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TMI Blog2022 (6) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Appeal dismissed. - City Civil Court Appeal No. 10 of 2019 - - - Dated:- 10-6-2022 - HONOURABLE SRI JUSTICE P.NAVEEN RAO AND HONOURABLE DR. JUSTICE G.RADHA RANI For the Appellant : S. Malla Rao, Learned Counsel For the Respondents : Shyam S. Agrawal, Learned Counsel JUDGMENT ( Per Hon ble Sri. Justice P. Naveen Rao ) Heard Sri S. Malla Rao learned counsel for the appellant/plaintiff and Sri Shyam S. Agrawal learned counsel for the respondent/defendant. Plaintiff is in appeal against the judgment and decree dated 15th June, 2018 by the Court of II Additional Chief Judge, City Civil Court at Hyderabad, dismissing the suit. The parties are referred to as arrayed in O.S. No. 467 of 2010 on the file of II Additional Chief Judge, City Civil Court at Hyderabad. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en statement, the defendant has not denied execution of Exs. A1 to A4. The allegation of fabrication, forgery and manipulation is vaguely made. On a plea of forgery, there was no specific assertion in the written statement. By referring to Order VIII of Code of Civil Procedure, 1908, he would submit that it is the duty of the defendant to clearly answer the assertions made by the plaintiff, but could not give an evasive reply. Every allegation of fact, if not denied in clear and specific terms, amounts to deemed admission of fact alleged by the plaintiff. It is not the case of the defendant that Exs. A1 to A4 are forged. In fact, defendant admitted of borrowing money from the plaintiff and executing Exs. A1 to A4. Therefore, when there is no specific denial on the alleged execution of promissory notes and no specific allegation of forgery is made, the trial Court erred in referring Exs. A1 to A4 to Expert opinion. Further, once the defendant admits of borrowing money and execution of promissory notes, he accepts his liability and presumption is to correctness of the contents, dates and other particulars in Exs. A1 to A4. This aspect was not properly appreciated by the trial Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8; that added stroke would always be disproportionate to the original existing stroke with uneven ink spread; that when the stroke added to the existing stroke, there will be tremor of alterations; that there would be difference in pressure of existing stroke and in the added stroke and that pressure cannot be standard in ball point pen; she denied the suggestion that the direction of added stroke would change; she denied the suggestion that alterations and additions might only be decipherable under U.V. rays; she denied the suggestion that only way to pressure and demonstrate those observations regarding alterations and additions to the report was by photographing them. She had admitted that all the aspects stated in the cross-examination were not actually mentioned in the report. She has categorically stated that Forensic Science Laboratory is not submitting photographs, charts, graphs, sketches, diagrams etc., to the Court along with the opinion and they are being produced only if the Court directs them to produce. These assertions are not rebutted. 12. It was vehemently contended by the learned counsel for plaintiff that once twin conditions of Section 118 of the Negotiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instrument means, any change in written instrument which makes it to speak different legal language from that of the original, that includes altering the date of instrument. 17. Section 87 carves out two exceptions to apply the penal consequence on indorsee. Firstly, the material alteration must be with the consent of the other party and that it was made towards the furtherance of a common intention. Both these exceptions are not attracted to the case on hand. 18. This issue was considered by this Court in the following decisions: i) Akllampati Subba Reddy alias Subbarami Reddi Vs. Neelapareddi Ramana Reddy 1965 SCC Online AP 172 ii) Jayantilal Goal vs. Smt. Zubeda Khanum 1985 SCC Online AP 22 18.1. In Allampati Subba Reddy, this Court held as under: 4. The law on the point seems to me to be clear. The English rule that a material alteration of a date makes it altogether void is summarised thus in Halsbury's Laws of England, III Edition, Vol. 11, page 367, paragraphs 598 and 599:-- 598. A writing proposed to be executed as a deed may be altered by erasure or interlineation or in any other way before it is so executed; and any alteration so made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the performance of the contract and more often fixing the period of limitation within which the plaintiff will have to institute the suit on the foot of such promissory note. It is immaterial whether the alteration is made in the date or month or year. Any such alteration being material must necessarily result in the avoidance of the promissory note. Xxx 9. It is thus evident that where the instrument appears to be altered, it is incumbent upon the holder, that is, the plaintiff, to show that the alteration is not improperly made. It is now fairly settled that in case of negotiable instrument, the presumption is that the alteration was made subsequent to the issue of instrument What must follow is that when a promissory note appears to have been altered or there are marks of erasures on it, the party seeking to enforce the promissory note is bound to satisfy the Court that alteration does not avoid the promissory note by explaining how the alteration has been effected: If it falls under anyone of the exceptions mentioned above, it is obvious that such an alteration will not fall within the mischief of Section 87 of the Negotiable Instruments Act. 18.2. In Jayanti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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