RANGASWAMI REDDI Vs. K DORAISWAMI REDDI

JUDGEMENT

(1.) THIS appeal originally came up before Krishna-swami Naidu J. who referred it to a Division Bench by the following order :

(2.) THE suit from which this second appeal arises was brought in the Court of the district Munsif of Salem to recover a sum of Rs. 1331, being the amount alleged to be as principal and interest under a promissory note dated 20th December 1947. The plaint contained the following material allegations. On 15th December 1947 the defendant requested the plaintiff to lend him Rs. 1500 and received a sum of rs. 1100 on that date. The plaintiff promised to lend the balance within a week ; but was unable to do so. On 20th December 1947 the defendant therefore executed a promissory note for Rs. 1100 in acknowledgment of the amount borrowed on 15-12-1947. After the execution of the promissory note, at the defendant's request, the pla-intiff paid to the defendant a further sum of Rs. 100 and the defendant aliered in his own hand the figure of Rs. 1100 into Rs. 1200 in the said promissory note. On 30th December 1948 the defendant made an endorsement in his Own handwriting on the promissory note of a payment of Rs. 68-12-0. On 11th March 1950 he acknowledged the debt due to the plaintiff in a mortgage executed by him. Hence the suit is not barred by limitation. (The suit was brought in 1951), The cause of action arose on 15-12-1947, when the hand loan of Rs. 1100 was given and on 20th December 1947 when a further loan of Rs. 100 was given and acknowledged in the promissory note and on 30th December 1948 when the defendant made the endorsement of payment of Rs. 68-12-0 on 11th March 1950 when the defendant acknowledged the debt.

(3.) THE defendant stated that he neither received Rs. 1100 nor any sum from the plaintiff on 15th December 1947. Only a sum of Rs. 1000 was received by him on 20th December 1947. But the promissory note was executed for Rs. 1100 in view of the provisions of Madras Act IV of 1938. The defendant pleaded that the plaintiff with ulterior motives had materially altered the suit promissory note by changing the figure of Rs. 1100 to Rs. 1200 and the said alteration was material and therefore the suit promissory note was not enforceable. He further pleaded that there was no original cause of action independent of the promissory note, and when the Promissory note Itself was not enforceable, the plaintiff cannot rely on any such original cause of action. He also stated that there was a material alteration in the endorsement of payment from 20-12-1948 to 3012-1948. In addition to the above pleas, the defendant also raised a plea of discharge by payment of the entire principal of Rs. 1000 with accrued interest thereon within a week of the receipt of the notice, dated 22-5-1950 from the plaintiff demanding payment. The learned District Munsif who tried the suit found that the defendant borrowed the sum of Rs. 1100 on 15-12-1947. but held that the further loan of Rs. 100 on 20th December 1947 alleged by the plaintiff was not true. He also found that material alterations in the promissory note had been made by the plaintiff without the consent of the defendant and hence the suit promissory note became void and unenforceable under Section 87 of the negotiable Instruments Act. He found against the defendant on his plea of discharge. Though the promissory note as such was not enforceable, the learned District Munsif held that the plaintiff was entitled to recover on the original cause of action, namely, the loan given on 15th December 1947. In the result he granted, a decree for Rs. 1100 with Interest thereon at 5 1/2 per cent per annum from the date of suit. There was an appeal by the defendant. The learned Sub-ordinate Judge who dealt with the appeal differed from the learned District Munsif and held that the plaintiff never paid any money to the defendant on 15th December 1947 and that the defendant received the amount only on 20th December 1947, the date of the promissory note. As the promissory note had been materially altered, the plaintiff could not maintain the suit on the promissory note, and as there was no original cause of action based on a payment on 15th December 1947, the plaintiff was not entitled to sue on the consideration for the promissory note and Section 65 of the Contract act' would have no application in view of the provisions contained in Section 87 of the Negotiable Instruments Act. He therefore allowed the defendant's appeal and dismissed the suit. Hence the plaintiff has filed this second appeal.