' Appellant/defendant, through the filing of the present appeal, has called in question judgment and decree dated 30-9-2002, whereby the learned Additional District Judge passed a decree for the recovery of Rs,50,000, against the appellant.
2. Briefly stated the facts of the case are that the respondent/plaintiff filed a suit for the recovery of Rs,74,000 before the learned District Judge, under the summary procedure provided under Order XXXVII. C.P.C., on the basis of a cheque dated 31-3-2000 alleging therein, that the appellant had borrowed a sum of Rs,50,000 from him, agreed to repay the same at the rate of Rs,3,000 p.m. And executed the cheque, which was subsequently dishonoured, thus necessitating the filing of the suit.
The appellant filed an application, seeking leave to appear and defend the suit, which was allowed and he was granted leave to appear and defend the suit. Pursuant to the above, the appellant filed the written statement, inter alia, pleading that the plaintiff has approached the Court with unclean hands; that he does not hold a money lender's licence and that the suit is barred by time.
' Out of the divergent pleadings of the parties, the learned trial Court framed the following issues:-- Issues
(1) Whether the plaintiff is entitled to the decree as prayed for? OPP
(2) Whether the plaintiff has not approached this Court with clean hands? OPD
(3) Whether the suit is barred by limitation? OPD
(4) Whether the suit is false, frivolous and liable to be dismissed with special costs? OPD
(5) Whether the defendant had paid Rs,41,500 in instalments to the plaintiff? OPD
(6) Relief.
' Both the parties led the evidence on the said issues and ultimately the learned trial Court, after finding that the respondent is only entitled for an amount of Rs,50,000, passed a decree for the said amount, leaving the parties to bear their own. Costs, vide judgment and decree dated 30-9-2002, hence the present appeal.
3. Learned counsel for the appellant, while referring to the leave granting order, has submitted that the learned Additional District Judge, in the impugned judgment, did not advert to the grounds on which the appellant was granted leave to appear and defend the suit. He has next submitted that undated cheque was given to the respondent and at the time of its signing the same was blank. He has added that some other blank documents were signed and handed over to the respondent. He has further submitted that the respondent has not come to this Court with clean hands, as different amounts were mentioned in the legal notice, F.I.R. And in the suit, thus, the respondent's case becomes doubtful. He has lastly contended that the suit is barred by limitation. Conversely, the learned counsel for the respondent while supporting the impugned judgment, has asserted that the learned Additional District Judge has adverted to every aspect of the case and no illegality has been committed by her.
4. So far as, the first contention of the learned counsel is concerned, there is no cavil to the proposition that after the grant of leave to appear and defend the suit to a defendant procedure in the A summary suit is the same. As the procedure in the suit instituted in the ordinary manner. This is so provided under Order XXXVII, rule '7, C.P.C. The grounds, which were taken by the appellant in his leave application, found favour with the Court and, thus, he wa3 granted leave to appear and defend the suit. The grounds taken in the leave application and pleas recorded in the order for the grant of leave to appear and defend the suit, would be effective uptil the decision of the said B application. Thereafter the defendant would be allowed to file the written statement and of course then the suit would be decided according to the pleadings of the parties. In this case, the appellant was granted leave, allowed to file the written statement, he raised certain preliminary objections and pleaded his case in his written statement. To my mind, at this stage, it cannot be legitimately argued that the grounds, prevailed with the learned trial Court at the time of granting the requisite leave, have not been discussed in the impugned judgment.
5. So far as. The issuance of blank cheque/documents is concerned, the arguments of the learned counsel in this context are equally devoid of any merits. Section 20 of the Negotiable Instruments Act provides that where one person signs and .Delivers to another a paper, stamped in accordance with law, either wholly blank or having written thereon or incomplete negotiable instrument, in order that it may be made or completed into a negotiable instrument, he thereby gives prima facie authority to the person who receives that paper to make or complete it, as the case may be, into a negotiable instrument for any amount. If any case-law is needed, the judgment reported as Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another PLD 1996 SC 749 can be referred. Furthermore, section 118 of the Negotiable Instruments Act provides that certain presumptions are attached to the negotiable instruments, which, inter alia, includes that negotiable instrument was made or drawn for consideration and that every negotiable instrument bearing a date was made or drawn on such date.
6. Now coming to the other contentions of the learned counsel. Upon the examination of the contents of the written statement, I find that the appellant has admitted the availing of loan of Rs,50,000, execution of undated cheque and its delivery to the respondent as a mark of security.
However, the case as pleaded by the appellant in his written statement and projected through the evidence on record, is that although the amount of Rs,50,000 was borrowed by him, yet he has returned the amount of Rs,41,500 to the respondent in instalments. In view of these assertions of the appellant, the learned trial Court rightly framed Issue No,5, the onus of which was placed on him.
Record of the case manifests that he has not been able to prove that how much amount was returned by him, inasmuch as no receipts regarding the alleged payment of the amount through instalments were placed on record. Additionally, by admitting about the availing of the amount and the execution and delivery of cheque, the onus automatically shifted upon the appellant to prove that he repaid the total or partial amount to the respondent. In this case, the learned trial Court, after examining the documentary and oral evidence on record, has rightly concluded that the appellant has not been able to discharge the onus of Issue No,5, thus, the findings of the learned Additional District Judge are maintained.
7. So far as the issue of limitation is concerned, the cheque is dated 31-3-2000 and the suit was filed on 16-12-2000, therefore, the suit was filed within a period of three years from the date mentioned in the cheque. There is no cavil to the proposition that under Article 64-A of the Limitation Act, a suit under the provisions of Order XXXVII on the basis of a negotiable instrument can be filed within a period of three years from the date when the debt becomes payable.
Accordingly, in this case, the suit was filed within a period of three years from the date, mentioned in the cheque. The suit is, thus, within the limitation period and findings of the learned trial Court are not open to exception.
8. In the above perspective, I have examined the impugned judgment and find that the same is legal, apt to the facts and circumstances of the case and does not call for any interference by this Court, thus, the findings of the learned Additional District Judge, on all the issues, are maintained.
9. Upshot of the above discussion is that the present appeal is devoid of any force, thus, dismissed leaving the parties to bear their own costs.