Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 798 (KER)

Subanamma Ninan v. George Veeran

2019-10-03

A.HARIPRASAD, T.V.ANILKUMAR

body2019
JUDGMENT : T.V. ANILKUMAR, J. 1. A learned Judge of this Court while hearing this appeal on the question of commencement of period of limitation of a suit on a dishonoured cheque has doubted the correctness and sought reconsideration of decision reported in Sivaraman P.V. vs. Shajan Antony, 2017 (4) KHC 601 which held that limitation in such a suit started from the date of lending, after noticing the said decision being in conflict with an earlier decision of a Single Bench of this Court in Vasudeva Panicker vs. Sayed Ummer Pookoya Thangal, 1966 KLT 134 which, however, took a contrary view on the question to the effect that limitation in a similar suit ran only from the date of dishonour of cheque. We understand the law that the Division Bench answering the reference has also a duty to decide and dispose of on merits the proceedings from which the reference arose. We accordingly propose to consider the appeal before us on merits also. 2. The respondent in this appeal, who is the plaintiff, filed O.S. No. 16 of 2009 before the Sub Court, Thiruvalla, seeking a decree for recovery of plaint amount of Rs. 4,41,337/- with 12% interest per annum thereon, on the strength of five dishonoured cheques against the appellants, who are the legal heirs of the deceased Ninan @ Babu and obtained a decree on 28.06.2010 for the amount by sale of 21 Ares of plaint schedule property, owned by deceased Ninan and later inherited by the appellants. The defendants, who are his widow and two sons filed this appeal, challenging the impugned judgment and decree. 3. Sri. Ninan, predecessor of the appellants was a friend of the respondent and they worked together in U.A.E. for sometime. Sri. Ninan used to borrow amounts from him in connection with his business needs. The case of the respondent is that Sri. Ninan borrowed Dirhams equal to Indian currency of Rs. 4,41,337/- at Abudabi and issued in the name of the respondent Exts.A1 to A5 cheques drawn for different sums on Federal Bank Limited, Nedungadapalli branch in repayment of the amount borrowed. All the five cheques were postdated to 10.12.2007. The cheques on presentment through the bankers of the respondent were dishonoured for want of funds and on receipt of intimation of dishonour, he issued a lawyer's notice to Sri. Ninan, calling upon him to discharge the debt. Sri. All the five cheques were postdated to 10.12.2007. The cheques on presentment through the bankers of the respondent were dishonoured for want of funds and on receipt of intimation of dishonour, he issued a lawyer's notice to Sri. Ninan, calling upon him to discharge the debt. Sri. Ninan replied to the notice denying his liability. Criminal prosecutions were also instituted against him under Section 138 of the Negotiable Instruments Act, 1881 (for short the N.I. Act) before the Judicial First Class Magistrate, Thiruvalla. In the meantime, Sri. Ninan died on 18.01.2009 and since the debt in favour of the respondent stood un-discharged, he filed O.S. No. 16 of 2009 before the Sub Court, Thiruvalla. 4. The appellants filed a written statement, contending that they had no direct knowledge about the transactions between their predecessor and the respondent and their knowledge was limited to what they heard from the deceased. The appellants' contention is that though Sri. Ninan issued Exts.A1 to A5 cheques in the name of the respondent, he did not borrow the whole amount as alleged in the plaint nor issue cheques in discharge of the amount claimed. In 2000, Sri. Ninan borrowed 4,000 Dirhams at Abudabi on an understanding that the amount would be returned to the respondent as and when funds were available. Simultaneously, Exts.A1 to A5 blank cheques were also issued as security for the aforesaid transaction. But, when Sri. Ninan failed to return the amount borrowed, there was a complaint at the instance of the respondent before Khaldia Police Station in Abudabi and at the intervention of police authorities, he repaid the loan in instalments and thus discharged his entire liability in the year 2002. 5. The learned counsel for the appellants argued that, in fact, the amount borrowed was not 4,000 Dirhams; but 14,000 and mention of 4000 in the written statement was by a mistake. We also consider that this must have been a mistake, since Ext.B2 reply notice sent by Sri. Ninan on 05.02.2008 shows that he had admitted borrowal of 14,000 Dirhams. It is the further contention of appellants that even after discharge of the said liability, the respondent by making use of one of the cheques with him, prosecuted Sri. We also consider that this must have been a mistake, since Ext.B2 reply notice sent by Sri. Ninan on 05.02.2008 shows that he had admitted borrowal of 14,000 Dirhams. It is the further contention of appellants that even after discharge of the said liability, the respondent by making use of one of the cheques with him, prosecuted Sri. Ninan before U.A.E. Ministry of Justice, Abudabi in proceedings No. 6116/2002 on the charge that cheque issued for 14,000 Dirhams was caused to be dishonoured for want of funds at his credit. Sri. Ninan was accordingly convicted and sentenced for two months in 2002 and thereafter he returned to India. The contention of the appellants therefore is that even after discharge of liability for 14,000 Dirhams which Sri. Ninan owed to the respondent, he misused the blank five cheques by manipulating false entries of amounts and filed the present suit. The cheques are neither supported by consideration nor issued in discharge of the amount claimed in the plaint. It is contended that as a result of material alterations made in the cheques, they are void and un-enforcible under law. It was also contended that since the entire transaction took place in Abudabi, the Sub Court, Thiruvalla did not have territorial jurisdiction to entertain and try the suit. 6. The court below considered all the contentions raised by the appellants and answered the objection as to the territorial jurisdiction in favour of the respondent. We also agree with this view, since notwithstanding the money transaction having taken place in Abudabi, part of the cause of action took place within the jurisdiction of the trial court. The cheques were dishonoured within the jurisdiction of the Sub Court, Thiruvalla and further the appellants are also persons residing within the limits of that court. 7. The trial court examined respondent as PW-1 and the widow of Sri. Ninan (1st defendant) as DW-1. Exts.A1 to A10 were marked on the side of the respondent, while Exts.B1 and B2 were admitted in evidence on the side of appellants. On evidence, the trial court accepted the case of the respondent mainly because appellants did not have direct knowledge about the transaction that took place between their predecessor and the respondent in Abudabi and the respondent's testimony for that matter was more inspiring. On evidence, the trial court accepted the case of the respondent mainly because appellants did not have direct knowledge about the transaction that took place between their predecessor and the respondent in Abudabi and the respondent's testimony for that matter was more inspiring. It also held that materials on record did not give an impression that Exts.A1 to A5 were blank cheques nor were they issued as security for payment of the precise amount of debt incurred by the deceased Ninan. The contention that there were material alterations in the cheques was not accepted and it was observed that, even if there was any attempt made for filling up the blank cheques, the respondent had implied authority under law to put the dates in the cheques, relying on a decision reported in Bhaskaran Chandrasekharan vs. Radhakrishnan, 1998 (1) KLT 881 . Finally the trial court came to the conclusion that Exts.A1 to A5 were supported by consideration and the presumption available to respondent under Section 118 of the N.I. Act was not rebutted by appellants. The suit was therefore decreed, allowing the respondent to realise the fruits of the decree by sale of the plaint schedule property inherited by appellants from their predecessor, who owned the property. 8. In appeal, the learned counsel for the appellants raised only two contentions namely: (i) the suit was barred by limitation and (ii) Exts.A1 to A5 were not issued in discharge of the amount claimed in the plaint. 9. We find that the question of limitation was raised for the first time in this appeal, which we are, however, bound to consider under Section 3 of the Indian Limitation Act, 1963 (for short the Act 1963). The contention of appellants is that the monetary transaction between the parties in Abudabi took place as early as in the year 2000 and cheques were also issued simultaneously with the alleged lending. The suit by the respondent was filed indisputably on 27.01.2009. The contention therefore is that a suit brought after the expiry of three years from the date of lending was hopelessly barred by limitation, as according to the respondent, Article 19 of the Act, 1963 applied to the facts on hand. As per Article 19 of the Act, 1963, the period for instituting a suit for money lent is three years from the date when the loan was made. As per Article 19 of the Act, 1963, the period for instituting a suit for money lent is three years from the date when the loan was made. The learned counsel for the appellants also canvassed a contention that the suit did not disclose any cause of action and therefore, it was liable to have been rejected under Order VII Rule 11 of Code of Civil Procedure, 1908 (for short 'the Code') and the power to reject was still available to appellate court also. According to the learned counsel, the suit which is barred, however, could be saved only if the respondent could show that the debt was later acknowledged by the debtor before the expiry of the period of limitation prescribed by law provided the said fact is pleaded in the plaint in compliance with Order VII Rule 6 of the Code. In this connection, decisions reported in Kuldeep Singh vs. Ganpat Lal, (1996) 1 SCC 243 and Craft Centre and Others vs. The Koncherry Coir Factories, 1990 (2) KLT 837 and Sant Lal Mahton vs. Kamla Prasad and Others, AIR 1951 SC 477 were cited before us by the learned counsel for the appellants. We considered the decisions and find that none of them applies to the facts of the case and further the suit is not barred by limitation also. 10. The respondent has not pleaded either the date of lending or the actual date of delivery of Exts.A1 to A5 cheques to the respondent. A reading of the plaint shows that the cheques were postdated on the date of their delivery. The cause of action pleaded in paragraph 9 of the plaint reveals that it arose on the dates on which the cheques became payable. All these facts together indicate that the suit was filed solely on the strength of dishonoured cheques as against a claim founded on original consideration. In cross-examination of PW-1, he admitted that the loan transaction and issue of cheques were simultaneous and in 2001 at Abudabi. The argument of the learned counsel for the appellants referring to the period of lending conceded by PW-1 in his testimony is that the suit for recovery of money ought to have been filed before the expiration of three years from the date of lending which fell in 2001, placing reliance on Article 19 of the Act, 1963. The argument of the learned counsel for the appellants referring to the period of lending conceded by PW-1 in his testimony is that the suit for recovery of money ought to have been filed before the expiration of three years from the date of lending which fell in 2001, placing reliance on Article 19 of the Act, 1963. In this respect, he cited the decision reported in Sivaraman's case (supra) whose correctness was doubted by the learned Single Judge while hearing the appeal. 11. On reading paragraphs 13 and 14 of the aforesaid decision, the learned Judge appears to have taken the view that suit for money based on a dishonoured cheque issued in discharge of debt ought to be filed within three years from the date on which loan is made, as Article 19 of the Act, 1963 alone applies to such a case. In this respect, the learned Judge has relied on a Privy Council decision reported in Babu Manmohan Das vs. Baldeo Narain Tandon and Others, AIR 1938 PC 66 . But, on a reading of the aforesaid Privy Council decision, the facts considered appear to be different from those considered in Sivaraman's case (supra). Difference between Articles in the old Limitation Act, 1908 corresponding to Articles 19 and 20 of the Limitation Act, 1963 alone was attempted to be drawn and law laid down in that respect. Articles 19 and 20 of the Act, 1963 are extracted below:- Art. 19 For money payable for money lent. Three years When the loan is made Art. 20 Like suit when the lender has given a cheque for the money Three years When the cheque is paid 12. It was held that Article 20 of the Limitation Act, 1963 applies to a suit filed for recovery of money by a lender, who had lent money by means of a cheque. In such case, no cause of action for the suit can arise till the cheque is honoured. It is the date of encahsment of the cheque which is set by Article 20 as the starting point of limitation. In the Privy Council decision, period of limitation for suit for recovery of money based on a dishonoured cheque issued by a borrower in discharge of his debt was never considered and answered. It is the date of encahsment of the cheque which is set by Article 20 as the starting point of limitation. In the Privy Council decision, period of limitation for suit for recovery of money based on a dishonoured cheque issued by a borrower in discharge of his debt was never considered and answered. In our view, Article 19 of the Act, 1963 applies to suits laid on the strength of original consideration and cannot be imported to a suit filed on a cheque issued by a borrower in discharge of debt incurred and which is later dishonoured. The present is a case, where Article 19 could hardly apply inasmuch as the suit evidently was brought on a cause of action following dishonour of a cheque issued in repayment of debt alleged to have been incurred by Sri. Ninan rather than on original consideration. The argument addressed by the learned counsel for the appellants relying on the citations referred to above, therefore, cannot hold good in any manner. When there is a specific provision available in the Act, 1963 applying to a suit for recovery of money based on cheque, it is erroneous to bank upon Article 19 overlooking the appropriate and relevant Article envisaged in the Act for meeting the specific situation. 13. Cause of action for a suit for money based on a dishonoured cheque cannot be said to be the same for a suit based on original consideration. Both are different since the sources determining the right and obligations of the parties to such suits are not at all the same. Right of a person to sue on original consideration accrues when there is commission of breach of promise. The determination of rights and liabilities on the alleged breach is governed by the ordinary law of contract. On the other hand, the position in the case of a suit filed on a dishonoured cheque stands, however, on a totally different footing. Litigations based on Bills of Exchange or cheques are regulated and governed by provisions of the Negotiable Instruments Act, 1882 (in short N.I. Act). Liability of drawer, whether civil or criminal, who causes a cheque to be dishonoured is left to be determined by the provisions of the N.I. Act, unlike the liability of an ordinary debtor being governed by provisions of the law of contract. Liability of drawer, whether civil or criminal, who causes a cheque to be dishonoured is left to be determined by the provisions of the N.I. Act, unlike the liability of an ordinary debtor being governed by provisions of the law of contract. Under Section 72 of the N.I. Act, presentment of a cheque is a must in order to charge the drawer with liability for the money sued subject to observance of conditions provided by Section 84 of the said Act. In order for a cause of action based on a dishonoured cheque to arise, the cheque must have been presented before the drawee Bank and the same got dishonoured. A scrutiny of schedule to Limitation Act, 1963 First Division- Part-I would give sufficient indication that the legislature has taken care in prescribing different periods of commencement of limitation for suits based on contract and Bills of Exchange or cheques taking note of the basic characteristic differences between such suits. Therefore, a suit for money on a dishonoured cheque drawn by a borrower cannot be held to be governed by Article 19 of the Act, 1963. In this view of the matter, we disagree with the law laid down in Sivaraman's case (supra). To a partial extent, we are supported by a Single Bench decision of this Court reported in Vasudeva Panicker's case (supra), wherein it was held that a suit on a dishonoured cheque was governed by Article 78 of the old Limitation Act, 1908, which corresponds to Article 40 of the Act, 1963. Article 40 of the Act, 1963 reads as follows:- Art. 40 By the payee against the drawer of a bill of exchange, which has been dishonoured by non-acceptance. Three years The date of the refusal to accept Going by this Article, period of limitation for a suit for money based on a dishonoured Bill of Exchange is the date of refusal to accept, which could naturally mean the date of dishonour. But we find, in such suits, the most appropriate and relevant provision that ought to apply under the Act, 1963 is Article 35. Article 35 of the Act, 1963 reads as follows:- Art. 35 On a bill of exchange or promissory note payable on demand and not accompanied by any writing restraining or postponing the right to sue. Three years The date of the bill or note. 14. Article 35 of the Act, 1963 reads as follows:- Art. 35 On a bill of exchange or promissory note payable on demand and not accompanied by any writing restraining or postponing the right to sue. Three years The date of the bill or note. 14. Under Section 2(c) of the Act, 1963, a Bill of Exchange is defined as inclusive of a cheque also. In our opinion, the period of limitation for a suit on a dishonoured cheque ought to be traced from Article 35 wherein limitation commences from the date of the cheque as distinct from Article 40 where the commencement is from the date of dishonour. There appears to be an apparent distinction between Articles 35 and 40 though as per the definition of “Bill of Exchange” in Section 2(c) of the Act, 1963 and definition of 'cheque' in Section 6 of the N.I. Act, either of the instruments embraces the other. The cheque by all means is an order issued by the drawer thereof directing his banker for payment of money to a specific or definite individual or entity. A cheque cannot be drawn on a person other than a Banker. This is what mainly distinguishes a cheque from a Bill of Exchange. A Bill of Exchange as defined by Section 5 of the N.I. Act is an instrument in writing containing an unconditional order, directing a certain person who may not be a Banker to make payment of certain sum of money to a certain person or bearer of the instrument. 15. Under the scheme of the N.I. Act, a Bill of Exchange is considered to be an instrument addressed to persons in general whereas a cheque could be drawn only on a specified banker. Unless this distinction maintained by the N.I. Act is perceived, suits embraced by Article 40 are likely to be mistaken for those based on dishonoured cheques also. The expression “refusal to accept” in Article 40 can naturally refer only to persons other than a bank since the act of refusing to accept a Bill of Exchange does not associate with a banker, though he may for various reasons refuse to honour a cheque. The expression “refusal to accept” in Article 40 can naturally refer only to persons other than a bank since the act of refusing to accept a Bill of Exchange does not associate with a banker, though he may for various reasons refuse to honour a cheque. On the other hand, what we understand from the scheme of provisions in the N.I. Act is that the words 'refusal to accept' could fit in only with the context of Bills of Exchange refused to be honoured by the drawees. In view of this position, the appropriate provision that applies to a suit instituted on dishonour of cheques can legally be Article 35 alone. One of us (Justice A. Hariprasad) had occasion to hold in an unreported decision in Puthenveettil Malathy and Others vs. Kuttilakandy Balakrishnan, A.S. No. 436 of 2002, that Article 35 is the appropriate provision applicable to a suit brought for recovery of money on dishonour of a cheque issued in discharge of liability of the debtor. In any view of the matter, the law laid down in Sivaraman's case (supra) that period of limitation for a suit for money based on a dishonoured cheque is three years is not legally correct and it requires to be overruled. Hence, we overrule the ratio in Sivaraman's case (supra). The plea raised by the learned counsel for the appellants that the present suit is barred by limitation, therefore fails. In the present case, the suit was admittedly instituted within three years from the date which Exts.A1 to A5 cheques bear. 16. The next question that requires to be addressed is, whether the deceased Ninan issued Exts.A1 to A5 cheques in discharge of the plaint amount alleged to have been incurred by him. The appellants do not have a case that their predecessor, Ninan did not sign the cheques. They owned that Sri. Ninan signed the cheques at Abudabi; but the cheques were blank, containing no entries of amounts. The testimony of DW-1, who is the 1st defendant, widow denying her husband's signature in the cheques is of no significance, since it is against her own pleading. In Ext.B2 reply notice sent by deceased Ninan also, he had already acknowledged his signatures in all the cheques. The testimony of DW-1, who is the 1st defendant, widow denying her husband's signature in the cheques is of no significance, since it is against her own pleading. In Ext.B2 reply notice sent by deceased Ninan also, he had already acknowledged his signatures in all the cheques. Law doesn't attach presumption of consideration to a blank cheque and in order to derive the benefit of presumption sanctioned under Section 118 of the N.I. Act, the person who founds his claim on the cheques should prove that either they were not blank cheques or he had implied authority from the drawer to make entries in the blank cheques to give effect to their common intention. 17. PW-1 said that Sri. Ninan signed all the five cheques in his presence, after writing the amounts and also postdating the cheques to 10.12.2007 on receiving Dirhams equivalent to Indian currency of Rs. 4,41,337/- from him. If this evidence is true and believable, on the strength of presumption of consideration that attaches to the cheques and on his sole testimony, his case could be considered as proved as done by the court below. 18. On the other hand, the appellants' case is that Dirhams, which Ninan borrowed from the respondent was only 14,000 Dirhams and not the entire cheque amount as claimed in the suit. The deal between parties is stated to be a money transaction that occurred in 2000 and simultaneous with the borrowal, all the five cheques were issued the same day intending them to be used only as security rather than in discharge of liability. PW-1 in the cross-examination conceded that the transaction was way back in 2001 and issue of five cheques was simultaneous also, but they were postdated to a future day i.e. 10.12.2007. If this case set up by appellants is true, no liability could be fastened on them on the basis of Exts.A1 to A5 cheques alleged to have been issued as security. 19. Therefore, an attempt has to be made through the evidence on record to find out whether the cheques in question were issued either as blank or filled up. Looking at the entire testimony given by PW-1, there is no reason to hold that Exts.A1 to A5 cheques were blank at the time of delivery. 19. Therefore, an attempt has to be made through the evidence on record to find out whether the cheques in question were issued either as blank or filled up. Looking at the entire testimony given by PW-1, there is no reason to hold that Exts.A1 to A5 cheques were blank at the time of delivery. It is crucial at this point of time to note that there is no contention in the written statement denying that dates were put by Sri. Ninan in the cheques. Even in the proof affidavit filed by DW-1, she did not deny that the cheques given by her husband were specifically dated. Only in the cross-examination, she for the first time said that cheques were undated. This in our opinion cannot be accepted so long as there is no denial taken in the pleadings of the appellants. Allegation in the plaint which is not denied by the written statement should be taken as admitted. There is not even evasive denial that the deceased Ninan put any dates in any of the cheques. We find from Ext.B2 that Ninan had said that cheques were issued without putting any dates. But this cannot be considered to be a denial, so long as the plaint contention in this regard was not denied much less evasively. 20. The denial taken by the appellants in the written statement is only to the extent that the entire cheque amount as claimed in the suit was not borrowed by their predecessor. Their case is that the entries of amounts were manipulated in Exts.A1 to A5 and the same resulted in material alteration rendering all the cheques void. DW-1 said that the amounts written in the cheques were not in the handwriting of her husband and those entries were made by the respondent with oblique motives. While considering the testimonies of PW-1 and DW-1 in the respect, there is only oath against oath between parties. Yet, we are of the opinion that the evidence given by PW-1 shall be put on a higher pedestal than DW-1, since by her own admission itself, she had no direct knowledge about the transaction that took place between parties at Abudabi. Therefore, her evidence that blank cheques were filled up with amounts to the choice of the respondent cannot be considered to be credible than what PW-1 deposed in court. Therefore, her evidence that blank cheques were filled up with amounts to the choice of the respondent cannot be considered to be credible than what PW-1 deposed in court. He said that right in his presence Sri. Ninan wrote the entire cheques after receiving the Dirhams equal to Indian Rs. 4,41,337/- and delivered all the cheques postdated to 10.12.2007. This evidence, according to us, could be accepted as true for other reasons also. 21. According to DW-1, Sri. Ninan received as loan only 14,000 Dirhams equivalent to Rs. 1,40,000/- as stated in Ext.B2 notice sent by him. When there was failure of debtor to return the amount on demand, the respondent sought the intervention of Khaldia Police Station, Abudabi and thereupon the Dirhams borrowed were repaid in a few instalments in the year 2002. This case of discharge of liability does not appear to be convincing, since no prudent man in the circumstances of the case and conduct of the parties would have failed to take back the cheques allegedly given as security, if debt had been actually discharged. DW-1 is not in a position to explain as to why the cheques were not got back by Sri. Ninan even after the alleged discharge of liability following the police intervention at Abudabi. 22. That apart, there is improbability in the defence contention that the amount borrowed was only 14,000 Dirhams which is much lesser than the plaint claim. The appellants have contended that after discharge of Ninan's liability, the respondent by misusing one of the cheques in his possession and causing it to be dishonoured for 14,000 Dirhams prosecuted Sri. Ninan before U.A.E. Ministry of Justice, Abudabi in Proceedings No. 6116/2002, alleging that he issued the cheque without keeping sufficient funds and committed an offence punishable under law. The law court in Abudabi convicted and sentenced Sri.Ninan for the offence for a period of two months, as is proved by Ext.B1 copy of the judgment in the proceedings held on 12.08.2002. The respondent also does not deny that there was prosecution and consequential conviction and sentence of Sri. Ninan as per Ext.B1. But, it could be seen from the materials on record before the court itself that the subject matter in Ext.B1 proceeding was a different cheque unconnected with Exts.A1 to A5. The respondent also does not deny that there was prosecution and consequential conviction and sentence of Sri. Ninan as per Ext.B1. But, it could be seen from the materials on record before the court itself that the subject matter in Ext.B1 proceeding was a different cheque unconnected with Exts.A1 to A5. None of Exts.A1 to A5 cheques shows that it was ever dishonoured in the year 2002 nor it came for collection before the Federal Bank Limited, Nedungadapalli branch, where the drawer was holding the account. PW-1 also explained that the cheque for 14,000 Dirhams was drawn on Bank of Baroda at Abudabi. When the dishonoured cheque for 14,000 Dirhams is totally distinct from Exts.A1 to A5, there is improbability in the case of the appellants that the amount borrowed by their predecessor was much lesser than cheque amount and limited only to 14,000 Dirhams. The case developed by the respondent appears to be more probable and reliable than the case set up by the appellants. The allegation that Exts.A1 to A5 were subjected to material alteration does not therefore appear to be convincing. In our opinion, the court below rightly held that presumption of consideration attached to Exts.A1 to A5. 23. PW-1 said that he had a few money transactions with the deceased Ninan and the latter on the whole owed him 60,000 Dirhams received as loan and out of which 5,500 Dirhams were received from Sri. Ninan in Abudabi. DW-1 also stated that her husband had paid 5,500 Dirhams out of the borrowed amount. PW-1 further said that besides 5,500 Dirhams, Ninan in discharge of debt for 14,000 Dirhams, issued a cheque which was later dishonoured and became subject of prosecution before the law court in Abudabi. According to him, it was for the balance 40,000 Dirhams that Exts.A1 to A5 cheques were issued in the year 2001 and postdated to 10.12.2007. When the entire evidence of PW-1 is read and appreciated in the context of the improbability brought out in the case of appellants, it could be concluded that Exts.A1 to A5 cheques were drawn by deceased Ninan in favour of the respondent in discharge of monetary debt incurred by him. 24. PW-1's testimony disclosing that there was monetary transaction with Ninan in 2001 during the course of his cross-examination does not find any place in the plaint. 24. PW-1's testimony disclosing that there was monetary transaction with Ninan in 2001 during the course of his cross-examination does not find any place in the plaint. We also find that either the date of lending or the date of issue of cheques was also not mentioned in the plaint. In this context, the learned counsel for the appellants citing two decisions reported in Vijay vs. Laxman and Another, 2013 (1) KHC 588 SC and Divakaran K.K. vs. State of Kerala and Another, 2016 (4) KHC 901 , contended that non-disclosure of date of lending and issue of cheques is fatal to plaintiff's case. In the aforesaid decisions, the non-disclosure of such material facts was held to be fatal to complainant's case in a prosecution launched under Section 138 of the N.I. Act. That principle cannot be imported into the case on hand, since evidently the suit brought rests on dishonoured cheques as distinct from original consideration. The date of lending and delivery of cheques are not material facts to be pleaded in a suit on dishonoured cheques though relevance of these facts in evidence cannot be underrated while testing the reliability of the suit claim depending on the facts and circumstances of the case. Therefore, considering the entirety of facts, evidence and circumstances of each case, we do not find any reason to interfere with the decision of the court below granting decree for plaint amount as against the appellants. 25. There is, however, a contention raised by the appellants that the plaint schedule 21 Ares of land is the absolute property of the 1st defendant and was not owned by deceased Ninan. If this denial is true, property cannot be made liable for satisfying the debt of the deceased. This is, however, a question to be decided on evidence. It is not seen from the materials placed before the trial court that it had the occasion to consider whether the plaint schedule property was owned by Ninan and later inherited by appellants or it absolutely belonged to the 1st defendant alone. This question, therefore requires to be reconsidered by the court below, of course, at the stage of execution. Except what has been indicated above, the impugned judgment and decree dated 28.06.2010 of the court does not suffer from any illegality and they require only to be confirmed. 26. This question, therefore requires to be reconsidered by the court below, of course, at the stage of execution. Except what has been indicated above, the impugned judgment and decree dated 28.06.2010 of the court does not suffer from any illegality and they require only to be confirmed. 26. We answer the reference holding that the period of three years of limitation applying to a suit on a dishonoured cheque, commences from the date of cheque and not from the date on which the loan is made as held in Sivaraman's Case 2017(4) KHC 601 . 27. In the result, the appeal is dismissed, confirming the impugned judgment and decree of Sub Court, Thiruvalla in O.S. No. 16 of 2009. It is, however, made clear that the court executing the decree will reconsider the question, whether plaint schedule 21 Ares of land are liable to be proceeded for discharge of debt incurred by the predecessor of appellants, Sri. Ninan. In the circumstances of the case, parties are directed to suffer the costs.