TMI Blog2000 (5) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... and reasons for Reference. The plaintiff sued to recover ₹ 61,886-16 plus ₹ 11,124/- by way of interest at the rate of 9% p.a. from 4-3-1974 from the defendant (The parties were respectively the appellant and the respondent in the First Appeal proceedings). The trial Court decreed the suit for ₹ 26,371.86 with running interest at the rate of 6% p.a. from the date of the suit till payment holding that that such claim was within the time, whereas the rest of the claim was barred by law of limitation. It was contended in the appeal that the cheques Exhs. 117 and 119 dated 15-4-1974 and 27-3-1974 each for a sum of ₹ 5,000 issued in favour of the plaintiff on account of the dues amounted to acknowledgment of liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at by issuing a cheque, a person is admitting debt owing by him to the person to whom he is making payment by cheque. The admission of debt has to be determined with reference to the point of time at which the purported admission was made, that is to say, when the cheque was issued. An admission did not cease to be an admission merely because it is subsequently retracted. For any reason, if the cheque is not honoured subsequently, it will not change the intention of the party of accepting the debt at the time of issuance of cheque. The learned single Judge has finally observed that justice and equity would demand such a construction of the provision contained in Section 18 of the Act. 3. However, in view of the fact that there was a bind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the acknowledgment is undated, oral evidence may be given of the time when it was signed, but subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received. Explanation :-- For the purposes of this section, (a) an acknowledgement may be sufficient though it omits to specify the exact nature of the property or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off or is addressed to a person other than a person entitled to the property or right. (b) the word signed means signed either personally or by an agent duly authorised in this behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a statement in writing canvassed as the acknowledgement. 6. Now a statement written in the form of a cheque will obviously amount to acknowledgement in writing. This proposition is well settled and finds acceptance even in Chintaman's case AIR1956Bom553 (supra). What the Division Bench has observed is that unless the cheque is honoured it could not be regarded as an acknowledgement in writing as contemplated in the provision regarding part payment in writing as appearing in Section 20 of the previous Limitation Act (now Section 19). According to the Bench, if the cheque is dishonoured the original debt which was conditionally satisfied would be deemed to revive. In our considered opinion, the Division Bench of the Bombay High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, is that in one view of the matter there was, in the circumstances of this case, an implied agreement under which the cheques were accepted unconditionally as payment and on another view, even if the cheques were taken conditionally, the cheques not having been dishonoured but having been cashed, the payment related back to the dates of the receipt of the cheques and in law the dates of payments were the dates of the delivery of the cheques. The aforesaid decision came to be distinguished in Jiwanlal v. Rameshwarlal Agarwalla reported in [1967]1SCR190 . That was a case of issuance of post dated cheque and the question that was required to be considered was with regard to what would be the relevant date of its payment. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly amount to part payment in writing and the same would fall under Section 19 of the Act (Section 20 of the previous Act). While dealing with such part payment in the context of date of such part payment, facts of each case will assume importance in the light of the aforesaid two decisions of the Hon'ble Supreme Court. In this view of the position of law reflecting upon issuance of a cheque, it has to be stated that a cheque would prima facie amount to an admission of debt unless a contrary intention has been expressed by the person issuing the cheque. Such an admission of payment of debt is to be determined with reference to the point of time at which the purported admission was made, that is to say, when the cheque was issued. Merely ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
