IMPORTANT POINT
Claim based on void instrument cannot be enforced in Court of law.

P. Devadass, J.—The defendants have directed this second appeal as against the concurrent findings rendered by the trial Court as well as the first appellate Court with regard to Ex.A.1 promissory note.

2. The respondent/plaintiff in O.S.No.78 of 2000, on the strength of Ex.A.1 promissory note dated 25.05.1997, sued the defendants, in the Sub-Court, Ambasamudram, since inspite of Ex.A.2 notice, either the principal or the interest has been paid. Before the trial Court, plaintiff let in primary evidence by examining himself as P.W.1 and the attester as P.W.2. The trial Court appreciating the oral and documentary evidence, on 03.10.2003, decreed the suit as prayed for. As against that the defendants have approached the first appellate Court/Principal District Court, Tirunelveli in AS.No.125 of 2004 but met with a failure on 31.01.2005, thus, this second appeal.

3. Mr. S.Kumar, learned counsel for the appellants argued at length questioning the geninuneous and want of proof of execution of Ex.A1. When we look at the substantial question of law framed, such argument now will not arise, so we shall confine ourselves to the substantial question of law framed.

4. The substantial question of law framed in the second appeal relates to non framing of an issue regarding plea of material alteration with reference to the suit promissory note.

5. The learned counsel for the appellants referring to T. Kalavathy v. Veera Exports, Senkuntapuram, Karur1 and Gouindaraj & Co. and another v. The Nedungadi Bank Limited, Calicut2,submitted that when a negotiable instrument is materially altered, on the basis of it, a claim cannot be made in the Court. In this case, in Ex.A1, the year 1996 has been altered as 1997, by this, plaintiff tried to escape from the bar of limitation, it is a material alteration, on the basis of such an instrument, a claim cannot be made. The plea to that effect has been raised in the written statement. However, the trial Court as well as the first appellate Court have missed this vital point. On this aspect, they have not framed an issue, thus, they have not focused their attention on this aspect and that had occasioned the suit being decreed instead of being dismissed.

6. On the other hand Mr.J.Bharathan, read us para No.5 of the written statement and invited our attention to Order VIII Rule 3 to 5 C.P.C and would submit that a plea in the written statement must be specific, it must contain details and should not be evasive, bald and vague and such is what the nature of the plea in the written statement filed in this case. That apart, looking at Ex.A1 even straining too much there is no semblance of any alteration. Further, the fact that the very appearance, the wordings and the manner of execution fortify that Ex.A1 promissory note is not caught by the vice of any alteration much less material alteration.

7. Now we shall proceed to answer the substantial question of law.

8. There are several modes by which liability on negotiable instruments get discharged.

9. Chapter VII of Negotiable Instruments Act, 1881 specifically deals with that. One of them is “Material Alteration”. It is being dealt with in Section 87 of the Act.

10. Section 87 of the Act runs as under:

“Effect of material alteration:- Any material alteration of a negotiable instrument renders the same void as against anyone 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,

Alteration by indorsee:- 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 sections 20, 49, 86 and 125.

11. The phrase “Material Alteration” has not been defined in the Negotiable Instruments Act, 1881. But, it has been explained judicially.

12. In Kaliana Gounder v. Palsu Gounder3, it is held as under:

“A material