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2021 (2) TMI 1243 - HC - Indian LawsDishonor of Cheque - suit is barred by limitation or not? - Applicability of Limitation of three years for recovery - rebuttal of statutory presumption - Whether the limitation for the suit based on a dishonoured cheque commence from the date of cheque or date of dishonour? - foundational requirement to adduce secondary evidence to sustain the suit on a lost negotiable instrument satisfied by the petitioner or not? - HELD THAT:- Being an Association, the account books of the defendants if produced, the truth about the money transaction between the plaintiff and the defendants Association would have surfaced. P.W-1 has specifically deposed that the subject cheque was written by the second defendant. The defendants have not disputed it. When the burden to rebut the legal presumption is casted upon the defendants, the non-production of evidence to probablise the defence is fatal to the case of the defendants - In the instant case, presumption of existing debt has to be drawn since the defendants have failed to rebut the presumption against them. The explanation given by the defendants regarding the cheque is not a plausible explanation. No direct or circumstantial evidence adduced before the Court to rebut the statutory presumption. A cheque is bill of exchange. The period of limitation is three years. Only the date of commencement of limitation differs based on the further transaction on the said instruments. Under Article 35 of the Limitation Act, the three years period commences from the date of the bill, provided there is no restriction in writing postponing the right to sue. Under Article 40, the right of the payee to sue the drawer of a bill of exchange dis-honoured by non-acceptance commences from the date of refusal to accept. Under Article 113 three years time commences from the date when the right to sue accrues for a suit no period of limitation is provided elsewhere in the schedule - when the right to sue is restricted by law, Article 35 gets excluded and Article read with Article 113 alone is applicable. Therefore, taking into consideration the date of dishonour of cheque, the suit filed on 12.12.2005 is within the period of 3 years limitation. In view of the fact that 10th and 11th of December, 2005 fell on court holiday. The suit has been filed on the next working day i.e., 12.12.2005. Secondary evidence - HELD THAT:- In the plaint the reason for filing the suit without the original document has been extensively mentioned in compliance of the provision Order VII Rule 16 of C.P.C. But this is not perse sufficient to rely upon the secondary evidence. The party who rely upon the secondary evidence has to mandatorily satisfy the foundational requirements laid in Section 65 and 66 as far as applicable. In this case, this Court finds a lapse on the part of the plaintiff in compliance of Section 65 of the Evidence Act before introducing the secondary evidence. The parties are not absolutely restrained from adducing secondary evidence. What is expected under laws is, before adducing secondary evidence plausible reason and factual foundation for laying secondary evidence has to be established. On going through the pleadings and evidence in this case, san filing formal application to receive secondary evidence and no separate application or notice caused to the defendants for production of document, the plaintiff had laid the necessary factual foundation for adducing secondary evidence and had accounted for not producing the original cheque - Defendants had not pleaded or proved that they were prejudiced by admitting secondary evidence. The limitation for the suit based on a dishonoured cheque commences from the date of dishonour. The facts pleaded and proved discloses that the plaintiff had satisfied the foundational requirement to adduce secondary evidence to sustain the suit on a lost negotiable instrument. As a result, the Appeal Suit stands dismissed.
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