Appeal allowed, trial court's findings set aside, fresh trial ordered to determine cheque delivery date.

The appeal was allowed, setting aside the trial court's findings on the limitation issue and the judgment. The suit was remanded for a fresh trial to determine the actual date of delivery of the cheque, which would mark the start of the limitation period. The application for condonation of delay was deemed not maintainable as the court lacked discretion to extend the prescribed period for suits. The appellant was entitled to a refund of the court fee, and the parties were directed to appear before the trial court for further proceedings.

---

---

Issues Involved:
1. Whether the suit is within the period of limitation.
2. Whether the application for condonation of delay in filing the suit is maintainable.

Issue-wise Detailed Analysis:

1. Whether the suit is within the period of limitation:

The appellant/plaintiff filed a suit for recovery of Rs. 1,77,048.58 with costs and interest, alleging that the defendants had made part payments from time to time, with the last payment being made on 18th March 1995. The trial court dismissed the suit as barred by limitation. The primary contention was whether the limitation period started from the date the cheque was delivered (18th March 1995 as claimed by the plaintiff or 11th March 1995 as claimed by the defendant). The court noted that the trial court misapplied the law laid down by the Supreme Court in Jeewan Lal Acharya Vs. Rameshwar Lal Agarwala, which pertains to post-dated cheques. In this case, the cheque was antedated. The Supreme Court in Commissioner of Income Tax Vs. M/s. Ogale Glass Works Ltd. had observed that payment by a negotiable instrument is conditional and takes effect from the delivery of the cheque unless dishonored. The court concluded that the date of delivery of the cheque (18th March 1995) would be the starting point for the limitation period. The trial court should not have dismissed the suit without a trial to ascertain the actual date of delivery.

2. Whether the application for condonation of delay in filing the suit is maintainable:

The plaintiff also filed an application for condonation of delay under Section 5 of the Limitation Act, 1963, stating that he was confined to bed from 8th March 1998 to 15th March 1998, and filed the suit immediately upon the reopening of the courts on 16th March 1998. The court observed that Section 3 of the Limitation Act mandates the dismissal of any suit filed after the prescribed period, and courts have no discretion to condone the delay for suits. Section 5 of the Act, which allows for the extension of the prescribed period, does not apply to suits but only to appeals or applications. Therefore, the application for condonation of delay was not maintainable.

The appeal was allowed, and the findings of the trial court on the preliminary issue were set aside. The judgment and decree dated 18th January 1999 were also set aside. The suit was remanded back to the trial court to proceed with the trial in accordance with the law, including a fresh decision on the issue of limitation after allowing the parties to lead evidence. The appellant was entitled to a refund of the court fee on the memorandum of appeal. The parties were directed to appear before the trial court on 21st March 2000.

---