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TMI Blog2019 (12) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... herein availed two loans, one for a sum of Rs. 20,00,000/- by cash and another Rs. 30,00,000/- by cheque. At that time, he agreed to repay the loan amounts with interest. It is his further case, that the applicant / petitioner repaid Rs. 6,50,000/- till 10.05.2008 towards the first loan and on 20.02.2016, he paid another Rs. 20,000/-, and the balance amount was Rs. 46,60,000/-. Insofar as the second loan is concerned, the applicant repaid a sum of Rs. 32,75,000/- till 30.04.2011 and further sum of Rs. 30,000/- was paid by way of cash on 22.03.2016 and the outstanding amount for the second loan as on 30.06.2016 was Rs. 46,90,000/-. iii) The respondent herein would claim that his father, passed away on 29.12.2013. Subsequently, after repeated requests, the applicant / petitioner herein had issued three cheques, on 10.06.2016, totally for a sum of Rs. 80,00,000/- in Cheque Nos.002959, 002960 and 002962. The cheques were presented on 13.06.2016 and they returned unpaid on 14.06.2016 for the reason "account closed". Thereafter, a legal notice dated 08.07.2016 was issued demanding payment of the money due and after receiving reply from the applicant dated 26.07.2016, the private compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aa Medicament reported in 2009 (3) MWN (Cr.) DCC 31 v) Saman Dharman vs. S.Natarajan reported in CDJ 2012 MHC 1637 7. Per contra, learned counsel for the respondent by referring the counter filed by the respondent would contend that the claim is not barred by limitation. He further added that the petitioner / applicant admitted availing loans from the father of the respondent in the year 2007 and the defence that he repaid the entire loan amount during 2011 is a question of fact and it is disputed by the respondent herein. This disputed question of fact can be decided only after trial. It is further submitted that in view of the part payments of the loan amounts in 2016 both the proceedings were in time and prayed for dismissal of the application and the quash petition by placing reliance on the following decisions: i) Padma Vathy and another vs. State NCT of Delhi and another reported in CDJ 2017 DHC 144 ii) P.R.Gopal vs. S.Balasubramanian reported in CDJ 2016 MHC 4559 iii) Butta Singh vs. Mukhtiar Singh reported in CDJ 2011 PHC 306 iv) A.V.Murthy vs. B.S.Nagabasavanna reported in CDJ 2002 SC 155 v) Satish Jayantilal Shah vs. Pankaj Mashruwala reported in CDJ 1996 GHC 118 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of any property or right." 12. A bare perusal of the above Section would show that a fresh period of limitation would commence from the time where before expiry of the prescribed period for a suit or application, an acknowledgment of liability has been made. But in the matter on hand, as per the provisions of the Limitation Act, the period of limitation for both the loans got expired on 09.04.2011 and 29.03.2014 respectively. Even assuming that cash payments were made on 20.02.2016 and 22.03.2016 and the cheques were issued on 10.06.2016, everything had taken place after the period of limitation. 13. "i) In M.Danabal vs. R.Senthil Rajan in Crl.R.C.No.492 of 2014, dated 12.09.2019, this Court has observed as follows:- "22.Bearing this in mind, this Court now proposes to analyse Section 138 of the N.I. Act, which is a penal provision which requires to be construed strictly. Explanation to Section 138 of the N.I. Act reads as follows : "Explanation - For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." While interpreting a penal provision, the normal rule is that, the interpretation that favours the accused w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been issued in discharge, wholly or in part, or any debt or other liability of the drawer to the payee. The explanation to Section 138 defines the expression debt or other liability as a legally enforceable debt or other liability. The explanation to Section 138 reads as under :- Explanation :- For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability." iii) The Hon'ble Apex Court in Sasseriyil Joseph vs. Devassia reported in CDJ 2001 SC 1423, it has been observed as follows: "Sessions Judge, Thalassery in Criminal Appeal No.212 of 1992 holding inter alia that the cheque in question has been issued by the accused for due which was barred by limitation of the penal provision under Section 138 of the Negotiable Instrument Act is not attracted in the case. On the facts of the case available on records and the clear and unambiguous provision in the explanation to Section 138 of the Negotiable Instrument Act, the judgment of the lower appellate court as confirmed by the High Court is unassailed. Therefore, the special leave petition is dismissed." iv) In S.Kamatchi and others vs. M/s.Arkaa Medicament reported in 2009 (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e must be in writing either signed by the person concerned or by his duly appointed agent. To put it in short, unless a specific contract in the form of novation is created with regard to payment of time barred debt, Section 25(3) of the said Act cannot be invoked. At this juncture, the Court has to look into the vital distinction between "promise to pay and acknowledgement of debt" under the Limitation Act." 15. It is the contention of the learned counsel for the respondent that the limitation is a question of fact and law and it can be decided only after trial. It is also contended that Order 7 Rule 11 CPC has conferred drastic power in the Court to terminate Civil action at the threshold and it cannot be exercised in a case like this. In support of the contention, he relied on the following decision:- P.V. Guru Raj Reddy and others vs. P.Neeradha Reddy and others reported in MANU/SC/0132/2015 "5. Rejection of the plaint under Order VII rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently held to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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