideration as contemplated under Section 100 of Civil Procedure Code. The Second Appeal stands dismissed at the admission stage itself. No costs. Consequently, connected miscellaneous petition is closed.