2023 C LC 193
Civil Procedure Code ( V of 1908 ) 0.XXXVII , ---- O.XXXVII , Rr.1 & 2 ---- Negotiable Instruments Act ( XXVI of 1881 ) , S.56 --- Suit for recovery --- Expression " sum of amount undertaken or ordered to be paid to payee " --- Interpretation --- Respondent / plaintiff filed suit for recovery C.P.C against appellant / defendant with averment that respondent paid amount as loan in presence of witnesses and appellant / defendant handed over to respondent / plaintiff a cheque and said cheque was dishonoured due to insufficient funds --- Appellant / defendant denied the receipt of loan from respondent with the claim that disputed cheque was handed over to respondent as zar - e - zamanat and furthermore some amount was returned by him to respondent after the initiation of criminal proceedings against appellant / defendant --- Trial Court decreed the suit ---- Held , that there was no denial of fact that disputed cheque was issued , suit was instituted on the basis of cheque amount and respondent / plaintiff admittedly received said some amount from appellant / defendant before filing suit --- While appearing as witness , respondent / plaintiff conceded about the part - payment in examination but by concealing the fact intentionally failed to plead that fact in his plaint and simply filed a suit for recovery of cheque amount --- Question was as to what the term " sum of amount undertaken or ordered to be paid to payee " meant in a case where the admitted liability of the drawer of the cheque got reduced , on account of part payment made by him , after issuing the cheque --- 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 , could it be said the expression " sum of amount undertaken or ordered to be paid to payee " would mean the amount of cheque , even if the actual liability of the drawer of the cheque had 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 was 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 arrangements 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 and obviously that 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 was made to pay more than the amount actually payable by him , the inevitable result would be that he would have to chase the payee of the cheque to recover the excess amount paid by him --- Even if the admitted liability of the drawer of the cheque had been got reduced , on account of certain payment ( s ) made after issuance of cheque , the payee would not be entitled to present the cheque for the whole of the amount to the banker for encashment or in such a case , if cheque was dishonoured for want of funds , a cause of action compulsorily would arise to file a suit for recovery of cheque amount under O.XXXVII , C.P.C --- High Court observed , the drawer of cheque could make part - payment of the amount of the cheque , but that could 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 ---- Appeal was allowed with direction to Trial Court to return the plaint to respondent for filing the same before an ordinary civil court of plenary jurisdiction .
Negotiable Instruments Act ( XXVI of 1881 ) ---
---- S.56 ---- Civil Procedure Code ( V of 1908 ) , O.XXXVII , Rr . 1 & 2 --- Recovery suit on the basis of negotiable instrument ---- Part Performance --- Section 56 of Negotiable Instruments Act , 1881 specifically provided for an endorsement on a negotiable instrument with regard to part - payment and the instrument could thereafter be negotiated for the balance amount --- If the drawer and payee of cheque adopt the procedure given in S. 56 of the Negotiable Instruments Act , 1881 then it would be open to the payee of the cheque to present the cheque for the payment of only that much endorsed balance amount which was due to him --- After the receipt of admitted part - payment from the amount of cheque before filing the suit , the payee could neither present the cheque for encashment without adopting procedure under S.56 of the Negotiable Instruments Act , 1881 , nor could file suit for recovery of cheque amount while invoking special jurisdiction under 0.XXXVII , C.P.C. , in new circumstances which is a subsequent agreement rather would file a suit for recovery of balance amount of cheque before an ordinary civil court of plenary jurisdiction --- Order .XXXVII , C.P.C. 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 provided discretion to either institute a suit by invoking special jurisdiction under 0.XXXVII , C.P.C. or to file the same under ordinary procedure before ordinary civil court of plenary jurisdiction and there existed no legal compulsion to restrict the choice of person ( s ) / plaintiff ( s ) .
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