IMPORTANT POINTS
Non-disclosure of date of lending and issue of cheques is fatal to plaintiff's case. In the aforesaid decisions, the non-disclosure of such material facts was held to be fatal to complainant's case in a prosecution launched under Section 138 of the N.I. Act. That principle cannot be imported into the case on hand, since evidently the suit brought rests on dishonoured cheques as distinct from original consideration. The date of lending and delivery of cheques are not material facts to be pleaded in a suit on dishonoured cheques though relevance of these facts in evidence cannot be underrated while testing the reliability of the suit claim depending on the facts and circumstances of the case.

JUDGMENT :

T.V. ANILKUMAR, J.

1. A learned Judge of this Court while hearing this appeal on the question of commencement of period of limitation of a suit on a dishonoured cheque has doubted the correctness and sought reconsideration of decision reported in Sivaraman P.V. vs. Shajan Antony, 2017 (4) KHC 601 which held that limitation in such a suit started from the date of lending, after noticing the said decision being in conflict with an earlier decision of a Single Bench of this Court in Vasudeva Panicker vs. Sayed Ummer Pookoya Thangal, 1966 KLT 134 which, however, took a contrary view on the question to the effect that limitation in a similar suit ran only from the date of dishonour of cheque. We understand the law that the Division Bench answering the reference has also a duty to decide and dispose of on merits the proceedings from which the reference arose. We accordingly propose to consider the appeal before us on merits also.

2. The respondent in this appeal, who is the plaintiff, filed O.S. No. 16 of 2009 before the Sub Court, Thiruvalla, seeking a decree for recovery of plaint amount of Rs. 4,41,337/- with 12% interest per annum thereon, on the strength of five dishonoured cheques against the appellants, who are the legal heirs of the deceased Ninan @ Babu and obtained a decree on 28.06.2010 for the amount by sale of 21 Ares of plaint schedule property, owned by deceased Ninan and later inherited by the appellants. The defendants, who are his widow and two sons filed this appeal, challenging the impugned judgment and decree.

3. Sri. Ninan, predecessor of the appellants was a friend of the respondent and they worked together in U.A.E. for sometime. Sri. Ninan used to borrow amounts from him in connection with his business needs. The case of the respondent is that Sri. Ninan borrowed Dirhams equal to Indian currency of Rs. 4,41,337/- at Abudabi and issued in the name of the respondent Exts.A1 to A5 cheques drawn for different sums on Federal Bank Limited, Nedungadapalli branch in repayment of the amount borrowed. All the five cheques were postdated to 10.12.2007. The cheques on presentment through the bankers of the respondent were dishonoured for want of funds and on receipt of intimation of dishonour, he issued a lawyer's notice to Sri. Ninan, calling upon him to discharge the debt. Sri. Ninan replied to the notice denying his liability. Criminal prosecutions were also instituted against him under Section 138 of the Negotiable Instruments Act, 1881 (for short the N.I. Act) before the Judicial First Class Magistrate, Thiruvalla. In the meantime, Sri. Ninan died on 18.01.2009 and since the debt in favour of the respondent stood un-discharged, he filed O.S. No. 16 of 2009 before the Sub Court, Thiruvalla.

4. The appellants filed a written statement, contending that they had no direct knowledge about the transactions between their predecessor and the respondent and their knowledge was limited to what they heard from the deceased. The appellants' contention is that though Sri. Ninan issued Exts.A1 to A5 cheques in the name of the respondent, he did not borrow the whole amount as alleged in the plaint nor issue cheques in discharge of the amount claimed. In 2000, Sri. Ninan borrowed 4,000 Dirhams at Abudabi on an understanding that the amount would be returned to the respondent as and when funds were available. Simultaneously, Exts.A1 to A5 blank cheques were also issued as security for the aforesaid transaction. But, when Sri. Ninan failed to return the amount borrowed, there was a complaint at the instance of the respondent before Khaldia Police Station in Abudabi and at the intervention of police authorities, he repaid the loan in instalments and thus discharged his entire liability in the year 2002.

5. The learned counsel for the appellants argued that, in fact, the amount borrowed was not 4,000 Dirhams; but 14,000 and