IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 AS.No. 640 of 1998(D) --------------------- OS.1048/1993 of PRL.SUB COURT,THRISSUR .................... APPELLANT/DEFENDANT IN THE TRIAL COURT: ---------------------------------------------------------------------- ROBY, S/O.THEKKEKKARA CHUMMAR, PUTHUSSERY DESOM, CHEMMANTHITTA VILLAGE, P.O. CHOONDAL, TALAPPILLY TALUK, THRISSUR DISTRICT. (NAME OF THE VILLAGE WRONGLY SHOWN IN THE JUDGMENT) BY ADVS. SRI.C.RAMAN SMT.MEERA V.MENON SMT.M.R.MINI SRI.P.N.RAVINDRAN SMT.PREETHY KARUNAKARAN SRI.JAYKAR.K.S. SMT.M.M.DEEPA VS RESPONDENT/PLAINTIFF IN THE TRIAL COURT: ---------------------------------------------------------------------- MATHEW, S/O.KAVEED PALATHINKAL KOCHAPPU, RETIRED SUB REGISTRAR, PERAKAM AMSOM, NEAR KOTTAPPADY, CHAVAKKAD TALUK, THRISSUR DISTRICT. ADDL. R2 TO 6 ----------------------- ADDL.R2. LILLY W/O.MATHEW, 75 YEARS, RESIDING AT KAPPIMALA, KOTTAPPADY, VIA KUNNAMKULAM, CHAVAKKAD TALUK THRISSUR DISTRICT. ( DIED) " R3. BOSKO, S/O.MATHEW, 52 YEARS, ENGINDEER, RESIDING AT KAPPIMALA, KOTTAPPADY, VIA KUNAMKULAM, CHAVAKKAD TALUK, THRISSUR DISTRICT. " R4. FLORA, D/O.MATHEW, 44 YEARS, RESIDING AT KAPPIMALA, KOTTAPPADY, VIA KUNNAMKULAM, CHAVAKKAD TALUK, THRISSUR DISTRICT. AS.No. 640 of 1998(D) ------------------------------- " R5. MALLIKA, D/O.MATHEW, 40 YEARS, RESIDING AT KAPPIMALA, KOTTAPPADY, VIA KUNNAMKULAM, CHAVAKKAD TALUK, THRISSUR DISTRICT. " R6. LISSY, D/O.MATHEW, 35 YEARS, RESIDING AT KAPPIMALA, KOTTAPPADY, VIA KUNNAMKULAM, CHAVAKKAD TALUK, THRISSSUR DISTRICT. ADDL. R2 TO R6 IMPLEADED AS PER ORDER IN IA.3278/2007 DATED 17.01.11 R2 TO R6 BY ADVS. SRI.JIJO PAUL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 640 of 1998(D) ------------------------------- ORDER ON CMP.5293/1998 IN AS. 640/1998 DISMISSED 17.01.2011 Sd/- M.N.KRISHNAN , JUDGE / TRUE COPY / P.A. TO JUDGE VK M.N. KRISHNAN,J. ........................................... A.S.NO.640 OF 1998 ............................................. Dated this the 17th day of January, 2011. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Thrissur in O.S.No.1048/1993. The suit is one for realisation of the amount due under a promissory note. 2. It is the case of the plaintiff that the defendant had borrowed a sum of ` 22,000/= on 5.5.1991 and had executed a promissory note with an undertaking to pay 12% interest. In spite of notice the defendant has not paid the amount, hence the suit. 3. On the other hand, the defendant would contend that he has not executed any promissory note on 5.5.1991 as alleged in the plaint. According to him, there was an agreement for sale of the property and he had paid an advance of `8,000/= with respect to 15 cents of land and later had executed a promissory note with 20 paise stamp in March, 1992 and the document or the promissory note on 5.5.1991 is not the one. According to him, in the promissory : 2 : A.S.NO.640 OF 1998 note which he has executed did not bear any date and subsequently a date has been put, a stamp has been affixed, his signature has been extended and thereby it amounts to material alteration which renders the document void under Section 87 of the N.I.Act. Therefore he prays for dismissal of the suit. 4. In the trial court, PW1,PW2 and DW1 were examined, Exts.A1 to A4 and B1 were marked. On an analysis of the materials, the trial court found in favour of the plaintiff and granted a decree with 12% interest. It is against that decision, the defendant has come up in appeal 5. Heard the learned counsel for the appellant as well as the respondent. The learned counsel for the appellant very strongly and persuasively submits before this Court that mere perusal of Ext.A1 would convince the conscience of the court that a stamp has been subsequently affixed and the signature has been extended which will squarely cover the ingredients to constitute material alteration which renders the document void. 6. On the other hand, the learned counsel for the : 3 : A.S.NO.640 OF 1998 plaintiff would contend that a promissory note was executed by the defendant and he had brought two stamps and he had put his signature and at no point of time there had been any material alteration so as to vitiate the document. 7. At the outset I may like to state that at the very first blush on seeing the promissory note one would feel that stamps are not of the same period; one looks quite new and the other looks quite old. There is no dispute with respect to the stamp which has got a new appearance, but the dispute is with respect to the stamp which is having old appearance. 8. It is contended by the appellant that the faded stamp had been subsequently affixed and the signature had been extended thereby making the document invalid. The suit was preceded by a notice. There the plaintiff has stated about the execution of the promissory note. A reply had been sent by the defendant. There the defendant never had stated anything about the sale or advancement of `8,000/= or execution of promissory note in 1992. If really the : 4 : A.S.NO.640 OF 1998 transaction is admitted by the defendant in the form of sale, certainly that should have been projected in the reply notice. But the reply notice is totally silent about it. That itself speaks in volume about the attitude of the defendant. It has also to be remembered that the plaintiff is a retired Sub Registrar and the defendant is a teacher. Both are masters in their own field and one can expect that a Sub Registrar knows how many stamps are necessary for the promissory note. Just because one stamp is having appearance of an old stamp that by itself cannot make the court or anybody to jump to the conclusion that it is a subsequently added one. 9. The trial court had gone to the nature of the contentions and the defence set up and thereafter had analysed the evidence of PWs 1,2 and DW1 and had arrived at a decision regarding the correctness of Ext.A1 promissory note. PW1 speaks about the execution of the promissory note, affixing of the stamp and putting up of signature. PW2 his brother-in-law also submits that he was available in the house at the time of execution of the : 5 : A.S.NO.640 OF 1998 promissory note and he had also spoken about affixing of the stamp and putting up of signature by the defendant. It is true that PW2 is the relative or brother-in-law of the plaintiff. Time and again even in criminal cases the courts have held that mere interestedness of a person in a case cannot be said to be absolutely unacceptable. The courts should be more cautious when a relative or interested witness is being examined in accepting the same. It is the intrinsic reliability and inherent probability that has to be analysed before accepting the evidence. There is no bar in accepting even the evidence of a partisan witness. 10. As stated by me earlier, if the defendant had entered into a sale transaction with the plaintiff and in connection with the same he had executed a promissory note, certainly that would have made mention of it in the reply notice. But his reply notice is totally silent about it. After the institution of the suit, in all probability seeing the clear difference in the age of the stamp one would have thought of putting up a defence which may be appealable to a court of law. It is the person who alleges material : 6 : A.S.NO.640 OF 1998 alteration who has to prove the same. Just because one stamp is old, it does not lead to the conclusion that it is subsequently interpolated. One has to understand when a document is insufficiently stamped, the normal tendency is to have a new stamp affixed rather than affixing an old stamp. Here affixing of a new stamp in the promissory note is admitted by the defendant. He had also admitted his signature in the new stamp. When such is the situation, a person who wants to interpolate or add a stamp, if clever will never do it with an old stamp. 11. Secondly it has been argued that it may be non availability of 20 paise stamp that would have lead to affixing of the old stamp. There is no much time gap, even according to the defendant, that the stamp in which he has affixed is if 1992 and the suit is filed in 1993. Absolutely there was no difficulty to get a stamp of the same nature, if one wants to affix it in promissory note. 12. Therefore mere factum of old stamp present in the promissory note does not lead to a conclusion that the document is one which has been materially altered. From : 7 : A.S.NO.640 OF 1998 the nature of the defence it can be seen that the court below was right in its findings. I do not also find any materials to totally disbelieve the evidence of PWs1 and 2 in this regard. Further the trial court did have the opportunity to see the demenour of the witnesses and had appreciated the same and had entered into a factual finding which is not incorrect or perverse. 13. So taking into consideration all these materials, I am of the opinion that there is nothing to substantiate the case of material alteration. On the contra, the evidence of PWs 1 and 2 and attitude of the defendant would only show that the plaintiff's case is true. Therefore, I find that the judgment and decree of the trial court regarding execution of the promissory note are correct and does not deserve any interference. 14. Now on the question of interest. There is no case that it is a commercial transaction. It is true that the rate of interest as per the promissory note is 12%. I feel that interest can be at the rate of 12% from the date of promissory note till the date of decree and thereafter at the rate of 6% from : 8 : A.S.NO.640 OF 1998 the date of decree till realisation. 15. In the result, the appeal is disposed of as follows: The judgment and decree of the trial court are modified and the plaintiff is given a decree for realisation of `28,283/= with 12% interest on the principal amount of `22,000/= from the date of suit till the date of decree i.e., 16.12.1997 and at the rate of 6% from 16.12.1997 till realisation from the defendant with costs. In the appeal, parties are directed to bear their respective costs. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 9 : A.S.NO.640 OF 1998 M.N. KRISHNAN, J. ........................................... A.S.NO.640 OF 1998 ............................................. 17th January, 2011. J U D G M E N T