Madras High Court
V.Mohamed Khader vs T.Venugopal on 7 April, 2022
A.S(MD)No.134 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 07.04.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S(MD).No.134 of 2021
and C.M.P(MD)No.
V.Mohamed Khader ... Appellant/Defendant
Vs.
T.Venugopal ... Respondent/Plaintiff
Prayer : This Appeal Suit is filed under Section 96 of the Civil
Procedure Code against the judgment and decree dated 04.12.2019 made
in O.S.No.46 of 2016 on the file of the court of 1st Additional District
Juge, Madurai.
For Appellant : Mr.G.Prabhu Rajadurai
For Respondent : Mr.R.Surya Narayanan
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and decree
of the learned I Additional District Judge, Madurai dated 04.12.2019
made in O.S.No.46 of 2016.
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A.S(MD)No.134 of 2021
2. The appellant is the defendant in the suit.The respondent/plaintiff has
filed the suit for recovery of money. The facts of the case runs as under:
the defendant borrowed a sum of Rs.9,00,000/- (Rupees nine lakhs only)
from the plaintiff for his business purpose in the month of June 2009 and
agreed to repay the same with interest at the rate of 18%; considering the
relationship between the plaintiff and the defendant, no loan documents
were obtained; thereafter, the defendant did not repay any money
towards principal or interest; in view of the settlement arrived at between
themselves on 24.09.2014, the defendant issued a cheque dated
01.11.2014 for a sum of Rs.17,55,675/- (Rupees seventeen lakhs, fifty
five thousand, six hundred and seventy five only) which being the
principal and interest accrued on the same; the plaintiff presented the
cheque on 19.01.2015 but it was returned as ‘funds insufficient’;
subsequent to the return of cheque, the defendant sent messages through
a third party not to proceed any further action and he would settle the
amount shortly; in pursuance of the further negotiation on 07.02.2015,
the defendant gave another cheque dated 20.03.2015 by acknowledging
his liability and the same was presented for collection on 23.03.2015 and
that was returned on 24.03.2015 for the same reason; thereafter, the
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defendant issued a legal notice dated 18.03.2015 with certain untenable
allegations and for which, the plaintiff issued a reply notice and
re-joinder notice on 21.03.2015 and 27.03.2015 respectively; the
defendant failed to repay the amount and presented a complaint before
the police for charging exorbitant interest; hence, the plaintiff has filed
the suit for recovery of money.
3. The defendant resisted the suit by stating that he availed a loan of
Rs.50,000/- (Rupees fifty thousand only) on 10.09.2009 and
Rs.1,50,000/- (Rupees one lakhs and fifty thousand only) in the same
month on various occasions; on 24.10.2009, he borrowed another sum of
Rs.50,000/- (Rupees fifty thousand only) to meet out his wife’s medical
expenses; the plaintiff demanded the defendant to submit the documents
as security and for which the defendant had given 17 signed blank
cheques; since the defendant borrowed the loan during June 2009, the
case of the plaintiff is barred by limitation; despite the plaintiff agreed to
get interest for the loan at the rate of 2% per month, he threatened the
defendant to pay 10% interest per month; hence, the defendant was
paying Rs.25,000/- (Rupees twenty five thousand only) as interest per
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A.S(MD)No.134 of 2021
month; he had paid interest for 60 months amounting to Rs.15,00,000/-
(Rupees fifteen lakhs only) till December 2014; from December 2014,
the defendant was unable to pay interest to the plaintiff; in order to grab
the defendant’s money, the plaintiff filled up the blank cheques issued to
him and presented it for collection; after coming to know this on
22.01.2015, the defendant immediately approached the plaintiff and paid
two months interest of Rs.50,000/- (Rupees fifty thousand only) along
with the principal amount of Rs.2,50,000/- (Rupees two lakhs and fifty
thousand ony); and after settling the same, he wanted the plaintiff to give
back the 17 blank cheques; but the plaintiff did not return the cheques
but stated that cheques were lost; since the plaintiff did not return the
cheques and started to use the cheques one after another, he issued a
legal notice to the plaintiff on 18.03.2015 calling upon the plaintiff to
return his signed blank cheques; the plaintiff issued reply notice
suppressing the real facts and demanded him to repay the loan;one of the
cheques was presented for collection by one Nethaji, who is not known
to the defendant; the said Nethaji sent a legal notice on 24.03.2015 and
demanded the defendant to settle Rs.2,00,000/- (Rupees two lakhs only)
loan; later, the defendant came to know the said Nethaji is the plaintiff’s
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A.S(MD)No.134 of 2021
father; the plaintiff sent another legal notice on 26.03.2015 and for which
the defendant has also sent a befitting reply on 26.03.2015; the plaintiff
issued a legal notice on 30.03.2015 and for which the defendant sent a
reply notice on 17.04.2015 and thereafter filed a suit for recovery of
money.
4. The learned trial Judge framed the following issues on the basis of the
pleadings:
i) Whether there is legally recoverable debt on the basis of
the suit cheque?
ii)Whether the suit is barred by limitation?
iii)Whether the plaintiff is entitled to the suit amount with
subsequent interest?
iv) What relief the plaintiff is entitled to?
5. During the course of trial, on the side of the plaintiff one witness was
examined as P.W.1 and fourteen documents were marked as Ex.A.1 to
Ex.A.14. On the side of the defendant, one witness was examined as
D.W.1 and eleven documents were marked as Ex.B.1 to Ex.B.11. At the
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A.S(MD)No.134 of 2021
conclusion of the trial, the trial Judge, on appreciating the evidence on
record, decreed the suit as prayed for.
6. Aggrieved over that, the defendant has preferred this Appeal Suit.
7. The learned counsel for the appellant/defendant submitted that the suit
itself is barred by limitation; even as per the allegation of the respondent/
plaintiff, the loan transaction pertains to the year 2009 and in which case,
the suit ought to have been filed in the year 2012 and the respondent
cannot claim any acknowledgement by way of getting the cheques dated
01.11.2014 and 20.03.2015 and later in the year 2015 as alleged by him;
the above cheques Ex.A.2 and Ex.A.4 cannot be construed as
acknowledgement of liability as prescribed under Section 18 of the
Limitation Act; the appellant/defendant did not avail Rs.9,00,000/-
(Rupees nine lakhs only) as loan as alleged by the respondent/plaintiff;
the appellant/defendant had availed only Rs.2,50,000/- (Rupees two
lakhs and fifty thousand only) as loan and it was discharged by him; at
the time of availing the above loan of Rs,2,50,000/- (Rupees two lakhs
and fifth thousand only), he was forced to part with 17 signed blank
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cheques by the respondent/plaintiff; even after discharging the loan
amount, those cheques were not returned to him; the appellant/defendant
caused notice on 18.03.2015 calling upon the respondent/plaintiff to give
back all his signed blank cheques; the respondent/plaintiff has come out
with an allegation about the cheque dated 20.03.2015 given by the
appellant/defendant; even if those cheques were considered as true or
supported by consideration, it cannot be enforced to recover a time
barred debt; in order to recover the time barred debt, there should be an
agreement in terms of Section 25(3) of the Indian Contract Act; by
issuance of the cheque alone, it cannot be claimed that the mandates of
Section 25(3) of the Indian Contract Act were complied; when there is no
explicit reference about the time barred debt and there is no contract
between the parties in reference to the liability to pay the time bar debt,
the cheques cannot have any legal enforcibility;
8. The learned counsel for the appellant/defendant drew the attention of
this Court to the judgements made in the following cases, in support of
his contentions:
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i) A.No.4088 of 2017 and batch dated 08.07.2006 in the case of
M.P.Farook Vs. K.Sasikumar;
ii) Civil suit in 63 of 2021 and Application No.621 of 2021
dated 01.09.2021 in the case of S.Suresh Kumar Vs. Prakash
Chand Jain;
He would submit that the above decisions would be applicable to the
facts of this case also and hence, the appeal should be allowed.
9. The learned counsel for the respondent/plaintiff submitted that the
cheque dated 01.11.2015 was issued only in acknowledgement of the
principle and interest accrued until the said date on the loan of
Rs.9,00,000/- (Rupees nine lakhs only) availed by the appellant/
defendant; since the the cheque is bill of exchange and a promise to pay
the sum mentioned therein, that would come under the illustration (e) of
Section 25(3) of the Indian Contract Act and hence, it cannot be said that
the suit is barred by limitation; the facts and situation of the case referred
in M.P.Farook's case is different from the facts of this case; the
defendant did not deny availing of loan from the plaintiff and giving the
cheques also in discharge thereof; the learned trial Judge has rightly
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appreciated the evidence on record and decreed the suit as prayed for and
it does not require any interference.
10. Points for consideration:
i) Whether the finding of the learned trial Judge that the
suit is barred by limitation is correct?
ii)Whether Ex.A.2 and Ex.A.4 the cheques dated
01.11.2014 and 20.03.2015 would amount to
acknowledgement of debt?
iii) Whether the promise to pay the amount as seen in Ex.A.
2 and Ex.A.4 would be construed as a new agreement to
discharge time bar debt under Section 25(3) of the Contract
Act?
iv) Whether the judgment of the trial court in decreeing the
suit with interest is fair and proper?
11. The fact that the appellant/defendant and the respondent/plaintiff are
known to each other is not denied. When the respondent/plaintiff claimed
that the appellant/defendant had availed the loan of Rs.9,00,000/-
(Rupees nine lakhs only) in the year 2009 and agreed to repay with
interest at the rate of 18% per annum, the appellant/defendant claimed
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that he has availed only a sum of Rs.2,50,000/- (Rupees two lakhs and
fifty thousand only) as loan from the respondent in the year 2009 and he
had repaid the same. The further contention of the appellant/defendant is
that while availing the above said loan of Rs.2,50,000/- he had entrusted
17 signed blank cheques to the respondent/plaintiff by way of security.
The respondent/plaintiff did not deny the fact that the initial loan of Rs.
9,00,000/-(Rupees nine lakhs only) was availed by the appellant/
defendant in the year 2009.
12. Though the appellant/defendant claimed that he had paid exorbitant
interest of Rs.25,000/-(Rupees twenty five thousand only) per month
towards the alleged loan of Rs.2,50,000/- availed by him, no document
has been produced to prove the same. However, it is stated by the
plaintiff that the principal amount of Rs.9,00,000/- (Rupees nine lakhs
only) with accrued interest till 01.11.2014 worked out to Rs.17,55,675/-
(Rupees seventeen lakhs, fifty five thousand, six hundred and seventy
five only) and for which the appellant/defendant gave a cheque dated
01.11.2014. The appellant/defendant did not deny the signature in the
cheque dated 01.11.2014.
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13. According to the appellant/defendant, the cheque dated 01.11.2014
will not save the suit of the respondent/ plaintiff from limitation and
neither the cheques can be construed as acknowledgement of debts or
novation of contract in respect of a time-barred debt. It is true that the
issuance of cheque for a debt barred by limitation cannot be considered
as an acknowledgement of liability.Section 18 of the Limitation Act
would say that any acknowledgement of liability should be made in
writing and signed by the party, against whom, the debt is enforced,
before the expiration of the prescribed period of limitation. In the case in
hand, the first cheque has been given in the year 2014 and it is clearly
beyond 3 years from the loan year of 2009. But it is seen from the
averments of the written statement filed by the appellant/defendant that
he was in the habit of paying interest at the rate of Rs.25,000/- (Rupees
twenty five thousand only) per month for nearly 16 months till December
2014. If the appellant strengthens his case on the basis of the point of
limitation, his submission as to the repayment of interest till December
2014 would deprive him from pleading the point of limitation. Though
the issuance of cheque cannot be considered as acknowledgement, the
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payment of interest can be very well considered as acknowledgment. The
defence of the appellant/defendant appeared to be self contradictory.
14. However, the learned counsel for the appellant/defendant submitted
that it is an obligatory on the part of the court to find out whether the suit
is within the time or not, even though the parties did not make any
pleadings with regard to limitation. But the case of the plaintiff/
respondent is that the appellant/defendant did not make any payment
towards principal or interest and he had only agreed to repay the
principal amount with cumulative interest by way of issuing cheque
dated 01.11.2014 for a sum of Rs.17,55,675/- (Rupees seventeen lakhs,
fifty five thousand, six hundred and seventy five only). The cheque is a
bill of exchange and Section 5 of the Negotiable Instruments Act would
make it clear that the bill of exchange is a kind of promise or the order to
pay a certain payment.
15. In this context, the learned counsel for the appellant vehemently
argued that the judgment of this Court in M.P.Farook's case cited supra,
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has already interpreted that the issuance of cheque cannot be construed as
a fresh contract, which could resurrect a time barred debt. In the
judgment rendered in M.P.Farook's case, reference was made to the
earlier judgments as under:
13. "i) In M.Danabal vs. R.Senthil Rajan in Crl.R.C.No.492 of
2014, dated 12.09.2019, this Court has observed as
follows:-
"22.Bearing this in mind, this Court now proposes to
analyse Section 138 of the N.I. Act, which is a penal
provision which requires to be construed strictly.
Explanation to Section 138 of the N.I. Act reads as follows :
“Explanation - For the purposes of this section, “debt or
other liability” means a legally enforceable debt or other
liability.” While interpreting a penal provision, the normal
rule is that, the interpretation that favours the accused
would merit consideration. Of course, there are certain
exceptions to this rule.
The object of Section 138 of the N.I. Act is to protect the
interest of diligent payees in commercial transactions. By
virtue of the explanation extracted above, the expression
“debt” means legally enforceable debt. It is axiomatic that
the cheque should have been issued for a legally
enforceable debt. When a cheque is issued for a time
barred debt, it does not satisfy this minimum requirement.
That apart, a cheque is an instruction to the Bank of the
payer to make payment to the payee and nothing more. It
cannot be construed as a “promise made in writing and
signed by the payer” so as to fall within the ambit of Section
25(3) of the Contract Act.
Even by an extreme interpretation, if the issuance of a
cheque for 10 / 19 http://www.judis.nic.in A.No.4088 of
2017 in CS.No.75 of 2017 and Crl.O.P.No.27379 of 2016 a
time barred debt is construed as a promise in writing
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A.S(MD)No.134 of 2021
within the meaning of Section 25(3) ibid., then too, only a
fresh contract is born. To say that the cheque which gave
birth to a fresh contract resurrects a time barred debt and
the dishonour of such a cheque entails prosecution of the
drawer under Section 138 of the N.I. Act, is too large a pill
for the penal law to swallow."
ii) In Sasseriyil Joseph vs. Devassia reported in CDJ 2000
Ker HC 129, the Kerala High Court has held as follows:-
"6. The only question that arises for consideration in this
appeal is whether the respondent who issued the cheque in
question in discharge of a time barred debt is liable
under Section 138 of the Negotiable Instruments Act. In this
case, the complainant had admitted that the loan was
advanced to the accused in January, 1988 and the cheque
was issued in February, 1991. Thus, by the time the cheque
was issued, the debt was barred by limitation since there
was no valid acknowledgement of the liability within the
period of limitation. According to the learned counsel for
the appellant, the promise made by the accused to repay
the time barred debt would come within the purview
of Section 25(3) of the Indian Contract Act. No doubt, the
promise to pay a time barred cheque (debt) is valid and
enforceable, if it is made in writing and signed by the
person to be charged therewith. But, it is clear from Section
138 of the Negotiable Instruments Act that in order to
attract the penal provisions in the bouncing of a cheque in
Chapter XVII, it is 11 / 19 http://www.judis.nic.in A.No.
4088 of 2017 in CS.No.75 of 2017 and Crl.O.P.No.27379
of 2016 essential that the dishonoured cheque should have
been issued in discharge, wholly or in part, or any debt or
other liability of the drawer to the payee. The explanation
to Section 138 defines the expression debt or other liability
as a legally enforceable debt or other liability. The
explanation to Section 138 reads as under :- Explanation :-
For the purpose of this section, "debt or other liability"
means a legally enforceable debt or other liability."
iii) The Hon'ble Apex Court in Sasseriyil Joseph vs.
Devassia reported in CDJ 2001 SC 1423, it has been
observed as follows:
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A.S(MD)No.134 of 2021
"Sessions Judge, Thalassery in Criminal Appeal No.212 of
1992 holding inter alia that the cheque in question has
been issued by the accused for due which was barred by
limitation of the penal provision under Section 138 of the
Negotiable Instrument Act is not attracted in the case. On
the facts of the case available on records and the clear and
unambiguous provision in the explanation to Section 138 of
the Negotiable Instrument Act, the judgment of the lower
appellate court as confirmed by the High Court is
unassailed. Therefore, the special leave petition is
dismissed."
iv) In S.Kamatchi and others vs. M/s.Arkaa
Medicament reported in 2009 (3) MWN (Cr.) DCC 31, this
Court has held thus:-
"19.It has already been pointed out that as per the
explanation given under Section 138 of the Negotiable
Instruments Act, 1881, 12 / 19 http://www.judis.nic.in A.No.
4088 of 2017 in CS.No.75 of 2017 and Crl.O.P.No.27379
of 2016 the cheque in question must be given only in
respect of legally enforceable debt or other liability. In the
instant cases, the debt mentioned in every complaint has
become time barred on the date of issuance of the cheque
in question. Further no valid acknowledgement of debt has
been established on the side of the complainants. As
per Section 19 of the Limitation Act, a debt should be
acknowledged within the period of limitation. In the instant
cases, as taunted earlier, even though it has been
contended on the side of the appellants that the accused
have paid interest, no document has been forthcoming to
that effect. Further a time barred debt cannot be construed
as a legally enforceable debt. Under the said
circumstances, the Court can safely come to a conclusion
that the cheques in question have not been given in respect
of legally enforceable debts and on that score alone, all the
complaints are liable to be dismissed. ......
24.Since this Court is of the considered view that a time
barred debt would not come within the meaning of a legally
enforceable debt and since the same view has been taken by
the High Courts of Andharpradesh and Kerala as per the
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A.S(MD)No.134 of 2021
decisions mentioned supra, this Court is not in a position to
rely upon the decision rendered by the Karnataka High
Court reported in (III) 2007 BC 752 Karnataka
(S.Parameshwarappa and another Vs. S.Choodappa).
Therefore, viewing from any angle, the entire contentions
urged on the side of the appellants/complainants 13 / 19 in
A.No.4088 of 2017 in CS.No.75 of 2017 and Crl.O.P.No.
27379 of 2016 cannot be accepted."
16. A whole reading of the above said judgment would show that the
case involved in the judgment pertains to an order passed under Order 7
Rule 11 C.P.C and to quash the proceedings under Section 138 of
Negotiable Instruments Act. The learned single Judge had rejected the
plaint and quashed the proceedings under Section 138 of Negotiable
Instruments Act.
17. But in the case in hand, the plaint was not rejected at the threshold
stage and point of limitation is found to be in favour of the plaintiff and
the suit was decreed after a full trial. It is insisted by the learned counsel
for the appellant/defendant that to enforce a time barred debt, there
should be a distinct promise to pay the money and the promise must be in
writing and signed by the concerned person. For convenient
understanding, it is better to extract provision of Section 25(3) of the
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Contract Act:
25. Agreement without consideration, void, unless it is
in writing and registered or is a promise to compensate
for something done or is a promise to pay a debt barred
by limitation law An agreement made without
consideration is void, unless An agreement made
without consideration is void, unless—"
(1) .. (2) .. (3) It is a promise, made in writing and signed by the
person to be charged therewith, or by his agent generally or
specially authorized in that behalf, to pay wholly or in part a debt
of which the creditor might have enforced payment but for the
law for the limitation of suits. In any of these cases, such an
agreement is a contract.
(a) ..(b) .. (c) .. (d) ... "(e) A owes B Rs. 1,000, but the debt is
barred by the Limitation Act. A signs a written promise to pay B
Rs. 500 on account of the debt. This is a contract."(f) .. (g) ..
18. In this context, the learned counsel for the respondent attracted the
attention of this Court to the illustration (e) of Section 25(3) of the
Contract Act. In terms of the illustration (e) of Section 25(3) of the
Contracts Act, a written promise to pay even a portion of the debt due
could itself be considered as a contract. There is no disagreement with
regard to the fact that in order to make the time barred debt enforceable,
it should be agreed in writing and the amount should have been promised
to be paid. Admittedly, there is no special agreement between the parties
with regard to the payment of time barred debt. But, there is an issuance
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of cheque dated 01.11.2014. When the execution of the cheque is not
denied, the holder of the cheque has got the presumption in his favour
that the cheque has been issued only for discharging a legally enforceable
debt or liability. The burden to prove the contrary by way of rebutting the
initial presumption would be on the shoulder of the appellant/defendant.
But the appellant/defendant himself has stated that he was paying interest
till 2014 and only thereafter, he sent a legal notice Ex.A.6 dated
18.03.2014 and demanded the plaintiff to give back his blank cheques.
19. Even though the alleged payments made by the defendant was not
accepted, as per the contention of the appellant/defendant, the suit cannot
be said to be barred by limitation. Because he himself has acknowledged
paying of interest till the year 2014 for a sum of Rs.1,50,000/- (Rupees
one lakh and fifty thousand lakhs only) from 24.10.2009 to 24.11.2014.
The non production of documents would dis-entitle the appellant/
defendant to get discharge for the amount claimed to be paid by him.
However, his contention that he has been paying interest till the year
2014 would save the plaint from limitation. So the suit of the plaintiff
though based on cheque dated 01.11.2014 the debt for which the cheque
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was issued cannot be said to have been barred by limitation. Even on the
basis of the appellant/defendant’s own pleadings, the facts and
circumstances in this case, are different from the judgments above cited.
20. Though the learned trial Judge had dealt with the point of limitation
and acknowledgment of liability only in accordance with Sections 18 and
25 (3) of the Contracts Act, the trial Judge has omitted to appreciate the
facts on law. It is needless to point out that the issue of limitation is both
question of facts on law. When the facts of the defendant’s defence itself
shows that he was in the habit of paying interest till the year 2014, he
cannot turn around and say that the suit is barred by limitation. Thus,
point Nos.1 to 3 are answered.
21. The learned trial Judge has allowed the interest at the rate of 18%
from the date of the loan till the date of filing of the suit and thereafter at
6% interest. As per Section 7 of the Tamilnadu Money Lenders Act, no
money lender shall charge interest on any loan at the rate exceeding such
rate as the Government may, by way of notification, fix, from time to
time. But however, it exempts the banking institutions. As per the
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G.O.Ms.406, Co-operation, 5th July, 1979 Published in the Tamil Nadu
Government Gazette, Extraordinary Part II, Section 2, dated 6th July
1979, the rate of interest permissible for unsecured loan could be at the
maximum 12% simple interest per annum. Hence, the respondent/
plaintiff is not entitled to claim interest at the rate of 18% from the year
2009.
22. The learned trial Judge ought to have decreed the suit by allowing
the interest below 18% from June 2009 till the date of filing of the suit.
Since the lending rates have been drastically reduced taking into account
of the several business risks and other facts, I feel that it will be
sufficient if interest is allowed at the rate of 9% from June 2009 till
01.11.2014 on which date the cheque was issued and from 01.11.2014 till
the date of filing of the suit, interest would be at the rate 6% per annum.
In the result, this Appeal Suit is partly allowed and the judgment of the
learned I Additional District Judge, Madurai dated 04.12.2019, in
O.S.No. 46 of 2016 is modified to the effect that the suit is decreed for a
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sum of Rs.9,00,000/- (Rupees nine lakhs only) with interest at the rate of
9% p.a from June 2009 till 01.11.2014, on which date the cheque was
issued and at the rate of 6% p.a from the date of filing of the suit till the
date of realisation. In all other aspects, the judgment of the trial court
dated 04.12.2019 shall stand unaltered. No costs.
07.04.2022
Index : Yes/No
Internet : Yes/No
CM
To
1.The 1st Additional District Juge, Madurai.
2.The Section Office,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S(MD)No.134 of 2021
R.N.MANJULA, J.
CM
A.S(MD).No.134 of 2021
and C.M.P(MD)No.
07.04.2022
https://www.mhc.tn.gov.in/judis
