TMI Blog2016 (5) TMI 1573X X X X Extracts X X X X X X X X Extracts X X X X ..... ante-dated. The cheques though dishonoured are deemed to be payment within the meaning of Section 19. Unlike the present case where the appellant/plaintiff, to bring the suit within limitation has to necessarily rely on Section 18 and/or 19 for extension of limitation, Steel Authority of India Ltd. [ 2007 (8) TMI 811 - DELHI HIGH COURT ] was not concerned therewith; that was a case of a suit for recovery of amount which was subject matter of cheque simpliciter. Similarly, JHANG BIRADARI HOUSING RESIDENTS SOCIETY VERSUS BHARAT BHUSHAN SACHDEVA AND ORS. [ 2015 (8) TMI 1542 - DELHI HIGH COURT] was not a suit for recovery of money but a suit for declaration of title to immovable property and the period of limitation provided wherefore commences from the date when the right to sue first accrues, The limitation for a suit for recovery of price of goods as the subject suits, does not commence from the date when the right to sue accrues but commences from the date of sale and delivery of goods and the extension of limitation by issuance of cheques which were dishonoured claimed by the appellant/plaintiff commences from the date when the acknowledgment was so signed and which can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheques were in acknowledgement of past liability, it was the date of the cheque and not the date of dishonour of the cheque which was relevant and since the suits had been instituted beyond three years from the date of the cheques also, they were beyond time. 8. The counsel for the appellant relies on Steel Authority of India Ltd. v. Rohini Strips Ltd. MANU/DE/9786/2007 : to contend that the suit on a cheque can be instituted within three years of the date of dishonour and on Jhang Biradari Housing Residents Society v. Bharat Bhushan Sachdeva 222(2015) DLT 578 to contend that a right to sue is not to be confused with cause of action and contends that though a right to sue may accrue within three years of the date of the cheque, a cause of action for suing would accrue from the date of dishonour of the cheque. It is further his contention that once the cheque had been issued, the suits were maintainable on the basis of dishonoured cheque alone irrespective of the consideration for which the cheque was given. 9. On enquiry, whether the suit claim was for any amount in excess of the amount of the cheque and interest due thereon, the counsel states that the suit claim was restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the law has got settled by New India Assurance Company Ltd. supra. Unfortunately, neither set of judgment is considered in the other set of judgments. 14. Steel Authority of India Ltd. supra cited by the counsel for the appellant/plaintiff was concerned with an application for grant of leave to defend a suit filed under Order XXXVII of the CPC. In the initial paragraphs No. 5 to 7 of the judgment, while setting out the grounds on which leave to defend was sought, there is no mention of the ground of limitation having been raised. However while crystallizing the defence, in paras 9 and 10 of the judgment, there is a mention of the claim in suit being barred by time. The learned Single Judge while dealing with the said plea in para 18 of the judgment, after noticing that the cheques on which the suit was filed were dated 16th March, 2000 and had been returned unpaid for the reason not arranged for vide a bank memo dated 1st June, 2000 and that the suit was filed on 23rd May, 2003, held that the limitation would commence to run from the date when the cheques in question were returned unpaid to the plaintiff and the suit was within limitation. Leave to defend was refused and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of post dated cheque and applying the same to a case of ante-dated cheque had dismissed the suit; ii) supreme court in Jiwanlal Achariya supra was concerned with the suit instituted on 22nd February, 1957 for recovery of money lent against promissory note dated 4th February, 1954; iii) the plaintiff relied on payment by cheque on 25th February, 1954 to bring the suit within time; iv) the defendant's case was that the post dated cheque was handed over on 4th February, 1954 and therefore three years period of limitation ran from that date and the suit was out of time; v) supreme court held that where a bill or note is given by way of payment, the payment may be absolute or conditional with the strong presumption being in favour of conditional payment; vi) in the facts of that case, the payment vide post dated cheque dated 25th February, 1954 was found to be conditional i.e. that the payment will be credited to the person giving the cheque in case the cheque is honoured; vii) it was held that since the cheque was realized, the date of payment for the purpose of Section 20 of the Limitation Act would be the date of unconditional payment i.e. the date when the cheque would be actual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation was extended for three years therefrom and upon payment of the amount of the said cheques on 15th July, 2002, the period of limitation was further extended by three years and the petition filed for winding up on 13th July, 2005 was within time. 20. Of the judgments subsequently cited by the counsel for the appellant/plaintiff i) Mountain Mist Agro India (Pvt.) Ltd. supra is not found to be concerned with the aspect of limitation but with the aspect of cause of action in the context of determining the territorial jurisdiction of the Court; ii) Surendra supra holds that once the suit is for recovery of amount which is the subject matter of a cheque which has been dishonoured, the past history of the transaction is immaterial; iii) G. Basavaraj supra simply relies upon Surendra; and, iv) New India Assurance Company Ltd. supra has been cited only to contend that if there are inconsistent judgments, the earliest binding judgment is to be followed. 21. Having given my considered thought to the controversy, I am of the view that suits filed by the appellant/plaintiff indeed are barred by time. My reasons for holding so are as follows. 22. The suits cannot be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant/plaintiff herein that the price was agreed to be paid after the expiry of fixed period of credit. The suits were admittedly instituted more than three years after the date of sale and delivery of goods. However the appellant/plaintiff sought to extend the period of limitation by relying upon the payments made by cheques which were dishonoured. The said cheques were of a date before the expiry of period of three years from the date of sale and delivery of goods but were not presented for payment immediately and when presented later, though within the period of their validity, were dishonoured. It is not the case that the cheques were ante-dated. The cheques though dishonoured are deemed to be payment within the meaning of Section 19. The question for consideration is what would be the date when the payment was made i.e. whether the date of the cheques when they could have been earliest presented for payment or the date when the cheques were presented (though within the period of their validity) and were dishonoured. In my view the question is squarely answered by the judgments of three Judges of the Supreme Court in Jiwanlal Achariya, and of this Court in Ashok K. Khur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation commences. The said judgment was expressly followed by this Court in Rajesh Kumari supra. 27. In the aforesaid light, there cannot be said to be any inconsistency in the judgments relied upon by the counsel for the appellant/plaintiff and the judgments to which his attention was drawn by me. Unlike the present case where the appellant/plaintiff, to bring the suit within limitation has to necessarily rely on Section 18 and/or 19 for extension of limitation, Steel Authority of India Ltd. supra was not concerned therewith; that was a case of a suit for recovery of amount which was subject matter of cheque simpliciter. Similarly, Jhang Biradari Housing Residents Society supra as aforesaid was not a suit for recovery of money but a suit for declaration of title to immovable property and the period of limitation provided wherefore commences from the date when the right to sue first accrues. However the limitation for a suit for recovery of price of goods as the subject suits, does not commence from the date when the right to sue accrues but commences from the date of sale and delivery of goods and the extension of limitation by issuance of cheques which were dishonoured claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
