TMI Blog1967 (1) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... stified in inferring without any pleading in this regard that the three cheques had been post-dated and had been given, two of them Ex. P/1 and P/2 on 7-9-1954 and Ex. P/8 two days later , that is, on 9-9-1954. (3) Even on the assumption that the cheques were post-dated, whether the trial Court was justified in starting the new term of limitation not from the date on the cheques themselves, but on the dates they were found to have been handed over, thus applying with a very material variation, the principle in a decision of a single Bench actually presided over by one of us, reported in Gorilal v. Ramjeelal, a case in which this question did not arise and the date of handing over was treated as identical with the date actually on the cheques. It is not necessary in go into the facts of this case; for one thing, the parties have not pressed them in arguments here; for another, the liability of the defendants on the facts is clear and beyond doubt, the suit being one on the basis of a promissory note executed by both the defendants, the cheques themselves which the plaintiff seeks to use as steps-in-aid, signed by both of them. 2. It is only necessary for the purpose of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich he received them. Yet D. W. 2 Laxminarayan was definite that two of the cheques had been issued on 7-9-1954 and the third some two or three days after 7-9-1954 Support for this theory was found from the evidence of Kaschanlal one of the witnesses on the side of the plaintiff, and the trial Court now proceeded to assess the legal effect of the situation, namely, whether the passing of the cheques--one honoured and two dishonoured--was equivalent to part payment or acknowledgment in the writing of the debtor for the purposes of Section 20 of the Limitation Act, Having found that it was, on the strength of ruling of this Court in it went on further to decide whether the starting points for the fresh term of limitation were the dates on the cheques themselves, or whether it was the dates on which on oral evidence the Court found that these cheques, post-dated as they were, had actually been handed over to the plaintiff. It proceeded to apply the principles in the ruling already referred to to the situation understanding the date of giving the cheque mentioned there as applicable to the date of handing over of a post-dated cheque, as distinguished from the date on the chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department was in a position to advise him if he had come about the requirements, and the 3rd January 1962 when the appellant did come should be counted against him or should be excluded as being incidental to the obtaining of the copy. The period upto that date would certainly be excluded. 7. Again, on the 3rd January 1962 he gave the requirements and was advised to come on the 17th January to collect the copy As it was, the copy was ready on the 8th Itself. Certainly the appellant could not be held responsible for the period upto the 17th January; but what he did was to come on the 1st February, after another 12 days, then he collected the copy. Having the copy in his hands on 1-2-1962 he actually filed the appeal on 18-4-1962, as already noted, with 47 days to be accounted for. He is prepared to concede that he cannot get the exclusion of the period after the 17th January because coming on that date he could have collected the copy which was ready by then. 8. The problem being about the period between the 5th December and the 3rd January in particular between 20th December 1961 and 3rd January 1962 we shall examine the position at some length. The usual routine is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5th December, namely, that the particulars having been sent for from the re cord room it does not reach in time by the date given to the party. We are aware that it can be argued that even on such a contingency the applicant for copy should be coming on every date given by the department till ultimately the record room is pleased to send the particulars. and the department is in a position to apprise him of the actual requirement. We are not, however, prepared to take this view which would inflict unavoidable inconvenience on the applicant for copy. It may be necessary in a case where the applicant for copy makes it impossible for the department to contact him during the interval But in the instant case, however, the applicant had made it perfectly easy for the copying department to contact him by post. In these circumstances on the ground of reasonableness we would not penalise him for what had been a default in the office which could have been remedied by an appropriate communication. Accordingly, we would hold that the appeal is in time. Question No. 2 10. On the facts the trial Court has found that the three cheques with which alone we are concerned were post-dated an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Limitation assuming the post-dating of the cheques: 11. It is on this part of the case that we are called upon with all respect to observe that the trial Court has applied the single Bench ruling in (supra) to a situation unlike the one that arose in that case. That ruling is certainly authority (on the basis of a large number of other cases) for the proposition that the passing of a cheque signed by the debtor is the starting point of a new period of limitation under Section 20 and this is so whether or not the cheque has been honoured. Since the reasoning is contained in extenso in that judgment and we are adopting it, it is unnecessary to set it out over again. But the trial Court has applied this proposition with an important refinement which did not arise in that case, namely, that the date on which the cheque is passed being different from the date put on the cheque limitation starts from the former and pot the latter. Actually this refinement is found in only one of the cases mentioned in that Single Bench judgment, namely (supra) In our case itself there was no such question and naturally all the cases involving the general thesis that the passing of a cheque starts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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