The Court's decision was influenced by the interpretation of Section 87 of the Negotiable Instruments Act 1881, which rendered the promissory note void due to material alteration.

Kotipalli Nageswara Rao @ Kotupalli

Versus

Yandrapalli Nagaiah

SA No.517 of 1993

Decided on 29-8-2006

Cases Referred

1. Murarilal v. State of M.P., AIR 1980 SC 531

Advocate appeared

B. Adinarayana Rao, Counsel for the Appellant;

K. Raji Redeey, Counsel for the Respondent.

JUDGMENT

Heard the Counsel.

2. On 28-10-1993, this Court made the following order :

"In view of the substantial questions of law mentioned in Ground No. I 0, the second appeal is admitted".

The substantial questions of law specified under Ground No.1 0 are as hereunder:

(a) When the defendant failed to give reply to the registered notice prior to the institution of the suit, will it not amount to admission to deny the suit claim later?

(b) Whether the comparison of signature under Section 73 of the Evidence Act by the competent Court can be interfered with by the appellate Court on the sole ground that it is of lesser value without the appellate Court itself indulging in such verification?

(c) Whether the lower appellate Court is right in rejecting the evidence of P.W.2 to P.WA and whether the reasons assigned therefor are in accordance with the settled law ?

3. Sri B. Adinarayana Rao, the learned Counsel representing the appellant would comment that the suit is based on a promissory note and the Court of first instance had arrived at the correct conclusion by decreeing the suit, but the appellate Court had erred in reversing the judgment and decree of the Court of first instance. The learned Counsel also would point out that the defendant failed to give reply to the registered notice prior to the institution of the suit. The learned Counsel also had drawn the attention of this Court to Section 73 of the Indian Evidence Act 1872 and made an attempt to explain the scope and ambit thereof. The learned Counsel also would comment that though there was no whisper at all in the Court of first instance that the signature of the second attestor was introduced later, the appellate Court recorded certain findings at Para-9. Even otherwise, the learned Counsel would contend that inasmuch as evidence relating to the proof of execution of the promissory note being available, the decree made by the Court of first instance to be restored.

4. Per contra, Sri Raja Reddy, the learned Counsel representing the respondent would contend that on 25-11-1987 while returning the plaint under Query No.3, the Head Clerk specified "second attestor not signed on the pro note. An endorsement to that effect should be made on the pronote".

The learned Counsel also pointed out that from this fact it is evident that the signature of the second attestor was introduced subsequently after the plaint was returned and the same would amount to material alteration on a negotiable instrument rendering the same void under Section 87 of the Negotiable Instruments Act 1981. The Counsel also would submit that apart from this aspect of the matter, certain discrepancies in the evidence relating to the place of execution and other circumstances which made the appellate Court to reverse the judgment and decree of the trial Court had been specifically pointed out. Hence the Counsel would contend that the second appeal is liable to be dismissed.

5. The appellant is the plaintiff and I aggrieved by the reversing judgment and decree made in A.S. No.100/90 on the file of District Judge, Guntur the present second appeal is preferred. It is needless to say that the suit filed by the appellant/plaintiff 0.S.No.1394/87 on the file of III Additional Munsif Magistrate, Guntur was decreed. The suit is for recovery of money. The parties hereinafter would be referred to as "plaintiff' and "defendant" for the purpose of convenience. It is the case of the plaintiff that the defendant borrowed Rs.4,000/- on 12-11-1984 for family necessity and executed a promissory note on the same day agreeing to repay the same with interest @24% per annum and in spite of repeated demands the defendant did not repay the amount and hence the