PLJ 2024 Quetta 97 (DB)
Present: M UHAMMAD EJAZ SWATI AND NAZEER AHMAD LANGOVE , JJ.
Syed MATIULLAH AGHA--Appellant
versus
Haji MUHAMMAD HUSSAIN alias HAJI MUHAMMAD HASSAN--Respondent
RFA No. 3 of 2022, decided on 24.10.2023.
Civil Procedure Code, 1908 (V of 1908) --
----O.XXXVII --Suit for recovery --Issuance of cheques --Cheques were dishonored-- Denial of
outstanding amount by appellant --No evidence for presintment of seven cheques in concerned
branch of bank-- Only two cheques were dishonored--Challenge to --The respondent through PW -
3 representative of MCB only succeed to produced two cheques amounting as Ex.P/3- A and
Ex.P/3- B issued by appellant which were dishonored--There was no evidence produced by
plaintiff for presentment of cheques in question to concerned branch of Bank--Presentment of a
cheque is a condition precedent in order for a payee to charge drawer of a cheque thus for filing
suit under Order 37 CPC based on cheque, it was necessary to present said cheque to bank, as presentment --There was no evidence of presentment of seven cheques produced by plaintiff in
his statement before trial Court to concerned branch of Bank, suit of respondent under Order 37
CPC was not maintainable, however to extent of cheques Ex.P/3- A and Ex.P/B impugned
judgment was maintained --Appeal partly allowed.
[Pp. 99 & 101] A, B, C, D & E
2008 CLC 1578 and 2014 CLC 1448 ref.
Negotiable Instrument Act, 1881--
----S. 72-- Drawer Cheque--The drawer of cheque is principle debtor and he cannot avoid his
liability towards holder except in case of non- presentment of a cheque within a reasonable time.
[P. 100] C
Mr. Rehmatullah Barech, Advocate for Appellant
Mian Badar Munir , Advocate for Respondent.
Date of hearing: 18.10.2023.
J
UDGMENT
Muhammad Ejaz Swati, J.--The appellant is aggrieved against judgment dated 13- 12-2021
(impugned judgment), passed by learned Additional District Judge -I, Quetta (trial Court),
whereby summery suit under order XXXVII Civil procedure Code (CPC) for recovery of Rs.
77,39,300/ - filed by the respondent (plaintiff) against the appellant (defendant) was decreed.
2. Facts of the case are that the respondent (plaintiff) alleged that he had given an amount of Rs.
80,00,000/ - to the appellant in
the year 2016, out of which Rs. 2,60,700/ - was paid, while the remaining amount was
outstanding against the appellant, thereafter, the appellant issued cheques for repayment of
amount to the respondent. The details are mentioned in the para No. 2 of the plaint. It was
averred by the respondent that after dishonor of the above cheques, he approached the appellant
with request to make payment, which was not exceeded and the respondent filed a suit and
prayed as under,
“It is therefore, respectfully prayed that a decree in favour of the plaintiff and against the defendant may kindly be passed in the following terms: -
a. The defendant be directed to pay Rs. 77,39,300/ - to the plaintiff;
b. That he be ordered to pay cost of the suit as well;
c. Any other relief which may be deemed fit and proper by this hon’ble Court in the
circumstances of the suit.”
3. During pendency of the suit, the appellant filed an application for leave to defend on 16- 07-
2020, which was rejected by the learned trial Court vide order dated 13- 08-2020 and the suit was
decreed. The appellant assailed the above judgment/decree by way of filing appeal No. 07 of
2020 and after hearing the parties, this Court vide judgment dated 13- 08-2020 set -aside the afore
referred judgment/decree and leave to defend filed by the petitioner was accepted. Appellant filed written statement. The learned trial Court framed five issues. The appellant produced three witnesses PW -1 Habibullah, PW -2 Gulab Shah and PW -3 Ali Ahmed and thereafter respondent
recorded his statement and produced seven cheques of Muslim Commercial Bank (MCB),
Meconghy Road Branch, Quetta i.e . cheque No. 1587571664 as Ex.P/4- A, cheque No.
1587571663 as Ex.P/4- B, cheque No. 1587571662 as Ex.P/4- C, cheque No. 1587571666 as
Ex.P/4- D, cheque No. 1587571667 as Ex.P/4- E, cheque No. 1587571674 as Ex.P/4- F and
cheque No. 1587571665 as Ex.P/4- G. The appellant/defendant produced DW -1 Noor Ahmed,
DW-2 Syed Abdul Samad and DW -3 Hanan and thereafter recorded his statement. The learned
trial Court vide impugned judgment decreed the suit as mentioned herein above.
4. The learned counsel for the appellant contended that the respondent/plaintiff has failed to
substantiate his claim through negotiable instrument, but the learned trial Court considered the cheques mentioned in para No. 3 of the judgment, which were produced by the respondent in his
statement before the Court. That the respondent in his suit averred that all the cheques mentioned
in the plaint were dishonored, but the said instrument had not been proved in accordance with
law. That cheques in question were not presented to the Bank and plaint disclosed no cause of action, therefore, impugned judgment is liable to be set aside.
5. The learned counsel for the respondent/plaintiff contended that the outstanding amount with regard to issuance of cheques have not been refuted by the appellant through any cogent evidence, therefore, the instant appeal is liable to be dismissed. He further contended that all the cheques issued by the appellant had been produced before the learned trial Court which were exhibited in evidence on the basis whereof the impugned judgment has been passed.
6. We have heard the learned counsel for the parties and perused the record. The case of the plaintiff is based on negotiable instruments/cheques nine in numbers. The appellant/defendant in his written statement denied the factum of outstanding amount. The respondent/plaintiff through PW-3 Ali Ahmed representative of MCB only succeed to produced two cheques amounting to
Rs. 5 lac each as Ex.P/3 -A and Ex.P/3- B issued by the appellant which were dishonored. The
remaining seven cheques detail whereof is provided in para No. 3 of the judgment (cheques in question), were produced by the respondent/plaintiff in his statement recorded before the trial Court. Admittedly, there is no evidence on record produced by the plaintiff for presentment of the cheques in question to the concern branch of the Bank.
7. Section 6 of the Negotiable Instrument Act 1881 (the Act) defines “cheque” is a bill of
exchange drawn on specified banker and not expressed to be payable otherwise than on demand. Section 5 of the Act defines “Bill” of exchange as under:
“Bill of exchange. A “bill of exchange” is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay on demand or at a fixed or determinable future time] a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument.”
Section 30 of the Act deals with liability of drawer as under,
“Liability of drawer.--(1) (a) The drawer of a bill of exchange by drawing it, engages that on due presentment it shall be accepted and paid according to its tenor, and that it be dishonoured, he will compensate the holder or any endorser who is compelled to pay it, and (b) the drawer of a cheque by drawing it, engages that in the case of dishonour by the drawer he will compensate the holder:
Provided that due notice of dishonour of the bill or cheque has been given to or
received by the drawer as hereinafter provided.
(2) The drawer of a bill of exchange is not liable thereon until acceptance in the manner
provided by this Act.”
8. It appears that dishonor by non- acceptance or nonpayment give rise to immediate right to
recourse against the drawer of the bill of exchange. Reliance is placed on case title National Bank of Pakistan versus Shahyar Textile Mills Ltd. (2003 CLD 1370).
9. Section 68 deals with all negotiable instruments including cheques while Section 73 deals with the cheque and provide 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.
9. It is the mandate of the Act that all negotiable instrument should be presented for payment
within a reasonable time.
10. According to Section 72 of the Act, 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. Section 72 and 84 of the Act stipulates that unless a cheque was presented for payment within a reasonable time of its issue no right to recover the amount would accrue. Reliance is placed on case title Al -Hamd Edible Oil Industries (Pvt) Limited through
Chief Executive versus Syed Waseem Hyder (2008 CLC 1578), wherein the Honorable Judge of
High Court observed as under,
“As noted in the narrative above, the cheques as Annexures
“C-4” to “C -14”, “C -18” were never presented to the Bank. Unless a cheque is
presented for payment within a reasonable time of its issue, no right to recover the amount accrues. For reference see Section 84 of the Negotiable Instruments Act, 1881.”
In case title Khalifa Azhar Mumtaz versus Ghulam Akbar (2014
CLC 1448), wherein the Honorable Judge of High Court observed as under:
“Admittedly, the cheque was never presented in the bank for payment. When the cheque
was never presented for payment, in the light of Section 72 read with Section 84 of Negotiable Instruments Act (XXVI) of 1881, therefore, there is no refusal by the drawer or the bank for payment of cheque, therefore, no cause of action accrued to the plaintiff for filing of suit under Order XXXVII of the C.P.C.”
11. The above provision of the Act dealing with presentment of bill of exchange including
cheque make it cleared that presentment of a cheque is a condition precedent in order for a payee
to charge the drawer/maker of a cheque thus for filing suit under Order 37 CPC based on cheque,
it is necessary to present the said cheque to the bank, as presentment under the above provisions
of the Act is the cause of action, in a suit based upon such an instrument.
12. In the instant case, admittedly there is no evidence of presentment of the seven cheques i.e .
Ex.P/4- A to Ex.P/4- G produced by the plaintiff in his statement before the trial Court to the
concern branch of the Bank, therefore, to the above extent suit of the respondent/plaintiff under
Order 37 CPC was not maintainable, however to the extent of cheques Ex.P/3- A and Ex.P/B total
amount
to Rs. 10,00,000/ - (ten lac only), the impugned judgment is maintained.
In view of the above, RFA No. 3 of 2022 is partly allowed and impugned judgment/decree to the
extent of seven cheques i.e . Ex.P/4- A to Ex.P/4- G is set aside and suit to that extent filed by the
respondent/plaintiff is dismissed. However, impugned judgment/decree to the extent of cheques Ex.P/3- A and Ex.P/3- B total amounting to Rs. 10,00,000/ - (ten lac only) is maintained and to
that extent, instant appeal is dismissed. Parties are left to bear their own cost. Decree sheet be drawn.
(Y.A.) Appeal partially allowedThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.