Syed MATIULLAH AGHA vs Haji MUHAMMAD HUSSAIN alias Haji MUHAMMAD HASSAN Ss

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Syed MATIULLAH AGHA VS Haji MUHAMMAD HUSSAIN alias Haji MUHAMMAD HASSAN Ss. 5, 6, 30, 72, 73 & 84---Civil Procedure Code (V of 1908), O. XXXVII---Suit for recovery on the basis of negotiable instruments (nine cheques)---Pre-requisites---Presentment of cheque before the bank---Seven out of nine claimed cheques (cheques-in-question) not having been presented before the bank, were produced by the respondent/plaintiff in his statement recorded before the Trial Court---Trial Court decreed recovery of whole amount regarding nine cheques---Validity---Record reveals that appellant/defendant in his written statement denied the factum of outstanding amount, and that the respondent/plaintiff through a representative of concerned branch of the Bank, being one of his (plaintiff's) witnesses, only succeeded to produce(get exhibited) two cheques (amounting to Rs. 5 lac each) issued by the appellant/respondent which were dishonored; the remaining seven cheques (cheques-in-question) were produced by the respondent/plaintiff in his statement recorded before the Trial Court---Admittedly, there was no evidence on record produced by the plaintiff for presentment of the cheques-in-question to the concerned branch of the Bank---Section 5 of the Negotiable Instruments Act, 1881, ('the Act 1881') defines "bill of exchange" and section 6 of the Act 1881 defines "cheque" as a bill of exchange drawn on specified banker and not expressed to be payable otherwise than on demand---It appears that dishonor by non-acceptance or non-payment gives rise to an immediate right to recourse against the drawer of the bill of exchange---Section 68 of the Act 1881 deals with all negotiable instruments including cheques while S. 73 of the Act 1881deals with the cheque and provides the time of presentment and its consequence; this section further provides that a cheque must be presented for payment within reasonable time after its delivery to the holder---It is the mandate of the Act 1881 that all negotiable instrument should be presented for payment within a reasonable time---According to section 72 of the Act 1881, the drawer of the cheque is the principle debtor and he cannot avoid his liability towards the holder except in case of non-presentment of a cheque within a reasonable time---Sections 72 & 84 of the Act 1881 stipulate that unless a cheque is presented for payment within a reasonable time of its issue no right to recover the amount would accrue---Presentment of a cheque, being a bill of exchange, is a condition precedent in order for a payee to charge the drawer/maker of a cheque; thus, for filing suit under O. XXXVII, C.P.C. based on a cheque, it is necessary to present the said cheque to the bank, as presentment under the provisions of the Act 1881 is the cause of action, in a suit based upon such an instrument---In the present case, admittedly there was no evidence of presentment of the seven cheques (in-question) having been exhibited/produced by the plaintiff in his statement before the Trial Court to the concerned branch of the Bank, therefore, to the said extent suit of the respondent/plaintiff under O. XXXVII, C.P.C., was not maintainable, however to the extent of two cheques duly exhibited [total amount of Rs.10,00,000/- (ten lac only)], the impugned judgment was maintained---High Court set-aside impugned judgment/ decree to the extent of said seven cheques and suit to that extent filed by the respondent/plaintiff was dismissed---However, impugned judgment/ decree to the extent of two duly exhibited cheques was maintained---Appeal filed by the defendant, was partly allowed.

Syed MATIULLAH AGHA vs Haji MUHAMMAD HUSSAIN alias Haji MUHAMMAD HASSAN Ss — 2025 PLD 28 QUETTA-HIGH-COURT-BALOCHISTAN

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