PRATAP CHANDRA Vs. BHARAT BANK LTD

JUDGEMENT

(1.) In a suit Instituted by the appellant for recovery of a certain sum of money, the arguments on his behalf were heard on 28-8-1947. He had engaged three counsel, Sri Murli Manohar, Sri Gur Charan Das and Sri Rajeshwari Dayal and before the commencement of the arguments they filed certificates in respect of fees alleged to have been received by them from him. The fee was paid in each case through a cheque dated 28-3-1947, and the total amount of the three cheques was Rs. 700/-. The certificate of each counsel mentioned the fact that the payment was made through cheque, and also contained the prescribed recitals that the fee was actually paid before the commencement of the arguments and that no portion of it has been remitted or appropriated to the use by any other person. The cheques were cashed by Sri Rajeshwari Dayal on 30-8-1947, Sri Gur Charan Das on 1-9-1947 and Sri Murli Manohar on 4-9-1947. The suit was decreed with costs on 10-9-1947 and a decree was prepared. Originally the amount of Rs. 700/- on account of the fees paid by the appellant to his counsel was included in the memorandum of costs In the decree but on an objection by the respondent that no payment in cash was made before 28-8-1947, the trial Court amended the decree by deleting the item of Rs. 700/- from the memorandum. This appeal has been filed by the appellant against the decree as it stands now and is confined to the question whether Rs. 700/- should be included in the memorandum of costs or not. The answer to the question depends upon the interpretation of Rule 1 of Chapter 21 of General Rules (Civil) which lays down that

(2.) For purposes of Rule 1 there is no distinction between a cheque and a promissory note; in one case there is an order to a third person to make payment and in the other case there is a promise by the drawer himself to make payment. If payment through a promissory note is not actual payment within the meaning of the Rule so also payment through cheque is not and in Bhagwant Singh v. Bhao Singh, 1932 All LJ 272: (AIR 1932 All 337) (A), payment through a promissory note was held not to be an actual payment. On analogy payment by cheque also must be held not to be an actual payment.

(3.) The trial Court rightly refused to include in the memorandum of costs the amount of Rs. 700/-. The appeal is dismissed with costs.