TMI Blog1985 (2) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant, 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 ₹ 8,000/- from the plaintiff on 27-4-1974 and executed pro-n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties : and any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof. The provisions of this Section are subject to those of Ss. 20, 49, 86 and 125. S. 118 : Until the contrary is proved, the following presumptions shall be made :-- (a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is more crucial, is -- who should discharge the burden of proving that the document is materially altered. This too is well settled that the person, who is in the custody of the document subsequent to its execution, should there be any alteration, has to discharge the burden of establishing that it is not altered. 8. In A. Subba Reddy v. Neelapa Reddi, (supra) this Court held :-- The general rule in English law followed in India is that a party having custody or control of a document produced in evidence must explain the alteration. When the instrument on its production appears to have been altered, it is a general rule that the party offering it in evidence must explain its appearance, because every alteration in the case of a nego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to explain the alteration and show when it was made. Ordinarily the party who presents a negotiable instrument which is an essential part of his case in an apparently altered and suspicious state, must fail, from the mere infirmity or doubtful complexion of the instrument unless it can satisfactorily explain the existing state of the document... The plaintiff in his deposition denies any correction. He has no explanation to offer in case it is found that the date appears to be materially altered. In the absence of any explanation on behalf of the plaintiff who seeks the enforcement of the document, it is obvious that the plaintiff must fail, as the onus was on him to show that the material alteration was made either with the consent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er consideration has passed on to the defendant. In fact, it is a question to fact. This Court will be chary to interfere with the concurrent findings of facts. 12. The learned counsel for the respondent sought to contend that, even if there is material alteration in the instrument. Ex. A. 1 and if on that score the instrument is held to be void, still it will be open to the plaintiff to rely on Ex. A. 2, which is a receipt executed by the defendant acknowledging the receipt of the sum of ₹ 8,000/- and recover the same. Reliance was placed on a Full Bench decision of this Court in L. Sambasiva Rao v. Balakotaiah, AIR 1973 Andh Pra 341 wherein it is held :-- A plaintiff can lay an action for recovery of the amount advanced by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pro-note was executed and the payment of the sum was said to be contemooraneous with the instrument, and, when once the instrument is held to be void on the ground that it is hit by S. 87 of the Negotiable Instruments Act, then the plea under S. 65 of the Contract Act is not available. So, the contention, which is misplaced and devoid of substance, is rejected. The order under appeal is set aside, while allowing the appeal without costs. 15. It may, however, be recorded that a memo has been filed by the learned counsel for the appellants which reads :-- In the above manner, purely as a matter of concession and magnanimity of this appellant, the appellant hereby undertakes that he shall not recover the amounts so far paid to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
