BURDEN OF PROOF - ON DEFENDANT TO PROVE MATERIEL ALTERATION NOT APPEAR TO NAKED EYE, AND FORGERY OF PART PAYMENT ENDORSEMENT = The appellant did not dispute the execution of Ex.A1. His only plea was that the figure mentioned therein was Rs.7,700/-, whereas, the figure '5' was added by the respondent. In this regard, it needs to be observed that apart from mentioning the amount in figures, it is stated in words also. In case the appellant was of the view that there is any discrepancy in the contents of Ex.A1, he ought to have taken steps to get the same examined by the handwriting expert. No such steps were taken. - Ex.A2 plays an important role in the suit. If there is no acknowledgement of the debt by the appellant, the suit filed in the year 2006 would have been clearly barred to recover an amount covered by a promissory note executed in the year 2000. It is only Ex.A2, which is a connecting link. According to the respondent, Ex.A2 endorsement was made on 01.03.2003. Though in Ex.A1, it was mentioned as 02.01.2003, later on, it was explained in the examination in chief, as well as cross-examination . - At any rate, in case the admitted signature of the appellant on Ex.A1 and the disputed signature on Ex.A2 are not one and the same, the appellant ought to have taken steps to get the signature on Ex.A2 examined by a handwriting expert. Here again, he repeated the same performance vis--vis the contents of Ex.A2.
PUBLISHED INhttp://judis.nic.in/judis_andhra/filename=9922
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY
SA No.1233 of 2011
11-02-2013
K.Kannaiah
S.Sankaraiah
Counsel for the Appellant:Sri.G.Jagadeeswar
Counsel for Respondent:-
<Gist:
>Head Note
? Citations:
JUDGMENT:
The respondent filed O.S.No.16 of 2006 in the Court of the Senior Civil
Judge, Srikalahasti against the appellant for recovery of amount on the strength
of a promissory note, dated 02.03.2000.
It was stated by the respondent that
being acquainted with him, the appellant borrowed a sum of Rs.57,700/- and he
did not repay the same in spite of repeated demands.
His further case was that
when he went to the appellant, residing at Chittoor, for repayment of the
amount, he paid a sum of Rs.100/- on 01.03.2003, acknowledging the debt covered
by the promissory note.
He ultimately prayed for a decree for the suit amount.
The appellant filed a written statement.
It was pleaded that he borrowed
Rs.7,700/- from the respondent through Ex.A1 and that the respondent has
clandestinely added the figure '5' before the amount.
He denied the
endorsement, Ex.A2, dated 01.03.2003.
In addition to that, the appellant has
stated that
the respondent got issued a notice, Ex.B1, on 22.10.2003 by taking a
false plea that a sum of Rs.100/- was paid on 01.02.2003 and
still, he did not
make any reference to Ex.B1 either in the plaint or in the affidavit filed in
lieu of chief-examination.
The trial Court dismissed the suit through judgment, dated 13.02.2007.
Aggrieved by that, the respondent filed A.S.No.54 of 2007 in the Court of the
III Additional District Judge, Tirupathi.
The appeal was allowed on 31.08.2010.
Hence, this second appeal.
The learned counsel for the appellant submits that there was no
justification on the part of the lower appellate Court in reversing the decree
passed by the trial Court. He contends that a clear discrepancy exists as to
the very making of endorsement, Ex.A2, and read in the context of Ex.A1, the
suit is clearly barred by limitation. He contends that if Ex.A2 is excluded,
the suit is barred and if Ex.A2 is compared with Ex.B1, it emerges that there is
a clear discrepancy leading to a situation where the suit is barred by
limitation.
In the suit filed by the respondent, the following issues were framed for
consideration:
1. Whether the suit pronote is true, valid and binding on the defendant?
2. Whether the part payment pleaded by the plaintiff is true and binding on the
defendant?
3. Whether the suit pronote is void for material alteration?
4. Whether the rate of interest is excessive and usurious?
The respondent deposed as P.W.1 and on his behalf P.Ws.2 to 4 were
examined.
As observed earlier, promissory note was marked as Ex.A1 and the
endorsement thereon as Ex.A2.
Except that the appellant deposed as D.W1, he did
not examine any other witness.
The legal notice got issued by the respondent is
marked as Ex.B1.
The trial Court took the view that the respondent failed to
prove Ex.A2 to its satisfaction and on that basis, dismissed the suit as barred by limitation.
The lower appellate Court framed the following points for its
consideration:
(1) Whether the part payment under Ex.A2 is true, valid and binding on the
defendant?
(2) Whether the plaintiff is entitled for the suit amount?
The lower appellate Court answered all the points in favour of the respondent.
The second appeal arises out of a reversing decree passed by the lower
appellate Court and accordingly, needs a close and careful scrutiny.
The appellant did not dispute the execution of Ex.A1.
His only plea was
that the figure mentioned therein was Rs.7,700/-, whereas, the figure '5' was added by the respondent.
In this regard, it needs to be observed that apart
from mentioning the amount in figures, it is stated in words also.
In case the
appellant was of the view that there is any discrepancy in the contents of Ex.A1, he ought to have taken steps to get the same examined by the handwriting expert. No such steps were taken.
The appellant raised the plea that he has already repaid the amount
covered by Ex.A1 with interest at 24% per annum.
Even as regards this, it is
only self-serving statement and no person, who has any knowledge about payment
or has witnessed the act, was examined.
Ex.A2 plays an important role in the suit. If there is no
acknowledgement of the debt by the appellant, the suit filed in the year 2006 would have been clearly barred to recover an amount covered by a promissory note executed in the year 2000.
It is only Ex.A2, which is a connecting link.
According to the respondent, Ex.A2 endorsement was made on 01.03.2003.
Though in Ex.A1, it was mentioned as 02.01.2003, later on, it was explained in the examination in chief, as well as cross-examination.
The only basis for the appellant to deny the existence of Ex.A2 is that
having made a mention about that in Ex.B1, the respondent did not refer to the
notice at all realising that it cannot be substantiated.
That plea is as weak as any other contentions advanced by the appellant.
Mere omission on the part
of the respondent to make a reference to Ex.B1 in the plaint cannot be treated
as fatal.
Further, the appellant did not elicit anything in the cross- examination of P.W.1 as to the alleged fabrication of Ex.A2.
At any rate, in case the admitted signature of the appellant on Ex.A1 and the disputed signature on Ex.A2 are not one and the same, the appellant ought to have taken steps to get the signature on Ex.A2 examined by a handwriting expert.
Here again, he repeated the same performance vis--vis the contents of Ex.A2.
The lower
appellate Court has taken the correct view of the matter and this Court is not
inclined to interfere with the judgment in the appeal.
The second appeal is accordingly dismissed. There shall be no order as
to costs.
The miscellaneous petition filed in this appeal shall also stand disposed of.
_____________________
L.NARASIMHA REDDY,J
Dt:11.02.2013
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY
SA No.1233 of 2011
11-02-2013
K.Kannaiah
S.Sankaraiah
Counsel for the Appellant:Sri.G.Jagadeeswar
Counsel for Respondent:-
<Gist:
>Head Note
? Citations:
JUDGMENT:
The respondent filed O.S.No.16 of 2006 in the Court of the Senior Civil
Judge, Srikalahasti against the appellant for recovery of amount on the strength
of a promissory note, dated 02.03.2000.
It was stated by the respondent that
being acquainted with him, the appellant borrowed a sum of Rs.57,700/- and he
did not repay the same in spite of repeated demands.
His further case was that
when he went to the appellant, residing at Chittoor, for repayment of the
amount, he paid a sum of Rs.100/- on 01.03.2003, acknowledging the debt covered
by the promissory note.
He ultimately prayed for a decree for the suit amount.
The appellant filed a written statement.
It was pleaded that he borrowed
Rs.7,700/- from the respondent through Ex.A1 and that the respondent has
clandestinely added the figure '5' before the amount.
He denied the
endorsement, Ex.A2, dated 01.03.2003.
In addition to that, the appellant has
stated that
the respondent got issued a notice, Ex.B1, on 22.10.2003 by taking a
false plea that a sum of Rs.100/- was paid on 01.02.2003 and
still, he did not
make any reference to Ex.B1 either in the plaint or in the affidavit filed in
lieu of chief-examination.
The trial Court dismissed the suit through judgment, dated 13.02.2007.
Aggrieved by that, the respondent filed A.S.No.54 of 2007 in the Court of the
III Additional District Judge, Tirupathi.
The appeal was allowed on 31.08.2010.
Hence, this second appeal.
The learned counsel for the appellant submits that there was no
justification on the part of the lower appellate Court in reversing the decree
passed by the trial Court. He contends that a clear discrepancy exists as to
the very making of endorsement, Ex.A2, and read in the context of Ex.A1, the
suit is clearly barred by limitation. He contends that if Ex.A2 is excluded,
the suit is barred and if Ex.A2 is compared with Ex.B1, it emerges that there is
a clear discrepancy leading to a situation where the suit is barred by
limitation.
In the suit filed by the respondent, the following issues were framed for
consideration:
1. Whether the suit pronote is true, valid and binding on the defendant?
2. Whether the part payment pleaded by the plaintiff is true and binding on the
defendant?
3. Whether the suit pronote is void for material alteration?
4. Whether the rate of interest is excessive and usurious?
The respondent deposed as P.W.1 and on his behalf P.Ws.2 to 4 were
examined.
As observed earlier, promissory note was marked as Ex.A1 and the
endorsement thereon as Ex.A2.
Except that the appellant deposed as D.W1, he did
not examine any other witness.
The legal notice got issued by the respondent is
marked as Ex.B1.
The trial Court took the view that the respondent failed to
prove Ex.A2 to its satisfaction and on that basis, dismissed the suit as barred by limitation.
The lower appellate Court framed the following points for its
consideration:
(1) Whether the part payment under Ex.A2 is true, valid and binding on the
defendant?
(2) Whether the plaintiff is entitled for the suit amount?
The lower appellate Court answered all the points in favour of the respondent.
The second appeal arises out of a reversing decree passed by the lower
appellate Court and accordingly, needs a close and careful scrutiny.
The appellant did not dispute the execution of Ex.A1.
His only plea was
that the figure mentioned therein was Rs.7,700/-, whereas, the figure '5' was added by the respondent.
In this regard, it needs to be observed that apart
from mentioning the amount in figures, it is stated in words also.
In case the
appellant was of the view that there is any discrepancy in the contents of Ex.A1, he ought to have taken steps to get the same examined by the handwriting expert. No such steps were taken.
The appellant raised the plea that he has already repaid the amount
covered by Ex.A1 with interest at 24% per annum.
Even as regards this, it is
only self-serving statement and no person, who has any knowledge about payment
or has witnessed the act, was examined.
Ex.A2 plays an important role in the suit. If there is no
acknowledgement of the debt by the appellant, the suit filed in the year 2006 would have been clearly barred to recover an amount covered by a promissory note executed in the year 2000.
It is only Ex.A2, which is a connecting link.
According to the respondent, Ex.A2 endorsement was made on 01.03.2003.
Though in Ex.A1, it was mentioned as 02.01.2003, later on, it was explained in the examination in chief, as well as cross-examination.
The only basis for the appellant to deny the existence of Ex.A2 is that
having made a mention about that in Ex.B1, the respondent did not refer to the
notice at all realising that it cannot be substantiated.
That plea is as weak as any other contentions advanced by the appellant.
Mere omission on the part
of the respondent to make a reference to Ex.B1 in the plaint cannot be treated
as fatal.
Further, the appellant did not elicit anything in the cross- examination of P.W.1 as to the alleged fabrication of Ex.A2.
At any rate, in case the admitted signature of the appellant on Ex.A1 and the disputed signature on Ex.A2 are not one and the same, the appellant ought to have taken steps to get the signature on Ex.A2 examined by a handwriting expert.
Here again, he repeated the same performance vis--vis the contents of Ex.A2.
The lower
appellate Court has taken the correct view of the matter and this Court is not
inclined to interfere with the judgment in the appeal.
The second appeal is accordingly dismissed. There shall be no order as
to costs.
The miscellaneous petition filed in this appeal shall also stand disposed of.
_____________________
L.NARASIMHA REDDY,J
Dt:11.02.2013
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