1. This is a second appeal by the plaintiff in a suit for recovery of Rs. 225 which was decreed by the trial Court but dismissed on appeal. The allegations in the plaint were that the defendant executed two 'Hundis', one dated Sawan Sad 11th, Sumwat 1995 for Rs. 125 and the other dated Asoj Sud 9th Samwat 1997 for Rs. 25 in favour of the plaintiff on one Premsukh Bach Raj of Bombay payable at Bight but the same were dishonoured and hence the suit for recovery of Rs. 175, (150?) as principal plus Rs. 75 as interest. The defendant alleged material alteration in the date of the 'Hundis', denied consideration and further pleaded that no presentation was made to the drawee and no notice of dishonour was given to him. It was held by both the Courts that there was no alteration in the dates. The trial Court held that the 'Hundis' were presented but dishonoured and notice of dishonour was also given to the defendant. The learned civil Judge, however came to the conclusion that the 'Hundis' had not been presented to the drawee and that even accepting the plain-tiff's evidence on its face value were presented beyond reasonable time. As regards notice also it was held that it was given after four years of the alleged dishonour and was not served within a reasonable time. The learned civil Judge has given his finding in the alternative and it has become necessary to first go into the question whether the 'Hundis' were as a matter of fact presented for being honoured by the drawee. [After discussing the evidence his Lordship proceeded;] The finding of the civil Judge is correct that the 'Hundis' were not presented to the drawee for payment. The Negotiable Instruments Act was enacted in Marwar during the course of this litigation but there are various decisions of the Highest Courts in Marwar by which the provisions of the Negotiable Instruments Act have been held to be applicable to Marwar as a matter of justice, equity and good conscience. The position is conceded by the learned counsel appearing for both parties. Under Section 61, Negotiable Instruments Act, a bill of exchange payable after sight is required to be presented to the drawee within a reasonable time, after it is drawn and in default of such presentment, no party thereto is liable to the person who makes default in presentment. The plaintiff having failed to present the bill of exchange the defendant who was the drawer is absolved from all liabilities. (See Sagarmal v. Bhudan Sahu, 19 I. C. 251). It was urged that under Section 64, only the parties other than the drawer and the drawee are absolved. In the first place, as the 'Hundi' (bill of exchange) was payable after sight, the provisions of the Act applicable were those mentioned in Section 61 which clearly lays down that in default of presentment no party thereto, e. g. to the bill of exchange is liable thereon to the person making such default. The drawer and the drawee are both parties to the bill of exchange and both are absolved under this section.
2. The learned counsel for the appellant also seems to be under misconception in regard to the interpretation of Section 64 which provides that promissory notes, bills of exchange and cheques must be presented for payment to the maker, acceptor or drawee thereof respectively by or on behalf of the holder in the manner provided in the subsequent sections and that in default of such presentment the other parties thereto, viz., to the promissory notes, bills of exchange and cheques are not liable thereon to such holder. According to the language of the section promissory note is to be presented for payment to the maker of the promissory note, bill of ex-change to the acceptor thereof and the cheque to the drawee thereof. In the present case the bill of exchange had not been accepted. The bill of exchange referred to in this section is one which is payable at a specified period after date or sight and presented at first for acceptance and thereafter for payment at maturity. Section 64 lays down that after the bill of exchange has been accepted it is to be presented for payment as provided in Section 66 and if default is made in such presentment the other parties thereto which means parties other than the holder are not liable. It would, therefore, be clear that even in case under Section 64 presentment is necessary before the drawer can be held liable.
3. The present suit also suffers from the defect that notice was not given to the drawer within a reasonable time even assuming that the 'Hundi' had been dishonoured in Samwat 1997. The notice is alleged to have been given in Samwat 2001 four years after the alleged event and it cannot be said to have been given within a reasonable time. It was argued that under Section 93 notice of dishonour was not necessary when no damages were suffered by the drawer but the burden of proof that no damage could be suffered by the drawer for want of notice was on the plaintiff and there is nothing to show that no damage was suffered by the drawer. The suit was rightly dismissed. This appeal fails and is dismissed with costs.