TMI Blog2021 (2) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nistered through the defendants. For the urgent financial requirement of the petrol bunk, the defendants borrowed hand loan of ₹ 6,00,000/- from the plaintiff on 20.11.2002. When the plaintiff demanded back the loan amount, the defendants issued a cheque bearing No.657002 dated 28.11.2002 for ₹ 6,00,000/- of Canara Bank, Rasipuram assuring that, sufficient balance is available in the account. The cheque was presented on 11.12.2002 for collection. The cheque returned on the same day with endorsement Not arranged for. Exceeds arrangement and Payment stopped by the drawer . The plaintiff met the defendants and informed them about the bouncing of the cheque. The defendants promised to pay the money soon. Next day, on 12.12.2002, the defendants came to the plaintiff house and asked him to come to the Office of the Lorry Owners Association with the cheque and get the cash. Believing their words, the plaintiff went to the Office of the defendants. At the defendants Office, the defendants and three others forcible took the cheque and the bank intimation slip from him. They told him that the money will be paid only after verification of the accounts and till then, the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced later. 4. With these pleadings, suit filed for a money decree against the defendants for ₹ 8,16,000/- (₹ 6,00,000/- towards principle and ₹ 2,16,000/- towards interest at the rate of 12% from the date of return of the cheque i.e. 11.12.2002 till date of presenting the suit i.e. 11.12.2005). Written statement of the defendants:- 5. The 1st defendant has filed written statement and same adopted by the 2nd defendant. According to the defendants, the suit is not maintainable since it is barred by limitation. The suit is liable to be dismissed for non-joinder of the necessary party viz., the Lorry Owner Association. The averment that the defendants borrowed ₹ 6,00,000/- on 20.11.2002 from the plaintiff as hand loan and on 27.11.2002 gave cheque dated 28.11.2002 to discharge the loan are denied. If the said averment made in the plaint is true, then the plaintiff need not have waited till 11.12.2002 to present the cheque for collection. In fact, blank signed cheque was left with one Sankar, the Manager of the Petrol Bunk to use it in case of emergency. Mr.Sankar, died on 10.12.2002. The said Sankar is a close family friend of the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. 10. In the appeal, the case of the defendants is that, the suit is on lost Negotiable Instrument. The plaintiff has not complied with the requirements of law as per Section 65 of the Indian Evidence Act for adducing secondary evidence. The Trial Court erred in holding the suit is not barred by limitation. The suit initially filed against individuals as Officer bearers of the Lorry Owners Association, later amended deleting the name of the individuals. The amendment is fatal to the case of the plaintiff. The plaintiff failed to ascertain the signatory of the cheque. Regarding the signatory of the Cheque, the plaintiff has taken different plea in the suit and another in the Criminal complaint. The Trial Court ought to have taken note of this inconsistency and dismissed the suit as not proved. The Trial Court failed to note that the cheque in question was stolen from the table drawer of the Association. Taking advantage of the demise of its Manager Sankar on 10.12.2002, the plaintiff and others came to the bunk and taken away the signed cheques. The stolen cheque was presented later. The facts admitted by the plaintiff during the cross examination not given due consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque was dishonoured on presentation. In the Criminal proceedings initiated for dishonouring of cheque, the High Court permitted to adduce secondary evidence namely the photocopy of the cheque being satisfied that the original cheque is not in the possession of the payee(the respondent herein). In the plaint, the loss of original cheque pleaded and the Court in the given facts and circumstance accepted the secondary evidence and marked as Ex.A-1. The defendants have extensively cross examined P.W-1 about the whereabouts of the original cheque. 15. The specific case of the plaintiff in the plaint as well as in his testimony regarding the original cheque was that, he was called for settling the due by the defendants and believing their words went to the Office of the defendants on 12.12.2002. The defendants forcible took away the cheque and informed, they will pay the money after verifying the account. The plaintiff gave police complaint about this and the police got back the cheque from the defendants but did not return it to him. In C.M.P.No.703 of 2003 filed before the Judicial Magistrate Court. The Inspector of Police, in response to the petition to produce the original ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff. Therefore, this Court finds no violation of procedure so far as in Order VII Rule 16 of C.P.C is concern. 20. The Learned Counsel for the appellant referring the contradictions in the notice Ex.A-5, plaint paragraph Nos.7, 10 and 11 and the deposition of P.W- 1 in respect of the original cheque contended that, there is inconsistency in the evidence. In the notice dated 21.12.2002 issued by the Lawyer on the instruction of the plaintiff, it is stated that after the police complaint dated 14.12.2002, the original cheque was returned back to the plaintiff on 17.12.2002. In the plaint, a different stand taken stating the original is not in his possession. The plaintiff is not certain whether the original cheque is with him or with the 2nd defendant or with the Inspector of Police. Thus, his case that the original cheque was forcible taken away from plaintiff itself an imaginary story hard to belief. When the issuance of cheque for existing debt itself is doubtful, the presumption under Section 118 Negotiable Instrument Act, ought not to have drawn. 21. The above said contention are not in favour of the appellant in any manner. The plaintiff had proved to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rebuttable on a preponderance of probabilities in Bharat Barrel Drum Mfg. Company. v.Amin Chand Payrelal [(1999) 3 SCC 35] also where the Court observed: 11. 32....Though the evidential burden is initially placed on the defendant by virtue of Section 118 it can be rebutted by the defendant by showing a preponderance of probabilities that such consideration as stated in the pronote, or in the suit notice or in the plaint does not exist and once the presumption is so rebutted, the said presumption disappears . For the purpose of rebutting the initial evidential burden, the defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. Once such convincing rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the plaintiff who has also the legal burden. 25 . In Hiten P.Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16 : 2001 SCC (Cri) 960] this Court compared evidentiary presumptions in favour of the prosecution with the presumption of innocence in the following terms: 22....Presumptions are ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an. On faith, he gave the money. He has deposed that, he is a business man running a watch show room and Fancy shop, but not produced any account books kept in the course of business to show he lend ₹ 6,00,000/- to the defendants on 20.11.2002. These materials elicited during the cross examination are not adequate to infer that the plaintiff had no means to lend ₹ 6,00,000/- or the drawer of the cheque did not borrow the cheque amount. 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. 25. 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 circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrowed by Sri Narayan Maharaj on 12.7.1939 on his agreeing to repay it in October 1939, by acknowledgements and part payments made by cheques dated 25.9.1942 and 10.11.1944, the suit filed on 8.11.1947 must be regarded as within limitation. We are unable to accept that contention. There is in our view no acknowledgement of liability merely by giving a cheque which is dishonored, and a cheque which is dishonored cannot be regarded as part payment within the meaning of Section 20, Limitation Act. Reliance was sought to be placed upon judgment of the Calcutta High Court in Kedar Nath v. Dinobandhu Saha (1916) cal 580. In that case, Sir Lawrence Jenkins, Chief Justice, delivering the judgment of Court held that if a cheque is delivered to a payee by way of payment and is received as such, it operates as a payment subject to a condition subsequent that if upon due presentation the cheque is not paid, the original debt revives. It was further held that where such a cheque is signed by the debtor and paid in part payment of the principal of a debt, the cheque being subsequently honoured, the proviso to Section 20 of the Limitation Act has been complied with. It is evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the ratio laid down in the decisions, it is contended that the issuance of a dishonored cheque cannot be construed as a part payment to save the limitation under Section 19 or 20 of the Limitation Act. Besides the plaintiff has to based his claim on the original cause of action for recovery of the debt i.e. the date of handloan and that remedy should have been pursued within the period of limitation, the issuance of cheques can at the best offer as a piece of evidence to corroborate the original cause of action and does not constitute a cause of action by itself to institute a suit. 10. Per Contra, the Counsel for the respondent relied on the ruling of this Court in Surendra v. Smt. Padma [ILR 2000 Kar 579.], it is held thus: 8. Here in this case, the Court below not examined the plaint properly and ignored from considering the material allegations, plaintiff's case is that defendant borrowed the money, no doubt in 1991. His further case is that defendant gave the cheque in payment of that amount, thereafter he changed the dates and, later on when the cheques were presented to the Bank for payment on 8th September and 9th of September 1992, the Bank dishon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is not affected. In the case on hand, the pleadings and the evidence point out that the cheques were issued and accepted towards discharge of the liability. Therefore consequent dishonour would serve as a cause of action for the plaintiff to maintain the suit. That apart, the ruling of this Court in Surendra's case Surendra vs. Smt. Padma squarely applies to the facts on hand. Therefore both from the stand point of the date of dishonour of cheques the suit filed is within time. 29. When a case almost identical to the facts of the instant appeal came for consideration before the Hon ble High Court of Delhi, in Ajanta Raj Proteins Private Limited another vs. Himanshu Foods Private Limited reported in 2018 SCC Online Del 6874, Delhi High Court , after extensive analysis of law, has held that, the limitation will start only from the date of dishonor of cheque and not from the date of the cheque. 16.The date of the cheque is 21st November, 2010. The return memo of HDFC Bank which quoted the remarks of Axis Bank is dated 10th May, 2011. The cheque issued by the Defendants was drawn on Axis Bank. The suit has been instituted on 8th May 2014. Thus, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in from the date of the cheque and in the case of a post dated cheque, limitation would not begin until it can be presented for encashment. The other judgments relied upon by the Defendants have mostly been discussed in the above two judgments. 19.On the other hand, the Respondent relied upon the judgment of the Division Bench of this Court in Rohini Strips v. Steel Authority of India Limited (dated 28th September, 2007 in F.A.O.(O.S)No.380 of 2007) (hereinafter referred as 'Rohini Strips'). The Court was dealing with a suit under Order XXXVII of the C.P.C., wherein, leave to defend had been refused. The Learned Single Judge of this Court in Steel Authority (supra) had taken into consideration Article 35 of the Limitation Act and held as under:- ...I am of the considered view that the limitation would commence to run from the date when the cheques in question were returned unpaid to the plaintiff. Since in this case the cheques in question were admittedly returned unpaid to the plaintiff on the ground 'not arranged for' on 01.6.2000, the present suit filed on 23.05.2003 is to be taken as filed within limitation. Hence, the objection regarding limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is a finality after a particular period. 22.In Rohini Strips (supra), the Court was dealing with an Order XXXVII suit where cheques were issued for price of goods. It is in the said context that the Division Bench of this Court clearly upheld the finding that the cause of action commences to run from the date when the cheques were returned unpaid. However, on the other hand in Empire Home Appliances (supra), the learned Single Judge has distinguished the judgment of Rohini Strips (supra). The facts in Empire Home Appliances (supra) are distinguishable from the facts of the present case inasmuch as, in the said case, the suits were not simpliciter suits for recovery based on a cheque. The suits there were based on supply of goods, receipt of goods, credit notes issued, and thus, a much more detail factual analysis was required therein. 23. In the present case, however, though the transaction between the parties relates to supply of skimmed milk powder, the suit is a simple suit under Order XXXVII of the C.P.C based on a cheque. The cheque was valid on the date it was presented. It was returned due to 'insufficient funds'. It is the Defendants' contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 32. Secondary evidence: As pointed earlier, 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 exemption alleged to have granted by the High Court in Crl.R.C. No.1161 of 2003 in the Criminal proceedings will not perforce applicable to the civil case. Furthermore, the plaintiff has not even produced the said the order of High Court passed in Crl.R.C.No.1161 of 2003, to know the content of it and whether it has any persuasive value for accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non- production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section. 35. In M. Chandra vs. M.Thangamuthu and Other reported in (2010) 9 SCC 712 , it has been held as follows:- It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party. 36. In H.Siddiqui (Dead) by Lrs. vs. A Ramaling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of that document sought to be used, secondary evidence in respect of that document cannot accepted. 39. Thus, it is amply clear that, 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. The Defendants had not pleaded or proved that they were prejudiced by admitting secondary evidence. In this context, it is appropriate to refer the judgment of the Punjab and Harayana High court rendered by Hon ble Justice K.Kannan (as he then was) following the Hon'ble Supreme Court judgement rendered in U.Sree -vs- Srinivas cited supra. In U. Sree Vs. U. Srinivas (2013) 2 SCC 114 referred to above the Supreme Court was referring to the foundation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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