P.V. Sivarman v. Shajan Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 17TH DAY OF JULY 2017/26TH ASHADHA, 1939** **RSA.No. 1080 of 2014 () ------------------------** **AGAINST THE JUDGMENT AND DECREE DATED 27.05.2014 IN AS 40/2011 of IV ADDITIONAL DISTRICT COURT, THRISSUR** **AGAINST THE JUDGMENT AND DECREE DATED 31.10.2006 IN OS 408/2002 of PRINCIPAL SUB COURT, THRISSUR** ## **APPELLANT/APPELLANT/DEFENDANT:** **------------------------------** **P.V.SIVARAMAN, S/O.PUTHUKKATTIL VELAYUDHAN, AGED 56 YEARS, RESIDING AT PUTHUKKATTIL HOUSE, ANCHERY DESOM, OLLUR VILLAGE, THRISSUR TALUK THRISSUR, PIN-680 306.** **BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **--------------------------------** **SHAJAN ANTONY, S/O.ANTONY, AGED 48 YEARS, BAVELI VEETIL, UNITY ROAD, OLLUR VILLAGE, THRISSUR TALUK, THRISSUR - 680 306.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SMT.M.M.DEEPA SRI.AJEESH K.SASI** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17-07-2017, ALONG WITH RSA. 1130/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/-** ## **[CR]** ## **B. KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` R.S.A. Nos.1080 & 1130 of 2014 ````````````````````````````````````````````````````````````` _Dated this the 17[th] day of July, 2017_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ In a case wherein a suit is filed for the realisation of the amount borrowed, when the cheque subsequently issued in discharge of the liability stands dishonoured, does the period of limitation commence from the date on which the amount was borrowed or from the date on which the cheque was issued? 2. Challenging the concurrent findings entered by the Principal Sub Court, Thrissur in OS No.408/2002 followed by those of the IV Additional District Judge, Thrissur in AS No.40/2011, the defendant in the suit has filed RSA No.1080/2014. Challenging the concurrent findings entered by the Principal Sub Court, Thrissur in OS No.409/2002 RSA.1080 & 1130/2014 : 2 : followed by those of the IV Additional District Judge, Thrissur in AS No.38/2011, the defendant in the suit has filed RSA No.1130/2014. Even though the defendant in both the suits is the same, the plaintiff in OS No.408/2002 is the husband of the plaintiff in OS No.409/2002. Both the suits were jointly tried. 3. The case of the respondents is that the defendant had borrowed an amount of ₹1,00,000/- each from them. Thereafter, the plaintiffs demanded the said amount from the defendant. On such demand, the defendant issued Ext.A20 cheque as well as Ext.A1 cheque to the said plaintiffs. When the plaintiffs presented the said cheques for payment, it returned dishonoured for insufficiency of funds. Consequently, demand notices were issued within the statutory period covered by Section 138(b) of the NI Act. Reply notices were issued denying the claim forwarded in the demand notices. 4. The amounts were not paid. Consequently, it RSA.1080 & 1130/2014 : 3 : seems that the plaintiffs filed the suits in question as suits for money. The plaints were filed on 25.05.2002, thereby the institution of the suits was on 25.05.2002. After summer vacation, the civil courts were reopened on 25.05.2002 only. The summer vacation commenced from 13.04.2002 when the courts were closed for summer vacation in the evening of 12.04.2002. It is the case of the plaintiffs that the said cheques were issued on 12.04.1999. 5. Among other contentions, the defendant in the written statement has strongly contended that the suits were time barred. It seems that the trial court had made some exercise to deal with the question of limitation; but, one cannot make out anything from the discussions made by the trial court in the matter. The very same question was considered by the lower appellate court also. The lower appellate court has also not dealt with the said question properly, and simply addressed the question on an assumption that the last date on which the suits have to be RSA.1080 & 1130/2014 : 4 : filed fell on a day during vacation and therefore, the suits were not time barred when the suits were filed on the reopening date. 6. Disregarding the question of limitation, the trial court decreed the suits in terms of the plaint. Even though appeals were preferred, the lower appellate court was also not impressed with the contention of limitation, thereby the lower appellate court also concurred with the findings entered by the trial court and dismissed the appeals. 7. This Court admitted these Second Appeals on the following substantial questions of law raised in the Appeal Memorandum:- “(i) Has not the lower appellate court erred in holding that the suit is not barred by the law of limitation? (ii) Is not the lower appellate court in error in not affording an opportunity of hearing in the appeal to the appellant? (iii) In the absence of evidence on record proving the consideration for the cheque, whether RSA.1080 & 1130/2014 : 5 : the lower appellate court was right in confirming the judgment of the trial court? (iv) Is the lower appellate court justified in dismissing IA No.662 of 2013 the petition to receive additional documents which prove that the version of plaintiff with regard to the payment of money to the defendant and the issuance of cheques by him is unbelievable and baseless? (v) Are the courts below right in decreeing the suit in the light of the fact that the criminal case filed by the plaintiff against the defendant on the basis of the very same cheque ended in acquittal even after remand? (vi) Whether the judgment and decree of the lower appellate court is sustainable in law?” 8. Heard learned Senior Counsel Sri.S.V.Balakrishna Iyer for the appellant and learned Senior Counsel Sri.P. Vijayabhanu for the respondents. 9. The learned Senior Counsel for the appellant has argued that the suits are simple suits for money for the recovery of the amounts borrowed by the defendant; in substance, the amount allegedly lent by the plaintiffs. RSA.1080 & 1130/2014 : 6 : According to the learned Senior Counsel, therefore, the period of limitation for filing such a suit is one clearly covered by Article 19 of the Limitation Act, which says that the suit shall be filed within three years from the date on which the loan was made. It has been pointed out that the original transaction was on some day prior to 12.04.1999 as is discernible from the plaint averments. Even according to the plaintiffs, when they demanded for repayment of the loan, Exts.A20 and A1 cheques were issued in discharge of the said liability on 12.04.1999. It has been argued that the cause of action for filing a suit for money and for filing a complaint under Section 138 of the NI Act are totally different. It has been argued that in these suits, the dates on which Exts.A20 and A1 were dishonoured as well as the subsequent events have no importance at all. 10. _Per contra_ , the learned Senior Counsel for the respondents has argued that these suits will squarely come under Article 20 when the suits were filed in respect of RSA.1080 & 1130/2014 : 7 : Exts.A20 and A1 dishonoured cheques. It has been argued that theses suits could only be treated as suits on dishonoured cheques, and the period of limitation commences on the date on which the cheques were issued. 11. The learned Senior Counsel for the appellant has canvassed an argument that even in a case wherein the loan was given on 12.04.1999 i.e., on the date of cheques, even then the suits are barred by limitation. It has been argued that under Section 12(1) of the Limitation Act, 1963, in computing the period of limitation for any suit, the day from which such period commenced, shall be excluded. In such case, even if the date 12.04.1999 is excluded, the last date on which the suits had to be filed would be on 12.04.2002. 12.04.2002 would be the date on which the three year period ends. 12. On going through the plaint averments, as well as the evidence tendered by PW2 and PW1, it is evident that the amounts were allegedly borrowed by defendant from the RSA.1080 & 1130/2014 : 8 : plaintiffs some time prior to the date on which the cheques were allegedly issued. Even according to the plaintiffs, the cheques were issued on 12.04.1999. In cross-examination, the plaintiff in O.S.No.408 of 2002 has clearly deposed as PW2, that the defendant had borrowed the amount from him and PW1 on 19.01.1999. According to PW2, both the amounts were borrowed from him as well as his wife, by the defendant, on the same day. Therefore, much discussion is not required to conclude that the date, on which the amounts were borrowed, was on 19.01.1999. It is his further admitted case that he had subsequently demanded the amount back, and on such demand, Exhibit-A20 and Exhibit-A1 cheques were issued in discharge of the said liability. 13. Here, in this particular case, there is no importance for the date on which the amount was demanded or the date on which the cheques were issued. Form the plaint averments, it is clear that the suits were filed RSA.1080 & 1130/2014 : 9 : for recovery of the amounts obtained by the defendant, as loan, from the plaintiffs. Exhibit-A20 and Exhibit-A1 cheques could only be treated as supporting evidence to the original transaction, that is the alleged lending of the amounts by PW2 and PW1. When the plaintiffs were aware of the date on which the amounts were borrowed as 19.01.1999, they ought to have filed the suits within 3 years from 19.01.1999. 14. Regarding Article 20, it has to be noted that it should be a like suit, when the lender has given a cheque for the money. The said Article has no application in this case. Had the amount been lent through a cheque or through cheques, the suits ought to have been filed within three years from the dates on which the cheques were paid. The alleged attempt of the defendant to discharge the amounts of loan liability through cheques, will not alter the commencement of the period of limitation in a case, wherein money was lent. 15. The learned Senior Counsel for the appellant has RSA.1080 & 1130/2014 : 10 : pointed out that as per Section 3(66) of the General Clauses Act, 1897, "year shall mean a year reckoned according to the British Calender.” In these suits, both the courts below have found that the cheques were issued on 12.04.1999 and the last working day, prior to the Summer Vacation in the year 2002, was 12.04.2002. Therefore, the said fact need not again be proved. 16. The learned Senior Counsel for the appellant has invited the attention of this Court to _**Vishnu Dutt Sharma v. Daya Sapra** [(2009) 13 SCC 729]_ , wherein it was held in paragraph 10 that : _“The cause of action for institution of the civil suit was grant of loan whereas that of the criminal case was return of a cheque inter alia on the premise that the account of the accused was insufficient to honour it or that it exceeded the amount arranged to be paid from that account by an agreement with the Bank.”_ 17. Even though it has been pointed out that two RSA.1080 & 1130/2014 : 11 : separate complaints alleging the offence under Section 138 of the Negotiable Instruments Act were filed against the defendant, one case ended in acquittal and the other one ended in conviction. It is trite law that the judgment of a criminal court in a civil proceeding will have limited application only, that too, for the purpose as to who was the accused and what was the result of the criminal proceedings. Any finding in a criminal proceeding, by no stretch of imagination, would be binding in civil proceeding as held in **Vishnu Dutt Sharma** ( _Supra_ ). 18. The learned Senior Counsel for the appellant has invited the attention of this Court to the decision in _**Babu**_ _**Manmohan Das v. Baldeo Narain Tandon and others**_ _[AIR 1938 Privy Council 66]_ , wherein a cheque was issued in respect of money lent. In that case, it was held that the period of limitation should start running under Article 57 and not the one under Article 58 of the Limitation Act, 1908. Article 57 of the old Limitation Act, 1908, is the RSA.1080 & 1130/2014 : 12 : corresponding provision to Article 19 of the Limitation Act, 1963. 19. Even though the learned Senior Counsel for the respondents has attempted to canvass an argument that the question of limitation in these suits is a mixed question of fact and law, in these particular cases, the same cannot be treated as a mixed question of fact and law. In order to apply Article 19 in these suits, any further fact need not be proved. It is discernible from the records that the suits were filed on 25.05.2002. Further, it is the admitted case of the plaintiffs, as well as it is the finding entered by the courts below that the suits were filed on the re-opening day. Even if the case of the plaintiffs that the suits were to be filed within three years from 12.04.1999, the date on which the cheques were issued, these suits were to be filed on or before 12.04.2002. Both the courts below have found that the last working day prior to the Summer Vacation of 2002, was 12.04.2002. Therefore, in order to apply Article 19 in RSA.1080 & 1130/2014 : 13 : these suits, any further fact need not be proved. 20. Even though the learned Senior Counsel for the respondents has pointed out that the question of limitation was considered by both the courts below and both the courts below have concurrently found that the suits are not barred by limitation, it is purely a question of law and therefore, this Court in these Regular Second Appeals can consider the said substantial question of law. The trial court ought not to have received the suits, since it was time barred as on the date on which the plaints were presented. Further, when such an issue was raised, the trial court ought to have dismissed the suits within the meaning of Section 3 of the Limitation Act. The trial court was duty bound to dismiss the suits even in a case, wherein the defendant has not addressed such an argument or taken up such a contention. The lower appellate court has also miserably failed to address the said question of law involved. The lower appellate court has left the question in a casual RSA.1080 & 1130/2014 : 14 : manner. It is evident that both these suits were barred by limitation and therefore, both the suits are liable to be dismissed. When the suits are hit by Section 3 of the Limitation Act, other substantial questions raised in the appeal memorandum need not be considered. Therefore, these Regular Second Appeals are only to be allowed and I do so. In the result, these Regular Second Appeals are allowed and the judgments and decrees passed by both the courts below are set aside. These suits are dismissed under Section 3 of the Limitation Act, 1963. In the nature of these Regular Second Appeals, the parties shall bear their respective costs. All pending interlocutory applications in these appeals are closed. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/DSV/18/07 _// True Copy //_ _PS to Judge_