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2017 DIGILAW 993 (HP)

Sardar Inder Mohan Singh Batra v. Ram Dev

2017-08-30

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. (Oral) - Defendants are in second Appeal before this Court. They are aggrieved by the judgment and decree dated 2.7.2004 passed by learned District Judge, Kinnaur Civil Division at Rampur Bushahr in Civil Appeal No. 49 of 2003, whereby learned lower appellate court has affirmed the judgment and decree dated 4.11.2003 passed by learned Civil Judge (Senior Division), Kinnaur at Reckong Peo in Civil Suit No. 23-1 of 2001. 2. It is thus the concurrent findings recorded by both Courts below on appraisal of the evidence and pleadings on record have been assailed before this Court on the grounds inter-alia that both Courts below have erred in applying the provisions contained under Article 40 of the Indian Limitation Act to conclude that the suit was filed within the period of limitation. Article 40 of the Act was stated to be not applicable in the given facts and circumstances, but the suit for the purpose of limitation was governed by the provisions contained under Article 35 thereof. 3. The legality and validity of the impugned judgment and decree though has also been assailed on the grounds that the facts of the case and evidence available on record has not been appreciated in its right perspective nor all the issues arisen out of the pleadings of the parties framed properly and also that the goats and sheep taken by the defendants from the plaintiff were agreed to be retuned whereas the cheque he had issued to be not presented for encashment, however, irrespective of the former having returned the sheep and goats, later presented the cheques which according to the defendant was rightly dishonoured. The other grounds raised in the memorandum of Appeal, however, looses significance as the same has been admitted on the following substantial question of law alone:- 1. Whether the period of limitation for a suit based upon a cheque would start from the date of the cheque or the date of knowledge of the cheque having been dishonoured on being presented? 4. Mr. Whether the period of limitation for a suit based upon a cheque would start from the date of the cheque or the date of knowledge of the cheque having been dishonoured on being presented? 4. Mr. B.B. Vaid, learned counsel representing the appellants-defendants has canvassed that in the matter of limitation, the provisions contained under Article 40 of the Indian Limitation Act were not attracted to the case in hand, however, keeping in view that the suit was filed on the ground of cheques having been dishonoured, it is the provisions contained under Article 35 of the Act were attracted and as per the same, the period of three years started running from the date of cheques and not from the date when it was dishonoured. 5. On the other hand, Mr. Rajiv Jiwan, learned counsel while repelling the arguments addressed on behalf of the appellants-defendants has strenuously contended that it is Article 40 of the Limitation Act applicable to the case in hand and as such, the limitation started running from the date when the cheque was returned by the bankers of the plaintiff after having been dishonoured. 6. On analyzing the rival submissions, it would not be improper to conclude that the cause of action to file the suit could have only been accrued in favour of the plaintiff on refusal of the bankers of the defendants to clear the same. The cheque was to be submitted for clearance by the plaintiff to the bankers of the defendants through his bankers at Reckong Peo. Therefore, the cheque Ext. P-2 when presented by the plaintiff for encashment in Punjab National Bank, Reckong Peo, the same was sent to Oriental Bank of Commerce, Ambala Cantt, the bankers of the defendants for clearance. The same, however, was returned to the bankers of plaintiff i.e. Punjab National Bank, Reckong Peo with the endorsement that ''alteration in date requires drawers full signature''. The cheque, as such, was returned by the bankers of the defendants without its clearance. The Limitation in a situation when the bankers of the drawer refused to clear the cheque for any reasons whatsoever is govered by Article 40 of the Limitation Act and not by Article 35 of the Act. The plaintiff''s case that deceased defendant Surjit Singh had purchased 68 sheep and goats in a sum of Rs. The Limitation in a situation when the bankers of the drawer refused to clear the cheque for any reasons whatsoever is govered by Article 40 of the Limitation Act and not by Article 35 of the Act. The plaintiff''s case that deceased defendant Surjit Singh had purchased 68 sheep and goats in a sum of Rs. 81,600/- and made the payment through cheque No. 842996 dated 20.07.1998 is held to be duly proved by both Courts below. Therefore, when the cheque dated 20.7.1998 when presented for clearance by the plaintiff returned to him by his banker being not honoured by the bankers of deceased defendant vide letter dated 11.9.1998, Ext. P-3, the limitation for filing the suit for the recovery of amount in question started running from that day and not from 20.7.1998, the date of issuance of cheque. The suit having been filed on 4.9.2001 is, therefore, well within the period of limitation. Similar view of the matter has been taken by a Co-ordinate Bench of this Court in Chanana Steel Tubes Pvt. Ltd. vs. M/s. Jaitu Steel Tubes Pvt. Ltd. and another, (1999) 2 SLC 508 . This judgment is relied upon by learned lower appellate Court also. 7. In view of what has been said supra, the point of limitation raised on behalf of the defendants has rightly been considered and decided by both Courts below. The findings so recorded being legally sustainable cannot be termed to be perverse or vitiate the judgment and decree under challenge. The Appeal, as such, deserves dismissal. Consequently, the impugned judgment and decree though deserves to be affirmed, however, with modification to the extent that interest on the decretal amount shall be @ 9% per annum and not 18% per annum awarded by both Courts below. It is pertinent to note that future interest in terms of Section 35 of the Code of Civil Procedure should be 6% per annum, however, in a case of commercial transaction, the rate of interest should be the one as the Court ceased of the matter deems fit and proper. Deceased defendant, a supplier of sheep and goat to the Indian Army was not a big businessman and rather may be earning his livelihood by way of little profit and earnings by supplying the sheep and goats to the Army after purchasing the same from others like the plaintiff. Deceased defendant, a supplier of sheep and goat to the Indian Army was not a big businessman and rather may be earning his livelihood by way of little profit and earnings by supplying the sheep and goats to the Army after purchasing the same from others like the plaintiff. Therefore, having regard to the given facts and circumstances of this case, future interest awarded @ 9% per annum on the decretal amount would serve the ends of justice. Therefore, the suit is decreed against the defendants for the recovery of Rs. 81,600/-, however, together with interest @ 9% per annum. The impugned judgment and decree will stand modified only to this extent. 8. In view of the above, the impugned judgment though is affirmed, however, subject to modification as aforesaid with no orders so as to costs. The Appeal stands disposed of accordingly. Pending application(s), if any, shall also stand disposed of.