For filing of a suit under Order XXXVII CPC on the basis of a cheque, it is necessary for the plaintiff to present the cheque to the bank for its dishonor in order to accrue cause of action to him against the drawer of the cheque. If a cheque is not presented to the bank for its payment, the procedure provided for in order XXXVII CPC shall not be available to a person holding the cheque and the suit so instituted shall not be maintainable. The reason is not hard to fathom as in the absence of presentment of the cheque before the bank, it shall remain at best a piece of evidence corroborating the original loan transaction but did not provide any cause of action.
Under the definition, a negotiable instrument means a promissory note, bill of exchange or cheque payable either to order or to bearer, and a promissory note, bill of exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person and does not contain words prohibiting, transfer or indicating an intention that it shall not be transferrable. Whenever a question arises as to whether or not a document in an original language is negotiable instrument, the point will have to be decided not by looking to the definition of negotiable instrument, but independently of its provisions. The Court will find out how such instrument has been treated in the past and if it appears that according to usage or custom such instruments have been treated as negotiable instruments then they will be treated as such. From perusal of the Rules, Act, 1881 and withdrawal slip in juxtaposition it appears that said withdrawal slip does not amount to negotiable instrument.
Under Order XXXVII, Rule 2 C.P.C. all suits upon bill of exchange, Hundis, or promisor notes, may, in case the plaintiff desires to proceed hereunder be instituted by presenting a plaint in the forum prescribed. The question arises that whether the document relied upon by plaintiff is negotiable instrument in the shape of bill of exchange, Hundi or promissory note and is triable by the same provision of law or not. For the said purpose, the contents of the deed is material to be taken into consideration. If the contents of the deed fall in the definition of section 13 of the Act, 1881, then the plaintiff has option to file the suit in the ordinary Court of civil jurisdiction or in the special Court exercising the powers vested in them under Order XXXVII C.P.C.
REGULAR FIRST APPEAL NO.104 OF 2015.
Ghulam Mustafa, etc. Versus Muhammad Musharaf Hussain, etc.
15-09-2022
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