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Case Note of SIMRANPAL SINGH SURI V

The petitioner argued that the complaint was filed beyond the limitation period and the courts did not properly calculate days. The respondent opposed, saying the order was valid. The court analyzed limitation period dates based on precedents and found both lower courts erred in computation, as complaint was filed 1 day late without a delay condonation application.

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184 views

Case Note of SIMRANPAL SINGH SURI V

The petitioner argued that the complaint was filed beyond the limitation period and the courts did not properly calculate days. The respondent opposed, saying the order was valid. The court analyzed limitation period dates based on precedents and found both lower courts erred in computation, as complaint was filed 1 day late without a delay condonation application.

Uploaded by

Subodh Asthana
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Case Note of SIMRANPAL SINGH SURI v. STATE & ANR.

FACTS

Petitioner had borrowed a sum of Rs 10 Lacs from respondent 2 who had lent the same vide
two cheques amounting to Rs 5 lacs each. Further, it was stated that after approximately 3
years, respondent 2 approached petitioner for repayment of the loan amount, petitioner
assured that he will return the entire amount and in order to discharge his part liability he
issued a cheque amounting to Rs 10 lacs, which was dishonoured with remarks “funds
insufficient”. It is the case of the respondent 2 that when he informed petitioner about
dishonour of the cheque, he paid no heed to his complaint and thereafter, the respondent 2
served a legal demand notice dated 31.05.2019 upon him and despite service of demand
notice through speed post as well as approved courier on 03.06.2019, when petitioner failed
to make the payment, complaint under Section 138 of NI Act was instituted against the
petitioner on 20.07.2019 before the learned Metropolitan Magistrate.

ISSUES RAISED

1. Whether the Metropolitan Magistrate & revisional court vide. Order dt. 26.09.2019
and 27.11.2020 respectively did not take note of the fact that the complaint was filed
beyond the limitation period and did not rightly calculate the days and therefore,
directed to issue summons to the petitioner was illegal and without jurisdiction;
2. Whether the Metropolitan Magistrate had no jurisdiction to take cognizance under
Section 138 NI Act without that being accompanied by application under Section 142
(1) (b) NI Act for condoning the delay in filing the complaint.

ARGUMENTS ADVANCED BY THE LD. PETITIONERS

the petitioner submitted that the learned Metropolitan Magistrate had no jurisdiction to take
cognizance of the complaint u/s 138 Negotiable Instruments Act (NI Act) filed by respondent
No.2, without that being accompanied by application under Section 142 (b) NI Act for
condoning the delay in filing the complaint. Learned counsel for petitioner further submitted
that learned Metropolitan Magistrate, while taking cognizance of the complaint, did not take
note of the fact that the complaint was filed beyond the limitation period and did not rightly
calculate the days and therefore, direction to issue summons to the petitioner, is illegal and
without jurisdiction. The petitioner relied upon decision of Hon’ble Supreme Court in
Rameshchandra Ambalal Joshi v. State of Gujarat.1

ARGUMENTS ADVANCED BY LD. RESPONDENTS

Learned counsel for respondent No.2 opposed the present petition while submitting that the
impugned order is well merited and petitioner has been rightly summoned in the complaint in
question and, therefore, the impugned order does not call for any interference by this Court.

ANALYSIS & DECISION

A full Bench of Hon’ble Supreme Court in Econ Antri Ltd. v. Rom Industries Ltd.,2 , while
deciding the issue of calculation of limitation period with regard to proviso (c) to Section 138
and Section 142(b) of the Negotiable Instruments Act, 1881, has held as under for deciding
first issue raised that Crux in the instant case was that the 15 days period with regard to legal
demand notice lapsed. In terms of Supreme Court decision in Saketh India Ltd. v. India
Securities Limited,3   one day has to be excluded for counting the one-month limitation period
and therefore, excluding the day of 19-06-2019, the limitation period started from 20-06-2019
and the limitation period expired with the day in the succeeding month immediately
preceding the day corresponding to the date upon which the period started.

Consequently, the limitation period in this case, which commenced on 20-06-2019, expired in
the succeeding month on a day preceding the date of commencement i.e. 19-07-2019.
Admittedly, the complaint, in this case, was instituted on 20-07-2019 i.e. 01 day after the
limitation period had expired. Hence, Bench held that both the courts below have fallen in
error while computing the period of limitation. Moreover, at the time of filing, the complaint
was not even accompanied by an application under Section 142(1) (b) NI Act for condoning
the delay. Adding to the above, Court stated that the Revisional Court erroneously took into
consideration two different dates for service of demand notice while computing the limitation
period. The court also held that as per tracking report and as admitted, petitioner had received
the demand notice on 03.06.2019 and on the other hand, in the Revisional Court has observed
1
(2014) 11 SCC 759,
2
(2014) 11 SCC 769
3
(1999) 3 SCC 1
that as per tracking report, the demand notice was received by petitioner on 05.06.2019 and
so, the complaint is filed within the limitation period. Revisional Court has erroneously taken
into consideration two different dates for service of demand notice while computing the
limitation period. It is an admitted fact that the demand notice was served upon petitioner on
03.06.2019 and so, Revisional Court was not required to take into consideration the tracking
report showing service of demand notice on 05.06.2019 to justify that the complaint was filed
within the limitation period.

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