1. The question to be determined in this appeal is, whether the plaintiff was entitled to recover from the defendant, who is the appellant here, a sum due in respect of a hundi of one thousand rupees which was drawn on the nth of March 1917.
2. The plaintiff sued to recover the amount so due, as also certain other sums due in respect of two other hundis drawn on the same date. The plaintiff has got a decree as regards the two other hundis, and in the lower Appellate Court he has been given a decree in respect of the hundi for one thousand although the Court of first instance dismissed the suit with regard to this sum.
3. The bill was drawn by one Raghunath Das Dantri who is stated to have died on the 18th March 1917, about seven days, after the drawing of the bill.
4. The plaintiff was the payee and he, according to the case set out in the plaint, endorsed it to one Yusuf Ali Adamji, Bombay. It was alleged that the bill was presented for acceptance to Ramkishan Dass Madan Gopal, a Calcutta Firm who were the drawees and that acceptance was refused, that the plaintiff had, therefore, to refund the money to Yusuf Ali Adamji and that having refunded the money he got back the dishonoured note.
5. The defendant in the suit is an infant, Genda Lal, who is the son and legal representative of the drawer, Raghunath Das Dantri. He has been sued under the guardianship of his mother Musammat Ujyari. Various defences were set up and the one with which we are concerned here is that there was no presentment of this hundi for payment and that no notice of dishonour was given to the defendant.
6. The learned Judge has found definitely that there is no proof of presentment and notice of dishonour, and, that being so, ordinarily the suit would fail, because the law requires that there must be both presentment for payment and notice of dishonour.
7. The learned Judge, however, has held, for other reasons given in his judgment, that there was no necessity for presentment and for giving notice of dishonour in this particular case, and the question we have to decide is, therefore, whether this is a case in which presentment was not necessary in order to charge the drawer or his legal representative.
8. The relevant sections of the Negotiable Instruments Act are sections 76 and 98. By Section 76 it is laid down that no presentment for payment is necessary as against the drawer, if the drawer could not suffer damage from the want of such presentment.
9. Both parties gave evidence in the Court of first instance. A good deal of the oral evidence was discarded by the Subordinate Judge and it is not easy for us to make out from the judgment of the lower Appellate Court how much of that evidence the learned District Judge intended to accept. That he does not agree entirely with the estimate of the evidence arrived at by the Trial Court is perfectly clear.
10. In the course of the trial one of the members of the firm, Ram Kishan Das Madan Gopal, Calcutta, was examined on commission regarding the presentment of the hundi for payment. His evidence was to the effect that he was unable to say whether there had been any presentment. Presumably, there had not been any, for there was no note of presentment recorded upon the document. In the course of his evidence this witness stated that a telegram had been received in the name of the drawer countermanding payment, and this telegram which the witness had not with him at the time that he was being examined, was afterwards sent to the Subordinate Judge's Court at Jhansi by the gentleman who acted as Commissioner in Calcutta for the purpose of taking the evidence.
11. It seems to us that the learned District Judge intends to find that this telegram must have been sent either by the deceased Raghunath Das or by some agent on his behalf, but the finding of the learned District Judge is by no means clear.
12. We have, therefore, to consider whether there is any evidence before us from which he can find that there was no need for presentment in this case on the ground that the drawer could not suffer damage from want of it.
13. It has been argued before us that no such case was put up in the plaint as filed in the Court of the Subordinate Judge. That is true. The case with which the plaintiff came into Court was that there had been a presentment, but we have no doubt whatever that if the plaintiff was unable to prove that there had been a presentment for payment, he was nevertheless entitled to show, if he could, that the case was one in which no presentment was necessary and so if there, is any evidence for the record which establishes a case under Section 76(d) as against the drawer we ought to uphold the judgment of the learned District Judge.
14. With regard to Clause (d) of Section 76 it has been held that this clause will apply in a case where the drawer has no funds with the drawee at the time the bill is being drawn or in a case where the drawer has no-reasonable expectation that the drawee will accept for his accommodation.
15. We have before us one solid fact which cannot now be controverted. We have mentioned that two other bills were drawn on the same date as the bill now in dispute. One of these was a bill for Rs. 300, and it was drawn upon the same firm in Calcutta. I? is proved that this bill was presented for payment in Calcutta and that it was dishonoured.
16. We are entitled, therefore, to assume that that bill was dishonoured for one of two reasons--either that the drawer had no funds with the drawee or that the drawee had been directed to refuse payment under the telegram to which we have referred.
17. If a refusal was made in the case of the bill for Rs. 300 on the ground that the drawer had no funds to his credit, then we think it may very reasonably be inferred, that the drawer had no funds with the drawee sufficient to meet the larger hundi on which a sum of one thousand rupees had to be paid.
18. We think we are justified in inferring from the facts before us that there was no money with the drawee to meet this bill of one thousand rupees and that, this being the case, Section 76(d) applies, so as to render presentment for payment unnecessary. We are not disposed to agree with the view taken by the learned Judge that the bill in dispute was a mere accommodation bill and we do not decide the case on that ground, nor again do we decide the case on another ground taken by the learned Judge, namely, that there was a promise by the defendant's mother to pay. No such promise would avail the plaintiff unless it had been made with the knowledge that the instrument had not been presented [see Section 76(c) of the Negotiable Instrument Act]. The case which was made out regarding this promise was that it was. obtained from the defendant's mother after she had been given notice of presentment and dishonour.
19. We are, however, satisfied that there is a good case in favour of the plaintiff to which the provisions of Section 76(d) apply, and holding that the drawer could not suffer damage from the want of presentment, we think that, in the circumstances, no presentment was necessary and that the plaintiff was entitled to recover. We, therefore, dismiss this appeal with costs including fees in this Court on the higher scale.