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Gaya DIn Vs. Sri Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectBanking
CourtAllahabad
Decided On
Judge
Reported inAIR1917All17(1); (1917)ILR39All364; 39Ind.Cas.649
AppellantGaya Din
RespondentSri Ram and ors.
Excerpt:
act no. xxvi of 1881 (negotiable instruments act), sections 64 and 76--hundi--presentation--liability of drawer--burden of proof. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are..........in certain cases-the last instance is set forth in section 76 (d) in these words 'as against the drawer if the drawer could not suffer damage from the want of presentment.' it seems that the onus of showing that the drawer could not suffer damage is thrown on the party who wants to excuse himself for the non-presentation of the negotiable instrument. this very point seems to have been decided in the case of madho ram v. durga prasad (1910) i.l.r. 33 all. 4. it is true that the court was there considering the words of section 98 in respect of notice of dishonour, but the very same language occurs in section 98 as occurs in section 76. the appellant relies upon the case of phul chand v. ganga ghulam (1899) i.l.r. 21 all. 450. in that case the learned judges seem to have thought that,.....
Judgment:

Henry Richards, C.J. and Muhammad Rafiq, J.

1. This appeal arises out of a, suit brought by the holder of a hundi against the drawer, the parties on whom the hundi was drawn and the persons in whose favour it was made. The court of first instance dismissed the suit as against all the parties except the drawer. The lower appellate court has dismissed the suit altogether on the ground that the note was not presented. It is admitted that the note was not presented; but the appellant contends that this is no defence as against the drawer, unless it is shown that the drawer suffered damage, and it is urged that the onus lies on the drawer of showing that he suffered damage. Section 64 of the Negotiable Instruments Act provides that promissory notes, bills of exchange and cheques must be presented for payment to the maker, acceptor or drawee by or on behalf of the holder. This also is the English law, and on the face of the hundi it ought to have been presented. In other words, that was the contract. Section 76 provides that presentment for payment is unnecessary in certain cases-the last instance is set forth in Section 76 (d) in these words 'as against the drawer if the drawer could not suffer damage from the want of presentment.' It seems that the onus of showing that the drawer could not suffer damage is thrown on the party who wants to excuse himself for the non-presentation of the negotiable instrument. This very point seems to have been decided in the case of Madho Ram v. Durga Prasad (1910) I.L.R. 33 All. 4. It is true that the Court was there considering the words of Section 98 in respect of notice of dishonour, but the very same language occurs in Section 98 as occurs in Section 76. The appellant relies upon the case of Phul Chand v. Ganga Ghulam (1899) I.L.R. 21 All. 450. In that case the learned Judges seem to have thought that, Section 64 not having specified what the result of non-presentation was, presentation was not necessary. Section 76 (d) does not seem to have been referred to. The case was remanded for retrial and no final decision was given. We think that the first decision we have quoted is one which decided the exact point which in principle is the point we have to consider in the present appeal. We think we ought to follow the later decision. We accordingly dismiss the appeal with costs.


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