9911796707
TMI Blog2022 (6) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 9,38,000/-, Rs. 9,38,000/-, Rs. 9,43,108/- and Rs. 9,38,000/- on 31.08.2007, 31.08.2007, 01.11.2007 and 31.12.2007, respectively. At the time of extending hand loans, defendant executed four promissory notes, marked as Exs. A1 to A4, agreeing to repay the entire amount with interest @ 18% per annum. Alleging that in spite of repeated demands to repay the amounts borrowed from him, the defendant postponed repayment on one pretext or the other compelling the plaintiff to issue legal notice on 19.08.2010 demanding repayment and on failure to respond to the notice to repay the amounts borrowed from him, he instituted the instant suit. 3. In the written statement, defendant deposed that he borrowed small amounts from the plaintiff in the year 2001 by executing the Exs. A1 to A4, but subsequently amounts were repaid. He denied the allegation of borrowing huge amounts as mentioned in the plaint. According to the defendant, he and his wife took policies of Rs. 5,00,000/- each under compulsion and pressure exerted by the plaintiff, but due to paucity of funds, they could not pay subsequent instalments. It is alleged that plaintiff is a professional money lender doing business of money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel, there was no material alteration without consent of the defendant. 7. Learned counsel for the defendant submitted that trial Court has analyzed the evidence on record carefully and having found that there was material alteration in negotiable instruments in issue has rightly held that plaintiff is not entitled to succeed in the suit. There is no perversity in the decision of the trial Court. Once material alteration is proved, plaintiff cannot seek enforcement of promissory notes relied upon by him. 8. The issue for consideration is: 1) Whether the trial Court erred in holding that there was material alteration with reference to the year mentioned in Exs. A1 to A4, and therefore is not entitled to recover the amounts covered by Exs. A1 to A4? 9. The execution of Exs. A1 to A4 and borrowing the amount is not disputed by the defendant. His defence is two fold. Firstly, the amount mentioned in four promissory notes was not correct and that he borrowed small amount and said amount was also repaid and there was no liability on his part. Second limb of the defence is that Exs. A1 to A4-promissory notes were executed in the year 2001, but later plaintiff altered the year of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that as incorporated in Section 118(b) of the Act, there is always a presumption of validity of the date mentioned in the promissory note, if the promissory note bears a date. In the instant case, promissory notes bear dates of execution and it is presumed that they were drawn on such dates. The defendant having failed to rebut two essential legal presumptions cannot take the plea of alteration to frustrate valid claim. 13. There is no quarrel with the proposition on presumption of a valid instrument on satisfying twin requirements of Section 118 of the Act. But, the issue for consideration is not with reference to date on a negotiable instrument, but issue is on alteration of dates mentioned in the negotiable instruments. If there is an alteration in the negotiable instrument even with reference to date, Section 87 of the Act comes into operation. 14. Section 87 of the Act reads as under: "S. 87. Effect of material alteration.--Any material alteration of a negotiable instrument renders the same void as against anyone 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... execution, by or with the consent of any party thereto or person entitled thereunder, but without the consent of the party or parties liable thereunder, the deed is thereby made void. The avoidance, however, is not ab initio, or so as to nullify any conveyancing effect which the deed has already had; but only operates as from the time of such alteration, and so as to prevent the person, who has made or authorised the alteration, and those claiming under him, from putting the deed in suit to enforce against any party bound thereby, who did not consent to the alteration, any obligation, covenant or promise thereby undertaken or made." 5. The law is not otherwise in India. The abovesaid rule is quoted with approval in several Indian decisions. Section 87 of the Negotiable Instruments Act statutorily adopts the said rule, Section 87 in so far as it is relevant is in the following terms:-- "Any material alteration of a negotiable instrument renders the same void as against anyone 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;" 6. It must be remembered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is already written has been altered or erased, but also a new insertion, (see A. Subba Reddy v. Neelapa Reddi, AIR 1966 Andh Pra 267)." 19. The trial Court observed that nothing incriminating evidence was extracted from CW. 1 by the plaintiff to discredit her assertions on material alteration to year of execution of promissory notes marked as Exs. A1 to A4. Having regard to the evidence brought on record, the trial Court rightly observed that there is material alteration to the numerical '7' in the year mentioned in Exs. A1 to A4 showing the execution of promissory notes as if in the year 2007, whereas they were actually executed in the year 2001. 20. We have looked into the evidence on record. The evidence on record clearly points out alteration of numerical '1' as '7', changing the year of execution from 2001 to 2007. Once it is established that there is material alteration to the year in the negotiable instrument, which is crucial to seek enforcement of the liability, Section 87 comes into operation. Therefore, the plaintiff cannot seek enforcement of alleged liability from the defendant. 21. The Appeal is accordingly dismissed. Pending miscellaneous ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
