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2020 (1) TMI 1291 - HC - Indian LawsDishonor of Cheque - time limitation - fraud and cheating - legally enforceable debt or not - rebuttal of resumption or not - HELD THAT:- A promise to pay a time-barred debt is a condition precedent for application of Section 25(3) of the Indian Contract Act. The said promise must be express and unequivocal. Now, when we read the content of the letter - Ex. P-10 given by Krishnamurthy as general power of Attorney holder of the first defendant, leave alone the authority to give such letter, we find that the promise to pay is conspicuously absent in this letter. Assuming the letter acknowledging the debt is valid and given prior to the expiry of limitation, it is highly improbable to say the cheque - Ex. P-11 was issued on 30/10/2007. Undoubtedly, it should have been left the possession of the defendants and come to the possession of the plaintiff prior to 20/08/2007, the date on which the first defendant gave complaint to the Commissioner of Police, Chennai alleging fraud and cheating. However, the cheque being dishonoured, one of the issue framed in this case is 'whether a dishonoured cheque will save the limitation of time barred debt, in the absence of promise'. This issue is a significant question of law, though may not have serious bearing on the case in hand, even if held either way. Cheque is defined under section 4 of the Negotiable Instruments Act as a 'bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand'. Cheque is therefore a negotiable instrument carrying the promise implicitly, unlike a pro-note where the promise is explicit and mandatory. Therefore, limitation has to be reckoned from the date the cheque and not on the fact 'whether the cheque was honoured or dishonoured'. Under the Negotiable Instruments Act, the issuance of cheque is to be presumed to be issued for discharge of debt. The consequence event 'whether the said cheque on presentation honoured or not is immaterial - In the opinion of this Court, even if the said cheque is not presented in time and become stale, but it is proved that the cheque was issued with intention to discharge the debt or part of the debt then, the limitation has to be reckoned from the date of the cheque considering the cheque as acknowledgment of debt. As far as the facts of this case in hand, the cheque in the name of the plaintiff gives him the cause of action to sue and Suit being filed within 3 years from the date on which the cheque bear, this prima facie saves the limitation. The plaintiff cannot be disunited on the ground of limitation. However, the plaintiff fails to succeed, since, this Court has held that the plaintiff has not proved his case for recovery of money and the cheque is not issued for any enforceable debt. Therefore, the discussions on limitation based on the fact whether dishonor of cheque will save limitation is academics. Suit dismissed.
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