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Nanhey Mal Vs. Chait Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1918All20; 48Ind.Cas.364
AppellantNanhey Mal
RespondentChait Ram and anr.
Excerpt:
negotiable instruments act (xxvi of 1881), sections 64, 76 - bill of exchange--'presentment, necessity of--damage caused by non-presentment--burden of proof. - .....instituted on foot of a hundi. it appears that the appellant nanhey mal sent certain potatoes to hari kishore, a firm in calcutta. nanhey mal drew a bill payable at sight on hari kishore at calcutta. the bill was in favour of mathra das mohan lal, who sold it the very same day to the plaintiffs, that is, on the 2nd of april 1913. the plaintiffs sent the hundi in an unregistered letter to their agent at cawnpur, the letter and the bill appear to have miscarried in the post, but owing to the carelessness of the plaintiffs the loss was not discovered for nearly fourteen months afterwards. some negotiations proceeded between the plaintiffs and nanhey mal with a view to getting a duplicate. exactly what form those negotiations took is not clear, but it would seem that if the plaintiffs had.....
Judgment:

1. This appeal arises put of a suit instituted on foot of a hundi. It appears that the appellant Nanhey Mal sent certain potatoes to Hari Kishore, a firm in Calcutta. Nanhey Mal drew a bill payable at sight on Hari Kishore at Calcutta. The bill was in favour of Mathra Das Mohan Lal, who sold it the very same day to the plaintiffs, that is, on the 2nd of April 1913. The plaintiffs sent the hundi in an unregistered letter to their agent at Cawnpur, The letter and the bill appear to have miscarried in the post, but owing to the carelessness of the plaintiffs the loss was not discovered for nearly fourteen months afterwards. Some negotiations proceeded between the plaintiffs and Nanhey Mal with a view to getting a duplicate. Exactly what form those negotiations took is not clear, but it would seem that if the plaintiffs had given satisfactory evidence of the loss and had offered an indemnity to Nanhey Mal, the latter might have been compelled by proper proceedings to give a duplicate. No such proceedings were in fact ever taken--but the present suit was instituted on the 14th of April 1915. Hari Kishore was made a party as also was Nanhey Mal. Admittedly the bill of exchange was never presented either for, acceptance or payment to Hari Kishore nor apparently was even a demand made from the latter. The Court of first instance dismissed the suit as against Hari Kishore but gave a decree as against Nanhey Mal. The lower Appellate Court confirmed the decree. Nanhey Mal appeals. The other persons who were parties to the appeal in the Court below are not parties to this appeal. The question is, whether Nanhey Mal is liable under the circumstances Section 64 of the Negotiable Instruments. Act provides that a bill of exchange must be presented for payment in the manner mentioned in that and subsequent sections. Section 76 provides that no presentment for payment is necessary in certain circumstances. The section says: 'No presentment for payment is necessary, and the instrument is dishonoured at the due date for presentment, in any of the following circumstances.' Clause (d) says, as against a drawer if the drawer, could not suffer damage from want of such presentment.' This Court has held that the onus of showing that the drawer could not suffer damage from want of presentment lies on the holder suing on the bill. Admittedly in the present case no such proof was given. As a master of fact in the present case Hari Kishore received potatoes from Nanhey Mal for the value of the hundi, in other words, it was the way in which Hari Kishore was paying for the potatoes. It is quite impossible to say under these circumstances that Nanhey Mal could not have suffered damage by reason of the non-presentation for payment of the bill to Hari Kishore. The person in whose favour this bill was drawn has gone bankrupt and a similar fate conceivably might have happened to Hari Kishore. We allow the appeal, set aside the decrees of both the Courts below and dismiss the suit as against the appellant with costs in all Courts.


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