Roshan Dass And Ors. vs Guranditta Mal
1991 Latest Caselaw 471 Del

JUDGMENT

D.P. Wadhwa, J.

(1) This is an appeal by the defendants in a suit filed under Order 37 of the Code of Civil Procedure, The application of the defendants for leave to defend was dismissed by the learned Commercial Sub Judge by order dated 20.8.1974 and suit of the plaintiff decreed for Rs. 24,440.00 with costs and with interest pendente lite at the rate of 12% per annum and future at the rate of 6% per annum on the principal amount of Rs. 18,000.00 .

(2) The plaintiff filed this suit in October 1973 for Rs. 24,460.00 which included Rs. 18,000.00 towards principal and Rs. 6,440.00 towards interest calculated at the rate of 12% per annum on the basis of a cheque In the sum of Rs. 21,000.00 which was given by the defendants to him. The cheque number is 406425 and was dated 31.3.1971. The plaintiff said that out of this amount the defendants paid a sum of Rs. 3,000.00 in all out of which Rs. 2,000.00 was paid in cash and Rs. l,000.00 by means of a cheque. Since the defendants failed to pay the balance amount, this suit was brought.

(3) In his application for leave to defend, the defendant No. 2 gave his version stating that he wag the sole proprietor of defendant No. 1 and that he knew the plaintiff for the last many years even before the partition of the country. He said due to illness of his wife the plaintiff came to his house on 23.10.1970 and offered to help the defendant in buying two bundles of G.I. wire from certain shops in Bara Tooti, Delhi, and for this purpose the defendant gave the plaintiff a blank cheque with instructions that the cheque should not be filled in for an amount exceeding Rs. 250.00 , Then the defendant filed an application that the date instead of 23.10.1970 should be read as 23.10.1968 as he said earlier the date was given due to a typographical error. The learned Commercial Sub Judge considered all the relevant points of the defense raised by the defendant. He relied on a letter dated 28.3.1971 of the defendant to the plaintiff whereby the defendant had confirmed that he had taken a loan of Rs. 20,000.00 with interest at the rate of 1^, p.m. from the plaintiff and earlier had given him a cheque for Rs. 21,000.00 dated 31.3.1971 to cover the loan amount. The learned Commercial Sub Judge did not find any substance in the defense raised by the defendants. A legal contention was raised that since the cheque had not been presented for payment and not dishonoured, a suit under Order 37 of the Code of Civil Procedure was not maintainable. Reliance was placed on a decision of this Court, bead note of which had been reproduced in the impugned judgment and was taken from Delhi Law Digest which was earlier being published by this Court. The case is entitled M/s. Four Bhat Private Ltd. v. Walaiti Ram and another. It has now been pointed out that judgment has since been published and is reported in I.L.R. (1973) Ii Delhi 891 ana has been given by a learned Single Judge of this Court. The head note which is mentioned in the impugned judgment states as under : "HOLDER of a cheque is entitled to sue on the basis of that cheque only when the cheque on presentation to the drawee is dishonoured. Unless the cheque is presented to the drawee, the maker of the cheque will not be liable to the holder and will be absolved of the liability."

(4) We have seen the judgment and if reference is made to clause (c) of Section 76 of the Negotiable Instruments Act, 1881, we find that presentment of the cheque in this case was cot necessary. I his clause (c) reads as under : "No presentment for payment is necessary, and the instrument is dishonoured a.t the due date for presentment, in any of the following cases: .. Xx Xx Xx Xx (c) as against any party if, after maturity, with knowledge that the instrument has not been presented- he makes a part payment on account of the amount Dyne on the instrument, or promises to pay the amount due thereon in whole or in part, or otherwise waives his right to take advantage of any default jn presentment for payment; Xx Xx Xx Xx

(5) We do not find the judgment relied upon in conflict with the law as given in clause (c) of the Act. After having given our careful consideration to the whole aspect of the matter we find that the learned Commercial Sub Judge has taken correct view in the matter. We find no substance in the defense raised b/the defendants and their application for leave to defend was rightly rejected and suit decreed. Accordingly, this appeal fails and is dismissed with no order as to costs.