056-NLR-NLR-V-13-PONNAPPA-CHETTY-v.-AYASAMY-CHETTY-et-al.pdf
June 30,1910
( 248 )
Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
PONNAPPA CHETTY AYASAMY CHETTY et al.
D. 0M Kandy, 19,731.
Promissory note—Alteration of the place of making—Is it "material"*
Plaintiff sueddefendant,whowasa resident ofColombo, on two
promissory notes, A and B, which were made at Colombo. Note Awas payable at Colombo, and note B was payable at Kandy.Plaintiff beforeinstitutionofaction altered theword M Colombo '*
into “ Kandy ", .so as to make it appear that the notes were madeat Kandy.
Held, that noto A was, and that note B was not, materiallyaltered.
Any alteration is material which would alter the business effectof the instrument if used for • a business purpose.
rpHE facts are briefly stated in the headnote.
Van Lanyenbcry, for the plaintiff, appellant.—The alteration innote B is not material, as the action couid have been brought atKandy, even without the alteration.
Dc Zoysa, for the first defendant, respondent.—If not for thealteration, the plaintiff can bring the action either at Colombo or at.Kandv; after the alteration, plaintiff can bring the action only atKandy; the alteration is clearly one which alters the business effectof the note; it is therefore a material alteration. See Suffell v. Bankof England.1
Our. adv. valt.
June 30, 1910. Hutchinson C.J.—
The plaintiff sues as the endorsee of two promissory notes madeby the defendants. One of the defences was that, subsequent tothe making of the notes, the word “ Colombo ” on each of themwas cancelled and the word “ Kandy ” put in, and the initials ofthe defendants were forged over the alteration, without the knowledgeand authority of the defendants, and therefore no action can bemaintained on the notes. The notes are on printed forms, and theword “ Colombo, ” signifying the place where they were made, isprinted at the head, alongsidfe the date, and has been crossed outin ink and Kandy substituted for it, with the initials of the makers.
1 {1882) 9 Q. B. D. 5oo.
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One of the notes, marked A, was payable at the office of the NationalBank of India in Colombo; the other, marked B, at the office of thesame bank in Kandy. Both the defendants lived in Colombo. If,therefore, the notes were made in Colombo, the holder of note A.could only have sued on it in Colombo, but the holder of the note Bcould have sued on it either in Colombo, where the defendantsresided, or in Kandy, where the cause of action arose.
June $0*1910
Hutchinson
C.J.
PonnappaChetty v.AyasamyChetty
The issues framed with reference to this defence were:(D
Were the notes made in Colombo, and not in Kandy ?(2) Was the
insertion of the word “ Kandy ” in each of the notes unauthorizedby the defendants ?
The District Judge found on both of the above issues in favour ofthe defendants. He also found that note A had not been duly-presented for payment, and he dismissed the action. His findingsof fact are not disputed, so that we are only concerned now withnote B, which was duly presented for payment; and the questionargued before us was whether the alteration made in it was“material'' within the meaning of that word in section 6-4 (2) ofthe Bills of Exchange Act.
None of the decisions on the meaning of the word is exactly inpoint. In Suffell v. Bank of England,* Brett L.J. said that anyalteration is material which would alter the business effect of theinstrument if used for any business purpose. I think that thealteration of note A was material, because it enabled the plaintiff tosue on that note in Kandy. But I cannot see how the alterationof note B could in any way alter its business effect. Either in itsoriginal form, or as altered, the defendants could be sued on iteither in Colombo or in Kandv. I hold that the alteration of note Bwas not material.
There was a further issue as to note B: “ (4) Was the amount ofnote B paid by ■ defendants to the payee and the note discharged M?The original payee was Caruppen Chetty, and the first defendantdeposed that when Caruppen was ill and going away to India, thefirst defendant paid him the full amount of note B, but got noreceipt. There is no corroboration, of that evidence. The Judgehas not recorded any finding on this issue. I do not thinkthat,’ without the consent of the parties, we who have notspen the witness ought to decide the issue, and the case must goback for its decision.’ The costs of this appeal should be costs inthe cause.
Middleton J.—
The plaintiff sued as endorsee of two promissory notes, each forBs. 250, made in favour of one Caruppen Chetty, who endorsedthem to the plaintiff. Both notes, purported to be made in Colombo,
1 (1882) 9 Q. B. D. 555.
( 250 )
June $0,1920 but each had been altered so as to make it appear it had been madeHidpeeton Kandy. Note marked A was payable at the office of the National
J.
Ponnappa
Ghetty v.AyaeamyGhetty
Bank of India in Colombo, and note B at the office of the samebank in Kandy. Unless both notes could have been sued ontogether in Kandy, the District Court there would not have hadjurisdiction to decide a claim on either separately. The .District-Judge held that the plaintiff had altered the word *' Colombo ”into “ Kandy ” on both notes; that such alteration was a materialone, and that note A had not been presented for payment at- thebank where it was made payable, and dismissed the plaintiffsaction. As regards A the appeal was not pressed, but as regards Bit was argued that the alteration was not a material one; that therewas no finding of the learned Judge as regards its payment;and that the plaintiff was entitled to have the question of thedefendants’ liability on the debt B decided. B could have been'sued on in Kandy even without the alteration objected to, but Acould not.
It seems to me, therefore, that there was a material alterationof A, but not such an alteration of B as would alter its businesseffect and so be material, per Brett L.J. in Suffel v. Bank ofEngland.1
So far as the note A is concerned, I see no reason to interferewith the judgment; but as regards B, I agree that the case shouldgo back for the determination of the fourth issue. The costs of theappeal to be costs in the cause.
Case sent bade
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’(1880) 9 Q. B. D. 1S5.