VALMIKI J.MEHTA,J - (1.) THE challenge by means of this Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial court dated 27.8.2002 decreeing the suit of the respondent / plaintiff for Rs.2,44,655/- along with pendente lite and future interest @ 16% p.a.
(2.) THE facts of the case are that the respondent / plaintiff filed a suit against the appellant for recovery of Rs.4,95,000/- claiming that the said amount was due on the basis of a running account. The goods in this case which were said to be supplied to the appellant / defendant were colours and chemicals. The respondent / plaintiff further claimed in the plaint that the appellant / defendant had issued two cheques, one dated 29.8.1995 for Rs.35,000/- and another dated 10.6.1995 for Rs.50,000/- both of which were dishonoured. The suit was filed claiming the amount of the bills with interest @ 12% per month. The suit was originally filed under Order 37, but was subsequently treated as an ordinary suit. The appellant / defendant contested the suit mainly on the ground of limitation. It was pleaded that the bills which have been proved and exhibited before the trial court being PW1/6 to PW1/28 are for the period from 20.7.1993 till 18.4.1995, and since the suit was filed on 26.8.1998, the same was barred by limitation. It was also argued that the suit could not be based on Article 1 of the Limitation Act, 1963 inasmuch as the statement of account Ex.PW-1/5 cannot be said to be a mutual, open and current account as per Article 1 of the Limitation Act, 1963.
(3.) WITH respect to the plea of limitation, the trial court had framed issue No.2 and the finding with respect to which reads as under: "ISSUE NO.2: Whether the suit is time barred? OPD 9. The onus to prove this issue is upon the defendant. Ld. counsel for the defendant submitted that the suit of the plaintiff is time barred Ld. counsel for the defendant has relied upon the Judgments reported in AIR 1971 Patna 278, AIR 1966 Allahabad 137, AIR 1956 Bombay 553, AIR 1973 Punjab And Haryana 35, AIR (38) 1951 Supreme Court 477, AIR 2000 Delhi 336. On the other hand ld. counsel for the plaintiff submitted that there has been a running account between the parties and this fact has been admitted by the defendant in reply to notice Ex.PW1/36. He further submitted that the last payment was made by the defendant vide cheques Ex.PW1/31 dated 29.8.95 which was later on dishonoured. Hence in view of section 19 of the Limitation Act, the suit filed by the plaintiff on 26.8.98 is well within time. Ld. counsel for the defdt., on the other hand, in rebuttal submitted that the cheques Ex.PW1/30 dated 10.6.95 and the cheque Ex.PW1/31 dated 29.8.95 were dishonoured, hence, in view of the law laid down by the Hon'ble Patna and Bombay High Court in the judgment reported in AIR 1971 Patna 278 and AIR 1956 Bombay 553 the suit is time barred since the cheque in case is dishonoured, the handing over of the cheque does not amount to payment of the debt in whole or in part within the meaning of S.18 or Sec.19 of the Limitation Act. However, ld. counsel for the plaintiff has relied upon the judgment reported in AIR 1981 Patna 187 and AIR 2000 Gujarat 261. 10. The full bench of the Hon'ble Gujarat High Court has discussed the judgment reported in AIR 1956 Bombay 553 and dissented from the same and held as follow:- "The payment by cheque which is dishonoured would amount to acknowledgment of a debt and a liability. By necessary consequence there will be saving of limitation as envisaged by S.18 of the Act. A cheque would prima facie amount to an admission of debt unless a contrary intention has been expressed by the person issuing the cheque. Such an admission of payment of debt is to be determined with reference to the point of time at which the purported admission was made that is to say, when the cheque was issued. Merely because subsequently such a cheque is dishonoured and the admission is retracted the admission or the acknowledgement can hardly, be said to cease as an admission / acknowledgment of liability. To hold otherwise would be contrary to fair play between the parties and justice and equity. AIR 1956 Bombay 553, Dissented from. 11. Similarly, in the matter of Rajpati Prasad Vs. Kaushalaya Kuer and others reported in AIR 1981 Patna 187 it is held that action based on posed dated cheques which were subsequently dishonoured cannot be held time barred if instituted within the time period computed from the date of issuance of the cheques. In this case the judgment reported in AIR 1971 Patna 278 was discussed and the judgment reported in AIR 1956 Bombay 553 was also discussed and dissented. I am of the opinion that the suit, taking into consideration that there had been a running account between the parties which fact has been admitted by the defendant vide Ex.PW1/36 dated 29.8.95 which was though subsequently dishonoured, is within time. Rest of the judgments cited by the defendant are not applicable to the facts and circumstances of the present case. This issue is accordingly, decided in favour of the plaintiff and against the defendant." ;