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TMI Blog2003 (1) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to pay interest. On 15-12-1991 it is said that the appellant acknowledged the liability in a sum of ₹ 1,19,500/- marked at Ex. P. 1 and also issued three cheques on 15-12-1991 for a sum of ₹ 45,000/-, on 30-5-1992 for a sum of ₹ 40,000/- and on 10-6-1992 for a sum of ₹ 34,5007-. The cheques came to be dishonoured, proceedings were instituted under Section 138 of the Negotiable Instruments Act in CC Nos. 4835 to 4837 of 1992 on the file of II Additional Chief Metropolitan Magistrate, Bangalore. In the criminal cases, the appellant/defendant was acquitted by the order of this Court. However, it was observed that the observations made in the judgment would not affect the rights of the plaintiff to pursue his remedies before a Civil Court where the present civil suit was pending and the Civil Court was given liberty to decide the matter based on the material adduced independently without being influenced by the observations made in the criminal appeal. The plaintiff has claimed interest at the rate of 18% from the date of dishonour of cheque till the date of filing of the suit and also claim interest at the same rate from the date of suit till realisation. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim was barred by the law of limitation. Mr. Banaji says that the amount having been borrowed by Sri Narayan Maharaj on 12-7-1939 on his agreeing to repay it in October 1939, by acknowledgments and part-payments made by cheques dated 25-9-1942 and 10-11-1944, the suit filed on 8-11-1947 must be regarded as within limitation. We are unable to accept that contention. There is in our view no acknowledgement of liability merely by giving a cheque which is dishonoured, and a cheque which is dishonoured cannot be regarded as part-payment within the meaning of Section 20, Limitation Act. Reliance was sought to be placed upon judgment of the Calcutta High Court in Kedar Nath v. 'Dinobandhu Saha AIR 1916 Cal. 580. In that case, Sir Lawrence Jenkins, Chief Justice, delivering the judgment of Court held that if a cheque is delivered to a payee by way of payment and is received as such, it operates as a payment subject to a condition subsequent that if upon due presentation the cheque is not paid, the original debt revives. It was further held that where such a cheque is signed by the debtor and paid in part-payment of the principal of a debt, the cheque being subsequently honoured, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that any payment at all was made by anybody to the company by that cheque". In the light of the ratio laid down in the decisions, it is contended that the issuance of a dishonoured cheque cannot be construed as a part-payment to save the limitation under Section 19 or 20 of the Limitation Act. Besides the plaintiff has to base his claim on the original cause of action for recovery of the debt i.e., the date of hand loan and that remedy should have been pursued within the period of limitation, the issuance of cheques can at the best offer as a piece of evidence to corroborate the original cause of action and does not constitute a cause of action by itself to institute a suit. 10. Per contra, the Counsel for the respondent relied on the ruling of this Court in Surendra v. Smt. Padma and Others 2000(1) Kar. L.J. 63 : ILR 2000 Kar. 579. In para 8, it is held thus: "8. Here in this case, the Court below not examined the plaint properly and ignored from considering the material allegations. Plaintiffs case is that defendant borrowed the money, no doubt in 1991. His further case is that defendant gave the cheque in payment of that amount, thereafter he changed the dates and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that on realisation of the cheque a discharge of the liability is agreed upon, the claim to maintain an action on the basis of the original cause of action is not affected. In the case on hand, the pleadings and the evidence point out that the cheques were issued and accepted towards discharge of the liability. Therefore, subsequent dishonour would serve as a cause of action for the plaintiff to maintain the suit. That apart, the ruling of this Court in Surendra's case, supra, squarely applies to the facts on hand. Therefore, both from the stand point of the date of dishonour of cheques the suit filed is within time. 11. The contention that Ex. P. 1 cannot constitute acknowledgement is an untenable argument. Ex. P. 1 is in the form of an account extract. The heading of the account extract is described as plaintiffs account, later on the account particulars are given. The total amounts received on different occasions are noted. An entry of ₹ 18,000/- is accounted towards one Kalamani and according to plaintiff, the said amount has been recovered. Therefore, the said sum is not included in the suit claim. The Trial Court has found that Ex. P. 1, the acknowledgement, is in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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