Decided on January 03,1967



- (1.) THIS is an appeal by the plaintiff from the decision of the trial Court holding that, while he has proved all the elements necessary for obtaining the money decree sought against the defendants, his suit fails all the same, on the ground of limitation, because even using the giving of cheques as step-in-aid of limitation, the starting point of the new term of limitation would be the date on which the cheques were actually handed over, and not the later one on the "post-dated" cheques. The questions for decision are the following: (1) First, what has been raised during this appeal by the respondents, namely, whether the appeal itself is time barred the appellant not being entitled to the exclusion of the entire period taken in the preparation of the copy of the judgment and decree. (2) Secondly, whether in the circumstances of the case the trial Court was at all justified in inferring without any pleading in this regard that the three cheques had been postdated and had been given, two of them Ex. P/1 and P/2 on 7-9-1954 and Ex. P/8 "two days later", that is, on 9-9-1954. (3) Even on the assumption that the cheques were post-dated, whether the trial Court was justified in starting the new term of limitation not from the date on the cheques themselves, but on the dates they were found to have been handed over, thus applying with a very material variation, the principle in a decision of a single Bench actually presided over by one of us, reported in Gorilal v. Ramjeelal, 1961 M. P. LJ 646: (AIR 1961 Madh Pra. 346), a case in which this question did not arise and the date of handing over was treated as identical with the date actually on the cheques. It is not necessary in go into the facts of this case; for one thing, the parties have not pressed them in arguments here; for another, the liability of the defendants on the facts is clear and beyond doubt, the suit being one on the basis of a promissory note executed by both the defendants, the cheques themselves which the plaintiff seeks to use as steps-in-aid, signed by both of them.
(2.) IT is only necessary for the purpose of this appeal to note that on account of the principal and interest on the pro-note the plaintiff had a claim for Rs. 11,875 against the defendants Omprakash and Ramnarayan--partners of a concern doing business under the name of M/s. India Pictures. The details of the transactions leading to this have been set out and in spite of the various arguments made in the trial Court have been proved and have not been seriously challenged in this appeal by the defendant-respondents who have taken a sole stand on limitation the original loan having been incurred on 16-7-1953 the suit which was filed on 13-9-1957 was apparently timebarred. Accordingly the plaintiff pleaded as steps-in-aid by way of part payment and acknowledgment the passing of three cheques to him, the first dated 15-9 1954 which was cashed and the second and the third respectively dated 11-10-1964 for Rs. 200/- and 7-12-1954 for Rs. 801/-both of which on presentation to the bank were dishonoured. Incidentally I note there were two other payments by cheque; but they relate to earlier dates which are of no consequence in any view of the matter in regard to limitation and will not be referred to again
(3.) THE defence in the written-statement was that these cheques had not been issued by them paragraphs 8 and 9 of the written-statement being somewhat vaguely worded, so that the effect seems to be that there is a total denial in respect of the first two cheques and in respect of the last, namely, "the one dated 8 (?) 7-12-1954 as being "quite uncollected with the transaction that was the 'subject matter of the suit'. "ees vadgrata lene pete nahi diya". There is no indication whatsoever that these cheques had been post-dated, and had actually been passed on dates earlier than those mentioned on the cheques themselves. There were, besides, other grounds which it is unnecessary for us to discuss in this appeal because the parties have gone on issue in this court on limitation only.;

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