Khoday India Ltd. & Anr. vs Rakesh Gupta
2014 Latest Caselaw 2194 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+              REVIEW PETITION No.556/2013 and
               CM No. 2093/2014 in RFA (OS) 30/2013

KHODAY INDIA LTD. & ANR.               ..... Petitioners
             Through: Ms. Padma Priya, Advocate.

                               versus

RAKESH GUPTA                                                ..... Respondent
                       Through:          Mr. Sanjay Jain, Senior Advocate
                                         with Mr. L.M. Asthana, Mr. Siddhant
                                         Asthana and Mr. Sarfaraz Ahmed,
                                         Advocates.

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI

                               O R D E R (ORAL)

: REVA KHETRAPAL, J.

Review Petition No.556/2013

1. This review petition has been filed to seek review of order

dated August 12, 2013 passed by this Court in RFA No. 30/2013.

2. The contention of the Review Petitioner is that there is an error

apparent on the face of the record as the date of the last cheque

(Cheque No. 563092) is 31.08.07 and not 09.10.07 and this cheque

was handed over to the Respondent on 21.08.07. The suit CS(OS)

No. 2150/2010 was filed by the Respondent only on 07.10.2010,

which is after 3 years from the date on which the cheque could first

be presented by the Respondent. Therefore, the suit filed by the

Respondent is barred by limitation and hence the appeal should have

been allowed.

3. Notice of the Review Petition was issued to the Respondent. In

the reply filed by the Respondent to the Review Petition, the

Respondent had at the outset taken a preliminary objection that the

Petitioner (Defendant-Appellant) has concealed material facts in

respect of cheque No. 563092 dated 31.08.2007 which was handed

over to the Respondent on 21.08.2007. The said cheque given by the

Petitioner to the Respondent was a post-dated cheque (dated

31.08.07), which was presented by the Respondent for encashment

firstly on 3rd September, 2007 in Citi Bank, South Extension Branch

which was returned unpaid due to "funds insufficient" in the account

of the Petitioner on 05.09.2007 as per the intimation sent by the bank.

The Respondent thereafter again presented the said cheque for

encashment on 1.10.2007 which was again dishonoured due to "funds

insufficient" vide Bank Return Memo dated 03.10.2007. Thereafter

the cheque was presented for encashment on 08.10.2007 and was

credited on 09.10.2007. This implies that the final payment in the

account of the Respondent was credited on 09.10.2007, which is the

admitted date of payment by the Petitioner as well. The cause of

action, therefore, arose on 09.10.2007 and the suit was filed on 7 th

October, 2010, which is well within limitation.

4. It is further submitted by the Respondent that the affidavit

seeking leave to defend filed by the Petitioners before the learned

Single Judge had no plea regarding limitation. The Petitioners even

admitted before the learned Single Judge that no plea regarding the

date of the cheque had been raised by them in the affidavit seeking

leave to defend. Therefore, at the present stage of review, the

Petitioners cannot be allowed to raise new pleas based on concealed

facts. However, it was fairly conceded by Sh. Sanjay Jain, learned

senior counsel for the Respondent that the petition for the purpose of

review of orders/judgment dated 12.08.2013 may be allowed to the

extent that the date of the cheque which is wrongly mentioned as

09.10.2007 instead of 31.08.2007, being a typographical error the

same may be corrected, though it will not have any effect on the final

outcome.

5. The Petitioner filed rejoinder to the reply of the Respondent

wherein no explanation has been given by the Petitioner as to why the

aforesaid material fact was suppressed by the Petitioner even in the

review petition filed by the Petitioner and as a matter of fact a strange

plea of acquiescence and waiver has been raised in paragraphs 5 to 7

of the Rejoinder, which read as under:-

"5. Acquiescence and waiver: The cheque No.563092 dated 31.08.2007 was presented for endorsement on two occasions i.e, 3/9/2007 secondly on 1/10/2007 and was returned unpaid, has not been pleaded by the Respondent in Suit CS(OS) 2150/2010. Ultimately the respondent had the said cheque encashed on 09.10.2007 shows that the Respondent had acquiesce the same action. The stand taken by the Respondent is barred by the principles of acquiescence and waiver.

6. The cheque bearing No.563092 dated 31.08.2007 was honoured on 09.10.2007, this fact is admitted by the Respondent in its reply. In the decision the Hon'ble Apex court in the case of Jiwanlal Achariya Vs. Rameshwarlal Agarwal (AIR 1967 SC 1118), has held at para 8, "This brings us to the question of limitation. The facts are not in dispute now the promissory note was executed on February 4, 1954. On the same date a post-dated

cheque bearing the date February 25, 1954 was given by the defendant/appellant to the plaintiff/respondent, the intention being that on being realized it would be credited towards part payment. It was realized sometime after February 25, 1954 and was credited towards part payment"......... "........we are, therefore, of opinion that as a post-dated cheque was given on February 4, 1954 and it was dated February 25, 1954 and as this was not a case of unconditional acceptance, the payment for the purpose of S.20 of the Limitation Act could only be on February 25, 1954 when the cheque could have been presented at earliest for payment. As in the present case the cheque was honoured it must be held that the payment was made on February 25, 1954."

7. In the light of the above case where a post- dated cheque is accepted conditionally and is honoured, the payment of the purpose of Section 20 of the Limitation Act can only be the date of the cheque and cannot be on the date which is honoured or credited. As such, the facts are similar in to the present case, the post-dated cheque bearing No.563092 dated 31.08.2007 was handed over on 21.08.200 and been finally honoured on 09.10.2007. For purpose of section 20 of the Limitation Act the date of the cheque (31.08.2007) is relevant. The suit filed by the Respondent on 07.10.2010 was barred by limitation."

6. Further, in response to the preliminary objections raised by the

Respondent with regard to material suppression of facts by the

Petitioner in its review petition, the Petitioner in its rejoinder stated

that in respect to the date of cause of action, the law is settled that

cause of action arose on the date of issuance of the cheque and not on

the date of its realization. Thus, clearly, the Petitioner does not

dispute that it failed to disclose the fact that the cheque dated 31 st

August, 2007 (delivered on 21.08.2007 to the Respondent) was

dishonoured on presentation before it was finally honoured on the

third presentation on 9.10.2007.

7. The above being the factual position and there being a

typographical error in our judgment dated August 12, 2013, we

modify our judgment to the extent that wherever the date of the

cheque has been mentioned as 9.10.2007, the same shall be read as

31.08.2007. Consequentially and as a result of the said modification

at page 9 of the judgment the words "the last of the cheques handed

over by the Appellants to the Respondent was dated 9.10.2007" will

read as "the last of the cheques handed over by the Appellants to the

Respondent was dated 31.08.2007, which was realized on

9.10.2007". Again at page 9 of the judgment, the sentence "The

appellants in the instant case have not disputed that the last of the

cheques is dated 9.10.2007. Thus, even assuming (though there is no

authentic document placed on record in this regard) that the cheque

dated 9.10.2007 was delivered to the Respondent on 21.08.2007, he

could not have presented the same for payment prior to 9.10.2007".

will read as "The appellants in the instant case have not disputed that

the last of the cheques is dated 31.08.2007. Thus, even assuming

(though there is no authentic document placed on record in this

regard) that the cheque dated 31.08.2007 was delivered to the

Respondent on 21.08.2007, he could not have presented the same for

payment prior to 31.08.2007".

8. We further modify the words in paragraph 12 at page 13 of the

judgment "that the cheques dated 21st August, 2007 and 9.10.2007

were handed over to the Respondent at Bangalore." to read as "that

the cheques dated 21st August, 2007 and 31.08.2007 were handed

over to the Respondent at Bangalore."

9. As in the present case, the cheque was honoured on 9.10.2007,

it must be held that the payment was made on 9.10.2007. We are,

therefore, of the opinion that the fresh period of limitation began on

9.10.2007, which was the date of realization of the post dated cheque,

and therefore the typographical error which has crept into the

judgment will in no manner have a bearing on the findings and the

conclusions arrived at by us. Insofar as the legal position is

concerned, the Review Petitioner in the Petition itself has frankly

stated that the exposition of the legal position in the judgment cannot

be faulted.

10. The inevitable conclusion is that the Review Petition is partly

allowed to the extent set out above in paras 7 and 8. The rest of the

prayers made in the petition which are clearly based on an

afterthought and are even otherwise not tenable in the fact situation

are declined.

11. CM No. 2093/2014 is also rejected.

REVA KHETRAPAL JUDGE

PRATIBHA RANI JUDGE May 01, 2014 sk