Subramanian vs K. Prakash

M. Karpagavinayagam, J.—The defendant is the appellant.

The respondent/plaintiff filed a suit for recovery of money on promissory notes. The Trial Court dismissed the suit. Aggrieved by that, the

respondent/plaintiff filed an appeal before the lower Appellate Court, which, in turn, set aside the judgment and decree passed by the Trial Court

and allowed the appeal. Hence, the present Second Appeal by the defendant.

The case of the plaintiff/respondent is as follows :

The defendant received a sum of Rs. 8,000/- on 13.3.1989 and executed Ex. A-l promissory note. Again on 10.4.1989, he received a further

sum of Rs. 2,000/- and separately executed another promissory note (Ex. A2). Despite the repeated demands, the promissory note amounts were

not paid. Hence, the suit was filed.

The case of the defendant is this :

There is a running transaction between the plaintiff and the defendant. Earlier, the defendant received a loan of Rs. 17,000/- and repaid the same

along with interest. While received the loan the plaintiff obtained signatures in the unfilled forms as security for the interest amount and the said form

were filed up later and a false claim has been made by filing the suit. Furthermore, there is a material alteration in Ex. A-2 promissory note

executed for Rs. 2,000/-. In the said promissory note, originally, the month was mentioned as ''March'', but the same was struck off and altered as

''April'' and, as such, there is material alteration.

The Trial Court dismissed the suit holding that the said promissory note cannot be said to be a genuine one, as there was a material alteration in

Ex. A-2. Having aggrieved by that, the plaintiff filed an appeal before the lower Appellate Court, which, in turn, accepted the case of the plaintiff

and decreed the suit in his favour. Hence, this Second Appeal by the defendant.

Mr. Raghavachari, the learned Counsel appearing for the appellant, would mainly attack the judgment of the lower Appellate Court by making

the following submissions :

Ex. A-2 had been materially altered. When there is a material alteration, the said document is void ab inilio, as per Section 87 of the Negotiable

Instruments Act. This Court in Verco Private Ltd., Padi and Others Vs. Newandram Naraindas and Another, : would hold that when words

relating to ''rate of interest'' and ''per month'' were inserted after the execution of the promissory note, it was held that the said promissory note is

void and inoperative by virtue of Section 87 of the Negotiable Instruments Act. The lower Appellate Court did not consider the said point and

merely relied upon the decision in Kandasami Mudaliar Vs. Muthukrishna Moorthy and Another, concluded in favour of the plaintiff, even though

the facts of that case would not apply to the facts of the present case.

Mr. K. Kannan, the learned Counsel appearing for the respondent, in jurisdiction of the judgment and decree of the lower Appellate Court,

would contend that there is no material alteration, since the alteration of the month from ''March'' to ''April'' would not affect the rights, liabilities or

legal position of the panics or the legal effect of the said promissory note, as in this case, no prejudice could be pleaded.

8.1 have carefully considered the submissions made by the Counsel for both parties and perused the records.

In the case on hand, two promissory notes were marked. Ex. A-1 is dated 13.3.1989 and Ex. A-2 is dated 10.4.1989. Though it is contended

by the defendant that the unfilled forms signed by the defendant had been misused by the plaintiff seeking the false claim, no argument has been

advanced before this Court in respect of the same, as the main attack would be only in relation to the alleged material alteration as found in Ex. A-

2.

In regard to Ex. A-l, the lower Appellate Court has correctly concluded that the defence projected by the defendant cannot be true, in view of

the fact that the evidence adduced by the plaintiff by examining two witnesses is reliable, in the light of the failure on the part of the defendant to

send a reply to the notice issued by the plaintiff to the defendant demanding the amount of the promissory note before filing the suit.

In regard to Ex. A-2, it is vehemently contended that when there is an alteration in the month from ''March'' to ''April'', the said document

became void, as per Section 87 of the Negotiable Instruments Act, in the light of the decision rendered by the Court reported in Verco Private

Ltd., Padi and Others Vs. Newandram Naraindas and Another, .

The said decision would not apply to the facts of the present case, as in that case, the alteration was in the rate of interest without the consentof

the defendant. But, in this case there is alteration in the month and the same had been initialled by the defendant.

But, even assuming that there is alteration without consent, whether such an alteration could be considered to be a material alteration is the

question to be decided in this case.

As held by the Supreme Court in Seth Loonkaran Sethiya and Others Vs. Mr. Ivan E. John and Others, : the material alteration is one which

varies the rights, liabilities or legal position of the parties, as ascertained by the deed in its original state, or otherwise varies the legal effect of the

instrument as originally expressed, or reduces to certainly some provision which was originally unascertained and as such void, or which may

otherwise prejudice the party bond by the deed as originally executed.

This observation would make it clear that it cannot be said that every alteration in month is always material, irrespective of its effect upon the

rights, liabilities or legal position of the parties.

In this case, the suit had been filed on 10.3.1992. Therefore, even assuming that the month ''March'' has been altered as ''April'', it cannot be

stated that it is a material alteration, since the suit had been filed within three yeas from the month of ''March'', which was the month originally

mentioned in Ex. A-2 promissory note.

Under those circumstances, I do not find any merit in this Second Appeal.

Therefore, the Second Appeal is dismissed with costs, confirming the judgment and decree of the lower Appellate Court.