THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR A.S. No. 2227 of 2004 Judgment: This appeal has been filed challenging the judgment and decree dated 03.02.2004 passed in O.S. No. 151 of 2002 by the Principal Senior Civil Judge, Tenali, whereby and whereunder the suit filed by the appellant/plaintiff for recovery of amount was dismissed. The parties hereinafter will be referred to as they are arrayed before the trial Court for the sake of convenience. The brief facts of the case are as follows. According to the plaintiff, the defendant borrowed an amount of Rs.65,000/- from him on 28.11.1997 for his business purpose agreeing to repay the same with interest at 24% p.a., and executed Ex.A1 promissory note. It is also the case of the plaintiff that on the same day, the defendant borrowed an amount of Rs.65,000/- from him for his business purpose agreeing to repay the same with interest at 24% p.a., and executed Ex.A2 promissory note. Subsequently, the defendant made part payments of Rs.50/- on 01.11.2000 and Rs.10,000/- on 27.11.2001 and endorsed the same on the back of the promissory note Ex.A1 with his own hand writing and signed the endorsements Exs.A5 and A6 acknowledging the remaining debt. The defendant also made part payments of Rs.50/- on 09.11.2000 and Rs.19000/- on 21.12.2001 and endorsed the same on the back of the promissory note Ex.A2 with his own hand writing and signed the endorsements Exs.A7 and A8 acknowledging the remaining debt. The further case of the plaintiff is that in spite of making several demands, the defendant failed to repay the amount due under the promissory notes Exs.A1 and A2. Therefore, he got issued a registered notice to the defendant on 19.07.2002 and that the defendant received the said notice on 21.07.2002, but kept quiet. Hence, he filed the suit against the defendant. The defendant filed his written statement. The specific case of the defendant is that he never borrowed any amount from the plaintiff and that he never executed any promissory notes and that he never made any part payment endorsements on those promissory notes. The specific case of the defendant is that he has some disputes with one P. Venkateswara Rao, who is working in the same College along with him and that the said Venkateswara Rao has fabricated the alleged suit promissory notes and the alleged endorsements therein and in collusion with the plaintiff got filed the suit against him. It is also the case of the defendant that after receiving the notice, he approached the plaintiff and his Advocate and the plaintiff promised that he would not proceed further and therefore he did not issue any reply. The trial Court framed necessary issues and on behalf of the plaintiff, the plaintiff himself was examined as PW.1 and one P. Venkateswara Rao who is the scribe of Exs.A1 and A2 was examined as PW.2 and Exs.A1 to A8 have been marked. On behalf of the defendant, the defendant himself was examined as DW.1 but no documents were marked. The trial Court, holding that the plaintiff did not choose to call any one of his neighbours to attest the promissory notes and that PW.2 is no other than the friend of PW.1 and that there appears to be material alterations in the documents and contradictions in the evidence of PWs.1 and 2, disbelieved the case of the plaintiff and dismissed the suit. Aggrieved by the same, the present appeal has been filed. Sri P.V.G.K. Murthy, learned counsel for the appellant/plaintiff, submitted that once the execution of a promissory note is admitted or proved, the consideration is deemed to have been proved unless it is rebutted. In support of his contention he relied on a decision reported i n Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm[1], and also on the decision reported in G. Venkata Rama Subbaiah v. D. Rasool Naik[2]. It is also his main submission that though the defendant alleged that there are material alterations in Exs.A1 and A2 promissory notes, no such issue was framed by the trial Court, therefore, the plea has to be over looked. It is also his submission that the evidence of PWs.1 and 2 is consistent and that there are no material discrepancies in their evidence. It is also his submission that even though the plaintiff issued a legal notice, admittedly, the defendant failed to give any reply and, on the other hand, he averred a lame excuse that when he approached the plaintiff, the plaintiff promised that he would not proceed further and the said plea has no basis. It is also his submission that since the amounts were paid on two occasions i.e., in the morning and in the evening on the same day, two promissory notes were executed and there is nothing wrong in lending the amount on two occasions and that these negotiations need not be attested. It is also submitted that the defendant has taken a plea for scaling down the interest on the premise that he is an agriculturist, but there is no evidence in this case to show that the defendant is an agriculturist and that admittedly he has been working as Lecturer. It is also submitted that though the endorsements were not originally marked as exhibits when PWs.1 and 2 were examined, but subsequently PW.1 was recalled and the endorsements have been marked as Exs.A5 to A8 and that Pws.1 and 2 in their chief examination itself spoken about the endorsements made on the back of the promissory notes Exs.A1 and A2. Learned counsel for the respondent/defendant submitted that the defendant has been working as a Lecturer and he has some disputes with PW.2 and that PW.2, taking advantage of the closeness with PW.1, got filed this false suit against the defendant. It is further submitted that admittedly PW.1 is close friend of PW.2 and that their evidence is contradicting on material aspects. His main submission is that according to PW.2 he introduced the defendant to the plaintiff (PW.1), but according to PW.1 when the amount was ready he had sent a word to the defendant and that PW.1 never deposed that PW.2 introduced the defendant to him. It is also submitted that according to PW.1, the endorsements were made by the defendant and that he had taken such plea in the plaint, but however, PW.2 admitted that the endorsements Exs.A5 and A6 were made by him and thus on material points the evidence of PWs.1 and 2 is contradicting one another. It is also his submission that failure to issue reply could not amount to an admission and in support of his contention he relied on a decision reported in P. Prabhakar Rao v. Y. Venkata Mohan Rao[3]. He has also relied on a decision reported in Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo[4]. His further submission is that the plaintiff averred in his plaint that the endorsements on Exs.A1 and A2 promissory notes have been made by the defendant and it has come in the evidence that PW.2 has made the endorsements Exs.A5 and A6 and therefore it has to be held that the plaintiff admitted that the endorsements have been made by the defendant himself and this shows that PW.1 was not a truthful witness. The points that arise for consideration are; (1) whether Exs.A1 and A2 promissory notes and endorsements Exs.A5 to A8 made therein are genuine or not? and (2) whether there are any material contradictions in the evidence of PWs.1 and 2, which make the case of the plaintiff unbelievable. Admittedly, the defendant has been working as a Lecturer. Though the defendant has denied the execution of the promissory notes Exs.A1 and A2 and the endorsements Exs.A5 to A8 made therein, but the evidence of PWs.1 and 2 shows that the defendant has signed in Exs.A1 and A2 promissory notes. Though there is some controversy as to who has made endorsements Exs.A5 to A8, but however, the same appears to be not a material contradiction. Though PW.1 deposed that the defendant paid Rs.50/- on 01.11.2000 and Rs.10,000/- on 27.11.2001 and the same were endorsed on the reverse of the suit promissory note Ex.A1, it has to be seen that while referring the endorsement Ex.A6 made on 27.11.2001 PW.1 had specifically deposed that the defendant paid an amount of Rs.10,000/- under Ex.A1 promissory note and he endorsed the same on the back of the promissory note with his own hand writing, and similarly with regard to the endorsement Ex.A8, he deposed that on 21.12.2001 the defendant paid Rs.19,000/- and endorsed the same with his own hand writing on the back of Ex.A2 promissory note. But while referring Exs.A5 and A7, the plaintiff has simply stated that the defendant endorsed Exs.A5 and A7. According to PW.2, the endorsements in Exs.A5 and A7 are in his hand writing and beneath that endorsement the defendant has signed. However, while referring to Exs.A6 and A8 endorsements, the case of PWs.1 and 2 is that they are in the hand writing of the defendant himself. Similarly, on the issue whether PW.2 introduced the defendant to PW.1 or not, there appears to be some contradiction in the evidence of PWs.1 and 2. According to PW.2, he himself introduced the defendant and recommended the plaintiff to lend amount to the defendant. But, according to PW.1 he has well acquainted with the defendant and that the defendant approached him for loan and that in the first week of November 1997 the defendant approached him for loan for his business purpose and that he received an amount of Rs.1,50,000/- after selling Paddy and Greengram and then he had sent a word through somebody to the defendant about his interest to lend the amount. Then, according to PW.1, PW.2 brought the defendant to his house. There appears to be some minor contradictions, but no much importance need be given to those minor contradictions. Admittedly, the defendant did not give any reply to the notice got issued by the plaintiff. Though the defendant claimed that he has approached the plaintiff after receiving the notice, there is no other evidence on record to substantiate his claim. When the defendant had taken a specific plea that Exs.A1 and A2 are fabricated documents and brought into existence by forging his signatures, admittedly no steps were taken by the defendant for sending those documents to hand writing expert. Though the defendant has denied the execution of promissory notes and the endorsements made therein, but he had not specifically denied the signatures appearing on those documents. Coming to the issue of alterations, the suggestions given to PW.1 go to show that Exs.A1 and A2 have been materially altered and that in Ex.A1 the figure ‘6’ was added before the figure ‘5’ and similarly in words column ‘Aravai” was added before “Iduvelu”. In Ex.A2 also at the first instance before the figure ‘5’, ‘1’ was added and subsequently the figure ‘1’ was converted as ‘6’ and so also in words column. As far as material alterations in a document are concerned, the party, who takes such a plea must specifically mention what are the original words or figures in the document and then specifically plead how they have been materially altered. Moreover, the suggestions given to PW.1 go to show that there is no much force in the contention of the defendant. The suggestions go to show that originally the figure ‘6’ was added before ‘5’ making the original figure Rs.5000/- as Rs.65000/-. But, again the suggestions go to show that at the first instance in the column of figures before ‘5’, 1 was added and subsequently figure ‘1’ was converted as ‘6’. There is no need to first add the figure ‘1’ before ‘5’ and then to convert it as ‘6’. Moreover, the words shown as “sixty five thousand rupees” falsifies the contention of the defendant with regard to those material alterations. A reading of the entire documents show that the words “sixty five thousand rupees” have been clearly mentioned in both the documents Exs.A1 and A2. Though there appears to be some slight alteration at the figures, but it is a simple correction, in view of the specific mentioning of the figures in words. A reading of the entire evidence gives an impression that the defendant has executed Exs.A1 and A2 promissory notes. Once it is held that the defendant has executed the promissory notes, the presumption under Section 118 of the Negotiable Instruments Act, 1881, comes to the aid of the plaintiff and it is for the defendant to rebut such presumption. Admittedly, there is no evidence worth acceptable adduced by the defendant to rebut such presumption. So, in the light of the decisions relied on by the learned counsel for the appellant/plaintiff in Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm (1 supra) and in G. Venkata Rama Subbaiah v. D. Rasool Naik (2 supra), since the Court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration, we have to presume that the amounts mentioned in Exs.A1 and A2 promissory notes have been paid by the plaintiff and there is nothing to believe the non-existence of the consideration. Therefore, the presumption would come to play once the Court believes the execution of the promissory note by the defendant. Now coming to the point whether by non-issuing of reply to the notice of the plaintiff, an adverse inference can be drawn against the defendant, mere non-issuing of reply to the notice, no adverse inference can be drawn against the defendant. In P. Prabhakar Rao v. Y. Venkata Mohan Rao (3 supra), it was held that the exchange of notices would only at the most constitute a demand and refusal in writing, but the absence thereof would not either way constitute an admission. Even failure to issue a notice cannot be said to be an absence of demand nor the failure to reply to such notice would amount to an admission of the claim made in the notice. Such omission would not amount to a tacit consent in respect of the demanded liability. A reading of the judgment in Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo (4 supra), relied on by the learned counsel for the defendant, makes it clear that the said decision is not helpful to the defendant. The reasoning adopted by the lower Court while appreciating the evidence is not satisfactory. It has to be seen that PWs.1 and 2 in their evidence categorically referred about the endorsements. PW.1 in his chief examination had specifically mentioned that the defendant paid Rs.50/- on 01.11.2000 and Rs.10,000/- on 27.11.2001 and the same were endorsed on the back of the suit promissory note Ex.A1. While referring to the endorsements in Ex.A2, he has also specifically mentioned that the defendant paid Rs.50/- to him on 09.11.2000 and Rs.19000/- on 21.12.2001 and endorsed the same on the back of the promissory note Ex.A2. It is a fact that at that time those endorsements were not marked. In the cross-examination also PW.1 has specifically referred about the endorsements made by the defendant and deposed that the defendant paid part payments under Ex.A1 and endorsed the same on the back of Ex.A1 with his own hand writing. He further deposed that on 21.12.2001 the defendant paid Rs.19000/- towards part payment for Ex.A2 promissory note and endorsed the same on the back of Ex.A2 with his own hand writing. He denied the suggestions that PW.2 manipulated Exs.A1 and A2 and the endorsements therein with his help. It has seen that PW.2 also deposed about these endorsements in Exs.A1 and A2. The specific date and figures have been mentioned in his chief examination. However, the fact remains that those endorsements were not marked when PWs.1 and 2 were examined in chief as well as in cross. It is true that subsequently PW.1 was recalled and he was re- examined and Exs.A5 to A8 endorsements have been marked and he was further cross-examined by the defendant. It is also a fact that after those endorsements have been marked, PW.2 was not recalled and he was not further cross-examined. However, the fact remains that PW.2 has specifically deposed about these endorsements when he was examined initially, of course before marking Exs.A5 to A8. Of course, the plaintiff has also not taken any steps to recall PW.2. But that itself cannot be a ground to throw out the case of the plaintiff. The lower Court has given unnecessary importance to these issues. Merely because the plaintiff has engaged another advocate and that his earlier advocate did not appear on his behalf it does not mean that the version of the plaintiff is incorrect and that the version of the defendant is correct. Learned counsel for the defendant also submitted that as seen from the endorsements, the plaintiff’s case is barred by limitation. Admittedly, the suit promissory note Ex.A1 is dated 28.11.1997. The first part payment endorsement on Ex.A1 i.e., Ex.A5 is dated 01.11.2000. Thus, admittedly within three years the plaintiff got part payment endorsement on Ex.A1 promissory note from the defendant. The subsequent endorsement, of course, is dated 27.11.2001. Though the subsequent endorsement shows that it was obtained after completing three years from the date of Ex.A1 promissory note, but if the endorsement Ex.A5 is taken into consideration, the suit appears to be within limitation. Similarly, with regard to Ex.A2 promissory note, it is dated 28.11.1997 and Ex.A7 part payment endorsement is dated 09.11.2000 and Ex.A8 endorsement is dated 21.12.2001 and if we take into consideration the endorsements Exs.A5 and A7 the suit is within the period of limitation. In view of the aforesaid reasons, the appeal is allowed and the judgment and decree of the lower Court is set aside. Consequently, the suit in O.S. No. 151 of 2002 is decreed as prayed for. However, in the circumstances, with interest @ 12% p.a., from the date of respective promissory notes till the date of decree and subsequently at 6% p.a., from the date of decree till realization. ______________________ B. CHANDRA KUMAR, J. Date: 14.07.2010 Nsr [1] 2008(4) ALD 15(SC) [2] 2003(4) ALD 887 [3] 2006(6) ALT 266 [4] (2009) 5 Supreme Court Cases 713