2025 PLP 441 (CLD)

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 (C.P.C.) 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 Instruments 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 non-payment give rise to immediate right to recourse against the drawer of the bill of exchange. Reliance is placed on case titled National Bank of Pakistan v. 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(sic) 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. Sections 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 titled Al-Hamd Edible Oil Industries (Pvt.) Limited through Chief Executive v. 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 titled Khalifa Azhar Mumtaz v. 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 XXXVII, C.P.C. 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 XXXVII, C.P.C. 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, R.F.A. 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. MQ/3/Bal. Order accordingly.