1. ' The present suit has been filed by the plaintiff against the defendants Nos,1 to 4, the defendant No,1 being the company and the defendants Nos,2 to 4 are directoRs, The suit has also been filed against the defendants Nos,5 and 6, they being the employees of the bank. It is alleged that various Bills of Exchange were discounted by the plaintiff through its Risala Road Branch, were, against the value, discounted price was paid to the defendant No,
1. It is stated that the defendants Nos,2 to 4 are the directors of the defendant No,1. It is stated that the said finance was granted by discounting as afore-stated, on the basis of various Letters of Credits opened in favour of the defendant No,1 where against the defendants were liable to make shipment or goods mentioned on the face of the documents. The two Letters of Credit were opened by Messrs Fazal Sons Company (Osaka) Ltd., Japan. It is on the basis of this that the defendant No,1 drew Bills of Exchange of various amounts drawn on the Foreign Importer, payable at the counter of Habib Sons Trust and Finance Ltd. It is the case of the plaintiff that the defendants Nos,1 to 4 in collusion with defendants Nos,5 and 6 got the said Bills of Exchange discounted for Rs,3,74,94,511.60, which amount was paid to them. The plaintiffs have given the list of the Bills of Exchange, but had not filed any copy of the same. Admittedly, the defendant No,1 executed Bill of Exchange and handed over shipping documents in terms of the L/Cs. The plaintiff-Bank was to recover the value of the Bills of Exchange, 120 days from the date of the Bills of Lading at the counter of Habib Sons Trust and Finance Ltd. In London. The Bills of Exchange and other shipping documents including the Bills of Lading were sent to the bankers (for acceptance by the foreign importers). It is stated that the Bills of Exchange was presented to the drawee for acceptance by the bankers (on behalf of the plaintiff) where it was not accepted and remained dishonoured till November, 1989. The allegation in the plaint being that the Letter of Credit accompanied with the Bills of Exchange was forged and was fraudulent and were not issued by the company of whose Bills of Lading the same were alleged to be.
2. ' The plaint filed by the plaintiff makes out a case whereby, the sum of Rs,3,74,94,511.60 being paid to the defendants by crediting the same to the current account of the defendant .No,1 was based on fraudulent Letter of Credit. There is however nothing to show that the Bills of Exchange, details of which are given in the plaint were fraudulent. In fact, it is stated that after the complaint was filed with the F.I.A., the drawee accepted the Bills of Exchange in November, 1989. The drawee being the foreign importeRs, The payments against the said Bills of Exchange were to be recovered from the drawee and brought in Pakistan for which the defendant No,1 also executed E-Form. Such E-Forms have been produced in evidence as Exhs.8/3 to' 8/15. It is thus the case of the plaintiff that because the Bills of Exchange were not accepted by the drawer, initially, and the Bills of Exchange are not available with them, they can fall back on the Form-Es, and it is this document that the plaintiffs are relying in plaint.
3. ' The plaintiff having filed their suit the defendants filed their written statement whereby, the defendants Nos,1 to 3 filed one written statement and defendants Nos,5 and 6 filed another written statement. In the written statement by the defendants Nos,1 to 3 they have denied the statement that the Bill of Lading was fraudulent and stated that the transaction were in the usual course of the banking business and there was no fraud. It is stated in the written statement that the defendant-company had made shipment and negotiated the documents with the plaintiff in good faith and was therefore not liable for the same as in law, according to them, after negotiation, it was the plaintiff who could make the claim for payment under the accepted Bills of Exchange from the drawee. Negotiation of the documents was stated to be negotiation of the Bills of Exchange also. It is stated that the original Bills of Exchange were delivered for it being presented for payment on the drawee and the bill were issued in accordance with the law has to be acted in accordance with the same and cannot vary therefrom. Amongst other please having been taken, the defendants have denied the liability as, having delivered the Bills of Exchange it was the liability of the plaintiffs to secure the monies. It is only on non-acceptance or dishonour of the documents that the defendant No,1 could be liable. The written statement of the defendants Nos,5 and 6 are also on record in which, it was stated that the Bills of Exchange were negotiated in usual course of business and after having received authorized and the scrutinized E-Form available with them, in accordance with law, they were not liable. In fact, it is stated that four of those Bills were paid directly to the plaintiff. It was stated by the defendants 5 and 6 that the Letter of Credit required that the Bills of Exchange be drawn for acceptance within 120 days from the date of shipment by the defendant No,1, which was done and was also permissible by the Exchange Control Rules.
4. ' Issues were framed and evidence was led. The evidence led by the plaintiff was that of one Mr. Mehmood Ahmed, General Director, State Bank of Pakistan, Mr. Zafar Ahmed Khan, Incharge Export Department Marine Service (Pvt.) Ltd. And lastly of Mr. Naim Ahmed Shaikh, Incharge Foreign Exchange Branch, National Bank of Pakistan. The statement of the officer of the State Bank of Pakistan does not carry any meaning or weight. In fact, the documents that have been produced are only photocopies of letters written to National Bank of Pakistan, originals not available with them. In fact, adjustments in foreign exchange have been shown in Exh.6/1 (A)(B)(C) and (D). This categorically shows that payment had been received by National Bank of }rakistan against various Bills of Exchange under diffeient Letters of Credit against presentment of those Bills of Exchange.
5. The attempt to show that the Bill of Lading was forged is in relation to the documents for which Mr. Zafar Ahmed Khan has been .Produced in the said examination-in-chief. The said Zafar Ahmed Khan stated that letters dated 10-8-1989 and 6-3-1989 being Exhs.7/1 and 7/2 had been written to National Bank of Pakistan and have been produced. Exh.7/2 categorically states that the cargo had been confirmed and was warehoused by the shipper pending final negotiation with the importeRs, This categorically shows that the shipment was made, but there was some dispute with the importer, wherefore the delivery was not made to them at that time. Notwithstanding the fact, otherwise also, the question of recovery of money is based on the Bills of Exchange drawn by the defendant No,1 company which was to be negotiated by the acceptance and payment by the drawee named on the Bills of Exchange. It is otherwise not important to go into details of the cargo, or the Bill of Lading. The plaintiffs can claim against dishonoured Bills of Exchange. It is clear from Exh.7/ 2 that there were some negotiations being conducted with the importeRs, In the plaint it is clearly stated in para.8 that the drawee (the importer) had accepted the Bills of Exchange, though late. In the examination-in-chief Mr. Naim Ahmed Shaikh, Incharge of the Foreign Exchange Branch National Bank of Pakistan has laid great emphasis on the Letters of Credit (Exhs.8/ 1 and 8/2). It is stated that, "the documents were presented by the defendant No,1 for negotiation". He further says that, "The Bills of Exchange were payable on 120 days from the Bill of Lading and M/s. Habib Sons Trust and Finance, London was mentioned as drawee. The negotiation officer had obtained 1B-9 (indemnity-cum-guarantee) for the reason that the Letters of Credit was established at Bahamas and the drawee was shown based at London". The said witness goes on to say that; "the defendant No,1 was given due credit for the amount of the Letters of Credit which was withdrawn by the defendant No,
1. The plaintiff's witness further says that "the said shipping company however disowned the Bill of Lading and disputed their genuineness. The plaintiff-Bank then demanded refund from the defendant No,
1. Thereafter acceptance of the documents was communicated to the plaintiff by the drawee bank. The plaintiff-bank in the meantime, had reported the matter to Federal Investigation Agency as well. The defendant No,1 then gave post-dated cheques in the sum of Rs,70 million to the plaintiff which, however, were not presented for encashment. During the year 1990, some remittances were received from abroad were received in the account of defendant No,1 by Bank of Oman. The defendant No,1 informed the State Bank of Pakistan and applied for treating such remittances against E-Forms pertaining to the transactions carried out through the plaintiff- bank". In fact, the witness himself was not sure as to which remittance was brought in. The present suit, according to him, was thereafter filed for the dues which remained outstanding and payable to the plaintiff by the defendant No,
1. From the evidence it is clear that the suit has been based on E-Forms and not on the Bills of Exchange, but the plaintiff's claim on the basis of the discounting of the said Bills of Exchange.
6. ' In the cross-examination the witness of the plaintif: has categorically stated that "it is correct that during the period between 13-1-1990 and 10-9-1990 the plaintiff had received a sum of Rs,5.5 million from the defendants and remittances in the sum of Rs,20 million was received". To a further question the witness said that "the drawee had accepted the Bills of Exchange in November, 1989.
7. The original Bills of Lading were sent to the drawee bank alongwith the documents sent during the year 1q87. It is incorrect to suggest that the Bills of Lading in original, are available with the plaintiff- Bank. It is correct that after forwarding the documents. It was responsibilicy of the plaintiff-Bank to follow their acceptance".
8. ' From the evidence it is clear that the Bills of Exchange were accepted. Such is also contained in the plaint. If one were to say that the documents that is, the Bills of Exchange were not accepted, the Negotiable Instruments Act, 1881 provides for a specific procedure for the purpose of recovery from the drawer of maker of the same, Before I proceed to deal with the same, it is important to state that the Bills of Exchange is a Negotiable Instrument as defined under section 5 of the Negotiable Instruments Act, 1881. Under section 21 of the Negotiable Instruments Act the meaning of the expressions "At Sight", "On presentment" and "After sight" have been defined as under:-- "The expression 'after sight' means, in a promissory note after presentment for sight, and, in a bill of exchange, after acceptance, or noting for nonacceptance, or protest for non-acceptance.'
9. ' Section 21-B of the Act reads as under:-- "A note or bill payable at a determinable future time.---A promissory note or bill of exchange is payable at a determinable future time within the meaning of this Act if it is expressed to be payable:--
(a) at a fixed time after date or sight; or
(b) on or at a fixed time after the occurrence of a specified event which is certain to happen, though the time of its happening may be uncertain."
10. ' The present Bill of Exchange was covered under clause (A) of section 21-B that it was 120 days after the date. The bills were to mature, therefore, 120 days after the date mentioned on the Bill of Lading and was liable to be presented for acceptance and payment in accordance with law. The case of the plaintiff seems to be, that the Bill of Lading was forged and was defective. Be that as it may, even if it is accepted that the Bill of Lading was forged it could not be said that the Bills of Exchange was forged as the drawer or the maker of the Bills of Exchange was the defendant No,1, who was the customer of the plaintiff. Admittedly, the documents were delivered which included the Bills of Exchange. Under section 58 of the Negotiable Instruments Act, it is categorically provided that when, a Bills of Exchange has been lost or has been obtained from any maker, drawer, acceptor or holder thereof by means of an offence or fraud or for an unlawful consideration, neither the person who finds or so obtains the instrument nor any possessor or endorsee who claims through such person is entitled to receive the amount due thereon from such maker, drawer, acceptor or holder, unless such possessor or endoree is or some person through whom he claims was, a holder thereof in due course. Admittedly, the Bills of Exchange have been accepted and admittedly some payments were made. At best it could be said that it was dishonoured for some payment on the basis of the provisions of the Negotiable Instruments Act. In this present case, admittedly payment under the various Bills of Exchange had been received though it is possible to say under which particular negotiable instrument the same was paid.
11. Admittedly, drawee therefore, becomes liable to make payment. Section 30 of the Negotiable Instruments Act, 1881, which reads as under:-- "30. Liability of drawer.---(1)(a) The drawer of a bill of exchange by drawing it, engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured, he will compensate the holder or any endorser who is compelled to pay it; and
(b) the drawer of a cheque by drawing it, engages that in the case of dishonour by the drawee he will compensate the holder: ' Provided that due notice of dishonour of the bill or cheque has been given to or received by the drawer as hereinafter provided.
(2) The drawee of a bill of exchange is not liable thereon until acceptance in the manner provided by this Act." (Underlining is mine)
12. ' The said provisions clearly stipulate that if the drawer of a Bills of Exchange drawing it, engages that on a due presentment it shall be accepted and paid according to its tenor and that it is dishonoured he will compensate the holder or endorser who is compelled to pay it. In fact, the drawee shall not be liable till such time the same are accepted. Admittedly, the Bills have been accepted. Thus the drawee had become liable discharging the drawer. The drawer shall and can only be made liable only when it is shown which of the Bills of Exchange are dishonoured by non- payment, as admittedly, the same was accepted. There is nothing to prove that the said bill or any one of them have been dishonoured per law. As stated above,, the witness of the plaintiff had categorically stated that the bills were accepted on due presentment and that upon due presentment and upon acceptance it could not have been said that the drawee had dishonoured the bill. Dishonour could be by refusal to pay. But such has not been pleaded, nor has evidence been led on this score. Ex facie, I was of this view, wherefore by an order dated 2-5-2001 I had put it to Mr. Muhammad Yousuf Leghari that:- "Form-E is the requirement under the Foreign Exchange Regulation Act, which is an undertaking that upon export, the Exporter would get back the Foreign Exchange being the value of goods in Pakistan. Penal liability is caused under the provision of the Foreign Regulation Act triable by a Special Tribunal for the purpose, consequent upon the Foreign Exchange not being remitted. This document is nothing but an undertaking given to the State Bank of Pakistan and does not create a liability as to payment in Pak. Rupees or otherwise of a finance that may have been given upon discounting of the Foreign Bills. I had asked Mr. Leghari as to under what document other than the Form-E does he claim the amount. He states, that it is on the basis of the non-payment of the Bills of Exchange. No doubt, upon a Bill of Exchange having been refused/dishonoured there is recourse of the holder against the drawer of the Bill of Exchange but such could only be upon presentation of the original Bills of Exchange as having been dishonoured. At this, Mr. Leghari seeks time to look up the law and place the law before this Court whether such is necessary or not? "
13. ' It will be seen that I had asked Mr. Leghari to produce the original Bills of Exchange if they had been dishonoured and recourse was being sought on the basis of dishonoured bill. The said Bills of Exchange, or at least those that were dishonoured could have been, but have not been produced.
14. Even if it is admitted that the drawee had not accepted the bills, it was mandatory upon the holder namely, the plaintiff to give a notice of dishonour to the drawer after `protesting/noting' in England.
15. A notice to the drawer is of great importance and is mandatory in terms of section 30 of the Act. In fact, under the provisions of Bill of Exchange Act, 1882 which was prevalent in the United Kingdom (London) where the bills were sent for negotiation, it is categorically provided that the documents namely, the bill had to be presented. Sections 39 to 49 of Bill of Exchange Act, categorically provides rules and duties of the holder. Admittedly, the bank or its agent in England were the holders of the bill. They were required to present the documents for acceptance under the provision of Bill of Exchange Act, 1882. It is provided in section 43 of the said Act that a bill is said to be dishonoured by non-acceptance when it is duly presented for acceptance as prescribed by the Act or is refused or cannot be obtained or when the presentment for acceptance is executed and bill is not accepted. Under section 45 of the Bill of Exchange Act, 1882 it is provided that, presentment for payment has to be made and in the manner as provided therein. Section 47 thereof provides that a Bill of Exchange is said to be dishonoured by non-payment, if it is duly presented for payment, such is refused or cannot be obtained or, where presentment is excused and the bill is overdue and unpaid. Upon refusal of the drawee to pay and after acceptance, the Bill of Exchange is dishonoured by non-payment. After dishonour it was the duty of the plaintiff-Bank to have `Noted' or 'Protested' the bill under section 51(2) of Bill of Exchange Act, 1882 which reads as under:-- "51. Noting or protest of bill.---(1) Where an inland bill has been dishonoured it may, if the holder thinks fit, be noted for non-acceptance or non-payment, as the case may be but; it shall not be necessary to note or protest any such bill in order to preserve the recourse against the drawer or endorser.
(2) Where a foreign bill, appearing on the'face of it to be such, has been dishonoured by non- acceptance, it must be duly protested for non-acceptance and where such a bill, which has not been previously dishonoured by non-acceptance is dishonoured by non-payment, it must be, duly protested for non-payment. If it be not so protested, the drawer and endorsers are discharged.
16. Where a bill does not appear on the face of it to be a foreign bill, protest thereof in case of dishonour is unnecessary.
(3) A bill which has been protested for non-acceptance may be subsequently protested for non- payment.
(4) Subject to the provisions of this Act, when a bill is noted or protested, it may be noted on the date of its dishonour and must be noted not later than the next succeeding business day. When a bill has been duly noted, the protest may be subsequently extended as of the date of noting.
(5) Where the acceptor of a bill becomes bankrupt or insolvent or suspends payment before it matures, the holder may cause the bill to be protested for better security against the drawer and endorseRs,
(6) A bill must be protested at the place where it is dishonoured:--
(a) When a bill is presented through the post office, and returned by post dishonoured, it may be protested at the place to which it is returned and on the day of its return if received during business hours, and if not received during business hours, then not later than next business day.
(b) When a bill drawn payable at the place of business of residence of some person other than the drawer, has been dishonoured by non-acceptance, it must be protested for non-payment at the place where it is expressed to be payable, and no further presentment for payment to, or demand on the drawer is necessary.
(7) A protest must contain a copy of the bill, and must be signed by the notary making it, and must specify:
(a) The person at whose request the bill is protested.
(b) The place and date of protest, the cause or reason for protesting the bill, the demand, made and the answer given, if any, or the fact that the drawee or acceptor could not be found.
(8) Where a bill is lost or destroyed or is wrongly detained from the person entitled to hold it, protest may be made on a copy or written particulars thereof.
(9) Protest is dispensed with by any circumstance, which would dispense with notice of dishonour.
17. Delay in noting or protesting is excused when the delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, the bill must be noted or protested with reasonable diligence."
18. ' Such would be evidence of non-acceptance by nonpayment. A corresponding provision is also provided in the Negotiable Instruments Act, 1881. Sections 99 and 100 of the said Act also provide for 'noting' and 'protest'. Section 102 of the Negotiable Instruments Act, 1881 reads as under:-- "102 Notice of protest.---When a promissory note or bill of exchange is required by law to be protested, notice of such protest must be given instead of notice of dishonour, in the same manner and subject to the same conditions, but the notice may be given by the notary public who makes the protest."
19. ' Section 103 of the Act reads as under:-- "103 Protest for non--payment after dishonour by non-acceptance.---All bills of exchange drawn payable at some other place than the place mentioned as the residence of the drawee, and which are dishonoured by non-acceptance may, without further presentment to the drawer, be protested for non-payment in the place specified for payment unless paid before or at maturity."
20. ' Section 104 of the Act categorically provides as under:-- "104. Protest of Foreign Bills.---Foreign bills of exchange must be protested for dishonour when such protest is required by the law of the place where they are drawn."
21. ' Section 104 contemplates that where protest is provided in the law in the place where it is to be presented, it must be protested for dishonour. As discussed above, under the Bill of Exchange Act, both 'noting and protest' is provided. The plaintiff ought to have acted in the manner as provided by law and should have protested as a holder should have brought the same back to Pakistan and ought to have given a notice of dishonour under section 30 of the Negotiable Instruments Act.
22. ' Section 48 of the Negotiable Instruments Act, 1881 categorically states that subject to section 58 (where the title is defective) a promissory note, bills of exchange or cheque payable to order is negotiable by the holder by endorsement and delivery thereof. The general effect of taking an instrument as additional payment is to suspend the right of action of the original debt during the currency of the instrument. It could thus have been a good defence in action for recovery of the debit to plead that the plaintiff has taken a bill of exchange from the debtor on account of the debt.
23. Admittedly, the payment has been made in Exchange of the defendants having given the Bill of exchange. If the said instrument is dishonoured, payment of the original debit can be enforced as if no security had been taken. Such would only be where the bill has been negotiated by the maker/drawer and the holder namely, the bank in this present case. However, where the bill is required to be presented by the drawee Or the acceptor of the said bill and if the acceptor having accepted the same the right of the creditors and the remedy contained on the bill though continuing would remain suspended. After such dishonour, it shall be upon the creditor who may sue the debtor or the original consideration or on the instrument, but such would only be, where the Bill of Exchange has been dishonoured. In such a case, the debt which was additionally paid shall be treated as subsisting throughout. Conversely, where the bill is duly honoured, the payment debt from the date of receipt of the bill, except in the case of post-dated instrument where the payment is only on the date of the instrument bears the original debit is deemed as discharged as on the date of the bill. The question would always remain where the creditor is suing on the original cause of action, that, would he be required to produce the bill of exchange on account of the debit. The question would always remain to be answered is, where the instrument is not available, would creditors have any authority to sue on the original cause. In the case of Price v. Price reported as 153 ER 1174 it has been held that "once of the earliest authorities is the dictum of Lord Kenyon in Stedman v. Gooch (1 Esp. 4) he said that "to this effect the law was clear, that if, in payment of a debt, the creditor is content to take a bill or note payable at a future day, he cannot legally commence an action or his original debt, until such bill or note becomes payable or (I suppose- and default is made in the payment. It has been further held that "then he must show himself to be the holder of it at the time of action brought, so as to show the liability on the part of the defendant to pay it to him. He cannot sue for the debt, unless he has the note. He is not here suing on the note, but for the original debt; he ought therefore to show that he is in a situation to sue upon the note, because the delivery of the note pro tanto is a discharge of the debt, unless the note is in his hands overdue. He ought to show, not only that it is unpaid, but that he is entitled to payment of it. The defendant pleads all that he can have knowledge of. Suppose the plaintiff has lost or destroyed the note, he cannot then sue for the original debt; then the defendant might plead that it was endorsed over, whereas the fact might be that the plaintiff had lost it with a general endorsement upon it. The defendant may have to pay the debt to the plaintiff and the note and costs also to the holder of it. The plaintiff knows whether he has negotiated the note or destroyed or lost it (Platt B. In Aferer v. Cheese) the plea consisted of the present plea and replication together and that was held a good prima facie face answer to the action".
24. ' In the case of Ramuz v. Crowe 151 ER 70 it was held that "the acceptor of a negotiable instrument was not bound to pay unless the party demanding payment protest, and offer to deliver up, the instrument itself. Thus if governs the present case. The bill accepted by the defendant was negotiable, and the plaintiff by reason of his loss of it, being to unable to protest it to the defendant, cannot by the law of Merchant compelled him to pay the amount".
25. ' In fact, section 48 of the Negotiable Instruments Act, 1881 also says that a bill would he negotiable by the holder of endorsement and deliver. The only question will remain whether the bill had a defective title. The position is that the claim by the plaintiff is on the drawer or the maker of the bill.
26. There is no denial of the fact that the bill was drawn by the defendant No,1 as such there could have been no defect. The only position taken up is that the Bill of Exchange is not available. If the instrument had been lost appropriate measures are provided in section 45-A of the Negotiable Instruments Act, 1881. It is not the case that the instrument has been destroyed, lost or stolen. It is an admitted position that the instrument was accepted. It is admitted position that certain payments were made against some of the instruments. There is nothing in evidence to show that the bills on which the claim is being made as a original cause have not been paid for. In fact, the witness of the bank as said that the original bills are not available with them. It - is clear that the payment against the bills by the acceptor or drawee could only have been made upon presentment of the bills and once presented the bills were to be surrendered. It will be in the first instance, on the plaintiff to plead an action on the original debt, that a bill for the original debit was handed over to the bank. It is the plaintiff to show that the instrument was overdue and remained unpaid by dishonour, but an allegation that the instrument was given for on account of a debt; by which the defendant promised to pay the plaintiff or order a sum of money will not be good answer, unless it statcc further, either that such instrument is still tunning or it has been endorsed over by the plaintiff. The rule has been stated thus, that the satisfaction of the debit by taking the bill lasts only so long as the bill is not overdue unless you have parted with it, so that another person is dominus of the bill and then it lasts until you have got in back in your possession. So strict is the rule that a seller having received a bill for the price of goods is not allowed to sue for the price when the bill was in the hand of third party at the time of commencement of the action though it reached him at the time of trial. In IH this case the bill is not available.
27. ' A notice of dishonour to a drawer is absolutely necessary, and unless and , until it is given, the holder would not have cause against him. The purpose of the notice is to make the person aware of a fact in that in view of the matter, difference in expression seems to be of a little consequence.
28. A suit certainly should not fail or be defeated by such narrow technicalities. The plaintiff shall not be prejudiced merely because the facts are imperfectly stated in this respect. The position of the drawer may however be stated clearly that, he is not a surety for the acceptor because the drawer does not become liable until he accepts the Bill of Exchange. It follows that there is no principal for whom the drawer shall stand surety. Therefore, when there is no acceptance the liability of the drawer is only as a principal debtor under the implied contract of indemnity. However, in the present case there is an indemnity available. But where the bill is accepted, there is a shift in the principle. The drawee or acceptor becomes a party to the bill. The amount mentioned on the bills has to be recovered from the drawee, and only when the drawee refuses to pay, is there is a dishonour, and it is then that drawee would be liable under section 30 of the Negotiable Instruments Act, 1881, as also the indemnity given by the drawer. Further, and it is important to note, that as provided in section 30, the drawer does not undertake to fulfil the original contract, but would only be liable to compensate the holder for its breach. Besides, the drawer's undertaking is conditional only and his liability does not arise unless the instrument is dishonoured and he gets notice of it. Hence the Bills of Exchange when they are dishonoured in accordance with law and notice of such is transmitted to the drawer, it will be drawer who shall be liable. In the event otherwise, the drawer's liability would be discharged and he will no longer be liable on the basis of Bill of Exchange. In fact if plaintiffs are to sue on the basis of the indemnity, it will be subject to the conditions contained therein. In that event also it will not he on the original cause. There is no financing agreement. The cause could be the dishonour of the Bills of Exchange only. In every case it is the duty of the holder and the burden to prove will be upon him to show that bill was dishonoured and that he had acted in accordance with law to 'note' and `protest' the same and upon it being dishonoured he had given a notice to the drawer and if not he was excused by one or more reasons specified under section 98 of the Act. So necessary is the notice of dishonour that laches or negligence in giving such notice absolutely discharges or releases the drawers from the liability, for if a party takes a negotiable security of the nature he takes it subject to law incidental to all such securities. Admittedly, and confirmed by the witness of the plaintiff had also stated in his cross-examination that "it is correct that after forwarding the documents, it was the responsibility of the plaintiff-Bank to follow their acceptance".
29. ' In the case of United Bank Limited v. Ch. Ghulam Hussain 1998 CLC 816 a question as to the payment under the Bill of Exchange was taken up in respect of a foreign bill. The Division Bench of Lahore High Court held that:-- "Under section 30 of Negotiable Instruments Act, 1881, till such time there was refusal on the part of the second drawee B.C.C.I. (Hong Kong) to honour the so-called foreign bills, the alleged drawers- respondents Nos,1 and 2 could not be legally compelled to compensate the first draw- appellantBank by paying the amounts of these bills. Since the alleged claim for. These was pending settlement with the liquidator of the said foreign bank, the learned Banking Tribunal was justified to dismiss the suit to that extent, as "premature".
30. ' In the case of United Bank Ltd. v. Taj Seafood Industries PLJ 1975 Karachi 444 it was held that:-- "As rightly submitted by Mr. Liaquat Merchant, learned counsel for the plaintiff-Bank, the plaintiff as holder of the bill has a further right of recourse against Taj Seafood under section 30 of the Negotiable Instruments Act, 1881. Section 30(1)(a) of the said Act provides that the drawer of a bill of exchange by drawing it engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured, he will compensate the holder provided that due notice of dishonour of the bill has been given to the drawer. Moreover, under section 37 of the said Act, a drawer of the bill of exchange, until acceptance, is liable thereon as a principal debtor. Further, under section 131-H thereof, when a bill of exchange is dishonoured by non-acceptance, an immediate right of recount the drawer accrues to the holder of the bill. Mr. Mushtaq Hussain submitted that the right of recourse and the liability to compensate the holder, arises only upon 'due presentment' of the bill and that in the present case there has been no due presentment because one bill of lading was short supplied. In my opinion, this submission is misconceived. The 'due presentment' referred to in section 30 of the Act, relates to the due presentation of the bill of exchange and not of the shipping documents under a collateral contract of credit. The provisions of Chapter V of the said Act relating to presentment show that due presentment means that the bill of exchange must be duly presented according to its terms and at the time and at the place specified thereunder, during business hours on a business day and by the person entitled to deemed it. There is no doubt that the bill of exchange was presented for payment to the American Bank duly negotiated and that it was dishonoured. Further that notice of dishonour had been given to Taj Seafood. A bill of exchange gives an independent cause of action to the holder thereof and in Karim and another v. People Bank India (1915) 30 IC 35, it was held that a collateral agreement cannot be set up as a defence to a claim under section 30 of the Negotiable . Instruments Act, 1881 (Underlining and emphasis is mine).
31. ' Section 94 of Negotiable Instruments Act categorically provides as to how a Bill of Exchange is dishonoured. In the case of Kanhyalal and others v. Ramkumar and others AIR 1956 Rajasthan 129, it was held:-- "The object of a notice of dishonour to endorser is not to demand payment but clearly to indicate to the party notified that the contract arising on the negotiable instrument has been broken by the principle debtor and that the former being a surety will now be liable for the payment. This is the principal embodied in S.93 of the Negotiable Instruments Act."
32. ' In the case of Nenu Ram v. Shivkishen- AIR 1950 Rajasthan 55 it has been held that non- presentation of the drawee for payment absolves the drawer of any liability and that, notice of dishonour has to be given within reasonable time. It has also been held that the burden to prove to show that no damage was suffered by drawers for want of notice is on plaintiff suing for recovery on basis of dishonour.
33. ' From the facts of the case, it is clear that the Bills of Exchange are not present. Time was granted to the plaintiffs to produce the original Bills of Exchange duly dishonoured in accordance with law.
34. There is no doubt and I agree with the contention of Mr. Leghari that dishonour by non-acceptance or non-payment gives rise to an immediate right of recourse against the drawer of the Bills of Exchange. But if the Bills of Exchange had been accepted, recovery is liable to be made from the drawee and upon refusal to pay on maturity, the same ought to have been noted or protested discussed above and notice of dishonour given. It is clear that the goods are sent and that on acceptance of the Bills of Exchange, payment that to be made in accordance with the tenor of the Bills of Exchange. The consequence of dishonour by nonacceptance though are precisely the same as those arising from the dishonour by the payment . On the dishonour by the non-acceptance there is no right of recourse against the drawee since he is not a party to the bill, but on dishonour by non-payment there is an executicn against the acceptor for, by accepting the bills as the drawee has become party to the instrument though it is clear that though notice for dishonour for payment may be given before the expiry of the date, action against him for recovery can be commenced only after the grace period. Such has been held in the case of Jugjivan Mavji Vithalani v. Messrs Ranchhoddas. Meghji AIR 1954 SC 554 as under:-- "(6) Nor is there any substance in the contention that section 61 of the Act provides for presentment for acceptance only when the bill is payable after sight, and not when it is payable on demand as is the suit Hundi. In a bill payable after sight, there are two distinct stages, firstly when it is presented for acceptance, and later when it is presented for payment. Section 61 deals with the former, and section 64, with the latter. As observed in 'Ram Ravji v. Pralhaddas Subkaran', 20 Born.
35. 133 at p.141 (B) 'presentment for acceptance must always and in every case precede presentment for payment'. But when the bill is payable on demand, both the stages synchronize, and there is only one presentment, which is both for acceptance and for payment. When the bill is paid, it involves an acceptance, but when it is not paid, it is really dishonoured for non-acceptance. But whether the bill is payable after sight or at sight or on demand acceptance by the drawee is necessary before he can be fixed with liability on it. It is acceptance that establishes privity on the instrument between the payee and the drawee and we agree with the learned Judges of the High Court that unless there is such acceptance, no action on the bill is maintainable by the payee against the drawees.
(7) The main contention on behalf of the appellant was that such acceptance must be implied when the respondents received the bill and made payment therefor. The argument was that the very act of the payment of the Hundi to Virajlal was an acknowledgement that the defendants were liable on the Hundi to whosoever might be the lawful holder thereof. The answer to this contention is, firstly, that there was no valid presentment of the Hundi for acceptance and secondly, that there was no acceptance of the same as required by law.
(8) On the question of the presentment of the Hundi for acceptance, the position stands thus. The person who presented it to the defendants was Virjlal and if he had no authority to act in the matter, it is difficult to see how he could be held to have acted on behalf of the plaintiff in presenting the Hundi. There was only one single act, and that was the presentment of the Hundi by Vrajlal and the receipt of the amount due thereunder. If he had no authority to receive the payment, he had no authority to present the bill for acceptance. It was argued that there was no provision in the' Act requiring that bills payable at sight should be presented for acceptance by the holder or on his behalf, as there was, for bills payable after sight, in section 61. But, as already pointed out, in the case of a bill payable at sight, both the stages for presentment for acceptance and for payment are rolled up into one, and therefore, the person who is entitled to receive the payment under section 78 of the Act is the person, who is entitled to present it for acceptance.
36. Under section 78, the payment must be to the holder of the instrument; and if Vrajlal had no authority to receive the amount on behalf of the plaintiff, there was no valid presentment of the Hundi by him for acceptance either.
(9) It has next to be considered whether, assuming that there was a proper presentation of the Hundi for acceptance, there was a valid acceptance thereof. The argument of the appellant was that as the Hundi had got into the hands of the defendants and was produced by them, the very fact of its possession would be sufficient to constitute acceptance. Under the common law of England, even a verbal acceptance was valid. Vide the observations of Baron Parke in 'Bank of Ireland v. Arche', (1834) 11 M&W 383 at pp.389, 390 (C). It was accordingly held that such acceptance could be implied when there was undue retention of the bill by the drawee. (Vide note to Harvey v. Martin (1808) 1 Camp. 425 (D). But the law was altered in England by section 17(2) of the Bills of Exchange Act, 1882, which enacted that an acceptance was invalid, unless it was written on the bill and signed by the drawee section 7 of the Negotiable Instruments Act following the English Law, provides that the drawee becomes an acceptor, when he has signed his assess upon the bill.
37. In view of these provisions, there cannot be apart from any mercantile usage, an oral acceptance of the Hundi, much less an acceptance by conduct, where at least no question of estoppel arises.
(10) But then, it was argued that the possession of the Hundi was not the only circumstances from which acceptance could be inferred that there was the plea of the defendants that they had discharged the Hundi; and that clearly imported an acknowledgement of liability on the bill, and was sufficient to clothe the plaintiff with a right of action thereon. Assume that the plea of discharge of a Hundi implies an acknowledgement of liability thereunder an assumption which we find it difficult to accept. The question still remains whether that is sufficient in law to fasten a liability on the defendants on the Hundi. What is requisite for fixing the drawees with liability under section 32 is the acceptance by them of the instrument and not an acknowledgement of liability.
38. As the law prescribes no particular form for acceptance, there should be no, difficulty in construing an acknowledgement as an acceptance, but then, it must satisfy the requirement of section 7 and must appear on the bill and be signed by the drawees. In the present case, the acknowledgement is neither in writing nor is it signed by the defendants. It is a matter of implication arising from the discharge of the instrument. That is not sufficient to fix a liability on the defendants under section
32. In conclusion, we must hold that there was neither a valid presentment of the Hundi for acceptance nor a valid acceptance thereof."
39. ' The holder of the instrument or one of the parties thereto who remains liable thereon must give a notice of dishonour to all the parties whom the holder seeks to charge. Otherwise all the parties to the instrument are discharged. Therefore, if a bill is dishonoured by nonacceptance and if notice is not given, the drawer and endorser are discharged, although the holder may present the bill for payment due and on refusal give notice of dishonour to both for non-acceptance and nonpayment. Such was held in the case of Roscow v. Hardy 104 ER 170.
40. ' In the present case, admittedly, the drawee had accepted the bill and payment had been made as is evident from the evidence where the drawee accepts the bill but fails to pay the same on presentment the holder (the plaintiff) must give a notice of subsequent dishonour to the drawer. It cannot be presumed otherwise. The bills had been accepted. Some payment thereagainst have been made in due course. There is nothing on record to show that the Bills of Exchange have been dishonoured by non-payment. If the Bills of Lading were forged, the recourse was on the' Bill of Exchange. The plaintiffs have not been able to prove their own case. In view of the above, the suit is dismissed with costs against the plaintiff.
41. ' The defendants Nos,2 to 6 are neither guarantors nor borroweRs, The suit is not otherwise maintainable against them.
42. ' Whilst this order was dictated in Court before Senior Vice-President Mr. Salim Choudhry, Mr. Muhammad Yousaf Leghari and Khawaja Shamsul Islam, I had ordered costs of Rs,200,000 payable to each defendant by the plaintiffs. That portion of the order is modified that, the same was too harsh. The plaintiff-Bank shall only be liable to pay special compensatory costs under section 35-A, C.P.C.
43. ' Before I part, it will be important that I mention that I have received no or little assistance from either Mr. M. Yousuf Leghari, Advocate for the plaintiff and Mr. Khawaja Shamsul Islam, Advocate for the defendants Nos,1 to 3. Mr. S. Zaki Muhammad, Advocate for the defendants Nos,5 and 6 had sought leave earlier to be present in the Supreme Court and the case has proceeded in his absence. During the course of arguments, the above position was also confronted to Mr. Salim Choudhry who was called in by an earlier order to be present in Court who also was of the same view that a dishonour of a document was to be done in accordance with law provided in the Negotiable Instruments Act and the Bill of Exchange Act, 1882. I must however praise Mr. Salim to be clear headed as to the provisions of law, and seemed to know more than the lawyers did. It is also alarming to note the manner in which -the pleadings have been drafted and the evidence led. The callous attitude and the negligence on the part of the bank officials will have caused the colossal loss due to the dismissal of the aforesaid suit on account of the fact that the bills have neither been presented for dishonour or noted or protested against nor have been produced in Court to show that they have not been paid. Naturally, the presumption upon non-production of a negotiable instrument would be they may have been negotiated or acted upon. The loss caused to the plaintiff-Bank could be recovered from such persons who are responsible for the same. In fact, an appropriate action should be taken against such persons. A copy of this order shall be remitted to the President of the bank as also the Governor, State Bank of Pakistan, so that they may be able to see one of the many reasons for the losses caused to the bank. .