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TMI Blog2000 (3) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... , M/s. National Steels; that defendants had been purchasing iron steel goods from the plaintiff's firm and had been making part payments from time to time; as per the books of account kept by the plaintiff, a sum of ₹ 4,89,178.65p was due and outstanding against the defendants; vide their letter dated 7th January, 1994 defendants informed the plaintiff's firm that they had verified the statement of account sent by the plaintiff's firm to them for the period from 1st April, 1993 to 18th December, 1993 and it showed an excess debit balance of ₹ 23,842.73p . During the year 1994 the defendants also made purchases on credit and made part payments after giving adjustment of all the payments received from the defendants a sum of ₹ 1,14,252.33p was found due and outstanding against the defendants. It was pleaded that the cause of action had accrued to the plaintiff firstly on 18th March, 1995 when the defendants made the last payment of ₹ 1,00,000/- to the plaintiff vide cheque No. 062578 dated 11th March, 1995 drawn on Union Bank of India, Karol Bagh, New Delhi in favor of the plaintiff's firm and, thereafter on various dates when the plaintiff had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lthough the cheque was delivered by the defendant No. 2 at the business premises of the plaintiff on 18.3.1995 the same had been encased by the Bankers of the defendant on 19.3.95 at Karol Bagh, New Delhi, yet with a view to avoid any Technical Objection on the part of the defendants, an application for the condensation of Delay, if any, occasioned in filing the present suit may kindly be read as part of this plaint, which is filed with the suit forthwith. The delay, Therefore, may kindly be condoned and the suit be treated to have been filed within the limitation period. PARA 15 of the Written Statement In reply to the para 15 of the plaint it is denied; that the cheque was delivered by Defendant No. 2 at the business premises of the plaintiff on 18.03.1995. The said cheque was delivered on 11.03.1995 at the residence of the plaintiff as he was in the need of the money. The alleged application is not maintainable under the law as the section 5 of the Limitation Act does not apply to the suits filed beyond the period of limitation. It applies only to filling of various miscellaneous applications. The delay in filing the present suit can not be condoned in view of the settle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Vs . M/s. Ogale Glass Works Ltd., [1954]25ITR259(SC) and observed that decision of this court does not support the proposition that even where the acceptance of a post dated cheque is conditional, the date on which the payment is made is the date of acceptance of the post dated cheque provided it is honoured. 13. In the present case the averments made in the plaint, clearly reveal that it is not a case of delivery of a post dated cheque. It is a case of delivery of an antedated cheque. 14. In Commissioner of Income Tax's case (supra), Supreme Court had observed that a sum of money may be received in more ways than one cannot be doubted. It may be received by transfer of coins or currency notes or a negotiable instrument which represents and produces cash and is treated as such in business. It was also observed that in the absence of any agreement, express or implied to the contrary, a payment by a negotiable instrument is always understood to be conditional, It was observed :- When it is said that a payment by negotiable instrument is a conditional payment what is meant is that such payment is subject to a condition subsequent that if the negotiable instrument i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act) for condensation of delay in filing the suits. Section 3 of the Act provides :- 3. Bar of limitation - (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defense. (2) For the purposes of this Act. (a) a suit is instituted - (i)...... (ii)...... (iii)...... (b) any claim by way of a set off, or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted - (i).......... (ii)......... (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court. 20. Mere reading of Section 3 of the Act shows that it is mandatory and absolute in nature. It enjoins upon the courts to dismiss any suit instituted, appeal preferred application made, after the prescribed period of limitation, although limitation has not been set up as a defense. Courts have no discretion or inherent powers to condone the delay if the suit is filed beyond the prescribed period of limitation. Rather a duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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