IMPORTANT POINT
The time spent pursuing a complaint under Section 138 of the Negotiable Instruments Act cannot be excluded for filing a recovery suit as they address different matters.

ORDER :

Avneesh Jhingan, J.

This petition is filed aggrieved of dismissal of appeal upholding dismissing the recovery suit as time barred.

2. Brief facts of the case are that the petitioner advanced a loan of Rs. 20,000/- to Shri. Jitendra Jain, proprietor of Shubham Palace. To secure the loan the borrower issued a cheque No.310664 of Rs. 20,000/- drawn at The Bank of Central Co-operative Bank, Tonk Branch. On presentation, the cheque was dishonored on 31.03.2012 with the remarks 'in-sufficient funds'. The petitioner after serving legal notice filed a complaint under Section 138 of Negotiable Instruments Act, 1881 (for short 'the Act'). During the pendency of the complaint, the borrower expired and the complaint was dismissed on 01.09.2016. Thereafter, the petitioner filed a civil suit against Rakesh Jain (brother of the deceased) for recovery of the amount borrowed by Jitendra Jain.

3. The Civil Court considering that the loan was advanced in the year 2011 and cause of action to file the civil suit arose on 31.03.2012 on dishonoring of the cheque, dismissed the civil suit as time-barred. On dismissal of appeal the present petition is filed.

4. Learned counsel for the petitioner submits that suit was wrongly dismissed as time barred. The contention is that time spent in pursuing complaint under Section 138 of the Act should have been excluded under Section 14 of the Limitation Act.

5. The contention raised by the learned counsel for the petitioner lacks merit. The undisputed facts are that the amount was borrowed by Jitendra Jain and to secure the loan, a cheque was issued. On dishonoring of the cheque, the petitioner chose only to file complaint under Section 138 of the Act. On dismissal of the complaint due to the death of the borrower, the petitioner filed the civil suit that too against the brother of the borrower. The suit was filed after more than four and half years from the date of dishonoring of the cheque.

6. section 14(1) of the Limitation Act, 1963 is reproduced below:-

"14(1). In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceedings relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."

7. Under Section 14 of the Limitation Act, the time period spent in prosecuting Civil proceedings relating to same matter in good faith in a Court having no jurisdiction or other cause of like nature is to be excluded.

8. In the present case, the petitioner was pursuing remedy under Section 138 of the Act. There was no impediment for the petitioner to file recovery suit within the period of limitation. It was not a case where the matter was being pursued with the Court not having jurisdiction rather petitioner had opted to pursue the complaint under Section 138 of the Act and chosen not to file a civil suit for recovery. It cannot be lost sight of that the Court before which it is pending had the jurisdiction to entertain complaint under Section 138 of the Act. The institution of complaint under Section 138 of the Act was for dishonoring of the cheque whereas suit was filed for recovery on loan advanced, both the remedies were not for same matter. In such circumstances, the period spent in pursuing a complaint under Section 138 of the Act cannot be excluded.

9. There is no legal error in the impugned order. The petition is dismissed.