2023 CLC 193
There is no denial of facts that disputed cheque No.641730 was issued on 12.07.2006, suit was instituted on 21.10.2009 on the basis of cheque amount and the respondent/plaintiff admittedly received an amount of Rs.100,000/- from the appellant/defendant in the year 2008 before filing suit. While appearing as PW-1, respondent/plaintiff conceded about the part-payment in cross-examination but by concealing this fact intentionally, failed to plead this fact in his plaint and simply filed a suit for recovery of cheque amount. Now the question which comes up for consideration is as to what the expression “sum of amount undertaken or ordered to be paid to payee” means in a case where the admitted liability of the drawer of the cheque gets reduced, on account of part-payment made by him, after issuing the cheque. No doubt, the expression “sum of amount undertaken or ordered to be paid to payee” would mean the amount of the cheque alone in case the amount payable by the drawer but, can it be said the expression “sum of amount undertaken or ordered to be paid to payee” would always mean the amount of the cheque, even if the actual liability of the drawer of the cheque has got reduced on account of some payment(s) made by him towards discharge of the debt or liability in consideration of which cheque in question was issued. If it is held that the expression “sum of amount undertaken or ordered to be paid to payee” would necessarily mean the amount of cheque in every case, the drawer of the cheque would be required to make arrangement for more than the cheque amount payable by him to the payee of the cheque in case of part-payment by the drawer of cheque to the payee. Obviously this could not have been the intention of the legislature to make a person liable to pay more amount than amount payable through cheque. If the drawer of the cheque is made to pay more than the amount actually payable by him, the inevitable result would be that he will have to chase the payee of the cheque to recover the excess amount paid by him. Therefore, it is difficult to take the view that even if the admitted liability of the drawer of the cheque has got reduced, on account of certain payment(s) made after issuance of cheque, the payee would be entitled to present the cheque for the whole of the amount to the banker for encashment or in such a case, if cheque is dishonoured for want of funds, a cause of action compulsorily will arise to file a suit for recovery of cheque amount under order XXXVII CPC. I am also conscious/aware of the situation where with a view to circumvent and get out of summary procedure under Order XXXVII CPC, the drawer of a cheque can make part-payment of the amount of the cheque but this can easily be avoided by payee of the cheque, either by taking new cheque of the reduced amount from the drawer or by making an endorsement through a note on the cheque by the drawer acknowledging the part-payment and then presenting the cheque for encashment of only the balance amount due and payable to him. In fact, Section 56 of Negotiable Instrument Act, 1881 specifically provides for an endorsement on a Negotiable Instrument with regard to part-payment and the instrument can thereafter be negotiated for the balance amount. If the drawer and payee of cheque adopt the procedure given in section 56 of Negotiable Instrument Act, then it would be open to the payee of the cheque to present the cheque for payment of only that much endorsed balance amount which is due to him. After the receipt of admitted partpayment from the amount of cheque before filing the suit, the payee can neither present the cheque for encashment without adopting procedure under Section 56 of Negotiable Instrument Act, 1881 nor can file suit for recovery of cheque amount while invoking special jurisdiction under Order XXXVII CPC in new circumstances/ situation which is a subsequent agreement rather will file a suit for recovery of balance amount of cheque before an ordinary civil court of plenary jurisdiction. Generally, there is no cavil to the proposition that Order XXXVII CPC does not restrict person(s) /plaintiff(s) from filing an ordinary suit for recovery of cheque amount before an ordinary civil court of plenary jurisdiction rather provides discretion to either institute a suit by invoking special jurisdiction under Order XXXVII CPC or to file the same under ordinary procedure before ordinary civil court of plenary jurisdiction and there exists no legal compulsion to restrict the choice of person(s)/plaintiff(s).
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