9911796707
TMI Blog1999 (9) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... two cheques dated 28-11-1991 and 29-12-3291 towards the repayment of that loan. The plaint further mentioned that Mahadevaiah had written the dates on the cheques as 18-05-1992 under his signature. 2. The cheques had been presented to the Bank, that is, the State Bank of Mysore, University Branch Campus on 8-9-1992 on 9th Sept. 92. The Bank returned those cheques with the endorsement on 8-9-1992, 'insufficient funds', and on 9-9-1992 with the endorsement, 'party reported deceased'. 3. In the plaint, it has been alleged that the two cheques have been returned without encashment, so he had also given the notice and thereafter filed the suit for recovery with the allegations that the cheques had been dishonoured by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Trial Court, the plaintiff has come before this Court by filing the revision under Sec. 115 of the CPC. I have heard the learned Counsel for the parties as referred above. 5. Counsel for the revision petitioner contended that, no doubt mere giving of cheques by the debtor to the creditor with the intention to repay the loan, unless cheque is honoured and encashed, may not be taken as a payment. The plaintiff has also not based his cause of action on that or taking that as a payment. Even if Sections 18 or 19 is not applicable, even then learned Counsel contented, the Court below's finding that suit was barred by limitation is erroneous in law, as the case is one which is governed by Article 113 of the Limitation Act and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny debt and, so Sections 18 19 have rightly been held, not to be applicable to the present case. The learned Counsel, in addition to arguing the matter on merits to examine the case, raised an objection to the maintainability of the revision and, submitted that the order rejecting plaint amounts to a decree under Section 2 of the Code of Civil Procedure and when it amounts to a decree, the plaintiff had the remedy against the order impugned by way of appeal which he has not preferred learned Counsel contended, that Section 115 puts a bar on the exercise of jurisdiction under Section 115, in cases, where the appeal is maintainable and, as such the revision petition should be dismissed on preliminary ground of appeal being not maintainable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able under Sec. 103 of Kerala Land Reforms Act (Act 1 of 1964): But that, in our opinion is not the end of the matter. The High Court had still powers under Article 227 of the Constitution of India to quash the orders Passed by the Tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents, the consideration of which would have led to an opposite conclusion. This power of the High Court under the Constitution of India is always, in addition to the power of revision under Sec. 103 of the Act. I take this principle laid down into consideration, I find it is appropriate to examine the case from that angle. 8. The reason is, that the revision has been pending in this Court for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the material allegations. Plaintiff's case is that deft borrowed the money, no doubt in 1991. His further case is that deft gave the cheque in Payment of that amount, thereafter he changed the dates and, lateron when the cheques were presented to the Bank for payment on 8th Sept. 9th of Sept. 1992, the Bank dishonoured the cheques on 8th Sept. with endorsement to the effect, insufficient funds in the account and the other on 9th of Sept. that, the account-holder is dead. So this cheque and the cause of action for the suit and valuation of claim in the suit have also been given on the basis of amounts of cheque which deft had given and which Bank had dishonoured. It appears to me that this is a cheque for recovery of amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determine the nature of the suit and has taken an erroneous view on the subject and passed an illegal order dismissing the suit holding it to be time barred and in directing the plaint to be returned. 11. Really on the basis of an erroneous decision on the question of law and in particular relating to limitation, the Court below illegally refused to entertain the suit and illegally refused to exercise the jurisdiction to determine the suit on merits. The order passed by the Court below, no doubt has got the tendency to cause irreparable loss and injury to the petitioner. 12. Further the revision petition having been kept pending for almost 2 and 1/2 years from 1-1-1997 till to-day dismissing of revision on the preliminary ground and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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