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2012 DIGILAW 1770 (PNJ)

Jodhpur Brick Kiln v. Piara Singh

2012-12-06

M.JEYAPAUL

body2012
JUDGMENT Mr. M. Jeyapaul, J.: - C.M.No. 11270-C of 2012 Heard. The appellants are permitted to make good the deficiency in Court fee. The application stands allowed. C.M.No. 11269-C of 2012 Heard. There is delay of 19 days in re-filing the appeal. For the reasons set out in application, the application is allowed. RSA No. 4106 of 2012 1. The appeal is preferred by the defendants challenging the money decree granted by the trial Court and upheld by the First Appellate Court in favour of the plaintiff. 2. The plaintiff has contended in the under chapter suit filed by him that the 2nd and 3rd defendants being partners of the 1st defendant issued a cheque bearing no. 379193 dated 1.7.2000 drawn on Central Cooperative Bank Limited, Tarn Taran for a sum of Rs.5,90,000/- in order to discharge the debt payable to the plaintiff. The cheque was returned with a memo dated 14.7.2000 with remarks “Fund is insufficient” in the account of the defendants. Again the same cheque was presented for collection on 17.11.2000 on the basis of the assurance given by the 2nd and 3rd defendants on behalf of the 1st defendant. The said cheque was also returned with memo dated 21.11.2000 with remarks “Fund is insufficient” in the account of the defendants. Therefore, the plaintiff has filed the suit for recovery of the suit amount, after prosecuting the defendants under Section 138 of the Negotiable Instruments Act. 3. The defendants in their written statement have contended that the suit was barred by limitation. They never issued any cheque to the plaintiff nor had the plaintiff any dealing with the defendants. Their signatures on the cheque were forged. Having thus contended they have sought for dismissal of the suit. 4. The trial Court having adverted to the evidence on record came to the conclusion that the cheque was infact issued by the defendants in favour of the plaintiff for the amount due and payable by them. It has also been held that the defendants were liable to pay the suit amount. As regards the plea of limitation set up by the defendants it was held that the suit was filed within time after the reopening of the Court on 16.7.2003. Therefore, the suit was not barred by limitation. 5. It has also been held that the defendants were liable to pay the suit amount. As regards the plea of limitation set up by the defendants it was held that the suit was filed within time after the reopening of the Court on 16.7.2003. Therefore, the suit was not barred by limitation. 5. The only submission made by the learned counsel appearing for the appellants was that the cheque was issued as on 1.7.2000 but unfortunately after a lapse of three years the suit was filed on 16.7.2003. Therefore, the suit was hopelessly barred by limitation. 6. I find that there is no merit in the submission made by learned counsel appearing for the appellants. 7. As per Section 6 of the Negotiable Instruments Act, 1881 a cheque also is a bill of exchange. In terms of Article 40 of the Limitation Act, 1963, a payee can lay a suit as against the drawer of a bill of exchange which has been dishonored by non acceptance by the bankers within three years from the date of such non acceptance by the bankers. 8. The cheque issued by the defendants was returned with a memo dated 14.7.2000 with remarks “Fund is insufficient” in the account of the defendants. The same cheque was again represented as per the assurance given by the defendants on 17.11.2000 and the same also was returned with same remarks on 21.11.2000. 9. In my view, the non acceptance of the cheque presented for the second time to the bankers on 21.11.2000 shall the final date of refusal by the bankers to accept the cheque. The suit has been filed on 16.7.2003 itself. Therefore, the suit is well within the period of limitation. 10. Even assuming for the sake of argument that the date of return of the cheque first in point of time by the bankers with the memo dated 14.7.2000 with remarks “Fund is insufficient” in the account of defendants has to be taken as the date on which the period of limitation starts under Article 40 of the Limitation Act, 1963, the time for filing the suit comes to an end on 13.7.2003 The suit has been filed by the plaintiff on 16.7.2003, after a lapse of three days. But on a perusal of the judgment of the trial Court it is found that the Court was closed from 16.6.2003 to 15.7.2003 and consequently the plaintiff filed the suit on 16.7.2003, the date on which the Court reopened. 11. It is pertinent to refer to Section 4 of the Limitation Act, 1963 in the above context. As per Section 4 of the said Act Where the prescribed period of any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the Court reopens. 12. In the instant case, even if we take first refusal of the banker to accept the cheque on 14.7.2000 for calculating the period of limitation it is found that the last date for filing the suit viz. 13.7.2003 fell within the annual closure of the trial Court. On the first day of reopening of Court, viz. 16.7.2000, the suit has been filed. Therefore, the plaintiff has filed the suit well within time. 13. I also do not find any substantial question of law that arises for determination. Therefore, the appeal stands dismissed. No costs. ---------0.B.S.0------------