VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021
IN THE COURT OF VII ADDITIONAL DISTRICT JUDGE, VIJAYAWADA
Present : Smt.K.Radha Ratnam,
XII Additional District Judge, Vijayawada
FAC.VII Additional District Judge, Vijayawada.
Wednesday, this the 9th day of June, 2021
ORIGINAL SUIT N o .141 OF 2012
Between K.Sulochana
....Plaintiff
And
1Dr.B.Ravindranath . 2B.Padmavathi….Defendants .
This Suit coming on 16.4.21 before me for final hearing through Virtual Court through videoconferencing in the presence of Sri P.Seshu Mohan, Advocate for Plaintiff and of Sri K.V.S.N.Rao, Advocate for defendants and upon the matter having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1.The suit is filed for recovery of money basing on the foot of promissory notes (3) in number).
2.The brief averments of the Plaint are as follows:
The 2nd defendant is the wife of 1st defendant and they both commenced a company by name Vensa Bio Tech Limited which is constituted for the purpose of manufacturing liquid glucose.
For the investment in the company, on 11.11.98 the 1st defendant borrowed Rs.5,00,000/ from the plaintiff and executed a promissory note in favour of plaintiff, agreeing to repay the same along with interest. Subsequently on the demands made by the plaintiff, the 1st defendant through her husband made part payment endorsements on 24.10.2001 for Rs.1,000/, 23.10.2004 for Rs.1,000/, 22.10.2007 for Rs.2,000/ and lastly on
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021 21.10.2009 for Rs.50,000/. That on 7.8.2001 the 2nd defendant borrowed Rs.1,71,500/ and Rs.80,000/ on 1.10.2004 from plaintiff and executed two promissory notes in favour of plaintiff. Subsequently, the 2nd defendant made separate endorsements by paying partpayments on 2.8.2004 for
Rs.1,000/, on 1.8.2007 for Rs.1,000/, on 21.10.2009 for
Rs.20,000/ with respect to promissory note, dated.7.8.2001.
That for the promissory note, dated.1.10.2004, the 2nd defendant made two partpayment endorsements on 23.9.2007 for Rs.1,000/ and on 21.10.2009 for Rs.30,000/.
3.That subsequently the defendants failed to repay the debts under promissory notes executed by them, the plaintiff got issued notice on 7.3.2012 to the defendants, but the defendants managed to observe that the notices are not returned to the counsel of plaintiff and as such, the plaintiff has filed the postal receipts regarding the notices. That as the limitation is approaching and taking advantage of the extension of the liability through endorsement, the defendants who are having agricultural lands at Tadikonda Village, Guntur District and
G.Ragampet in Peddapuram Mandal, East Godavari District have started transferring the rights to the 3rd parties to defeat the claim of the plaintiff. Hence, plaintiff filed the suit.
4.The 2nd defendant filed Written Statement which was adopted by 1st defendant, denying all the allegations made in the plaint, and stated that the plaintiff and 2nd defendant are sisters and the 1st defendant is the husband of 2nd defendant.
That the 2nd defendant has no children and the plaintiff was hoping to get the properties of 2nd defendant after her lifetime. That as the defendant was not getting any rent from 2nd defendant land at Tadikonda, they sold the said land at
Tadikonda. That as the plaintiff and her husband disappointed by the sale of the said land, the plaintiff fabricated the suit promissory notes. That single suit is not maintainable and it
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021 is hit by the provision of Order I of CPC. That there is no passing of consideration under any three suit promissory notes and the defendants have no necessity to borrow any amount from the plaintiff. That the alleged acknowledge of debt is false the defendants 1 and 2 denied their signatures on the back side of the promissory notes acknowledging the debts, and prayed for dismissal of the suit.
5.Basing upon the pleadings above, the following Issues have been settled for trial:
1)Whether the suit promissory notes dt.11.11.1998, 7.8.2001 and 1.10.2004 are true, valid and binding on the defendants?
2)To what relief?
6.In support of their respective cases, the husband of plaintiff got examined as PW1, PWs 2 and 3. PW1 is the house wife, PW2 and PW3 are scribes of the partpayment endorsements.
Exs.A1 to A14 are marked for the plaintiff. On the other hand, the 1st defendant himself gave evidence as DW1 and the
Scientific Officer is examined as DW2 and Ex.X1 marked.
7.Heard arguments of bothsides through videoconferencing in collaboration with Blue Jean APP, and perused the material available on record and the written arguments submitted by both sides.
Issue No.1:
8.In nutshell, the plaintiff’s case is that she lent amounts to the defendants 1 and 2 under Exs.A1, A6 and A9 promissory notes on different occasions.
9.Subsequently, the defendants made partpayments from time to time till 21.10.2009 and thereafter as the defendants failed to repay the debts despite demands made by her, she got issued a demand notice under Ex.A13, as there is no reply she filed the suit in the year 2012 within limitation.
10.The defendant’s case is one of the total denial. They have denied the execution of the suit promissory notes and also the
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021 partpayment endorsements thereon. According to them, their signatures were got forged and the suit promissory notes are brought into the existence and are devoid of consideration.
11.From the rival claims of both the parties, the admitted facts are that the defendants 1 and 2 are husband and wife.
The plaintiff is sister of D2. The defendants have no issues.
12.The defendants setup defense that as they have no issues, the plaintiff(D2’s sister) was in hope to get the properties of 2nd defendant after her lifetime. But the 2nd defendant sold away her property situated at Tadikonda. So the plaintiff and her husband felt out of disappointment, aggrieved by the sale deed by the defendants have embarked upon this frivolous litigation with the ulterior motive by fabricating the suit promissory notes and partpayment endorsements thereon.
13.The plaintiff’s husband who gave evidence as PW1 on her behalf denied the said contention of the defendants.
14.However, as the defendants denied the execution of the suit promissory notes and passing of consideration, the initial burden is cast upon the plaintiff to prove the same by adducing cogent and convincing evidence.
15.The plaintiff examined her husband as PW1 in support of her contention. She further examined PW2 and PW3 on her behalf.
PW2 is the scribe of the partpayment endorsements dated.22.10.2007, 23.9.2007 and 1.8.2007 marked as Exs.A4,
Ex.A7 and Ex.A11 respectively on the back of the promissory notes. PW3 is the scribe of partpayment endorsements marked as Ex.A5, Ex.A8 and Ex.A12, all are dated 21.10.2009 on the three suit promissory notes respectively marked as Exs.A1, A6 and Ex.A9.
16.The plaintiff relied on Exs.A1 to A13 to substantiate her case.
17.Ex.A1 is the promissory note, dt.11.11.98 for Rs.5,00,000/ (Rupees five lakhs only) said to have been executed by D1 in
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021 favour of plaintiff. Exs.A2 to A5 are the partpayment endorsements made thereon on different dates from 2001 to 2009.
18.Ex.A6 is the promissory note dated.1.10.2005 for an amount of Rs.80,000/(Rupees eighty thousand only) said to have been executed by D2 in favour of plaintiff. Exs.A7 and A8 are the partpayment endorsements there on different dates for the year 20072009.
19.Ex.A9 is another promissory note for Rs.1,71,500/ (Rupees one lakh seventy one thousand five hundred only) said to have been executed by D2 in favour of plaintiff dated.7.8.2001.
Exs.A10, A11 and A12 are the partpayment endorsements thereon with different dates from the years 20042009.
20.Ex.A13 is office copy of legal notice got issued by plaintiff to D1 to D3. Exs.A14 are returned covers from D1 and
D2.
21.The learned counsel for the defendant argued that the plaintiff did not enter into witness box and she examined her husband as PW1 on her behalf, without any authorization and without permission of the Court on behalf of the plaintiff, hence his evidence cannot be looked into.
22.As per sec.120 of Indian Evidence Act, spouse can give evidence on behalf of his/her, spouse as any communication between them is covered under privileged communications and as such, authorization or the permission of the Court is not necessary. The plaintiff PW1 being husband is competent witness to give evidence on behalf of his wife, as rightly contended by the learned counsel for the plaintiff. So the objection taken by the defendant in this regard is not accepted.
23.It is a fact borne from record that the 1st defendant gave evidence as DW1 on his behalf and on behalf of his wife/the 2nd defendant without any authorization and without obtaining leave of the Court. The same rule is applicable in the case of
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021 plaintiff also. Hence the defendant cannot raise any such objection.
24.PW1 in the affidavit filed by him in lieu of his examinationinchief deposed that he is looking after the affairs of his wife including the suit promissory note transaction and as such, he is personally aware of the suit transactions, hence giving evidence on behalf of his wife/plaintiff.
25.Further he reiterated the contents of the plaint as averred in it. He further deposed that pending suit the defendants have disposed of the attached property with the permission of the Court and deposited an amount of Rs.11,00,000/ into the
Court.
26.During the course of crossexamination, he deposed that he did not attest any of the suit promissory note. Further, in the plaint, there is no mention that he (PW1) was present at the time of execution of the suit promissory notes and even at the time of partpayment endorsements. When the case of the defendants is put to him that all the transactions under Exs.A1 to A12 are created with the help of scribes, he denied the same.
27.The plaintiff examined P.W.2 and P.W.3 apart from examining her husband as P.W.1. Admittedly PW2 and PW3 are no way concerned with the main suit lending transactions under Exs.A1,
A6, and A9. Neither they attests nor they scribes any of the promissory note. They both have stated that they have no knowledge about the suit promissory note transactions. Hence their evidence is not relevant to the main lending transaction that took place under Exs.A1, A6 and A9.
28.So in respect of main suit promissory note transactions, the evidence of PW1, the husband of plaintiff alone is available. All the three promissory notes are unattested documents. So except the sole testimony of PW1, no other
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021 evidence is available in proof of suit promissory notes. So his evidence is to be scrutinized with much care and caution.
29.PW1 in his evidence though stated that he had personal knowledge about all the transactions, no where it is specifically stated that he was physically present at the time of promissory note transactions or at the time of partpayment endorsements.
30.All the three original promissory notes are scribed by one
Manchikalapudi Venkata Ramesh Babu of Peddapuram Village. But the plaintiff did not choose to examine the scribe. His version is that the scribe is related to the defendants, he worked under them, hence the plaintiff did not choose to examine him in apprehension that the scribe may support the case of the defendants.
31.In this regard, the learned counsel for the defendants submitted that the plaintiff and defendants are related to each other. So if the scribe is related to the defendants, he also related to the plaintiff. According to DW1(D1), though the scribe worked in his company as an employee till his company become defunct which took place in or around 2009, now the scribe is working under one N.Ramesh Babu in a different company near Bikkavolu. That he (DW1) has no contacts with said Ramesh Babu regularly. He admitted that apart from the property of the company under IDBI, the property of Ramesh Babu was brought for auction and as the scribe is working under said
Ramesh Babu, he may not support the case of the defendants and as such, the defendant did not choose to examine him.
32.The learned counsel for the defendants further argued that when the scribe is very much available, it is the plaintiff to examine him on her behalf in support of her contention and the defendant has cast upon the defendant as initial burden is casts upon the plaintiff. Hence it is the plaintiff to give explanation as to why she did not choose to examine the scribe
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021 of the promissory notes. But nothing was averred against said scribe. PW1 also did not state either in his chiefaffidavit or in his crossexamination that whether he is going to examine the scribe in their favour. Infact, the explanation for non examination of scribe that was given as referred above is the argument of the learned counsel for the plaintiff, but it is not found place in the evidence of PW1.
33.In this regard, this Court is of the view that as the initial burden is cast upon the plaintiff, the plaintiff must have taken steps to examine the scribe either directly or by summoning him and in the case scribe did not support her case, she got an opportunity to crossexamine him and to discard his evidence. But no such steps have been taken by the plaintiff.
34.Hence, except the sole testimony of PW1, no other oral evidence is available on record in support of the case of the plaintiff in proof of the alleged lending transactions under the suit promissory notes.
35.The learned counsel for the plaintiff argued that there is no specific denial by the defendants of their signatures on the suit promissory notes though they have specifically denied their signatures at the places of payment endorsements, so it is clear that the defendants are not disputing their signatures on the suit promissory notes, hence further proof is not required, there by presumption under sec.118 of Negotiable
Instruments Act that the suit promissory notes are supported by consideration can be drawn in favour of plaintiff’s case.
36.In this regard, the learned counsel for the defendants submitted that the defendants have denied execution as well passing of consideration under the suit promissory notes and the averments in the written statement are to be read as a whole, but not in piece meal.
37.In the cross examination of DW1(D1), the plaintiff did not take steps to confront the suit promissory notes to DW1, for
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021 admission of his signature and the signatures of his wife on the suit promissory notes as well at the places of payment endorsements. The 1st defendant as DW1 also did not state that the signatures found place as executants on the suit promissory notes and the payment endorsements thereon does not belonged to them(D1 and D2). So there is no clear evidence either from the plaintiff or from the defendants specifically admitting or denying the signatures of the defendants in the disputed documents.
38.The learned counsel for the plaintiff argued that no where the defendants have taken plea of forgery and it is evident that D.W.1 in his evidence expressed that their alleged signatures on the suit promissory notes are fabricated. The learned counsel further argued that either for fabrication or for forgery of any signature, the signatures of the persons whose signature is intended to be forged or fabricated must be available with that person, who intend to commit such act.
39.In this case, DW1 during his crossexamination admitted that, except signature on the promissory note, plaintiff is not in possession of any other documents containing his signature or the signature of the 2nd defendant. By placing this, the learned counsel for the plaintiff vehemently argued this admission itself is sufficient to prove that the signature on the suit promissory note Ex.A1 is that of the first defendant and signatures found in Exs.A6 and Ex.A9 are that of the 2nd defendant.
40.After going through the evidence of P.W.1 in this regard, this court felt that there is force in the argument submitted by the learned counsel for the plaintiff and the evidence referred above is probablize the case of the plaintiff that the signatures on the suit promissory notes are that of the defendants.
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021
41.Apart from the above, this Court felt that it is necessary to refer the opinion given by the handwriting expert in this regard. Pending suit at the instance of defendants, the suit documents along with specimen and admitted signatures of the defendants 1 and 2 were sent to FSL, Hyderabad for opinion of handwriting expert. Sri N.Krishna Prasad, the handwriting expert having experience as a Scientific Officer in FSL,
Hyderabad since 2002 gave his final opinion vide under Ex.X1.
He gave evidence as DW2 on behalf of defendant.
42.His evidence reveals that after comparison of the disputed signatures of the defendants with that of their admitted and specimen signatures he gave his opinion partly in favour of the plaintiff and partly in favour of the defendants. The expert opined that The person who wrote the red enclosed signatures marked S1 to S3 also wrote the red enclosed signature marked Q1 and Q2(the disputed signatures of the 2nd defendant on Exs.A6 and Ex.A9 promissory notes).
43.He gave reasons in his report for coming to conclusion of such opinion. In the evidence given by him he narrated and explained the methods which he followed, and the reasons for his conclusions in detailed manner. He was subjected for cross examination, but nothing could be elicited to discard his evidence.
44.The learned Expert got marked the specimen signatures of the 1st defendant as S4 to S10 and for 2nd defendant as S1 to S3.
He got marked the disputed and the questioned signature of the 1st defendant on Ex.A1 promissory note as Q8, With respect to the 2nd defendant on the promissory notes Exs.A6 and A9 as Q1 and Q2 respectively.
45.The learned Expert deposed that after careful and thorough examination of the documents as per scientific investigation, his observation is that, the questioned signature marked as
Q8(the disputed signature of the 1st defendant on Ex.A1) is
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021 similar with the admitted and specimen signatures of the 1st defendant marked as S4 to S10 hence opined that the person who wrote the specimen signatures marked as S4 to S10 also wrote the signature marked as Q8 (the signature of the 1st defendant on Ex.A1).
46.He expressed the same view with regard to the disputed signatures of the 2nd defendant marked as Q1 and Q2 on Exs.A6 and A9 promissory notes respectively and opined that the person who wrote the specimen signatures marked as S4 to S10 also wrote the signature marked as Q8 (the signature of the 1st defendant on Ex.A1).
47.From the Expert opinion coupling with the evidence of DW1 that the promissory notes containing their signatures are available with the plaintiff, it can be concluded that the signature found place in the Promissory note/Ex.A1 as an executant is that of the 1st defendant, while the signatures found place in Exs.A6 and A9 promissory notes are that of the 2nd defendant respectively. Hence it is proved that the suit promissory notes are executed by the defendants 1 and 2 only.
48.Hence, presumption under sec.118 of Negotiable Instruments
Act can be drawn in favour of the plaintiff’s case that all the three suit promissory notes are supported by considerations as contended by the learned counsel for the plaintiff.
49.However, such presumption is a rebuttable one, hence now the burden shifts upon to the defendants to disprove the case of the plaintiff and to prove their case that the suit promissory notes are not supported by considerations.
50.The learned counsel for the defendants submitted that the defendants have specifically pleaded that the acknowledgments said to have been made by the defendants are false and that their alleged signatures appearing underneath those payment endorsements are not that of the defendants and further it is argued that there is a material alteration in the last payment
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021 endorsement dated.21.10.2009, in which, the figure ‘8’ in the year 2008 was altered to ‘9’ in order to save limitation.
51.From this it can be said that in rebuttal the defendants are contending that part payment endorsements are not true and further in view of the material alteration found in the last payment endorsement the suit is barred by time, hence said presumption cannot be drawn in this case.
52.Ex.A2, Ex.A3, Ex.A4 and Ex.A5 are the payment endorsements on Ex.A1 promissory note dated.11.11.1998. While Ex.A7 and
Ex.A8 are the payment endorsements on Ex.A6 promissory note dated.1.10.2004 and Ex.A10, Ex.A11 and Ex.A12 are the payment endorsements on Ex.A9 promissory note dated.1.10.2004.
53.The plaintiff relied on the evidence of PW2 and PW3 in proof of partpayment endorsements on the back of suit promissory notes.
54.The learned counsel for the plaintiff submitted that the evidence of PW2 and PW3 is clearly establishing that they have scribed the partpayment endorsements on all the three promissory notes thereby plaintiff succeeded in proving that the defendants 1 and 2 have made partpayments from time to time upto 21.10.2009(the date of last partpayment on all the promissory notes).
55.PW2 in the affidavit filed by him stated that the part payment endorsements which were marked as Ex.A4, Ex.A7 and
Ex.A11 are scribed by him. His evidence further reveals that the endorsements have taken place after the payment of the amount by D1 and D2 and those endorsements have taken place at
Vijayawada. That he is not aware of the main lending transactions and he deposed to the extent of the three endorsements only.
56.His crossexamination reveals that he is distant relative to the plaintiff’s husband and he is giving evidence at his
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021 instance. That before coming to the Court, he verified the dates of endorsements for giving evidence.
57.PW3,thescribeofthepaymentendorsements dated.21.10.2009 Exs.A5, A8 and A12, deposed in his chief affidavit that he scribes those endorsements after payments made by D1 and D2. His evidence further reveals that the endorsements have taken place at Vijayawada that he was not present at the time of the main transactions under the suit promissory note and he is giving evidence only to the extent of those three endorsements.
58.His crossexamination also reveals that he is giving evidence after verification of the promissory notes and dates thereon before coming to the Court.
59.The learned counsel for the defendants argued that PW2 and
PW3 are planted witnesses and the plaintiff in collusion with them got created those alleged partpayment endorsements without there being any transaction as alleged, hence their evidence is not trustworthy.
60.After going through the entire evidence of PW2 and PW3, this Court observed that though they both have stated that D1 and D2 made partpayments on the respective dates, they did not state to whom such payments were made and their evidence is silent with regard to presence of either plaintiff or her husband (PW1) at the time of alleged part payments.
61.Apart from the above, this Court also noticed that PW1 (husband of plaintiff) did not disclose the names of the persons who scribes those payment endorsement. Such information is not available either in the plaint or in the notice got issued by the plaintiff. It is not even found place in the chiefAffidavit of P.W.1. Such things have been disclosed directly in the evidence of P.W.2 and P.W.3.
62.It is also to be noted that some of the payment endorsements are scribed by one Marupudi Sambasiva Rao. The
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021 plaintiff did not choose to examine him. P.W.1, the husband of the plaintiff also did not state anything about him. No explanation was given by the plaintiff in this aspect.
63.When the defendants are specifically denying their alleged signatures at the places of each of the payment endorsement, it is the duty of the plaintiff to prove that those signatures are belong to the defendants, by adducing cogent and convincing evidence, which is lacking in this case.
64.Under the circumstances this Court is of the view that the oral evidence adduced by plaintiff is not at all satisfactory and convincing in proof of payment endorsements, those are found place on the back of each of the promissory note.
65.Here it is to be noted that the defendants obtained hand writing expert opinion in their favour in respect of the alleged signatures of the defendants underneath the payment endorsements that those signatures are not that of the defendants 1 and 2 respectively.
66.The opinion of hand writing expert in respect of the disputed signatures of the defendants 1 and 2 in the part payment endorsements is in favour of defendants’ case that those signatures are not similar with that of the specimen signatures of the defendants 1 and 2. The learned Expert opined that the person who wrote the red enclosed signatures marked S1 to S3 did not write the red enclosed signatures marked Q3 to Q7 the disputed signatures of the 2nd defendant in the payment endorsements EXs.A7 to A12 relating to Exs.A6 and Ex.A9 promissory notes.
67.With regard to the disputed signatures of the 1st defendant (Q9 to Q12) in the payment endorsements Exs.A2 to Ex.A5 relating to Ex.A1 promissory note, the Expert opined that The person who wrote the red enclosed signatures S4 to S10 did not write the red enclosed signatures marked Q9 to Q12.
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Vijayawada Dated.9.6.2021
68.So the Expert’s opinion is in favour of defendants regarding the alleged signatures of the defendants 1 and 2 at the places of partpayment endorsements that those signatures are not tallying with that of the admitted and specimen signatures of the defendants.
69.From the circumstances and from the opinion of the hand writing expert this Court is of the view that the case of the plaintiff that signatures found place underneath the payment endorsements are belonged to defendants 1 and 2 is doubtful.
70.The learned counsel for the defendants argued that even assuming for a moment that the payment endorsements are true, the suit is hopelessly barred by time and this can be inferred from the material alteration that is found place in the last payment endorsements dated 21.10.2009 in all the three promissory notes which are marked as Exs.A5, Ex.A8 and
Ex.A12.
71.By placing the same, the learned counsel for the defendants argued that apparently there is alteration in the year portion that is year 2008 was altered to 2009, the figure ‘8’ in the year 2008 was altered to ‘9’ to make it 2009, only to bring the suit within the period of limitation.
72.Here it is to be noted that the last payment endorsement is dated.21.10.2009. The suit was filed on 24.4.2012. If the last payment endorsement is of the year 2009, the suit which was filed in the year 2012 is in time. In the case that if the last payment endorsement was made on 21.10.2008, the suit ought to have been filed on or before 21.10.2011, but this suit was filed in the year 2012, hence barred by time, as it was filed beyond three years, the period prescribed by filing suit for money.
73.In this case, it is apparent to the naked eye from the payment endorsements dated.21.10.2009, there is an alteration that the figure ‘8’ in the year portion 2008 was altered to
VII Addl. District Judge’s Court,
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Vijayawada Dated.9.6.2021 2009. PW1 (husband of the plaintiff), PW3 the scribe of those payment endorsements have categorically admitted about such alteration of the year from 2008 to 2009.
74.The learned counsel for the defendants argued that such alteration was made by the plaintiff in collusion with the scribe, to get over the limitation aspect and as such, it is a material alteration which may result in dismissal of the suit on the point of limitation.
75.The learned counsel for the plaintiff argued that the defendants did not take plea of material alteration and limitation in the written statement, hence, such argument of the defendants cannot be looked into without there being a plea.
76.No doubt that there is no specific plea regarding material alteration in the Written Statement. But both parties have knowledge about such alteration and they both have adduced sufficient evidence in this regard. In this case, it is the case where the plaintiff admitted such alteration and Expert opinion is not required as the alteration is apparent to the naked eye. One can easily identify such alteration at a glance.
77.PW1 the husband of the plaintiff during his cross examination admitted that the year 2009 was corrected in all the promissory note endorsements dated.21.10.2009. Having stated like that, PW1 did not give any explanation or reason for making such alteration. He denied that such alteration was made in order to save limitation.
78.The learned counsel for the defendants argued that whenever there is any alteration in the prime documents, it is the duty of the plaintiff to explain as to why such alteration was taken place. But the plaint is silent in this regard. Not only that, the chiefaffidavit of PW1 (the husband of the plaintiff) is also did not disclose about such alteration. Absolutely no
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021 explanation was also offered by PW1 in this regard, hence it can be inferred that the plaintiff maintained silence about such material alteration without giving any explanation as they got knowledge that, such material alteration effect her suit on the point of limitation.
79.On verification of the plaint and affidavit of PW1 (husband of plaintiff) in lieu of his examinationinchief, nothing was mentioned about the alteration found place in the last payment endorsements dated.21.10.2009 in all the three suit promissory notes. For the first time, PW1 admitted about the alteration during the course of crossexamination only. Apart from all the above, it is very clear that the alteration is apparent to the naked eye and Expert opinion is not required to find out the same as said above. In the event that if such alteration is proved to be made subsequently to save limitation, definitely, it amounts material alteration which may result in dismissal of the suit on the point of limitation as argued by the learned counsel for the defendants.
80.As the alteration that was found place in the last payment endorsements marked as Exs.A5, Ex.A8 and Ex.A12 is admitted one and it is apparent to the naked eye, the plaintiff cannot deny the fact that the year 2008 was altered to 2009 in the date portion of the last payment endorsements. The explanation offered by the plaintiff for such alteration plays an important role in this case. But absolutely no explanation was offered by the plaintiff or PW1 the husband of the plaintiff who gave evidence on behalf of plaintiff in this regard.
81.However, it is the plaintiff to establish that such alteration was taken place not for the purpose of saving limitation, but it was done only to correct the mistake committed by the scribe. The plaintiff examined the scribe of the last payment endorsements dt.21.10.2009 marked as Exs.A5,
VII Addl. District Judge’s Court,
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Vijayawada Dated.9.6.2021
A8 and A12 respectively where the correction of year was found place that year 2008 was altered as 2009.
82.PW3 by name Nagumothu Prabhakara Rao in the affidavit filed by him in lieu of his examinationinchief, it is stated that he scribed the payment endorsements dated.21.10.2019 in all the three promissory notes (Exs.A1, Ex.A6 and Ex.A9). Those payment endorsements are marked as Exs.A5, Ex.A8 and Ex.A12 respectively.
83.In his affidavit, it is further mentioned that as there is overwriting with regard to alteration found place, he deposed that as there is an overwriting in respect of the year, he re written the figure ‘9’ by correcting on the same day and the persons who have signed also scribed the date near their signatures.
84.The learned counsel for the defendants in this regard argued that the explanation given by PW3 that as there is over writing in respect of the year, he rewritten the figure ‘9’ by correcting the same cannot be accepted, why because it is very clear that figure ‘9’ was written on figure ‘8’ and figure ‘8’ is found place in the head of figure ‘9’. So it is not the case of overwriting, but it is the case of an attempt to alter figure ‘8’ to figure ‘9’.
85.On keen observation, this Court noticed that in all the three places of alterations, figure ‘8’ is found place in the head of figure ‘9’. It is not the case of overwriting of figure ‘8’ or figure ‘9’. In the cases of overwriting this
Court is of the view that, in the places of overwriting, the written strokes must appear in the same direction, but here in this case, from the manner that figure ‘8’ is appearing in the head portion of figure ‘9’, it is very clear that initially figure ‘8’ was written, thereafter figure ‘9’ was written overlapping figure ‘8’, thus an attempt was made to alter figure ‘8’ to figure ‘9’ and to conceal the said fact figure
VII Addl. District Judge’s Court,
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Vijayawada Dated.9.6.2021 ‘8’ was adjusted in the head portion of figure ‘9’. So this is a clear cut case of overlapping, but not rewriting as deposed by PW3.
86.This Court observed that as per the evidence of PW3 as there is a overwriting in respect of year, he rewritten the figure ‘9’. In such a case, there is no scope at all for appearance of figure ‘8’ in the year portion. PW3 did not state anything nor gave any explanation about figure ‘8’ which was concealed in the head of figure ‘9’. There is lot of difference between rewriting and alteration. In the cases of rewriting, the same letter or figure will be written repeatedly, so that, the written strokes must be on the same direction which is not found place in this case.
87.This Court also noticed that there are no initials of the signatory at the places of alleged rewritings and the initial of the scribe alone is appearing. It is also noticed that as there was a correction, the scribe must note down the number of corrections( “Hampsapaadu” in Telugu language) in the specific page of the document, but no such endorsement of the scribe is found place underneath any of the endorsements.
88.PW3 deposed that the rewriting which he said was done on the same day and in proof of the same, the person who signed have also scribed the date near their signatures. This Court observed that the figure ‘9’ which was allegedly rewritten by the scribe PW3 in the year portion and the figure ‘9’ found place in the year 2009 which was said to put by the signatory of the document are similar, hence it can be inferred that both figures are written by one person. Admittedly, figure ‘9’ which was said to be rewritten was written by PW3, hence it can be said that the date, month and year which was allegedly scribed by signatory on the left side of the alleged signatures of the signatories was also scribed by PW3 only.
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89.From the above, it can be said that such alteration was made without knowledge of the signatories and without their consent which renders the document void and unenforceable.
90.In Alampati Subba Reddy Vs. Neelapareddy Ramana Reddy in
AIR 1966 A.P. 267 held that –“ Whenever there is a material
alteration, the onus is on the plaintiff to prove that the
material alteration was made with a consent of the party and in
the absence of any such plea, it can be presumed that such
material alteration was made subsequently.”(Sec.87 of N.I. Act)
91.From the discussion above all, this Court conclude that it is the clear case of alteration of the year from 2008 to 2009, but not the case of rewriting as deposed by PW3, hence the evidence of PW3 did not inspire the confidence of the Court to believe that the alteration that was made is a genuine one and this Court is suspecting that PW3 at the instance of plaintiff and PW1 her husband, made such alteration altering the year 2008 to 2009 in the last payment endorsements in Exs.A5, Ex.A8 and Ex.A12, dated.21.9.2009 in all the three promissory notes(Exs.A1, Ex.A6 and Ex.A9), in order to bring the suit within limitation and if the original endorsement is of the year 2008 is taken into consideration, the suit is barred by time as on 4.5.2012 i.e., the date of filing of the suit.
92.Under the circumstances above all, this Court came to conclusion that the defendant succeeded in proving that the payment endorsements on the back of the suit promissory notes are not made by them and that the alleged last payment endorsements dated.21.10.2009 on all the three promissory notes are materially altered, hence presumption under sec.87 of
Negotiable Instruments Act can be drawn that such material alteration was made subsequently which renders the document void and unenforceable.
93.The defendant has taken a plea that a single suit for three promissory notes is not maintainable. In this regard, the
VII Addl. District Judge’s Court,
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Vijayawada Dated.9.6.2021 learned counsel for the plaintiff submitted that the plaintiff is one and the same for all the three promissory notes though the defendants are different. The defendants are husband and wife. It is an admitted fact that all the three promissory note transactions took place on different dates. On verification of the plaint, it is noticed that the Court Fee was paid independently for each promissory note transaction.
As plaintiff is one and the same in all the lending transactions and filed the suit by paying independent Court
Fee, the objection raised by the learned counsel for the defendant in this regard is of not avail to them.
94.In any view of the matter, under the circumstances above discussed, this Court conclude that the presumption under sec.118 of Negotiable Instruments Act cannot be drawn in favour of the plaintiff’s case and thereby the plaintiff is not entitled for the suit amount. Thus Issue No.1 is decided accordingly as against the plaintiff’s case.
95.In the result, the suit is dismissed. The parties do bear their own costs.
Partly typed to my dictation directly on computer and partly dictated to the Stenographer Gr.II at my residence, corrected and pronounced by me through Virtual Court, on this the 9th day of June, 2021.
SdSDSd/ K.Radha Ratnamnam
XII ADDL. DISTRICT JUDGE,
VIJAYAWADA.
FAC.VII ADDL. DISTRICT JUDGE,
VIJAYAWADA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF
PLAINTIFF: DEFENDANT:
PW1 : K.J.N.Prasad DW1 : B.Ravindranath PW2 : M.Sambasiva Rao DW2 : N.Krishna Prasad
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PW3 : N.Prabhakara Rao
EXHIBITS MARKED ON BEHALF OF
PLAINTIFF: Ex.A1: 11.11.1998 : Promissory note executed by D1 in favour of plaintiff Ex.A2: 24.10.2001 : Endorsement on Ex.A1 Ex.A3: 23.10.2004 : Endorsement on Ex.A1 Ex.A4: 22.10.2007 : Endorsement on Ex.A1 Ex.A5: 21.10.2007 : Endorsement on Ex.A1 Ex.A6: 1.10.2004 : Promissory note executed by D2 in favour of plaintiff Ex.A7: 23.9.2007 : Endorsement on Ex.A6 Ex.A8: 21.10.2009 : Endorsement on Ex.A6 Ex.A9: 7.8.2001 : Promissory note executed by D2 in favour of plaintiff Ex.A10: 2.8.2004 : Endorsement on Ex.A9 Ex.A11: 1.8.2007 : Endorsement on Ex.A9 Ex.A12: 21.10.2009 : Endorsement on Ex.A9 Ex.A13: : Office copy of legal notice Ex.A14: : Returned covers two in number
DEFENDANTS: Ex.X1 : Expert Opinion.
Sd/K.Radha Ratnam,
XII ADDL. DISTRICT JUDGE,
VIJAYAWADA.
FAC.VII ADDL. DISTRICT
JUDGE, VIJAYAWADA.
//t.c.b.o//
Head clerk FAC.VII ADDL. DISTRICT JUDGE’s Court,
VIJAYAWADA.
VII Addl. District Judge’s Court,
O.S.141 of 2012(FAIR)
Vijayawada Dated.9.6.2021