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Himachal Pradesh High Court · body

2019 DIGILAW 1487 (HP)

Mohammad Akram v. Roshan Lal

2019-10-01

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. By way of the present appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Solan, District Solan, (H.P.), in Civil Appeal No.63-S/13 of 2006, dated 26.2.2007, vide which, the learned lower Appellate Court, has set aside the judgment and decree passed by the learned Civil Judge (Senior Division), Solan, District Solan, in Suit No.165/1 of 2003, dated 5.7.2006. 2. Material facts necessary for adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as 'plaintiff') maintained a suit for recovery of Rs. 26,000/- alongwith interest against the appellant/defendant (hereinafter referred to as 'defendant') alleging that plaintiff is engaged in the business of supplying the building material. It is alleged that defendant on placing the order to supply the building material to the plaintiff, informed him regarding the rates of building material, supplied the same and some amount was paid to the plaintiff by the defendant. The defendant instead of paying remaining amount, issued a cheque amounting to Rs.26,000/-, which the defendant was supposed to pay towards the payment of building material taken on credit. The defendant assured that amount, which is due towards the plaintiff shall be got realized and assured the cheque will be encashed on its presentation. The plaintiff presented the post dated cheque, dated 20.12.2002, but it was found that the defendant had closed the account and defrauded the plaintiff of his rightful claim. 3. Defendant contested the suit by filing written statement taking preliminary objections regarding the maintainability and limitation. On merits, it is admitted that the defendant had placed an order of the supply of building material to the plaintiff, but it is denied that the defendant had paid some amount to the plaintiff and had not paid full amount to the plaintiff and for remaining payment, he issued a cheque of Rs. 26,000/-, to the plaintiff. The defendant had paid full amount to the plaintiff and blank cheque was issued, as security in the year 1992 and thereafter, the defendant never placed any order for supply of the building material. The defendant also asked the plaintiff to return the blank cheque as full payment, but the plaintiff did not return the same on the plea that it had been misplaced and assured to return the same. The defendant also asked the plaintiff to return the blank cheque as full payment, but the plaintiff did not return the same on the plea that it had been misplaced and assured to return the same. It is further alleged that the defendant had closed the account on 21.12.1998 and has not issued any cheque. 4. From the pleadings of parties, the learned trial Court framed following issues : "1. Whether plaintiff is entitled for the recovery of Rs. 26,000/- from the defendant, as prayed ? OPP. 2. Whether suit is not maintainable ? OPD. 3. Whether suit is barred by limitation ? OPD. 4. Relief." 5. The learned trial Court while deciding Issues No.1 and 2 in negative, Issue No.3 in affirmative, dismissed the suit. 6. Feeling aggrieved thereby, the plaintiff maintained first appeal before the learned District Judge, Solan, District Solan, H.P, assailing the findings of learned trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court set aside the findings of the learned Court below. Now, the appellant has maintained the present Regular Second Appeal, which was admitted for hearing on 21.4.2008 on the following substantial questions of law: "1. Whether the findings of the learned first appellate Court in regard to Sections 3 and 18 of Limitation Act are liable to be reversed and whether the findings of the learned appellate Court call for an interference by this Court ? 2. Whether there has been misreading of evidence by the Courts below ?" 7. Mr. J.S. Bhogal, learned Senior Advocate, assisted by Ms. Srishti Verma, Advocate, for the appellant has argued that PW-1 Roshan Lal, in his affidavit has specifically stated that the cheque was given in the year 2002, but in his cross-examination, he has stated that the building material was purchased before the year 2000, which shows that limitation to maintain the suit was already over. He has further argued that when the record was available with the plaintiff with respect to the transit, non-production of the record in the learned Court below gives adverse inference against the plaintiff. He has further argued that when the Bank Account was closed in the year 1998, there is no provision to issue cheque in December, 2002. He has further argued that when the record was available with the plaintiff with respect to the transit, non-production of the record in the learned Court below gives adverse inference against the plaintiff. He has further argued that when the Bank Account was closed in the year 1998, there is no provision to issue cheque in December, 2002. In these circumstances, the findings, as arrived at by the learned lower Appellate Court, are perverse and required to be set aside. 8. On the other hand, Mr. K.D. Sood, learned Senior Advocate assisted by Mr. Sukrit Sood, Advocate, has strenuously argued that neither the defendant has produced any record with respect to the return of cheque nor he has produced the receipt of payment of Rs. 26,000/-, which as per him, he has with him. He has further argued that non-production of the receipt of payment, as alleged by the defendant and non-production of the document, shows that the payment had not been made. He has placed reliance upon Section 25 of the Indian Contract Act, 1872 and Section 114 of the Indian Evidence Act, 1872 and has further argued that even time barred claim is a good consideration for continuing the Contract, the presumption is always in favour of the holder of the cheque, as per Section 114 of the Indian Evidence Act. In support of his arguments, he has relied upon the judgment in A.R.M. Nizmathullah vs. Vaduganathan, (2008) 1 CivCC 490 (Madras) and Ramakrishnan vs. Parthasaradhy, (2003) 3 CivCC 228 (Kerala), on this aspect. 9. To appreciate the arguments of learned Senior counsel appearing on behalf of the parties, I have gone through the record in detail. 10. As per the plaintiff, the building material was supplied for a sum of Rs. 26,000/- to the defendant qua which, a cheque had been issued. As per the defendant, he has made payment of the amount and the cheque was not returned to him, which the plaintiff is not entitled. 11. In order to prove his case, plaintiff himself appeared in the witness box as PW-1, deposed that he had supplied the building material in the year 2002 to the defendant. Thereafter, the defendant issued a cheque amounting to Rs. 26,000/-, in his favour, but the said cheque was dishonoured, as the account of the defendant was closed. 11. In order to prove his case, plaintiff himself appeared in the witness box as PW-1, deposed that he had supplied the building material in the year 2002 to the defendant. Thereafter, the defendant issued a cheque amounting to Rs. 26,000/-, in his favour, but the said cheque was dishonoured, as the account of the defendant was closed. He has stated that defendant also compromised the matter in the presence of Parmanand (PW-2) and Shakil and assured the payment on 13.11.2002. He has also claimed interest at the rate of 18% per annum on the amount due. In his cross-examination, he has denied that the defendant was working in his shop. He has stated that the cheque was filled, when it was delivered to him. He has admitted that there was cutting on the date in the cheque. He has stated that articles were purchased prior to the year 2000. No such record has been produced by the plaintiff to show as to how much articles were sold to the plaintiff and in which year or date. He has also stated that in compromise Ex.D1, there is no mention of cheque. He has admitted that the defendant had purchased the articles in the year 1998. He has denied that the defendant had taken the articles in the year 1992 and as security, issued blank cheque Ex.P1. He has denied that the defendant had already made payment in this regard. He has denied that the cheque in question was issued in the year 1992 and in the same year, the money has been paid by the defendant. He has denied that on 11.11.2002, he assaulted the defendant regarding which the report was made to the Police and then he compromised the matter. PW-2, Parmanand, stated that the defendant had also undertaken to pay Rs. 26,000/- on account of the supply of building material by the plaintiff. In his cross-examination, he has stated that no cheque was issued in his presence. He has denied that the defendant used to work in the shop of the plaintiff. The defendant examined himself as DW-1, stated that he had taken the building material in the year 1992 and issued a blank cheque, as security in the same year. He has stated that he does not purchase any article from the plaintiff. He has denied that the defendant used to work in the shop of the plaintiff. The defendant examined himself as DW-1, stated that he had taken the building material in the year 1992 and issued a blank cheque, as security in the same year. He has stated that he does not purchase any article from the plaintiff. He has stated that he made the payment to the plaintiff and then demanded the cheque, but the plaintiff claimed that it was misplaced and he would return it later on. He has stated that plaintiff had also assaulted him on 11.11.2002, as he had done the work of loading and unloading in his shop and he had to take money. Thereafter, he lodged a report with the police and police compromised their matter on 13.11.2002. He has stated that plaintiff himself filled the cheque and presented it in the bank after when he had closed the account. In his cross-examination, he has stated that at the time of closure of account, he had deposited the cheque book. He has admitted that cheque Ex.P1, bears his signatures, but it was not filled by him. He has admitted that he had taken the building material on credit from the plaintiff of Rs. 26,000/-. He has stated that he has repaid the said amount and obtained a receipt, though it was not produced. He had also received notice Ex.P-3. He had not issued any notice to the plaintiff regarding the filling of blank cheque. DW-3, Gulam Mohammad, deposed that on 11.11.2002, plaintiff had refused to make the payment of loading and unloading of stones to the defendant and they had a scuffle on which, this witness intervened and the defendant lodged report with Police. In his cross-examination, he has stated that matter was compromised before the Police. He could not tell anything regarding issuance of cheque. 12. In his cross-examination, he has stated that matter was compromised before the Police. He could not tell anything regarding issuance of cheque. 12. Section 25 of the Indian Contract Act, read as under : "Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law-An agreement made without consideration is void, unless- (1) xxxxx (2) xxxxx (3) It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits." 13. Now, once the cheque was issued, it creates the presumption in favour of the plaintiff, as per Section 114 of the Indian Evidence Act. Section 114 of the Indian Evidence Act reads thus : "114. Court may presume existence of certain facts-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Section 114 of the Indian Evidence Act reads thus : "114. Court may presume existence of certain facts-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume- (a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; (b) That an accomplice is unworthy or credit, unless he is corroborated in material particulars; (c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration; (d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence; (e) That judicial and official acts have been regularly performed; (f) That the common course of business has been followed in particular cases; (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; (h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; (i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged." 14. Now, coming to the statement of PW-1, he has returned the amount to the plaintiff and got the receipts, had he got receipt of Rs. 26,000/-, he could definitely produce the same, which shows that defendant is not coming up with true version. At the same point of time, as per the defendant, he has closed the Bank Account and returned the cheque book, but he has not even produced the record or summoned the record to prove his version. 15. The case of the plaintiff is that he had supplied the building material to the defendant of Rs. 26,000/-, for which, he had issued a cheque. This fact is not disputed by the defendant. 15. The case of the plaintiff is that he had supplied the building material to the defendant of Rs. 26,000/-, for which, he had issued a cheque. This fact is not disputed by the defendant. However, the cheque had been issued to the plaintiff, meaning thereby, that the amount had not been paid by the defendant at the time of purchasing the building material and it was to be paid later on, as the purpose of issuing a cheque, as security, is that when the amount is paid, the cheque is to be returned and if the amount is not paid then the cheque is to be presented for encashment. The defendant has not produced any proof of the payment of the amount to the plaintiff. There is no corroborating evidence that either he had issued cheque in the year 1992 and has closed his account in the year 1998. Be it stated that the plaintiff was holder of the cheque. A post dated cheque under law is deemed to have been issued on the date it bears and it becomes a cheque under the Act on the date, on which, it is written. There is also no evidence of the defendant that he had issued a blank cheque and apart from his signatures the other figures and words are in the hand of plaintiff. Therefore, taking over all evidence of the parties and their pleadings, the claim of the plaintiff against the defendant could not have been thrown out, as there was no question of applying the provision of Section 18 of the Limitation Act, which was neither the case of the plaintiff nor of the defendant. The limitation in this case should have been taken from the date of the cheque. 16. Hon'ble Kerala High Court in Ramakrishnan vs. Parthasaradhy, (2003) 3 CivCC 228 (Kerala), wherein it has been held as follows: "For the purpose of the present case, it does not appear to be necessary to go into this matter in detail. It may, however, be mentioned that under Section 25 (3), a promise can be made even in a case where the limitation for recovery of the amount has already expired. Such a promise has to be in writing. It can be in the form of a cheque. It may, however, be mentioned that under Section 25 (3), a promise can be made even in a case where the limitation for recovery of the amount has already expired. Such a promise has to be in writing. It can be in the form of a cheque. When a cheque is delivered to the payee, the person is entitled to present the cheque to the bank and seek payment. In such an event, if the cheque is dishonoured, the liability under Section 138 would arise. It would not be permissible for the accused to contend that the liability was not legally enforceable." 17. In A.R.M. Nizmathulla vs. Vaduganathan, (2008) 1 CivCC 490 (Madras) wherein it has been held as under : "In view of Section 25 (3) of the Act, when a debt has become barred by limitation, a written compromise to pay, furnishes a fresh cause of action. Section 25 (3) of the Act in substance does is not to revive a dead right, for the right is never dead at any time, but to resuscitate the remedy to enforce payment by suit, and if the payment could be enforced by a suit, it means that it still has the character of legally enforceable debt as contemplated by the explanation under Section 138 of the Act. In view of the illustration (e), the cheque becomes a promise made in writing to pay under Section 25 (3) of the Act." 18. Now, considering the law as referred hereinabove, which has persuasive value as well as the statutory provisions of law, substantial question of law No.1, is answered holding that the findings as recorded by the learned lower Appellate are in accordance with the provision of law and the learned Court below has rightly interpretated Sections 3 and 18 of the Limitation Act viz-a-viz Section 25 of the Indian Contract Act, 1872. Substantial question of law No.2, is answered holding that the learned Court below has not misread the evidence and in fact has appreciated the evidence and documents, which have come on record to its true perspective. 19. In view of the above discussion, the appeal of the appellant is without merit, deserves dismissal and is accordingly dismissed. However, in the peculiar facts and circumstances of this case, parties are left to bear their own costs. Pending applications, if any, shall also stands disposed of.