TMI Blog2011 (10) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,500/-. The plaintiff would aver that defendant had borrowed a sum of ₹ 25,000/- as a hand loan from the plaintiff in the month of November 1991 promising to repay the same within a period of three months. Since, the defendant was closely known to the plaintiff he obliged and paid the above said amount. In order to show his good gesture defendant issued a post dated cheque dated 5.2.1992 drawn on Syndicate Bank, Sirigere Branch. Chitradurga District. When the time agreed upon for the repayment of the said amount was about to expire the defendant personally contacted the plaintiff and requested him to grant further time and also requested him not to present the cheque for realisation. In the month of March 1992, the plaintiff once again contacted the defendant to ascertain as to whether the said cheque can be presented for realisation. The defendant consented and accordingly, the plaintiff through his bankers United Bank of India presented the cheque for realisation. The said cheque was returned with an endorsement 'account closed'. This fact was communicated by the plaintiff to the defendant on 17.3.1992. In the circumstances, the plaintiff was convinced that defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the defendant have examined themselves and have marked the necessary documents. On behalf of the plaintiff, he was examined as PW1 and Exs.P1 to P5 were marked. On behalf of the defendant he was examined as DW1 and no documents were marked. 9. The learned Trial Judge having regard to the evidence let in was of the view that the cheque issued by the defendant was as a security towards the loan borrowed. Hence, the suit filed by the plaintiff is barred by statute inasmuch as under Article 19 of the Limitation Act, the time would commence on the date when the loan is made. Since, the suit itself is filed in the year 1995 it is barred by statute. Aggrieved by the said judgment and decree the plaintiff files an appeal. In the appeal the learned Appellate Judge has recorded a finding that in the absence of any pleadings and also the evidence it cannot be said that the cheque, which was issued by the defendant to the plaintiff can be construed as a security towards the discharge of the loan. Hence, the suit is well within time inasmuch as the cause of action arose on the date when the cheque was presented for realisation and the date of dishonour. 10. The learned Appellate Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f no two opinions, may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the substantial findings of fact arrived at by court of facts and it must be necessary to decide the question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is whether the cheque issued by the defendant can be construed as one given as a security or towards the discharge of the loan. Indeed, the pleadings in this regard, are required to be looked into. It is neither the case of the plaintiff nor the defendant that the said cheque has been issued as a security. The plaint averments would disclose that defendant in order to show his good gesture on his own accord had issued a postdated cheque dated 5.2.1992, which was drawn on Syndicate Bank, Branch Sirigere, District Chitradurga. The pleadings would disclose that the defendant had personally approached the plaintiff and requested him to grant some more time. A reading of the plaint does not disclose that there is an admission by the plaintiff in the pleadings that the said cheque was issued as a security. 17. Indeed, the written statement also does not indicate that the said cheque has been issued to the plaintiff as a security. It is no doubt true that there is a statement made by the plaintiff during the course of his evidence that the said cheque was issued as a 'Aadhaara'. To my mind unless there is a pleading to that effect either by the plaintiff or by the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al transaction but it was a hand loan simplicitor inasmuch as both the plaintiff and the defendant appear to be close friends. Hence, I am of the view that awarding of interest at the rate of 18% from the date of suit till recovery would be on the higher side. 22. Indeed Section 34 of the Code of Civil Procedure would deal with the interest, which is awardable in the case of a decree for payment of money. The first proviso to Section 34 would indicate that if the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such interest may extend upto 6% p.a., but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by Nationalised banks in relation to commercial transactions. But the amount which was borrowed by defendant was not a commercial transaction but a hand loan simplicitor. I am of the view that the learned Appellate Judge was not justified in awarding interest at the rate of 18% from the date of suit till the date of realisation. To that extent, the petitioner is entitled to succeed. Hence, the following order. Appeal is accepted in part. 23. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
