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TMI Blog2016 (5) TMI 1573X X X X Extracts X X X X X X X X Extracts X X X X ..... ion raised by the Registry as to the court fees paid. According to the Registry, court fees is payable also on interest accrued after the date of institution of the suit. 5. There is no merit in the said objection which is overruled. 6. According to the appellant/plaintiff, the respondent/defendant in each of the appeals/suits were its distributors to whom goods were supplied on credit more than three years prior to the institution of the suit and the suits were filed for recovery of the price due of the said goods. It was further the case of the appellant/plaintiff that the respondent/defendant in each of the suits had, within the period of three years of the date when the price of goods was due, issued cheques for part of the amount due and the suits were filed within three years of the date of dishonour of the said cheques though beyond three years from the date of the cheque in each of the cases. 7. The learned Additional District Judge (ADJ), in the impugned order in each of the suits, though held that a suit on a cheque can be filed within three years of the date of return of the cheque as dishonoured but proceeded to hold that since in the present case the cheques were in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h effect from three years when the period of credit expires; and, ii) that however where the cheque for the price is issued after the date of delivery of goods, under Article 35 of the Schedule to the Limitation Act, the limitation commences from the date of the cheque and not from the date of presentation or dishonour thereof. 12. The counsel for the appellant/plaintiff stated that different views appear to have been taken in the judgments relied upon by him and in BPL Ltd. supra and the judgments relied upon in it and in addition has drawn attention to para 17 to 19 of judgment dated 4th December, 2015 in Civil Appeals No. 10941-10942/2013 titled New India Assurance Company Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd., para 8 of Surendra v. Smt. Padma ILR 2000 KAR 579, para 18 of G. Basavaraj v. H.M. Shivapppa Patel MANU/KA/2256/2011 : , Mountain Mist Agro India (Pvt.) Ltd. v. S. Subramaniyam MANU/DE/9018/2007 and Mountain Mist Agro India (Pvt.) Ltd. v. S. Subramaniyam MANU/DE/0159/2008 : (DB). 13. I have examined the two sets of judgment to see whether there is any such inconsistency and which is required to be resolved by a larger bench or whether the law has got settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) thereafter a distinct pleading has to be made as to when did cause of action to sue accrued; iv) limitation commences when the cause of action to sue accrues; right to sue accruing is not to be confused with the cause of action; and, vi) wrong alleged when committed, infringing upon a right would give rise to a right to sue; simultaneously, would accrue the cause of action to sue. 17. I had in BPL Ltd. supra relied upon Ashok K. Khurana v. M/s. Steelman Industries AIR 2000 Delhi 336 and on Technofab Engineering Ltd. v. Nuchem Weir India Ltd. 136 (2007) DLT 223. 18. The Division Bench of this Court in Ashok K. Khurana supra was concerned with a suit instituted on 16th March, 1998 for recovery of price of goods and in part payment whereof the plaintiff pleaded that the defendant had on 18th March, 1995 delivered a cheque dated 11th March, 1995 which was encashed. The Trial Court dismissed the suit as barred by time on a preliminary issue of limitation. Setting aside the said decree, it was held i) that the trial court misread the judgment of the Supreme Court in Jiwanlal Achariya v. Rameshwarlal Agarwalla AIR 1967 SC 1118 which was a case of post dated cheque and applying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation in a winding up petition. In that case cheques dated 15th October, 1999 and 28th October, 1999 issued in part payment were dishonoured and upon proceedings under Section 138 of the NI Act being filed payment thereof was made on 15th July, 2002. It was held relying on Rajesh Kumari v. Prem Chand Jain AIR 1998 Delhi 80 that issuance of a cheque by a debtor is payment on account of a debt or interest within the meaning of Section 19 of the Limitation Act and extends the period of limitation by further period of three years from the date of issue of the cheque even if the said cheque on presentation is dishonoured. Dishonour of the cheque, it was held does not result in extinguishing the liability of the debtor and constitutes effective payment for the purpose of Section 19. It was further held that once payment by cheque is accepted by the creditor, he is entitled to extend period of limitation under Section 19 and the said advantage cannot be wiped off and undone by tortuous act by either side by withholding the payment. It was accordingly held that upon issuance of cheques dated 15th October, 1999 and 28th October, 1999, the period of limitation was extended for three ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t does not confer any right or title on the person whose right is acknowledged. I may also state that the learned Single Judge of the High Court of Karnataka also reasoned that a suit for recovery of amount of the cheque is not covered by any of the articles given in the Schedule of the Limitation Act and thus the suit would be governed by the residuary Article 113 where the period of three years commences from the date when the right to sue accrues and the right to sue in the case of dishonor of cheque accrues on dishonour of the cheque and not from the date of the cheque. Attention of the learned Single Judge does not appear to have been drawn to Article 35 which provides limitation for a suit on a bill of exchange or promissory note payable on demand and not accompanied by any writing reserving or postponing the right to sue of three years commencing from the date of bill or note. 23. The limitation for a suit for price of goods sold and delivered by the appellant/plaintiff to the respondent/defendant in each of the suit from which these appeals arise, provided in Article 14 of the Schedule is three years. It was not the case of the appellant/plaintiff herein that the price was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds the limitation and once it is established to have been executed at a particular time, the limitation starts running from then. It was further held that the acknowledgment under Section 18 is not deferrable to any future date and that it is the singular act of the debtor acknowledging the debt, which of its own, completes the act resulting in an extension of limitation and which is thus the date when acknowledgment actually is made that a fresh limitation starts and to hold it otherwise would permit a creditor to obtain an acknowledgment even after the expiry of the period prescribed for a suit and get that ante-dated and such an acknowledgment will not save limitation under Section 18. Accordingly, acknowledgment resulting from drawing of the cheques was held to have been made on the dates which the cheques bore. 26. A Division Bench of the High Court of Madhya Pradesh also in Balchand Champalal Bhandari v. India Pictures AIR 1967 MP 280 held that whenever a cheque or similar instrument is passed by the debtor to the creditor, the date on which acknowledgment implicit in the cheque is made is the date when the period of limitation commences. The said judgment was expressly fol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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