Ryves and Gokul Prasad, JJ.
1. This appeal arises out of a hundi drawn by Bihari Lal Balmakund on the firm of Bihari Lal Balmakund in favour of Mul Chand, the plaintiffs agreeing to pay him Rs. 2,000 within ninety days from the 30th of April, 1918, with interest at 12 per cent. per annum. The plaintiffs gave the defendants credit for certain items and sued for Rs. 1,906, the balance with interest.
2. The main defence of the contesting defendants was the denial of the execution of the hundi. Alternatively, it was claimed that execution by one member of the firm would not bind the other members, as the money was not required for or used in the business of the firm.
3. The trial court decreed the suit. On appeal a further point was taken, namely, that as the hundi had not been presented, the provisions of Section 64 of the Negotiable Instruments Act barred the suit. The other pleas raised in the trial court were reiterated. On this new point the court below held that this particular hundi was really a promissory note and, therefore, did not fall within Section 64 of the. Negotiable Instruments Act. In this view we are unable to agree; but it seems to us that the provisions of Section 76, Clause (d), render presentation unnecessary in this case. According to that section no presentation for payment is necessary 'as against the drawer, if the drawer could not suffer damage from the want of such presentation'. In this case the drawer and the drawee were the same and, therefore, both of them knew when the hundi was executed that it was payable ninety days thereafter, and on the expiration of the ninety days, both of them knew that it had not been paid. Thus, no question of damage can arise and the cases cited are therefore, not applicable.
4. There remains another point, however, which has not been decided, and that is whether, when Bihari Lal executed this hundi, he was acting for the firm, and whether the money was required for the business of the firm, On this point there is no clear finding by the District Judge. We, therefore, refer an issue to the learned District Judge, namely, did Bihari Lal borrow this Rs. 2,000 for the business of the firm Bihari Lal Balmakund? No further evidence will be taken. On return of the finding the usual ten days will be allowed for objections.