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TMI Blog2024 (11) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... Pass any order/further order which this Hon'ble Court may deem fit and proper in the facts and circumstances of the matter" 2. The brief facts of the case are that the petitioner took a loan amounting to Rs. 12,00,000/- without any interest from the respondent no. 2 for his business purposes, which was lent to the petitioner in three installments i.e., Rs. 5,00,000/- on 4th March, 2016, Rs. 2,00,000/- on 8th March, 2016 and Rs. 5,00,000/- on 18th March, 2016. 3. The petitioner had agreed to pay the aforesaid loan to the respondent no. 2 on or before 30th September, 2018. However, upon failure to pay the loan amount within the said period and after several requests from the respondent no. 2, in the third week of October, 2018, the petitioner issued a cheque bearing no. 306926 dated 7th March, 2019 of Rs. 12,00,000/- drawn on Punjab National Bank, Tri Nagar, Delhi and handed the same to the respondent no. 2. 4. Upon petitioner's instructions, the respondent no. 2 presented the aforesaid cheque at the Union Bank of India, Sector-16, Rohini, Delhi for encashment, however, the said cheque was returned as 'Funds Insufficient' with the memo dated 9th April, 2019. The same was intimated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, there exits patent illegality in the summoning order. 13. It is submitted that the said summoning order was challenged before the learned ASJ in the revision petition bearing no. 134/2022, however, the same was erroneously dismissed on the ground that the complaint was filed within the statutory period as prescribed in the NI Act. 14. It is submitted that the learned ASJ erred in not considering that the said delay and that the summoning order was passed without condoning the such delay. 15. In view of the foregoing submissions, it is prayed that the instant petition may be allowed. 16. Per Contra, the learned counsel appearing on behalf of the respondent no. 2 submitted that the learned MM has rightly passed the summoning order after being satisfied that sufficient causes were shown for issuing summons against the petitioner. 17. It is submitted that while passing the summoning order, the learned MM is not required to condone the delay in filing the complaint as the same has been filed within the prescribed time as mentioned under Section 142 (1) (b) of the NI Act, and therefore, there arises no such delay. 18. It is further submitted that the prescribed period of one mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for filing the complaint under Section 138 of the Act and therefore, it is pertinent to understand the legal requirements of the NI Act as well as the series of events pertaining to the initiation of proceedings and summons against the petitioner. 27. Section 138 of the NI Act deals with the dishonor of the cheque for insufficiency of funds in the account and lays down certain criteria to be satisfied in order to make out a case under this provision. While dealing with the applicability and objective of this provision, the Hon'ble Supreme Court in the case of Kusum Ignots & Alloys Ltd v Pennar Peterson Securities Ltd, 2000 (SCC) Cri 546 categorically listed out the ingredients of Section 138 of the NI Act and the relevant paragraphs of the same are as follows - "10. On a reading of the provisions of Section 138 of the NI Act it is clear that the ingredients which are to be satisfied for making out a case under the provision are: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that cheque has been present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, 2019. Thereafter, the respondent no. 2, adhering to the statutory requirement of 30 days mentioned under clause (b) of proviso to Section 138 of the NI Act, issued a legal demand notice to the petitioner for the payment of due amount on 21st June, 2019 and the same was received by the petitioner on 24th June, 2019 as per the postal tracking report on record. Therefore, as per clause (c) of the proviso to Section 138 of the NI Act, the petitioner was demanded to make the payment of the due amount within fifteen (15) days from the date of receipt of the demand notice i.e., 9th July, 2019. However, as per the facts of the present case, the said payment was not made by the petitioner within the requisite statutory time. 31. At this juncture, it is pertinent to observe that Section 142 of the NI Act necessitates that the complaint must be made in writing, in the due course of the cheque and within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138 of the NI Act. Accordingly, in the present case, upon non-receipt of the loan amount, the respondent no. 2 filed the complaint in writing on 13th August, 2019 within due course of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that date is to be excluded. (See Goldsmiths' Co. v. West Metropolitan Rly. Co. [(1904) 1 KB 1, 5 : 72 LJKB 931 : 89 LT 428] , KB at p. 5.) This rule was followed in Cartwright v. MacCormack [(1963) 1 All ER 11, 13 : (1963) 1 WLR 18] : All ER at p. 13, where the expression 'fifteen days from the date of commencement of the policy' in a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren v. Dawson Bentley & Co. Ltd. [(1961) 2 QB 135 : (1961) 2 All ER 270], a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action, was excluded. (See also Stewart v. Chapman [(1951) 2 KB 792 : (1951) 2 All ER 613] and North, Re, ex p Hasluck [(1895) 2 QB 264 : 64 LJQB 694].) Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. [See Halsbury's Laws of England, (3rd Edn.), Vol. 37, pp. 92 and 95.] There is no reason why the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l law overrides the general law and accordingly, the provisions of the NI Act, which is a special enactment, takes over the provisions of the Limitation Act, 1963, which is a general enactment. However, when the special law is silent regarding a particular aspect, which is specifically dealt with by the general law, then the provisions of the general legislation are made applicable. The said principle is encapsulated by the Hon'ble Supreme Court in the case of Mirza Iqbal Hussain v. State of U.P., (1982) 3 SCC 516 : 1983 SCC (Cri) 111. 39. In view of the same, the NI Act, which categorically lays down extensive substance regarding the dishonor of the cheque, is silent with respect to the expiration of the limitation period on the day the Courts are closed. However, since the same is explicitly dealt by Section 4 of the Limitation Act, 1963, the same would be applicable in the instant case as well. 40. Therefore, given that the limitation period of one month for filing the complaint expires on 10th August, 2019, which is a holiday for the Court concerned, the same may be filed on the day when the Court concerned reopened i.e., 13th August, 2019. 41. It is also pertinent to note t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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