Madras High Court
M.Selvaraj vs T.S.R.M.Subramaniya Iyer on 18 January, 2012
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :18.01.2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.924 of 1999 M.Selvaraj ... Appellant/Respondent/Defendant Vs. T.S.R.M.Subramaniya Iyer ... Respondent/Appellant/Plaintiff Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 26.10.1998 in A.S.No.87 of 1998 on the file of Principal Sub Court, Nagapattinam in reversing the Judgment and Decree dated 28.10.1997 in O.S.No.228 of 1996 on the file of the Learned District Munsif Court, Thiruthuraipoondi. For Appellant : Mr.K.Selvaraj For Respondent : Mr.Srinath Sridevan J U D G M E N T
The Appellant/Defendant has projected this instant Second Appeal as against the Judgment and Decree dated 26.10.1998 in A.S.No.87 of 1998 passed by the Learned Principal Sub Judge, Nagapattinam in reversing the Judgment and Decree dated 28.10.1997 in O.S.No.228 of 1996 passed by the Learned District Munsif, Thiruthuraipoondi.
2.The First Appellate Court viz., the Learned Principal Sub Judge, Nagapattinam, while allowing the Appeal A.S.No.87 of 1998 on 26.10.1998, in the Judgment, has, among other things, observed that 'on the basis of Ex.A.2 and Ex.A.4-Pronotes dated 30.06.1996, the made over has been done and also that the Respondent/Plaintiff has filed the pronotes at the time of filing of the suit and therefore, the Respondent/Plaintiff is a Holder in Due Course and the conclusion arrived at by the trial Court that the suit pronotes cannot be termed as Holder in Due Course are not correct one and resultantly, held that the Appellant/Defendant has not discharged the debt and allowed the Appeal by setting aside the Judgment and Decree of the trial Court in O.S.No.228 of 1996 dated 28.10.1997 and decreed the suit as prayed for by the Respondent/Plaintiff together with costs.
3.Earlier, before the trial Court, on behalf of the Respondent/ Plaintiff, in the main suit, witnesses P.W.1 and P.W.2 have been marked. On the side of the Appellant/Defendant, witnesses D.W.1 and D.W.2 have been examined and Ex.B.1 has been marked.
4.The trial Court, after analysing and appreciating the entire available oral and documentary evidence on record, has come to a definite conclusion that there are defects in Exs.A.1, A.2, A.3, A.4 and A.5 and also on the basis of the evidence of D.W.1 and further, on the basis of evidence of P.W.1 and P.W.2, the Respondent/Plaintiff is not entitled to claim the suit amount and resultantly, dismissed the suit with costs.
5.At the time of admission of the Second Appeal, this Court has framed the following Substantial Questions of Law for consideration:
"(a)Whether the respondent is Holder in Due Course according to the provisions of Section 9 of the Negotiable Instruments Act, 1881?
(b)Whether the Lower Appellate Court is right in holding that the material alterations made in the suit promissory notes by the respondent did not render the said void and did not discharge the Appellant?
(c)Whether the Lower Appellate Court is right in holding that the made over is valid?
(d)Whether the Lower Appellate Court is right in holding that Holder in Due Course need not give any prior notice before filing a suit on the Negotiable Instruments?"
The Contentions, Discussions and Findings on Substantial Questions of Law (a) to (d):
6.According to the Learned Counsel for the Appellant/Defendant that the First Appellate Court has committed an error in reversing the well considered Judgment and Decree of the trial Court in the main suit and also that P.W.2 has given false evidence before the trial Court and the First Appellate Court has failed to appreciate the said finding of the trial Court in this regard.
7.The Learned Counsel for the Appellant/Defendant urges before this Court that the First Appellate Court failed to see that the Appellant /Defendant repaid the amounts borrowed under the suit pronotes in the year 1994 itself through D.W.2.
8.It is the contention of the Learned Counsel for the Appellant/ Defendant that the First Appellate Court failed to consider the admission made by the Respondent/Plaintiff that only after legal notice dated 24.06.1996 issued by his father to the Appellant/Defendant, the suit pronotes have been made over to him by his father on 30.06.1996.
9.It is the categorical stand of the Appellant/Defendant that the Respondent/Plaintiff, in law, cannot become a Holder in Due Course of the suit pronotes inasmuch as it is admitted by him that only after demand notice sent by his father, he has been in possession of the suit pronotes.
10.The main contention projected by the Learned Counsel for the Appellant/Defendant is that the First Appellate Court has failed to consider the necessary ingredients of Section 9 of the Negotiable Instruments Act, 1881 which provides that 'Holder in Due Course' means any person who for consideration became the possessor of the promissory note before the amount mentioned in it became payable.
11.The Learned Counsel for the Appellant/Defendant projects a plea that even according to the Respondent/Plaintiff the money under the suit pronotes have become payable only on 24.06.1996 itself but the Respondent/Plaintiff has been the possessor of the suit promissory notes only on 30.06.1996 viz., after the money has become payable.
12.Yet another submission of the Learned Counsel for the Appellant/Defendant is that the purported made over dated 30.06.1996 is held to be invalid in the eye of law, since no consideration has passed between the father and son.
13.Apart from the above, the Learned Counsel for the Appellant/ Defendant vehemently contends that the material alterations have been made in the suit pronotes by the Respondent/Plaintiff without the consent of the Appellant and the same has also been admitted by the Respondent /Plaintiff in his evidence.
14.The Appellant/Defendant has also taken a stand before this Court that the suit is liable to be dismissed for non-joinder of necessary party viz., the father of the Respondent/Plaintiff.
15.Per contra, it is the submission of the Learned Counsel for the Respondent/Plaintiff that the First Appellate Court has taken into account the entire attendant facts and circumstances of the case, coupled with the oral and documentary evidence available on record and has come to a clear conclusion that the suit loans have not been discharged by the Appellant/Defendant. Further, it held that the father of the Respondent/Plaintiff is not a necessary party to the suit and also opined that the suit pronotes have been executed by the Appellant/Defendant and it has been rightly made over. Consequently, it allowed the Appeal, by setting aside the Judgment and Decree of the trial Court in the main suit and accordingly, passed a Decree as prayed for by the Respondent /Plaintiff together with costs, which need not be interfered with by this Court at this distance point of time.
16.For better appreciation of the merits of the matter, this Court is of the considered view that the oral and documentary evidence adduced by the witnesses viz., P.W.1, P.W.2, D.W.1 and D.W.2 play a vital role and therefore, this Court has perforced to refer to them in right earnest.
17.It is the evidence of P.W.1 (Respondent/Plaintiff) that the Appellant/Defendant has executed two pronotes, the first pronote dated 07.07.1993 for Rs.7,000/- and the second pronote dated 14.10.1995 for Rs.3,000/- and for adequate consideration, he has got made over of the aforesaid two pronotes on 30.06.1996 and Ex.A.1 is the pronote dated 07.07.1993 and on 30.06.1996, he has paid the amount mentioned in the pronote and also the interest and has got the made over in his favour and his father has signed and also that he has paid all the amounts as per made over to his father and the made over is Ex.A.2.
18.The evidence of P.W.1 proceeds to the effect that on 30.06.1996 for the second pronote he has paid the principal and the interest amount to his father and obtained the made over and the said pronote is Ex.A.3 and Ex.A.4 is the made over and prior to the made over being made, his father has issued Ex.A.5-Notice dated 24.06.1996 to the Appellant/Defendant and it is not correct to state that for the made over received by him, no amount has been paid and as such, the said made overs are invalid one.
19.P.W.1 (in his cross examination) has categorically deposed that the made over has taken place after the issuance of Lawyer's Notice and he has also denied that his father after demanding the amount through notice has made the made overs which are invalid and moreover, after obtaining the made over of the pronotes in his favour, he has not issued any notice to the Appellant/Defendant and Ex.A.5-Notice has been given by his father.
20.Continuing further, it is the evidence of P.W.1 that it is not correct to state that in Ex.A.3-Pronote dated 14.10.1995, there has been an insertion in the letter '2-k;' and further he has deposed that it is not correct to state that the insertion has been made in Ex.A.3-Pronote fraudulently.
21.Furthermore, P.W.1 also deposed that in Ex.A.1-Pronote dated 07.07.1993 the said date is a true one and only the date mentioned in the notice is a wrong one.
22.P.W.2 (made over witness), in his evidence, has deposed that he has written the made over and the recitals in Ex.A.2-Made over belongs to him and the Respondent/Plaintiff's father has affixed his signature on 30.06.1996 in his presence and the correction in the made over has been done by him and the said correction has been made only on the consent of the Respondent/Plaintiff and that the Respondent/Plaintiff's father after reading the pronote has informed him that the date has been wrongly mentioned and as such, he has received a pen from him and corrected the date and Ex.A.4-Made over has also been written by him, in his own handwriting and even in the said pronote, he has corrected the same based on the consent of the Respondent/Plaintiff's father and on 30.06.1996 the made over has been written, on which date the Respondent/Plaintiff has received the money as informed by the Respondent/Plaintiff's father.
23.P.W.2, in his cross examination, has mentioned that he has not separately mentioned about the correction made in the made over and at the time of made over of the pronotes, the Appellant/Defendant has not been present and that the date 06.06.1996 has been written by him after looking into the made over.
24.D.W.1 (Appellant/Defendant), in his evidence, has deposed that in the Laywer's Notice, there is no mention about the making over of the pronotes and only after the notice being issued he has come to know about the made over and in Ex.A.1-Made over, he does not know about the date being corrected and since there is a correction in the made over, the said document cannot be considered as a valid document in law and in Ex.A.3-Pronote dated 14.10.1995 the letter '2-k;' has not been written by him in an inverted fashion and in Ex.A.4-Made over the date has been corrected.
25.D.W.1 (in his cross examination) has deposed that he has not taken steps to ascertain that Bazeer Ahmed is the agent of the Respondent/Plaintiff's father. On 14.05.1994 he has paid the money to Bazeer Ahmed in Court and that Ex.A.3 has been written by him in his own handwriting and the details of Ex.A.3-Pronote are written by him and further it is not correct to state that he has to pay the said amount based on two pronotes.
26.D.W.1 has also added in his evidence that he used to pay money through D.W.2-Bazeer Ahmed and Bazeer Ahmed used to give receipt after receiving the money and he has paid all the amount due under the said pronotes and that he is filing the receipt written by D.W.2-Bazeer Ahmed in his own handwriting.
27.D.W.2, in his evidence, has deposed that for the amount mentioned in Ex.A.1-Pronote dated 07.07.1993 the Appellant/ Defendant has paid money and for making the said payment to Ramamurthy Iyer, he has written Ex.B.1-Receipt dated 14.05.1994 and that the Respondent/Plaintiff's father Ramamurthy Iyer is known to him and he has helped the Respondent/Plaintiff's father in regard to the borrowal transactions.
28.D.W.2 (in his cross examination) has specifically deposed that in Ex.B.1-Receipt there is no mention that it has been paid to the Appellant/Defendant and that he is serving in the Accounts Section of the Court.
29.Ex.A.5 is the Carbon copy of Respondent/Plaintiff's Lawyer's Notice dated 24.06.1996 addressed to the Appellant/Defendant. In the said notice, it is mentioned that the Appellant/Defendant has received a sum of Rs.7,000/- on 07.07.1993 and Rs.3,000/- on 14.10.1995 and for the sum of Rs.10,000/- the principal and interest amount are due and the said amount will have to be paid within three days from the date of receipt of notice, failing which, the suit will be filed seeking appropriate relief.
30.Ex.A.1 is the Pronote dated 07.07.1993 executed by the Appellant/Defendant to and in favour of the Respondent/Plaintiff's father for Rs.7,000/-. A perusal of the recitals of Ex.A.1-Pronote dated 07.07.1993 indicates that the Appellant/Defendant on different dates, for his family expenses, has received a sum of Rs.3,950/- and apart from this sum, for the school admission expense of his daughter, he has received a sum of Rs.3,050 and aggregating in all, he has received a sum of Rs.7,000/-, for which he has to pay interest of Rs.1/- per month for Rs.100/-. Ex.A.2 is the purported made over dated 30.06.1996 made by the Respondent/Plaintiff's father Ramamurthy Iyer to and in favour of his son viz., the Respondent/Plaintiff.
31.A cursory reading of the recitals in Tamil in Ex.A.2-Made over unerringly points out that the interest and principal amount under Ex.A.1-Pronote has been paid by means of cash and Ex.A.1-Pronote has been made over by the Respondent/Plaintiff's father to and in favour of his son viz., the Respondent/Plaintiff. Ex.A.3 is the another pronote dated 14.10.1995 executed by the Appellant/Defendant to and in favour of the Respondent/Plaintiff's father, for Rs.3,000/-. Here also, the Appellant/Defendant has mentioned the reason for his family expense, he has received a sum of Rs.3,000/- and also in the pronote in different ink letter '2-k;' are seen. For this pronote also, the interest to be paid by the Appellant/Defendant is 12% per annum.
32.Ex.A.4 is the Made over Endorsement dated 30.06.1996 made by the Respondent/Plaintiff's father to and in favour of the Respondent/Plaintiff (his son). The recitals of Ex.A.4-Made over dated 30.06.1996 also speaks of the interest and principal amount being paid due under the pronote and the same have been received in cash by the Respondent/Plaintiff's father. Only after receiving the interest amount mentioned in Ex.A.3-Pronote dated 14.10.1995, the Respondent/Plaintiff's father has made over the Ex.A.3-Pronote by means of Ex.A.4-Endorsement dated 30.06.1996 to and in favour of his son viz., the Respondent/Plaintiff.
33.The pith and substance of the contention advanced by the Learned Counsel for the Appellant/Defendant is that Ex.A.5-Legal Notice dated 24.06.1996 has been issued by the Respondent/Plaintiff's father's lawyer addressed to the Appellant/Defendant and the made over of Ex.A.1-Pronote dated 07.07.1993 is 30.06.1996 and since the Respondent/Plaintiff's father has demanded the suit amount as per Ex.A.5-Notice and because of the fact that the Made over-Ex.A.2 is dated 30.06.1996, the Respondent/Plaintiff is not a Holder in Due Course and in the instant case on hand, before the amount mentioned in the pronote has been demanded earlier as per Ex.A.5 and thereafter only the Ex.A.2-Made over dated 30.06.1996 has taken place and as such, the ingredients of Section 9 of the Negotiable Instruments Act, 1881 have not been complied with and also that the Respondent/ Plaintiff cannot be construed to be the Holder in Due Course in law.
34.To lend support to the contention that the Respondent/ Plaintiff is not a Holder in Due Course as per Section 9 of the Negotiable Instruments Act, 1881, the Learned Counsel for the Appellant/Defendant cites the decision in Braja Kishore Dikshit V. Purna Chandra Panda, AIR 1957 Orissa 153 at page 154, whereby and whereunder, it is held as follows:
"Under S.9, in order to be a holder in due course three conditions are necessary, viz.-
(1)that the endorsee becomes the holder in due course when it is for consideration.
(2)he can be an indorsee before the amount mentioned in the promissory note became payable; and (3)without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.
As regards the second condition, that the indorsee can only be a holder in due course when it is endorsed before the amount became payable it can be said that the amount under a promissory note becomes payable either on demand or at maturity."
35.However, the Learned Counsel for the Respondent/Plaintiff submits that as per Section 118 of the Negotiable Instruments Act a Court of Law has to presume that the pronote/made over has been for a consideration and in this regard, he relies on the decision of this Court in N.Abdul Azeez V. S.Mohamed Hanifa and others, AIR 1997 Madras 1 wherein it is held hereunder:
"118.Presumption as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made:--
Of consideration:-- (a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred, for consideration:--
as to date:-- (b) that every negotiable instrument bearing a date was made or drawn on such date;
as to acceptance:-- (c) that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
as to time of transfer:-- (d) that every transfer of a negotiable instrument was made before its maturity;
as to order of indorsement:-- (e) that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
as to stamp:-- (f) that a promissory note, bill of exchange or cheque was duly stamped;
that holder is a holder in due course:-- (g) that the holder of a negotiable instrument is holder in due course; provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or accepter thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
36.Also, the Learned Counsel for the Respondent/Plaintiff in the aforesaid Judgment, has relied on paragraph 10 wherein it is mentioned as follows:
"10.It is also contended by the teamed counsel for the respondent that the Plaintiff is not a holder in due course, because Ex.A-1 itself is not supported by consideration and the assignment Is a false one. I am unable to agree with this contention. In support of the plaintiff's case, apart from the evidence of writer of the pronote, one of the attestors of Ex.A-1 has been examined to speak that the assignment was made after passing proper consideration for the promissory note. Even if the promissory note is discharged prior to the assignment and it was not brought to the knowledge of the endorse has presumed that he has such knowledge. If it is brought to the knowledge that the promissory note was discharged prior to his knowledge, the assignee must be deemed to be a holder in due course. There is no acceptable evidence on the side of the defendants to show that the promissory note was not executed by defendants 1 and 2. Hence, I accept that the plaintiff is a holder in due course. Inasmuch as the plaintiff has discharged his burden and proved his case, the principle enunicated by the Full Bench of Andhra Pradesh High Court in the judgment reported in MANU/AP/0217 /1987 : AIR 1987 Ap 139 cannot be useful to the respondents' contentions. Inasmuch as the finding of the lower appellate Court is perverse and not based on evidence, the decision, namely AIR 1979 Gau 46 cited by the learned counsel for the respondents is also not applicable to this case."
37.The Learned Counsel for the Respondent/Plaintiff seeks in aid of the Division Bench Judgment of this Court in S.D.Asirvatham and another V. G.Palniraju Mudaliar, AIR 1973 Madras 439 at page 440 wherein it is held as follows:
"A promissory note may be payable either on demand or at a fixed or determinable future time. In the present case, it is payable on demand. In the case of promissory note which is payable until demand is made and on the demand being made, it falls due immediately. Section 59 applies only to a holder and does not apply to a holder in due course. Section 118 of the Act deals with certain presumptions and one such presumption is that a holder of a negotiable instrument is a holder in due course. According to Section 9 of Act, holder in due course means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque, if payable to bearer, or the payee or endorse thereof, if payable to order, before the amount mentioned in it became payable, and without having sufficient cause to believe that any defects existed in the title of the person from whom he derived his title. Admittedly in this case at the time when the respondent herein became an endorsee of the promissory note in question on paying the full amount due thereunder, he had no knowledge of either the notice, or the payment.
With reference to a promissory note payable on demand whether a demand for the payment of the same has been actually made or not, will not be apparent on the fact of the document and consequently the promissory note cannot be said to be overdue under Section 59 of the Act so as to effect the endorsee. Further, the transferee would also have benefit of the presumption raised in Section 118(d) that every transfer of a negotiable instrument was made before its maturity.
Where an endorsee of a promissory note payable on demand is not aware that the promissory note has been discharged or that any demand was made he must be deemed to be a holder in due course even if as a matter of fact the endorsement in his favour was made after the discharge.
Where the promissory note has not endorsement of any payment and there is nothing to show that the endorsee was aware of any payments to the endorser and he is a holder in due course, he is entitled to recover according to the apparent tenor of the instrument. If the instrument has been discharged, the remedy of the person paying is to sue the original payee to refund the amount which he had to pay over again. Even when Section 59 of the Act applies to a particular case, it merely provides for the rights of an endorse being subject to all equities."
38.It is to be pointed out that a Holder in Due Course of a Negotiable Instruments Act in law acquires a right to recover the amount covered under it from the holder of the negotiable instrument, and the indorsement can take place without the presence or participation of the maker. What is the Holder in Due Course in law acquires is the some right, which the holder of the instrument possessed and therefore, he can neither improve upon it, nor modify the liability thereunder. As seen from the ingredients of Section 9 of the Negotiable Instruments Act, an individual, to be a Holder in Due Course must come into a possession of the instrument for consideration. Undoubtedly, there is a presumption under Section 118 of the Negotiable Instruments Act that every such instrument has been made or drawn for consideration and that a holder of a negotiable instrument is a Holder in Due Course, of course subject to proviso mentioned in clause (g) to Section 118.
39.At this stage, this Court worth recalls the decision in Devassia Joseph V. Joseph Geroge, 1997 Crl.L.J. 3410 (Kerala), wherein it is held that 'where the execution of pronote was done in favour of grandfather of the Plaintiff, subsequent indorsement thereon in favour of the Plaintiff was supported by consideration, the Plaintiff would be Holder in Due Course of the pronote.' To put it precisely, to be a 'Holder in Due Course' the holder must prove that there has been a valid consideration over the assignment being made in his favour. Even assuming that the consideration has taken place at a later point of time or no consideration has taken place, this Court is of the considered view that it is purely an inter se matter between the Holder in Due Course and the person who makes over the pronote in question. As a matter of fact, if the pronote payable on demand has been endorsed long after its execution, this by itself is not sufficient to hold that the indorsee is not a Holder in Due Course, in the considered opinion of this Court.
40.As far as the present case is concerned, though the Appellant /Defendant has placed reliance on Ex.B.1-Receipt, but it is admitted by D.W.2, in his evidence (in cross examination) that in Ex.B.1-Receipt, there are no recitals that the amount has been paid to Selvaraj viz., the Appellant/Defendant. Though the Appellant/Defendant has taken a plea that pronote amount has been discharged and D.W.2, in his evidence, (although in chief examination) has deposed that the Appellant/Defendant has paid the amount for the amount mentioned in Ex.A.1 and only that amount he has paid to the Respondent/Plaintiff's father and he has executed Ex.B.1-Receipt, in view of the fact that he has deposed in his cross examination that in Ex.B.1-Receipt there are no recitals to show that the said amount has been paid for and on behalf of the Appellant/Defendant, this Court comes to irresistible conclusion that the Appellant/Defendant has miserably failed in his endeavour to establish that he has discharged the suit pronote.
41.It cannot be gainsaid that as per Section 59 of the Negotiable Instruments Act, 1881, the holder of a negotiable instrument, who has acquired it after dishonour, whether by non-acceptance or non- payment, with notice thereof, or after maturity, has only, as against the other parties, the rights thereon of his transferor etc.
42.Indeed, Section 43 of the Negotiable Instruments Act has to be read subject to Section 59 of the Negotiable Instruments Act in all cases in which Section 59 squarely applies. In Kizhedath Pappi Amma V. Rama Iyer, AIR 1937 Mad 438: 173 IC 147, it is held that 'Where an indorsee of a pronote is not proved to be a holder in due course, he is entitled only to such rights as the indorser of the note had.'
43.In the instant case on hand, it cannot be said that the Respondent/Plaintiff is not the Holder in Due Course. Though on the side of the Appellant/Defendant an attempt has been made to show that in Ex.A.3-Pronote for Rs.3,000/- the letter '2-k;' (obviously referring to the second pronote) is a material alteration, it is to be pointed out that the said letter '2-k;' indicating the second pronote is not a material alteration avoiding the instrument.
44.A closer scrutiny of Ex.A.3-Pronote dated 14.10.1995bclearly points out that there is no material alteration in the said instrument even otherwise writing the letter '2-k;' before the words promissory note in Tamil can, by any stretch, be construed to be a case of one of material alteration affecting the said instrument or avoiding the instrument, as the case may be, as per Section 87 of the Negotiable Instruments Act. In fact, P.W.2, in his evidence, has clearly made mention of that in the made over pronote dated 30.06.1996 viz., Ex.A.4 he has corrected the date since he has written the date wrongly because the said document has been written only after seeing the earlier pronote and therefore, he has committed the said mistake.
45.Even the non mention of about the correction made in Ex.A.4 by the P.W.2 will not affect the case of the Respondent/Plaintiff, in the considered opinion of this Court. Notwithstanding the fact that P.W.2, in his evidence, has deposed that at the time of made over, the Appellant/Defendant has not been present, yet, without the participation of the Appellant/Defendant, the made over can be made in law and to take a contra plea that the made over has been made in the instant case in the absence of Appellant/Defendant will not in any way heighten or improve the case of the Appellant/Defendant, in the considered opinion of this Court.
46.As regards the plea in Ex.A.2-Made over of Ex.A.1 after the words 'June Month' (in Tamil) originally the letter '6' in different ink has been overwritten or smudged as '30' and in the bottom of Ex.A.2-Made over, there is a date 30.06.1996 and the letter overwritten as '30' (in original place of letter No.6) is a clear material alteration, affecting or avoiding the instrument because of material alteration as per Section 87 of the Negotiable Instruments Act. Here again, this Court points out that P.W.2, in his evidence, has clearly stated that the date in Ex.A.2 has been originally written by him wrongly since he was asked to write the document after looking into the old pronote and it has been corrected by him at a later point of time. As already held by this Court, there is no material alteration in regard to Ex.A.2 and the date of Ex.A.2 is only 30.06.1996 as evidenced by the Respondent/ Plaintiff's father making over the said document.
47.On looking into Ex.A.2 and A.4-Made overs, this Court is of the clear-cut opinion that the made overs of the Exs.A.2 and A.4 are perfectly valid in law and there is no infirmity in making over the said pronotes by the Respondent/Plaintiff's father. In short, the Respondent /Plaintiff is only the Holder in Due Course as per Section 9 of the Negotiable Instruments Act. Further, it is held by this Court that there are no material alterations in Exs.A.2 and A.4 and therefore, the said documents are not a void one and moreover, there is no endorsement of the Appellant/Defendant discharging the suit pronote amounts and also the Appellant/Defendant has not been in a position to prove to the subjective satisfaction of this Court that he has discharged the suit pronote through Ex.B.1-Receipt. Per contra, it is held by this Court that the Appellant/Defendant is not established that he has discharged the suit pronotes by means of paying the principal and the interest. Furthermore, the First Appellate Court is quite correct in holding that Holder in Due Course need not give any prior notice before filing of the suit on the negotiable instruments and consequently, the Substantial Questions of Law (a) to (d) are answered against the Appellant/ Defendant.
48.In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. The Suit O.S.No.228 of 1996 is decreed by this Court by directing the Appellant/Defendant to pay a sum of Rs.7,000/- for the suit first pronote-Ex.A.1 dated 07.07.1993 and Rs.3,000/- for the second pronote-Ex.A.3 dated 14.10.1995 together with interest at 12% per annum from the pronotes date as mentioned earlier till this date [18.01.2012] and thereafter, to pay subsequent interest at 6% per annum from the date of decree till date of payment. Three months' time is granted to the Appellant/Defendant for making payment from the date of receipt of copy of this Judgment.
18.01.2012 Index : Yes/No Internet : Yes/No sgl To
1.The Principal Sub Court, Nagapattinam.
2.The District Munsif Court, Thiruthuraipoondi.
M.VENUGOPAL, J.
Sgl JUDGMENT IN S.A.No.924 of 1999 18.01.2012