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TMI Blog1980 (3) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... their deposit was as a sort of collateral security for safeguarding the amount. 2. Shri K. L. Baluja, it is next stated, requested the defendants a number of times during his lifetime to return the amount of the loan along with the interest. Thus, the defendants confirmed and acknowledged the loan by their letters dated June 11, 1971, and August 12, 1972, and assured that they were trying to make an arrangement for payment as early as possible. These defendants also delivered 21 post-dated cheques of ₹ 2,500 each to Mr. Baluja. The first of them was payable on September 30, 1973. Similarly, one cheque each was payable on the 30th of each succeeding month, the last date of payment being May 30, 1975. 3. Shri Baluja, however, died on December 12, 1973, leaving behind the plaintiff as widow, and defendant No. 4 as his daughter. The latter, however, relinquished her rights with regard to the loan and the interest thereon, in favor of the plaintiff, and as such a succession certificate was granted on August 31, 1976, by a civil court in favor of the plaintiff with respect to the various amounts including the loan and interest in dispute. 4. It had so transpired that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edecessors : 1. Whether this court has got territorial jurisdiction to try the suit ? O.P.D. 2. What is the effect of non-presenting the cheques in dispute ? 3. Whether the suit is not within the time ? 4. To what amount is the plaintiff entitled to, on account of interest and another amount as claimed ? 5. Relief. Issue No. 1 : 10. At the time when this suit came up for hearing, it was conceded from the side of the defendants that this court has jurisdiction to entertain the suit, Ex.P. 1, the pronote, itself shows that it was executed at Delhi. 11. The cheques were also drawn on the Punjab National Bank, Bara Hindu Rao, Delhi. The issue is, Therefore, decided in the affirmative. Issues Nos. 2 and 3 : 12. As it is clear from the narration of facts above, the pronote which defendants Nos. 1 to 3 executed for ₹ 56,000, in favor of late Shri Baluja on receipt of that amount, was on November 25, 1969. It was payable on demand and in any case not later than November 25, 1970. By another letter, Ex.P. 2, of November 25, 1969. It was payable on demand and in any case not later than Novembers 25, 1970. By another letter, Ex.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sults in payments but its encashment. Such cheque, if not encased or dishonoured, does not extend the limitation for purposes of s. 19 of the Act. With such dishonour, no payment results. Hence, limitation cannot be counted from the date of the loan. The Punjab Haryana and the Patna High Courts, have in the cases reported as Northern India Finance Corporation Pvt. Ltd. v. R. L. Soni [1973] 43 Comp Case 495 (P H) and Arjunlal Dhanji Rathod v. Dayaram Premji Padhiar, AIR 1971 Pat278 , taken a similar view. 17. Section 72 of the Negotiable Instruments Act, 1881, provides that subject to the provisions of s. 84, a cheque must, in order to charge the drawer, be presented at the bank upon which it a drawn before the relation between the drawer and his banker have been altered to the prejudice of the drawer. Section 84, on its part envisages that where a cheque is not presented for payments within a reasonable time of its issue, and the drawer or person on whose account it is drawn had the right, at the time when presentment ought to have been made, as between himself and the banker, to have the cheque paid and suffers actual damage through the delay, he is discharged to the exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not take place. 19. A perusal, next, of s. 76 of the Negotiable Instruments Act, 1881, shows that in certain circumstances a presentment need not be made. Its relevant portion reads as under : No presentment for payment is necessary, and the instrument is dishonoured at the due date for presentment, in any of the following cases : ... (d) as against the drawer, if the drawer could not suffer damage from the want of such presentment. 20. This section thus eliminates presentment for payment as against the drawer if he has not suffered damage from the want of such presentment. In the present case, as already noted above, there is no evidence of any such damage to the drawer. Although, per se, this section tends to show that the non-presentment and the dishonour of an instrument should conjunctively happen, this in fact was not envisaged, as non-presentment and dishonour are mutually exclusive. In case there is no presentment, the question of dishonour does not arise. If, however, a dishonour has taken place, it will not be a case of non-presentment, Clause (d) thereto also makes it clear that so for as the drawer is concerned, a presentment is (not ?) necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sory note, will be parties other than the maker; in the case of a bill of exchange, it will be all parties other than the acceptor while in the case of a cheque other parties must be parties other than the drawee. The Allahabad High Court in the case of Benaras Bank Ltd. v. Hormusji Pestonji AIR 1930 All 648, pointed out that the word other has been used to show that there is a difference between s. 64 and ss. 61 and 62 where the words used are no party . 24. The plaintiff, however, has referred to the decision reported as Kanhaya Lal v. Ramkumar, in support of the contention that the rule of presentment for payment by the holder for fixing liability for non-payment on the drawer is subject to well recognised exceptions enumerated in s. 76 and on such exception is as respects the drawer where the drawer could not suffer damage from the want of such presentment. 25. The plaintiff has also sought to plead that irrespective of a cheque resulting in payment and extending the period of limitation under s. 19, such cheque as well amounts to an acknowledgment of debt under s. 18, and, Therefore, in case of its dishonour, the acknowledgment must ensure to enlarge the limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessarily enjoin that presentment must take place after the reasonable time. The effect of these provisions is that a presentment after the reasonable time and the non-presentment are both saved if the drawer has not suffered any damage or prejudice. Section 64, on which the defendants have placed much reliance, is more general in terms and does not specifically deal with cases of drawers of cheques as has been done by the aforesaid provisions. This section, Therefore, cannot defeat the specific provisions contained in those sections. As observed by Rajasthan High Court in the case of Kanhayalal v. Ramkumar, the rule of presentment for payment by the holder for fixing liability for non-payment on the drawer is subject to well recognised exceptions enumerated in s. 76 and on such exception is as respects the drawer where the drawer could not suffer damage from the want of such presentment. 29. It is, Therefore, held that defendants Nos. 1 to 3 are clearly liable on the basis of the 21 cheques which they had issued. They independently provide fresh cause of action to Mr. Baluja and on his death, to the plaintiff. They being post-dated cheques, payments on each of them cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dari v. India Pictures, AIR 1967 MP 280, lends some support to the case of the plaintiff that in exceptional cases where there is post-dating, the acknowledgment is effective from the date on the instrument irrespective of whether it is post-dated and handed over earlier or it is dated on the occasion it is made over to the creditor. It was held that, the date on the cheque is the starting point for limitation. 32. A persual, in this regard, of the provisions contained in s. 18 of the Limitation Act, shows that where the writing containing 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, oral evidence of its contents shall not be received. The present is not a case where the acknowledgments were resultant from these cheques which were undated. In fact, the cheques bore dates and as such it remains to be seen whether oral evidence is permissible for determining when the cheques were actually drawn and whether the acknowledgment could be related back to the date when they were so drawn. 33. The significant circumstance in this respect is that both the sides admit that these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the expiry of the period prescribed for a suit and get that ante-dated. Such an acknowledgment will not save limitation under s. 18 of the Act. Similarly, another creditor who may be in a position to dominate, may obtain post-dated acknowledgments at the time of grant of the loan itself. Such acknowledgments cannot ensure for these future dates and have to be construed as having been made on the date when they were executed. 36. In this view of the matter, the acknowledgment resulting from the drawing of the cheques, in the present case, must be held to have been made prior to at least June 23, 1973, when these cheques were seized by the I.T. Dept. Those acknowledgments, Therefore, do not save the limitation for the suit brought on October 29, 1976. 37. The plaintiff is, Therefore, entitled to relief only on the basis of 20 cheques, the payments of which fell due within three years of the institution of the suit. Their total amount comes to ₹ 53,500. The defendants shall pay interest at the rate of 6% per annum from the date from which each of these cheques was encashable till realisation. This rate of interest is allowed under s. 80 of the Negotiable Instrument ..... X X X X Extracts X X X X X X X X Extracts X X X X
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