The burden of proof of material alteration rests on the party alleging it, and the admissibility of a xerox copy of a document as evidence is limited, especially when there is a possibility of tampering.

JUDGMENT

(Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the judgment and decree dated 11.10.2018 made in A.S.No.26 of 2017 on the file of the I Additional District Court, Tirunelveli confirming the judgment and decree in O.S.No.288 of 2011 dated 24.11.2016 on the file of the Additional Subordinate Court, Tirunelveli and allow this second appeal.)

1. The defendant is the appellant.

2. The plaintiff has filed O.S.No.288 of 2011 before the Additional Subordinate Court, Tirunelveli for recovery of money for a sum of Rs.4,00,000/- from the defendant based upon a pro-note dated 29.07.2010 said to have been executed by the defendant which is marked as Exhibit A1. The suit was decreed as prayed for by the plaintiff. As against the same, the defendant filed A.S.No.26 of 2017. The learned Additional District Judge, Tirunelveli was pleased to dismiss the appeal. As against the concurrent findings, the present second appeal has been filed by the defendant.

3. According to the plaintiff, the defendant had borrowed a sum of Rs.4,00,000/- on 29.07.2010 agreeing to repay the principal amount along with interest at the rate of 12% per annum on demand. The plaintiff has further contended that he issued a legal notice on 05.09.2011 under Exhibit A2 and the same was returned as refused on 12.09.2011 under Exhibit A3. Hence, the present suit for recovery of money.

4. The defendant has filed a written statement not only admitting the execution of pro-note, but also passing of consideration namely Rs.4,00,000/-. However, the defendant contended that on the same day, he has executed a registered sale deed in favour of the plaintiff under Exhibit B1 with regard to the principal as a security for the borrowal. According to the defendant, he did not receive any consideration for Exhibit B1 sale deed. The defendant has further contended that since a sale deed has been executed in favour of the plaintiff, the interest column in the suit pro-note was left blank at the time of execution. After completion of execution, the defendant requested the plaintiff to hand over a xerox copy of the pro-note. Conceding to the said request, the plaintiff has taken a xerox copy and handed over the same to the defendant. The said xerox copy of the suit pro-note is marked as Exhibit B2. According to the defendant, the interest column has been left blank in the suit pronote at the time of execution and the same has been materially altered by the plaintiff by inserting 12% per annum. Hence the document suffered from material alteration and the defendant is entitled to avoid the said document. Therefore, he prayed for dismissal of the suit.

5. The trial Court after consideration of the oral and documentary evidence, arrived at a finding that the defendant has admitted the execution of the suit pro-note and passing of consideration to a tune of Rs.4,00,000/-. The only defence taken by the defendant is that at the time of execution of the suit pro-note, the interest portion in the printed form of the pro-note, a dash was marked indicating that the loan transaction will not carry any interest. The trial Court questioned the admissibility of Exhibit B2, xerox copy of the pro-note and rejected the contention of the defendant with regard to the material alteration.

6. The trial Court further found that if really the defendant has executed Exhibit B1 sale deed in favour of the plaintiff, he would have raised objection at an earlier point of time and the remedy of the defendant would be elsewhere and not in the present suit for recovery of money. Since the execution of the suit pro-note is admitted, the entire burden is upon the defendant to establish the fact of material alteration. Since the defendant has failed to prove the material alteration, the suit was decreed by the trial Court.

7. The First Appellate Court arrived at a finding that Exhibit B2 xerox copy is admissible in evidence, in view of the fact that the original has been produced on the side of the pl