MUL CHAND Vs. PACHKAURI LAL

JUDGEMENT

(1.) This appeal arises out of a hundi drawn by Bihari Lal Balmakund on the firm of Bihari Lal Balmakund in favour of Mul Chand, the plaintiffs agreeing to pay him Rs. 2,000 within ninety days from the 30 of April, 1918, with interest at 12 per cent. per annum. The plaintiffs gave the defendants credit for certain items and sued for Rs. 1,906, the balance with interest.

(2.) The main defence of the contesting defendants was the denial of the execution of the hundi. Alternatively, it was claimed that execution by one member of the firm would not bind the other members, as the money was not required for or used in the business of the firm.

(3.) The trial court decreed the suit. On appeal a further point was taken, namely, that as the hundi had not been presented, the provisions of Section 64 of the Negotiable Instruments Act barred the suit. The other pleas raised in the trial court were reiterated. On this new point the court below held that this particular hundi was really a promissory note and, therefore, did not fall within Section 64 of the. Negotiable Instruments Act. In this view we are unable to agree; but it seems to us that the provisions of Section 76, Clause (d), render presentation unnecessary in this case. According to that section no presentation for payment is necessary "as against the drawer, if the drawer could not suffer damage from the want of such presentation". In this case the drawer and the drawee were the same and, therefore, both of them knew when the hundi was executed that it was payable ninety days thereafter, and on the expiration of the ninety days, both of them knew that it had not been paid. Thus, no question of damage can arise and the cases cited are therefore, not applicable.