TaxTMI 
TaxTMI 
2006 (2) TMI 691
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....etails of the cheques which were all drawn on ABN AMRO Bank are as under: Cheque No. Date Amount (Rs.) 566847 12-09-2000 44,77,500 566848 12-09-2000 2 9,85,000 566849 UN DATED 29,85,000 566850 UN DATED 29,85,000 It is the plaintiff's case that these cheques were in acknowledgment of the defendant's liability as confirmed by the defendant vide its letter dated 12.9.2000. 3. Before I examine the merits and de-merits of the contentions of the parties, it would be necessary to point out certain background facts as mentioned in the plaint. Apparently, in July and August 1999 the defendant issued four cheques totaling Rs. 1,25,37,000/- in favor of the plaintiff. When these cheques were presented they were returned to the plaintiff by its bankers with the endorsement 'Frozen Account'. It is pertinent to note that the defendant had during that period i.e., 1999 encountered various difficulties including prosecution under the Foreign Exchange Regulations Act and the Indian Penal Code. As a result of which, the defendant's accounts had been frozen. It is also to be noted that the defendant's account had been fro....
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....all such requests, the defendant deferred such confirmation on one pretext or the other and that the plaintiff was left with no other option but to issue a statutory notice and present the cheques for encashment. However, as indicated in paragraph 16 of the plaint only two cheques i.e., the undated cheques were presented to the bankers for encashment on 2.7.2003. There is no averment in the plaint with regard to the presentment of the other two cheques which were dated 12.9.2000. It is obvious that they could not have been presented on 2.7.2003 as the same would clearly be beyond the validity period of the said cheques which is normally six months. The two undated cheques which were presented were returned with the endorsement 'Attachment Order'. This suit has been instituted on the basis of these four cheques as would be apparent from a reading of paragraph 21 of the plaint and no other claim which does not fall within the ambit of Order 37 is claimed for in the present suit. 6. In the context of these facts, it was submitted by the learned counsel for the applicant/defendant that since the suit is based upon two cheques which was never presented, the same would not be ....
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....ted that the two undated cheques were obviously dated subsequently by the plaintiff on or before the time of presentation of the said cheques which is alleged to have been done on 2.7.2003. Therefore, it amounts to the situation where the date of an instrument is altered. That an alteration in a date on a negotiable instrument amounts to a material alteration in the terms indicated under Section 87, has been made clear by various decisions referred to by the learned counsel being: 1. K.M. Basappa and Anr. v. Patel Marule Gowda and Anr. AIR (38) 1951 Mysore 102 Page 0668 2. Vakkalagadda Kondiah v. Channamsetty Pedda Pulliah and Ors. 3. Allampati Subba Reddy v. Neelapareddi 4. Jayantilal Goel v. Smt Zubeda Khanum 10. The last of the aforementioned cases placed reliance on the earlier decision of the same High Court in . Paragraph 6 of the 1986 decision is relevant and is set out hereunder :- 6. Now, a look at Ex.A. 1 pro-note itself makes it apparent that the date, which is in a different ink, that is, other than the ink that has been used for body of the pro-note, is a subsequent introduction into the document. This insertion also amou....
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....e. 13. The principles for grant of leave to defend were set out in the Supreme Court decision in M/s Mechelec Engineers & Manufacturers v. Basic Equipment Corporation and particularly in paragraph 8 thereof which reads as under: 8. In Smt Kiranmoyee Dassi v. Dr. J. Chatterjee Das, J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 17 C.P.C. in the form of the following propositions (at p. 253) : (a) If the defendant satisfies the court that he has a good defense to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a friable issue indicating that he has a fair or bona fide or reasonable defense although not a positively good defense the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defense, yet, shows suc....