IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 25.01.2018

PRONOUNCED ON : 07.02.2018

CORAM:

THE HON'BLE MR.JUSTICE T.RAVINDRAN

S.A. No.1177 of 2003

and

C.M.P.No.10545 of 2003

Pachaiappa Chettiar ... Appellant/Respondent/Defendant

Vs.

Muthukrishna naidu

... Respondent/Appellant/Plaintiff

Prayer: Second Appeal filed under Section 100 of C.P.C.,

against the judgment and Decree of the court of the Civil Judge,

Senior Division, (Sub -Court), Kallakurichi in A.S.No.301 of

1996 dated 30^th April 1998 in reversing the well considered

judgment and decree on the court of Principal District Munsif,

Kallakurichi in O.S.No.42 of 1993 dated 31.03.1995.

For Appellant : Ms.Thaarini.V.C

for M/s.V.Raghavachari

For Respondent: No appearance

Set exparte

J U D G M E N T

Challenge in this second appeal is directed against the

judgment and decree dated 30.04.1998 passed in A.S.No.301 of

1996 on the file of the Subordinate Court, Kallakurichi and

reversing the judgment and decree dated 31.03.1995 passed in

O.S.No.42 of 1993 on the file of the District Munsif Court,

Kallakurichi.

2. The parties are referred to as per the rankings in the

trial court.

3. Suit for recovery of money.

4.The case of the plaintiff in brief is that the defendant

borrowed a sum of Rs.11,000/- from the plaintiff on 27.12.1989

https://hcservices.ecourts.gov.in/hcservices/

agreeing to repay the said amount with interest at 12% per annum

and in evidence of the said borrowal, executed the suit

promissory note in favour of the plaintiff and despite several

requests, the defendant had not repaid the said amount as

promised and as the court was closed from 25.12.1992 to

03.01.1993, on account of vacation, the suit is not barred by

time and hence the suit for recovery of money.

5.The case of the defendant in brief is that the suit is

not maintainable either in law or on facts and the defendant had

been having money transactions with the plaintiff's father

Duraisamy Naidu since 1969 onwards and he used to obtain

promissory note in the name of his wife Chennammal and after the

discharge of the borrowed sum, he would obtain promissory note

for the balance amount and accordingly, in respect of the money

transactions which the defendant had with Duraisamy Naidu, on

verification, it was found that a sum of Rs.11,200/- was due to

be paid by the defendant as on September 1989 and accordingly as

per the village practice, two promissory notes were obtained

from the defendant, one for sum of Rs.11,000/- in the name of

the plaintiff and another for a sum of Rs.11,400/- in the name

of the plaintiff's brother on the same date, however, bearing

different dates and the said promissory notes had been duly

discharged by the defendant during August 1992 itself and it is

represented to the defendant that promissory notes had been

misplaced and assured of the return of the same and accordingly

the defendant had also not secured the discharged promissory

notes and the promissory note executed in the name of the

plaintiff was dated 11.09.1989 and the plaintiff had materially

altered the same as dated 27.12.1989 to save the suit claim on

the point of limitation. The plaintiff had materially altered

the above said date and month in the promissory note without the

knowledge of the defendant and his consent and hence, on account

of the said above material alterations made in the promissory

note, the same had been rendered void and on account of the

pathway dispute between the plaintiff's clerk and the defendant,

the present suit has come to be laid after making material

alterations in the promissory note and to the notice sent by the

plaintiff, suitable reply has been given and hence the suit is

liable to be dismissed.

6.In support of the plaintiff's case, P.W's1 and 2 were

examined