Dismissed

K.P.Nallak Gounder v. K.G.Kathirvel

Madras HC12 Feb 2014SA/1148/2004

Case brief

AI extract

What is this about?

In a second appeal concerning a suit for recovery based on a promissory note, the High Court of Madras examined whether an inchoate instrument allowed alteration of the payee name. The court rejected material alteration claims as raised only during arguments and upheld the lower courts' finding that the note was genuine, dismissing the appeal.

What did the court decide?

Second appeal dismissed; decree and judgments of courts below confirmed.

K.P.Nallak Gounder Vs K.G.Kathirvel — Specific Performance | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED:12.02.2014

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CORAM:

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THE HONOURABLE MR.JUSTICE R.KARUPPIAH

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S.A.No.1148 of 2004

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K.P.Nallak Gounder ... Appellant

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Vs.

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K.C.Kathirvel ... Respondent

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PRAYER : Second Appeal filed under Section 100 of Civil Procedure code against the judgment and decree dated 25.06.2001 made in A.S.No.18 of 2000 on the file of Principal Subordinate Court, Gobichettipalayam, confirming the Decree and Judgment dated 22.07.1999 made in O.S.No.440 of 1994 on the file of District Munsif Court, Gobichettipalayam.

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For Appellant : Mr.P.V.Ramachandran

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For Respondent : Mr.P.S.Vasanthakumar

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JUDGMENT

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This second appeal is filed against the judgment and decree dated 25.06.2001 made in A.S.No.18 of 2000 on the file of Principal SubCourt, Gobichettipalayam, confirming the Decree and Judgment dated 22.07.1999 made in O.S.No.440 of 1994 on the file of District Munsif Court, Gobichettipalayam.

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For the sake of convenience, the defendant in the original suit is referred as appellant and the plaintiff in the suit is referred as respondent hereafter.

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The respondent/plaintiff filed a suit for payment of Rs.9225/with future interest on Rs.9000/-. Briefly the case of the respondent is that the appellant borrowed a sum of Rs.9000/- from the respondent on 20.05.1994 and executed a promissory note in favour of the respondent agreeing to pay the same to the respondent or to his order on demand with interest at Rs.1.50 per month per one hundred. The appellant has not paid the above said amount and hence the suit.

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The appellant/defendant filed a written statement in which, it is denied the fact that the respondent borrowed a sum of Rs.9000/from the respondent on 20.05.1994 and executed a promissory note and

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agreeing to repay the interest at Rs.1.50 per month per hundred. The appellant has never executed any promissory note in favour of the respondent and did not received any amount from the respondent. The empty pro-note with only signature of the appellant given to one Gopal should have been used in this suit as a pro-note. The appellant also denied that the respondent has demanded the amount and the appellant has not paid the amount and no cause of action for the suit. Therefore, prayed for dismissal of the suit with compensatory costs.

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The trial court has framed two issues from the above pleadings. On the side of the respondent/plaintiff two witnesses were examined as PWs 1 and 2 and marked one document as Ex.A1. On the side of the appellant/defendant appellant alone deposed as DW1 and not marked any document.

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The trial court has considered the above said oral and documentary evidence adduced on either side and decreed the suit as prayed for by the respondent/plaintiff.

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Aggrieved over the above said findings of the trial court, the appellant/defendant preferred the first appeal in A.S.No.18 of 2000 and the first appellate court discussed in detail and finally confirmed the judgment and decree passed by the trial court and dismissed the first appeal.

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Aggrieved over the above said concurrent findings of both the courts below, the appellant, who is defendant in this suit preferred this second appeal.

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This Court has admitted the second appeal on the following substantial question of law for consideration:

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" Whether the authority given to a person, to whom a duly signed inchoate instrument is delivered, would include the authority to fill up the name of the payee ?"

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Heard the learned counsel appearing on either side and perused the records.

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The learned counsel appearing for the appellant has mainly contended that in Ex.A1 promissory note dated 20.05.1994, alleged to have executed by the appellant in favour of the respondent is vitiated on the ground of material alteration since the name of the promisee and the amount lent in the promissory note in Ex.A1 were altered.

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Per contra, the learned counsel appearing for the respondent would submit that the appellant has clearly admitted the signature found in Ex.A1 pro-note. Further, the learned counsel pointed out that on the side of the respondent, the respondent himself deposed as

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PW1 and also examined one Nagendiran as attesting witness to prove the document Ex.A1 pro-note as PW2 and both the courts below have correctly considered the oral and documentary evidence and came to correct conclusion that Ex.A1 pro-note was proved as genuine document and decreed the suit. The learned counsel for the respondent further submitted that except oral interested testimony of the appellant, no other oral and documentary evidence to prove that the respondent has given a blank promissory note signed by the appellant and given to one Gopal and the above said pro-note used by the respondent and filed the suit.

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A perusal of Ex.A1 pro-note and the oral evidence of PWs 1 and 2 revealed that the respondent has proved the above said Ex.A1 promissory note as genuine document. The respondent examined as PW1 and clearly deposed about the execution of pro-note and after execution, the appellant has signed in the pro-note and received a sum of Rs.9000/- on 20.05.1994. PW1 has also specifically denied that one Gopal was obtained signature of the appellant in a blank promissory note. PW2 also who is the attesting witness in Ex.A1 clearly deposed as the appellant has received a sum of Rs.9000/- from the respondent and executed Ex.A1 pro-note and affixed his signature in the pro-note in his presence. Therefore, as rightly pointed out by the learned counsel for the respondent, the respondent has proved the fact that Ex.A1 pro-note is genuine document by examining reliable, oral and documentary evidence.

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Per contra, on the side of the appellant, except oral interested testimony of appellant, no other witness to prove the contention of the appellant. The appellant has not stated in the written statement that why he has given a blank pro-note to one Gopal. At the time of evidence, the appellant has deposed as if five years ago, he borrowed a sum of Rs.5000/- from one Gopal, he obtained two blank pro-notes with signatures in stamp papers and after two months, further borrowed a sum of Rs.5000/- and again given blank pro-notes with appellant signatures. But, the above said fact has not stated in the written statement. Except the above said fact stated at the time of oral evidence of appellant, no other evidence to prove the same. Further, the appellant has not taking any steps to get back the alleged other blank pro-notes from the above said Gopal. Therefore, the contention of the appellant cannot be accepted as rightly held by the courts below.

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Further, in the written statement, it has been stated as if the appellant had affixed signature alone and all the other averments filled up later. But, the learned counsel for the appellant contended that the above said Ex.A1 pro-note is not valid on the ground that there is material alteration in Ex.A1.

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A careful perusal of oral evidence of appellant revealed that he has not deposed as material alteration in Ex.A1 pro-note. Only at the time of submission before this Court, learned counsel appearing

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for the appellant pointed out the above said contention. Therefore, both the courts below have correctly discussed about the genuineness of Ex.A1 pro-note and the above said findings of both the courts below are not perverse findings or illegal as contended by the appellant. Therefore, there is no need to interfere with the above said findings of both the courts below and answered the substantial question of law accordingly.

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In the result, the second appeal is dismissed and confirmed the decree and judgments passed by both the courts below. No order as to costs.

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Sd/
Asst.Registrar
//True Copy//
Sub.Asst.Registrar
ssn
To
1. Principal Subordinate Court,
Gobichettipalayam.
2. District Munsif Court,
Gobichettipalayam.
+1 cc to Mr.P.S.Vasanthakumar, Advocate, SR. No.6429
S.A.No.1148 of 2004
VSN(CO)
PMK.25.2.2014

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K.P.Nallak Gounder v. K.G.Kathirvel

Case brief

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K.P.Nallak Gounder v. K.G.Kathirvel

Case brief

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