TMI Blog1980 (8) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... at Motihari in the name and style of M/s. Mohan Kedia and Company. According to the plaintiff's case the defendant owned trucks and cars and he entered into a contract with the plaintiff for supply of motor accessories as and when required on credit basis. In pursuance of the aforesaid contract supply to the defendants used to be made on the basis of Slips signed by the defendant and his employees and subsequently bills claiming the price for these goods supplied used to be sent to the defendant and the defendant used to make payment either in whole or in part of the sums claimed in the bills. It is alleged by the plaintiff that defendant had agreed to pay interest at the rate of 12 per cent per annum in the event of non-payment of the bills when submitted. The plaintiff's case further is that a bill bearing No. 94 dated 1-4-1962 for a sum of ₹ 5,274.71 was sent to the defendant and received by him on 4-4-1962 on account of the price due from him of motor accessories supplied on credit. On 12-5-1962 in satisfaction of the aforesaid bill the defendant granted to the plaintiff 3 post dated cheques, the first dated 15-6-1962 for a sum of ₹ 2000/- the second dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same, as claimed by the plaintiff was due and he accordingly decreed the suit with costs and interest pendente lite till the date of realization at the rate of 6 per cent per annum. 5. Sri. K, D. Chatterjee, appearing on behalf of the appellant has urged two points in support of the appeal :-- (1) That part of the amount claimed as the price of the motor accessories supplied namely, the sum of ₹ 5,274.71 demanded under bill No. 94 dated 1-4-1962 was barred by limitation and (2) that any rate in the absence of a finding that there was a contract to pay interest at the rate of 12 per cent as alleged by the plaintiff the lower appellate Court erred in law in decreeing the claim for ante litem interest, I shall deal with the second contention first. Although there in an express averment in the plaint that there was an agreement to pay interest at the rate of 12 per cent per annum on the amount of the bills if they were not paid, the lower appellate Court has not recorded any finding whether it was established that there was a contract to pay interest in the event of the sums claimed remaining unpaid. Taking advantage of the absence of a finding on that point Sri Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of interest was illegal as under Section 61(2) the Court has a discretion whether or not to award interest and at what rate and the Court has not applied its mind to the question whether it was a fit case, in which interest should be awarded and if so, at what rate. The lower appellate Court has granted the plaintiff interest on the amount of the price at the rate of 12% as claimed by the plaintiff. Interest at the rate of 12 per cent in my opinion, cannot be regarded as unreasonable. This was a case, in which there can be no doubt, the Court should have exercised its discretion of awarding interest On the amount of the price. The fact that the defendant had issued cheques for the price claimed and has then stopped payment of the cheques on a plea which on the finding was inrorrect shows that though the defendant had money in the bank and had no real excuse, he had refused to pay for the goods and at the same time had deceived the plaintiff by issuing cheques. At the trial, he raised a false defence and falsely repudiated the liability to pay even the price of the goods supplied. In these circumstances, there could be no question that interest on the amount of price should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismiss a suit instituted after the prescribed period of limitation even though limitation has not been pleaded where the question of limitation is not one purely of law but is a mixed question of facts and law, it cannot be permitted to be raised for the first time in argument in Second Appeal. See the decision of the Supreme Court in Banarsi Das v. Kanshi Ram (AIR 1963 SC 1165, at P. 1170 of the report). Sri Chatterjee did not contest this proposition and fairly conceded that unless the aforesaid claim is barred by limitation on the basis of admitted facts and the plea did not require any investigation into facts he would not be entitled to raise this plea for the first time in Second Appeal after it was abandoned and not pressed in the Courts below. He, however, contended that on the averments in the plaint itself, the claim for the amount of ₹ 5000/- and odd covered by bill No. 94 dated 1-4-1962 was barred by limitation. I will assume for the purpose of this case, though the position is contented by Sri Ghosh appearing on behalf of the respondent, that the instant suit is governed by Article 14 of the Limitation Act. But still in my opinion, it cannot be held that even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n purported payment of a debt amounts to an acknowledgment in writing of the right of the payee of the cheque to receive the amount of the debt in ostensible payment of which the cheque was issued was decided. In Arjun Lal Dhanji Rathod's case (AIR 1971 Pat 278) a learned single Judge of this Court held that the issue of a post dated cheque which is dishonoured does not extend the period of limitation by virtue of Section 20 of the Limitation Act 1908 as the cheque having been dishonoured there is no payment. The question whether the issue of the dishonoured cheque amounted to acknowledgment of the liability to pay the debt in satisfaction of which the cheque was issued was neither raised nor decided in that case. The question so far as this Court is concerned is, therefore, res integra and must be decided on general principles. 11. Before proceeding to consider whether the issue of the cheque which were dishonoured can be regarded as an acknowledgment of liability within the meaning of the expression as used in Section 18 of the Limitation Act, 1963, (hereinafter called 'the Act') I would like to state that it has not been disputed and indeed it cannot be disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, at least in a case in which the cheque is honoured there can be no doubt that it amounts to and is an admission by the writer of the cheque that there is a debt owed by him to the person in whose favour the cheque has been drawn. Issuing a cheque, as pointed out by Subba Rao, C, J., as he then was. In Subrahmanyam v. Venkata-ratnam (AIR 1956 Andhra 105) has now become the usual mode of payment . When a person pays a sum of money which is demanded as the price of goods supplied, he certainly admits that there is a debt owing by him to the person to whom he makes the payment or on whose behalf the payment is received. As pointed out by S. K. Ghosh, J., delivering the judgment of the Bench of the Calcutta High Court in Prafulla Chandra v. Jatindra Nath (AIR 1938 Cal 538)' although the fact of payment may be different from the acknowledgment if the cheque itself is evidence of the fact of payment it is also evidence of acknowledgment (at page 539 of the report). 13. Now, can it be said that merely because the cheque is subsequently dishonoured, there is no admission of the liability of the debt in satisfaction of which the cheque purports to have been issued? In my opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque. An admission according to Section 17 Evidence Act is a statement, oral or documentary, which suggests any :nference as to any fact in issue a relevant fact. Whether a statement constitutes an admission has, therefore, to be determined with reference to the inference to be drawn from the statement and not with reference to the mental processes underlying or accompanying that statement. And, therefore, it may well be said even in such a case that the drawer of the cheque acknowledged or admitted his liability to pay the debt in satisfaction or part satisfaction of which he had issued the cheque. Such a conclusion is in accord with justice and equity. By issuing a cheque which is dishonoured subsequently to the words of Krishnan, J., in Gori Lal v. Ramjeelal the debtor has intended, and at all events represented to the creditor that the negotiable instrument is good, and thereby the creditor has for his part, been given a feeling of security with a fresh term of limitation. If one looks to the equity side of it a payment which the debtor means as a sheer pretence, but the creditor accepts as genuine, cannot certainly deprive the latter of what Section 18 has already given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment on 12-3-1962 provided a fresh period of limitation cannot be determined against the plaintiff merely on the basis of the averments in the plaint. It can be determined only if it is held that in the circumstances of this case, the payment did not amount to an acknowledgment of the liability of the debt aforesaid. I may mention that the lower appellate Court has held that the defendant had issued three post dated cheques which clearly proves that he had acknowledged the liability to pay the amount as mentioned in the cheaues . The question of limitation raised by Sri Chatterjee, therefore, is not a pure question of law, but is a mixed question of law and facts, which cannot be determined at least in favour of the defendant without fresh investigation into facts. That being so, the plea of limitation raised by Sri Chatterjee, cannot be permitted to be raised for the first time in second Appeal and must be rejected. 17. Both the contentions raised by Sri Chatterjee having been found to be devoid of merit, the appeal must be dismissed. In view of the conclusion at which I have arrived it is not necessary to consider the other contention of Sri Ghosh namely, that the period of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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