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TMI Blog2019 (1) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by the defendant and held that the plaintiff was entitled for the amounts mentioned in the cheques that were dishonoured as that claim was within limitation. The Court thus did not grant any relief as regards the principal claim but granted relief as regards the amount as shown under the dishonoured cheques - the finding recorded by the trial Court that issuance of four cheques would not result in extending the period of limitation in the light of provisions of Section 18 of the said Act cannot be faulted. Demand of interest - Held that:- As the plaintiff's claim based on the invoices has been found to be barred by limitation, the decreetal amount cannot carry interest at the rate of 24% per annum. The four cheques having been issued pursuant to the plaintiff's legal notice, interest at the rate of 10% per annum in the light of the proviso to Section 34 of the Code of Civil Procedure, 1908 would serve the ends of justice. Appeal allowed in part. - FIRST APPEAL NO.18 OF 2016 - - - Dated:- 20-12-2018 - A. S CHANDURKAR, J. Ms. Sheetal Shah, Advocate i/by M/s Mehta Girdharilal for appellant. None for respondent. Oral Judgment : This appeal has been pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be dismissed. Being aggrieved the original plaintiff has filed the present appeal. 4. Ms Sheetal Shah, the learned counsel for the appellant submitted that as per the invoices issued, the payment was to be made within period of thirty days of the delivery of goods and failure to make that payment made the defendant liable to pay interest at the rate of 24% per annum. The last invoice in question was dated 15/12/2006. The payment thereof was to be made by 14/01/2007 and hence the suit as filed on 11/01/2010 was within period of three years and hence within limitation. It was submitted that though the learned Judge of the trial Court has referred to the decision of the Division Bench in Chintaman Dhundiraj (supra) that judgment was considered by the Full Bench of the Gujarat High Court in Hindustan Apparel Industries v. Fair Deal Corporation, New Delhi AIR 2000 Guj 261, the Full Bench did not endorse to the view as expressed by the Division Bench in Chintaman Dhundiraj (supra). It was submitted that the judgment of the Division Bench of this Court was rendered when the erstwhile State of Bombay was in existence. After reorganization of States said judgment stands overruled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e invoices a period of 30 days was given for making the payment and after that period interest at the rate of 24% per annum was to be charged. The amounts due under the heads was ₹ 21,79,218. The suit in question has been filed on 11/01/2010 which according to the plaintiff is within three years from the expiry of period of one month for making the payment as per the last invoice. It is also evident from the record that in response to the notice that was given by the plaintiff on 19/02/2009 the defendant issued four cheques on 22/06/2009 for ₹ 1,00,000/each and all said cheques have been dishonoured. According to the plaintiff these cheques were issued in part payment of the amounts due that was to be paid by the defendant. 8. Since the trial Court has dismissed the suit on the ground that it was barred by limitation by relying upon the judgment of the Division Bench in Chintaman Dhundiraj (supra) it would be necessary to refer to that decision. The facts of that case indicate that initially on 12/07/1939 the plaintiff gave a cheque for ₹ 35,000/to the defendant. That amount was promised to be paid by the defendant by the end of October 1939. On 25/09/1942 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so been relied upon by the learned counsel for the appellant. The proceedings in Vijay Ganesh Gondhlekar (supra) arose under the Negotiable Instruments Act, 1881 and the learned Single Judge in paragraph 6 therein has observed that the question whether the claim could be said to be barred by limitation if a suit was to be filed on the basis of the dishonoured cheque was not required to be gone into. 10. According to the learned counsel for the appellant since the judgment of the Division Bench of this Court in Chintaman Dhundiraj (supra) is dated 12/03/1956 which was when the erstwhile State of Bombay was in existence and after reorganization of the States, the Full Bench of the Gujarat High Court having overruled said decision, it no longer continues to operate as good law. The submission though may appear appealing, it cannot be accepted. The judgment of the Division Bench of the erstwhile Bombay High Court in Chintaman Dhundiraj (supra) was delivered on 12/03/1956. In view of enactment of the Bombay Reorganisation Act, 1960 and from the appointed day which was 01/05/1960 the new State of Gujarat came to be formed. As per provisions of Section 37(4) of that Act any order mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation in the light of provisions of Section 18 of the said Act cannot be faulted. 12. Coming to the issuance of four cheques by the defendant dated 22/06/2009, I find no difficulty in granting relief to the plaintiff to that extent. The said cheques of ₹ 1,00,000/each stood dishonoured on 24/06/2009 and the suit in question has been filed on 11/01/2010. The said cheques were issued pursuant to the legal notice dated 19/03/2009 while seeking to repay the principal amount due. Further, as per provisions of Section 118 of the Negotiable Instruments Act, 1881, there is a presumption in favour of the payee that the cheque has been issued for consideration. That presumption has not been rebutted by the defendant. The trial Court however has observed that as there was no alternate prayer made in the plaint no relief for that amount would also be granted. It is to be seen that even if the entire relief cannot be granted to the plaintiff, the plaintiff is always entitled to lessor relief to which the plaintiff is found entitled in law. The cause of action as pleaded indicates that dishonour of those four cheques is also part thereof and it is thus found that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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