1 S.A.No.386/10. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.386 OF 2010. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.B.D.Tare, advocate for the appellant. CORAM : S.V.GANGAPURWALA,J. Date : 22.12.2010. 1. This is defendant's Second Appeal. The present Respondent/original plaintiff had filed a suit for recovery of Rs.80,000/- (Rupees eighty thousand) on the ground that plaintiff had given a hand loan of said amount to the defendant which the defendant did not repay. He further contended that the defendant had issued a cheque for repayment of the said amount which was dishonoured. The trial Court decreed the suit. The appellate Court dismissed the appeal filed by the defendant and confirmed the judgment and 2 S.A.No.386/10. decree passed by the trial Court. The defendant has filed this present Second Appeal. 2. Mr.Tare, learned counsel for the appellant with all his persuasive skill, contended that the suit as it was filed was not within the prescribed period of limitation. According to the plaintiff the hand loan was given on 10th October 2000. The cheque was issued by the defendant on 10.8.2001 and the suit was filed on 15.1.2004. According to the learned counsel Article 19 of the Limitation Act would be applicable, wherein the suit has to be filed within three years from the date when the amount of loan was lent. As such according to him, the limitation would start running from 10th October, 2000 and the suit filed on 15.1.2004, was clearly barred by limitation. 3. Mr.Tare, learned counsel further contended that the presumption U/s 118 of the Negotiable Instruments Act, can not be drawn in the present case. The circumstances on record shows that no such cheque was issued for 3 S.A.No.386/10. repayment of the amount as claimed by the plaintiff. Even the disbursement of Rs.80,000/- (Rupees eighty thousand) is not proved as there is no written document for the said amount. The plaintiff is working as a driver and the defendant is a conductor. Both are similarly situated. It is not expected that plaintiff would have such a huge amount with him at his disposal. The case put forth by him is also not proved as he has not produced on record any sale receipts of the Banana trees nor any 7/12 extract. The learned counsel further contended that the witnesses were deposing after six years and their minor discrepancies could not have been sufficient to disbelieve their whole deposition. 4. The learned counsel also relied on the judgment of this Court in case of "New Standard Engg. Co.Ltd. Vs. Karnataka Power Corporation Ltd." 2005 (3) Mh.L.J. 1039, to contend that for extension of period of limitation there has to be part payment or acknowledgment. 5. With the assistance of the learned counsel, 4 S.A.No.386/10. I have gone through the judgments and the relevant provisions. No doubt, the period for limitation for filing the suit for the amount lent is three (3) years as per Article 19 of the Limitation Act but at the same time if an acknowledgment is made or a part payment is made, the same extends the period of limitation. In the present case it is held by both the Courts that on 10.8.2001, cheque was issued by the defendant to the plaintiff towards the payment of the amount of loan. The issuance of cheque as such would amount to an acknowledgment and the limitation would be extended. Full Bench of the Gujarat High Court in the case of "Hindustan Apparel Industries Vs. Fair Deal Corporation, New Delhi" AIR 2000 Gujarat 261, has held that if the cheque is issued and even if the same is dishonoured, that would extend the period of limitation. In that light of the matter, as the cheque was issued on 10.8.2001, the suit filed on 15.1.2004 was well within limitation. 6. The defendant has not disputed his 5 S.A.No.386/10. signature on the said cheque but has contended that the same was given as a security. Now once the signature is admitted on the said cheque, presumption U/s 118 of the Negotiable Instruments Act, is attracted. No doubt, the said presumption is rebuttal presumption but both the Courts on evaluation and appreciation of evidence have come to the conclusion that the amount was advanced by the plaintiff to the defendant and that the defendant has failed to repay the said amount. The said finding is a finding of fact based on appreciation of evidence. The conclusion drawn by the Courts below is a possible conclusion. The Second Appeal can not be entertained only on the ground that some other conclusion also is possible, as is held by the Apex Court in the case of "Vidhyadhar Vs. Mankikrao and another" AIR 1999 Supreme Court 1441. 7. In light of the above, the Second Appeal being sans substantial question of law, is 6 S.A.No.386/10. dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.22.12.2010. asp/office/sa386.10