1. This is a defendant's appeal. The suit was one to recover money on a hundi drawn in favour of the payee, the plaintiff, at Muzaffarnagar. It was drawn on the 5th of May 1920, and was payable at sight on Dina Nath Jasraj of Delhi.
2. Both the Courts below have held, as a matter of fact, that there was no presentation in fact. This, under Section 64 of the Negotiable Instruments Act, would have sufficed by itself for a dismissal of the suit. The lower appellate Court, however, added: 'I am nevertheless of opinion that the plaintiffs are equitably entitled to recover their money. Admittedly the defendant-appellant had taken back his money from the firm of Dina Nath Jasraj and he could not therefore suffer damage for want of presentation.' The learned Judge was presumably referring to Section 76(d) of the Negotiable Instruments Act. We think that he is wholly wrong in assuming that the defendant could not have suffered any damage merely because many months afterwards he withdrew his money from the firm of Dina Nath Jasraj. It is clear that the burden of proof lies heavily on the plaintiff, and we agree that the circumstances will be very exceptional in which he could prove that the drawer could not possibly have suffered any damage. The burden is, however, on him and that burden is certainly not discharged by the oral admission of the defendant drawer that some time or other subsequently he got back his money. If it were necessary even to illustrate this, it is clear that the defendant might say
my money for such and such a period was tied up in the hands of the drawee because I knew I had this hundi out against me. I was unable to employ that money profitably in certain ventures which offered themselves to me.
3. There is no evidence to this effect, but it is obvious that such consideration might arise, and it is for the plaintiff payee to establish conclusively that they could not. As he failed to do this, his suit must fail. The appeal is allowed, the decree of the lower appellate Court is set aside and the decree of the Court of first instance dismissing the suit is restored. The appellant will have his costs throughout.