37i' * IN THE HIGH COURT OF DELHI AT NEW DELHI C.R.P. 63/2009 GAINENDER SINGH & ANR. Petitioner Through: Mr. Tanin Diwan, Advocate versus M/S KRISHNA FINANCE COMPANY Respondent Through: None. CORAM: HON'BLE MR. JUSTICE MANMOHAN ORDER % 29.04.2009 CM No.5797/2009 Exemption allowed, subject to all just exceptions. The application stands disposed of. C.R.P. 63/2009 & CM No.5796/2009 Present civil revision petition has been filed under Section 115 read with Section 151 CPC challenging the order dated 10'^ February, 2009 whereby petitioner-defendant's application under Order 7 Rule 11 CPC for rejection of respondent-plaintiff's plaint has been dismissed. Learned counsel for petitioner urged that the trial Court failed to appreciate that respondent-plaintiff's suit was barred by limitation as the alleged cheque issued after the expiry of the period of limitation Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified and its subsequent dishonour would not either revive the debt or give a fresh cause of action to the respondent-plaintiff to sue. He submitted that the bounced cheque could not be called a legally recoverable debt. In this context, learned counsel for petitioner relied upon a judgment of ! Bombay High Court in Chintaman Dhundiraj v. Sadguru Narayan Maharaj Datta Sansthan & Ors. reported in 1956 Bombay 553 (AIR V 43 C 14 Aug.). The relevant portion of the said judgment is reproduced hereinbelow for ready reference: "2. Shri Narayan Maharaj had a desire to purchase two villages for the Shii Datta Sansthan; that for taking such properties he had not got sufficient funds that he wanted Rs.35,000 and on that account he wrote a letter on 11.7.1939 to the plaintiff and asked him to pay the amount and he promised to repay the amount after Kartik Poumima of that year (October 1939); that as requested, the plaintiff gave a cheque for Rs.35,000 on 12.7.1939, drawn on the Bank of India; that Shri Narayan Maharaj had promised in his letter that he would send the title deeds of the village to the plaintiff for his custody if he so ^ desired that Shri Narayan Maharaj was unable to pay the amount after Kartik Poumima of Samvat year 1996 as promised; that at diverse times the plaintiff demanded the moneys from Narayan Maharaj and ultimately on 25.9.1942 he sent a cheque for Rs.35,000 drawn on the Imperial Bank of India, Poona City, in the name of the plaintiff; that the same was not honoured as the amount was not arranged for by Shri Narayan Maharaj; that thereafter on 10.11.1944 Shri Narayan Maharaj gave four cheques each of Rs. 5,000 each in the name of the plaintiff for cashing with the Imperial Bank of India, Poona City, and the cheques were returned with the endorsement Refer to Drawer'; that there after Shii Narayan Maharaj died on 3.9.1945, having executed a deed of management of the Datta Mandir and its property and having appointed defendants 2 to 10 as its trustees; that the Datta Mandir and its property are liable to pay the dues of the plaintiff, that the amount was demanded by the plaintiff but the defendants failed and neglected to make any payment and hence the suit for the recovery of Rs.35,000 advanced on 12.7.1939. The plaintiff claimed that the entire claim for Rs.35,000 was within limitation in view of the acknowledgment of liability and part-payment by cheques given by Shii Narayan Maharaj on 25.9.1942 and 10.11.1944. In the alternative the plaintiff claimed a decree for Rs.20,000 being the amount of four cheques of Rs. 5,000 each, the cause of action being the consideration of dishonoured cheques." In my opinion, the trial Court has rightly rejected the petitioner- defendant's application under Order 7 Rule 11 CPC as the respondent- ^ plaintiff had based his claim in the suit filed under Order XXXVll CPC on 08*^ February, 2005 on the basis of a bounced cheque dated SO*^ September, 2004. In my view. Section 139 of the Negotiable Instruments Act, 1881 clearly provides for a presumption in favour of a holder of a cheque. Section 139 of the Negotiable Instruments Act, 1881 is reproduced hereinbelow for ready reference: 139. Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder ^ of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability." During the course of arguments, Mr. Tarun Diwan, learned counsel for petitioner had submitted that though the Bombay High Court in the aforesaid judgment, had decreed the suit on the basis of dishonoured cheques, as it had done so as the initial cheque had been furnished by the defendant within the three year limitation period and the subsequent cheque had been dishonoured within a period of further three years period of the first cheque having been dishonoured. On a careful perusal of judgment of Bombay High Court, I do not find the said reasoning to be forming a part of the judgment. In my view, the Division Bench of Bombay High Court supports the reasoning given by the trial Court inasmuch as it holds; "6. we do not see why a decree should not be passed in favour of the plaintiff for the amount of Rs.20,000 on the footing that the cause of action which arises in favour of the plaintiff is on the four dishonoured cheques." Consequently, present petition and application being devoid of merits are dismissed with costs of Rs.7,500/- to be paid to Delhi High Court Legal Services Committee within six weeks from today. A receipt of the costs shall be filed before the Trial Court. % MANM0HANJ APRIL 29, 2009 js