Karnataka High Court
Mahadevaiah vs Shivalingaiah on 27 February, 2018
Equivalent citations: 2018 (3) AKR 347, (2018) 2 KCCR 1710, (2018) 3 KANT LJ 75, (2018) 3 ICC 637
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
1 RSA.No.1369/2007
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
RSA NO.1369/2007
BETWEEN:
SHRI. MAHADEVAIAH,
S/O. MANCHAIAH,
AGED ABOUT 59 YEARS,
R/O CHANDAGALU VILLAGE,
DUDDA HOBLI,
MANDYA TALUK & DISTRICT- 571 405.
... APPELLANT
(BY SRI: K.M. SANATH KUMAR, ADVOCATE)
AND:
SHRI. SHIVALINGAIAH,
S/O. KALAIAH,
AGED ABOUT 55 YEARS,
ASST. OFFICER OF AGRICULTURE,
JAVALI VILLAGE,
BALLUR HOBLI,
MUDIGERE TALUK,
CHIKKAMAGALORE DISTRICT -577 201.
... RESPONDENT
(BY SRI: V.N. MADHAVA REDDY, ADVOCATE)
2 RSA.No.1369/2007
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGMENT & AWARD DTD:06.01.2007 PASSED IN
R.A.NO.11/2006 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN.) & JMFC., SRIRANGAPATNA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DTD
25.11.2005 PASSED IN OS NO.11/2003 ON THE FILE OF THE
PRL. CIVIL JUDGE (JR.DN.) & JMFC, SRIRANGAPATNA,
DECREEING THE SUIT FOR RECOVERY OF MONEY.
THIS RSA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appellant was the appellant in the Court of Prl. Civil Judge(Sr.Dn.) & JMFC, Srirangapatna (henceforth for brevity referred to as 'Lower Appellate Court) in R.A.No.11/2006 and was also the defendant in the Court of Civil Judge(Jr. Dn.) & JMFC, Srirangapatna (henceforth for brevity referred to as 'trial court') in O.S.No.11/2003. The present respondent had instituted a suit against the appellant/defendant in the trial court in the 3 RSA.No.1369/2007 said O.S.No.11/2003 seeking for recovery of a sum of Rs.45,120/- with interest thereupon.
2. The summary of the case of the plaintiff in the trial court was that the defendant had borrowed a sum of Rs.26,000/- from him for his business purposes on date 20.01.2000 by executing on demand promissory note and consideration receipt, wherein, he had agreed to repay the said amount together with interest at the rate of 2% per month. Since the defendant failed to repay the loan amount with interest, inspite of several requests, reminders and issuance of legal notice to him by the plaintiff, the plaintiff was constrained to file original suit in O.S.No.11/2003 against the defendant for recovery of the amount. The trial court by its judgment and decree dated 25.11.2005 decreed the suit against which, the defendant (appellant herein) preferred an appeal in the Lower Appellate Court in R.A.No.11/2006, which also came to be dismissed by the judgment and decree dated 06.01.2007.
4 RSA.No.1369/2007
3. Thus suffering adverse orders by both the courts below, the appellant/defendant has preferred this appeal.
4. In response to the notice, respondent is being represented by his counsel.
5. While admitting this matter, this Court framed the following substantial questions of law in this appeal:
i) Whether the Courts below are right in passing the judgment and decree, ignoring the submission of the appellant that there is a material alteration of the document Exhibit-
P1? ;
ii) Whether the material alteration leads the judgment and decree passed by the Courts below to suffer from any infirmities?
6. The lower court records were called for and the same are placed before the Court.
5 RSA.No.1369/2007
7. Heard the arguments from both sides and perused the materials placed before the Court including the impugned judgments and decrees.
8. Learned counsel for the appellant/defendant in his argument submitted that both the courts below have committed an error in not noticing the material alteration that has been made in the promissory note at Ex-P1, which goes to the root of the said document and nullifies the validity of the said document in the eye of law. Thus even after assuming that the said promissory note upon which the suit of the plaintiff was based upon was executed by the appellant herein, still in the absence of any convincing explanation regarding the material alteration made in it, the said document loses its reliability. As such, the courts below have committed an error in relying upon the said document and passing decrees against the appellant herein. 6 RSA.No.1369/2007
9. In his support, learned counsel for the appellant also relied upon a judgment of the Andhra Pradesh High Court in the case of ALLAMPATI SUBBA REDDY vs. NEELAPAREDDI RAMANAREDDI reported in AIR 1966 Andhra Pradesh 267.
10. Admittedly, the case of the plaintiff in the trial court was based upon the promissory note at Ex-P1 said to have been executed by the present appellant/defendant which is shown to have possessing date 20.1.2000. Even though the defendant in the trial court has taken a stand of total denial in his written statement denying the entire transaction including execution of the promissory note-Ex- P1, however, the thumb impressions found on said Ex-P1 and Ex-P2, which is consideration receipt, were referred to the Commissioner for his expert opinion. The said Commissioner in his opinion has opined that said thumb impressions found on those documents tallies with the specimen thumb impression of the defendant. As such, 7 RSA.No.1369/2007 learned counsel for the appellant has not given any force in his argument on the alleged aspect of the execution of the documents at Ex-P1 and Ex-P2. But his main thrust of the argument is upon the alleged alteration of the date on, on demand promissory note at Ex-P1. Accordingly, substantial questions of law were also framed on the said aspect of the alleged material alteration on the document at Ex-P1.
11. Ex-P1 is a promissory note and Ex-P2 is a consideration receipt. Both are said to have been executed by the defendant/appellant in favour of the plaintiff/respondent. In the promissory note at Ex-P1, in the space meant for writing the date, alteration appears to have been made in mentioning the year. The date of execution is shown as 20.01.2000 wherein, last two digits in the year portion appears to have been over-written. Few lines below the same, the purpose of the on demand promissory note is also mentioned in letters wherein also 8 RSA.No.1369/2007 corrections are shown to have been carried out. Both these corrections are shown to have been accompanied with corrective signatures by the scribe of the document, wherein one such corrective date appears as 20.01.2000. It is relying upon the corrections in the date portion of the promissory note at Ex-P1, learned counsel for the appellant vehemently submitted that material alteration has not been properly explained. As such, said document is not reliable. In this regard, he drew the attention of the Court to section 87 of The Negotiable Instruments Act, 1881 and the decision of the Andhra Pradesh High Court in Allampati Subba Reddy's case (supra).
12. Section 87 of The Negotiable Instruments Act, 1881, reads as below:-
87. "Effect of material alteration:- Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not 9 RSA.No.1369/2007 consent thereto, unless it was made in order to carry out the common intention of the original parties;
Alteration by indorsee - And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof.
The provisions of this section are subject to those of sections 20, 49, 86 and 125."
13. A reading of the said section go to show that if the party to the said Negotiable instrument has not given his consent for such material alteration or such material alteration was made, otherwise than in order to carry out the common intention of the original parties, in such event, that negotiable instrument is void as against the person who has not consented for such alteration. Thus ipso facto the material alteration in negotiable instrument does not make it void within itself. If the person producing and 10 RSA.No.1369/2007 relying on that negotiable instrument satisfies the court that the person against whom the negotiable instrument is being enforced had his consent for such alteration or that the said alteration was made in order to carry out the common intention, then, such negotiable instrument would be still valid and binds the other party also.
14. The Andhra Pradesh High Court in Alampatti Subba Reddy case(supra) in para 8 has observed as below:-
"The general rule in English law followed in India is that a party having custody or control of a document produced in evidence must explain the alteration. When the instrument on its production appears to have been altered, it is a general rule that the party offering it in evidence must explain its appearance, because every alteration in the case of a negotiable instrument renders it suspicious. It is only reasonable that the party claiming under it should remove the suspicion. It is true that it is not on every occasion that a party 11 RSA.No.1369/2007 tendering an instrument in evidence is bound to explain any material alteration that appears upon its face. He must, however, explain when he is seeking to enforce it. It is plain that when the alteration appears to have been made contemporaneously with the document, or if it is made at some subsequent period with the privity of the parties charged and there is no fraud, it does not affect the validity of the instrument."
15. Thus even according to the said judgment, if the said alteration is made contemporaneously when the document came to be executed or if it is made at some subsequent period with the privity of the parties charged therein and in the absence of any fraud, the instrument would be still valid and enforceable.
16. In the instant case, the alteration shown to have been made in Ex-P1 is with respect to the date of execution of the said document which is promissory note, upon which, the suit claim is based upon.
12 RSA.No.1369/2007
17. In this regard, the plaintiff who got himself examined as PW-1 in his cross-examination has stated that there are two corrections in the promissory note with respect to which the scribe of the promissory note has put his signature. However, he has stated that he does not know with respect to which subject, said correction has been carried out. In this way, PW-1 though has stated about the corrections that have been carried out, but could not be able to explain as what those corrections were made. The other witness who has spoken about the execution of the promissory note and the corrections therein is PW-3- S.B. Chennappa, the witness to the promissory note. The said witness who has supported the case of the plaintiff in his examination-in-chief including identifying his signature in the promissory note as witness at the conclusion of his cross-examination from the defendant's side has stated that none of the corrections in Ex-P1 and Ex-P2 were carried out in his presence. However, 13 RSA.No.1369/2007 PW-4 B.S. Shivalingegowda, the scribe of the said instrument in his cross-examination has stated that at two to three places in the promissory note, there are corrections for which he has put correction signatures. In his cross examination, at the end, he has further stated he has carried out the corrections in the promissory note in the presence of all persons present at that time and also has read out to all corrections that he has carried out.
18. PW-3 being the only witness has stated that corrections were not carried out in his presence. However, PW-4 claiming himself to be the scribe of both Ex-P1 and Ex-P2 has categorically stated regarding the total number of corrections that has been carried out in Ex-P1 and also he putting signatures with respect to those corrections in the very same document. Thus, it cannot be ignored that the alleged corrections in the date at Ex-P1 bears correction signatures of none else than the scribe of the instrument. 14 RSA.No.1369/2007
19. Secondly and more importantly, the entire case of the plaintiff is based on the on demand promissory note at Ex-P1 and consideration receipt at Ex-P2 which according to the plaintiff-PW-1 were executed by the defendant/appellant on the very same day. Both those documents are in the printed format wherein gaps have been filled in by the scribe and printed on the long single sheet paper. Below the on demand promissory note at Ex- P1, there is consideration receipt, wherein it is clearly mentioned that with respect to on demand promissory note for a sum of Rs.26,000/- executed by the executant on the date 20.01.2000, the consideration receipt is being executed by him. By saying so, the executant of the consideration receipt i.e., the appellant herein has clearly stated that the promissory note was of the date 20.1.2000. Thus the evidence of PW-4 scribe that he carried out the corrections in Ex-P1 in the presence of all and he read out those corrections to all on the same day when the 15 RSA.No.1369/2007 document was executed gets support and corroboration by the consideration receipt at Ex-P2. Therefore, the said correction at Ex-P1 proves to have been made contemporaneously at the time of execution of the document and more so in the presence of the executant of the document. As such, the said correction in the date at Ex-P1 cannot be called as material alteration without the consent of the defendant or the material alteration made otherwise than in order to carry out the common intention of the original parties. Therefore, a conjoint reading of Ex- P1 and Ex-P2 in the light of the evidence of PW-1, PW-3 and PW-4 since clearly establishes that the alleged material alteration in the date at Ex-P1 was carried out in the presence of the defendant and said execution date is further corroborated by Ex-P2, the only argument of the learned counsel for the appellant that the alleged material alteration in the date on Ex-P1 invalidates the document at Ex-P1, as such, the judgments and decrees passed by the 16 RSA.No.1369/2007 courts below would not sustain, is not acceptable. Consequently, I answer the substantial questions of law by holding that the courts below are right in passing the judgments and decrees and that the alleged material alteration does not lead the judgment and decree under appeal suffer from any infirmity.
20. Accordingly, I proceed to pass the following:-
ORDER Regular Second appeal stands dismissed.
In view of disposal of the main appeal, I.A.No.1/2017 for stay does not survive for consideration. Accordingly, it stands disposed of.
Sd/-
JUDGE *mn/-