JAYANTILAL GOEL Vs. ZUBEDA KHANUM

JUDGEMENT

(1.) Defendant is the appellant. He has come in this Second Appeal against a concurring judgment. The suit was for the recovery of a sum of Rs. 8,000/- under a pro-note, Ex.A.1, which was said to be executed on 23-4-1974. The allegation was that the amount was said to be borrowed as a hand-loan and when it was refused to be paid, a legal notice was issued under Ex.A-3 dated 26-11-1976 but the same was said to be returned unserved, but the suit however was laid on 16-12-1976.

(2.) The defence in the written statement was that the plaintiff is a Tawaiff and the defendant, who is a man of affluence, was visiting regularly. There was no need or necessity for him to borrow the amount. Secondly, whenever he visited her house he was consuming liquor and when he was under the influence of intoxicant drinks, may be, his signature was obtained. So, even if there is any execution of such document, it was not done in consciousness. That apart, it is also averred that the pro-note is materially altered as the date has been later inserted. The further allegation was that she had no capacity to lend the money. For all these reasons, the suit be dismissed. The first Court framed 2 issues, viz., "(1) Whether the defendant borrowed a sum of Rs. 8,000/- from the plaintiff on 27-4-1974 and executed pro-note'? (2) Whether the suit pro-note is genuine, true and supported by consideration?" Finding was in favour of the plaintiff on both the issues and so, the suit was decreed.

(3.) In the appeal for the first time, a contention was raised stating that inasmuch as the pro-note is materially altered, it is hit by Section 87 of the Negotiable Instruments Act. Therefore, the instrument is void and unenforceable. The appellate Court, however, rejected the contention holding that it was for the defendant to establish the factum that the suit pro-note was materially altered and since he has failed to do so, the case of the plaintiff was held established and the appeal was dismissed.