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TMI Blog2019 (12) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... distinct promise to pay the money and the promise must be in the form of writing signed by the concerned person or his authorised agent. But in this case, admittedly, no such written promise produced by the complainant. Thus, the suit has been filed on a time barred debt and there was no legally enforceable liability for filing the criminal complaint - application disposed off. - A.No. 4088 of 2017 & A. No.750 of 2017 in CS. No. 75 of 2017 and Crl. O.P. No. 27379 of 2016 &Crl. M.P. No. 13939 & 13940 of 2016 & 15581 of 2017 - - - Dated:- 16-12-2019 - Honourable Mr. Justice K. Kalyanasundaram For the Applicant : Mr. Ravikumar Paul, S.C., for M/s. Paul and Paul For the Petitioner : Mr. N.R. Elango, S.C., for Mr. D. Muthukumar, For the Respondent : Mr. M. Fazulul Haq, for M/s. Juris Justia Common Order Since the issue involved in both the application and the quash petition is same, they are taken up together and disposed of by this common order. 2. The brief facts of the case would run thus: i) The respondent herein as plaintiff instituted a suit in C.S.No.75 of 2017 against the applicant herein seeking direction for payment of ₹ 1,00,51 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d had availed financial help from the father of the respondent Mr.Balan during March 2007. At that point of time, three cheque leaves bearing Nos.002959, 002960 and 002962 drawn on State Bank of Travancore, Besant Nagar Branch, were handed over to him as security. He repaid the entire amount during the year 2011. It is further stated that the said Balan is a family friend of the applicant for several years and hence no steps were taken to get back the above mentioned cheque leaves. 6. The learned Senior counsels would further argue that admittedly in respect of the loan availed in cash, the last payment was made on 10.05.2008, so the limitation for that loan expired on 10.05.2011 and for the second loan, the last payment was on 30.04.2011 and the limitation got expired on 30.04.2014. According to the learned Senior Counsels, no amount was paid on 20.02.2016 and 22.03.2016 as alleged by the respondent, however, even assuming such payments have been made, it would not amount to revival of the original cause of action. It is their contention that the cheques were not issued for legally enforceable debt and therefore the suit and the criminal proceedings are liable to be quashed. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion since the amounts were said to have been paid only after expiry of the limitation. 11. For ready reference, Section 18 in the Limitation Act is extracted hereunder: 18. Effect of acknowledgment in writing.-(1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation.-For the purposes of this section,-(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebt is construed as a promise in writing within the meaning of Section 25(3) ibid., then too, only a fresh contract is born. To say that the cheque which gave birth to a fresh contract resurrects a time barred debt and the dishonour of such a cheque entails prosecution of the drawer under Section 138 of the N.I. Act, is too large a pill for the penal law to swallow. ii) In Sasseriyil Joseph vs. Devassia reported in CDJ 2000 Ker HC 129, the Kerala High Court has held as follows:- 6. The only question that arises for consideration in this appeal is whether the respondent who issued the cheque in question in discharge of a time barred debt is liable under Section 138 of the Negotiable Instruments Act. In this case, the complainant had admitted that the loan was advanced to the accused in January, 1988 and the cheque was issued in February, 1991. Thus, by the time the cheque was issued, the debt was barred by limitation since there was no valid acknowledgement of the liability within the period of limitation. According to the learned counsel for the appellant, the promise made by the accused to repay the time barred debt would come within the purview of Section 25(3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Further a time barred debt cannot be construed as a legally enforceable debt. Under the said circumstances, the Court can safely come to a conclusion that the cheques in question have not been given in respect of legally enforceable debts and on that score alone, all the complaints are liable to be dismissed. ... ... 24. Since this Court is of the considered view that a time barred debt would not come within the meaning of a legally enforceable debt and since the same view has been taken by the High Courts of Andharpradesh and Kerala as per the decisions mentioned supra, this Court is not in a position to rely upon the decision rendered by the Karnataka High Court reported in (III) 2007 BC 752 Karnataka (S.Parameshwarappa and another Vs. S.Choodappa). Therefore, viewing from any angle, the entire contentions urged on the side of the appellants/complainants cannot be accepted. 14. This Court while dealing with the time barred debt observed that there must be a distinct promise to pay the money and the promise must be in the form of writing signed by the concerned person or his authorised agent. But in this case, admittedly, no such written promise produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is what the Court is required to do, it cannot be said that the said pleadings ex facie discloses that the suit is barred by limitation or is barred under any other provision of law. The claim of the plaintiffs with regard to the knowledge of the essential facts giving rise to the cause of action as pleaded will have to be accepted as correct. At the stage of consideration of the application under Order VII rule 11 the stand of the defendants in the written statement would be altogether irrelevant. 16. In the decisions relied on by the learned counsel for the respondent, except in CDJ 2002 SC 155, the issue of limitation did not arise for consideration. In CDJ 2002 SC 155, the Hon'ble Apex Court, while considering the facts, set aside the order rejecting the complaint filed under Section 138 of the Negotiable Instruments Act on the ground of limitation by noting the fact that in the balance sheet produced by the complainant, loan was referred thereunder. The decisions relied on by the learned counsel for the respondent are factually distinguishable. Hence, this Court is unable to agree with the submission of the learned counsel for the respondent. 17. From the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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