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AVNEESH JHINGAN
Hemraj – Appellant
Versus
Rakesh Kumar Jain – Respondent
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
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.
The cause of action for filing a complaint under Section 138 arises after 15 days from the service of the demand notice, not from the notice itself.
The limitation period for a debt should start from the expiry of the period agreed upon for repayment, and the issue of whether a cheque was issued for a time-barred debt is a matter of evidence.
Dishonour of cheque – Complaint is not maintainable before expiry of period of fifteen days from date of receipt of notice by drawer of cheque – Remedy is to file fresh complaint.
The nature of the debt must be proven during trial, and there is a presumption in favor of the holder of the cheque.
A debtor's issuance of a cheque acknowledges a debt; questions of enforceability or time-bar must be determined through evidence, not prior to trial.
Since in interpretation of statutes Court always presumes that legislature inserted every part thereof for a purpose and legislative intention is that very part should have effect above conclusion ca....
The court established that the date of receipt of the dishonor memo is excluded in calculating the notice period under Section 138 of the Negotiable Instruments Act.
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