1. ' MRS. YASMEEN ABASEY, J.---On 18-9-1999 a suit for recovery of Rs,50,000 under Order XXXVII, C.P.C.
2. Was filed by respondent against appellant. Application for leave to defend the suit was filed and by order, dated 7-11-2001 appellant was allowed to defend the suit subject to surety in the form of indemnity bond as Bank Guarantee.
3. ' This order of furnishing surety in the form of indemnity bond has been assailed in the revision application. Respondents were served in the matter but failed to appear in Court.
4. ' Contention of learned counsel for applicant is that the very suit filed by respondent under Order XXXVII, C.P.C. Is not maintainable as the contents of para.5 of plaint of Suit No,40 of 1999 makes mentioned of presentation of forged cheque of Rs,50,000 and withdrawal of that amount from respondent's account. So if any cheque of respondent was misplaced from his cheque book then the appellant is not responsible of that missing. Responsibility of bank is to the extent of verification of signature of account-holder with that of his admitted signature available on the record, and if after verification, it is found to be genuine, the bank is not empowered to withhold the withdrawal.
5. ' However if respondent was in knowledge of missing of any cheque then it was his responsibility to intimate the bank well in time, so that proper steps could had been taken on failure to do so by the respondent no option was left with the appellant not to encash the cheque presented before them.
6. Arguments advanced by learned counsel for appellant appeals to reason.
7. ' The next ground taken by learned counsel for appellant with regard to the maintainability of suit is that the very title of Order XXXVII, C.P.C. Shows that it relates to the procedure to be followed on negotiable instrument.
8. The term negotiable instrument as defined in Negotiable Instruments Act, 1881, means a promissory note, bill of exchange or cheque payable either to order or to bearer. The term cheque has been expressed in the very act as, bill of exchange drawn on a specified branch and not expressed to be payable otherwise then on demand.
9. ' The record reveals that this very point of non-maintainability of suit was raised by the appellant before learned trial Court, but was rejected vide order, dated 8-11-2001. That order was neither challenged earlier nor any prayer with reference to that order has been sought in this revision application, therefore, it cannot be reopened again in this revision application taking the other party by surprise. And this is left at the discretion of learned trial Court.
10. However the condition of furnishing surety in the form of indemnity bond as bank Gurantee having a firm identity appears to be much more than what is required in the section, because the purpose of execution of indemnity Bond is to oblige the undemnitee against loss sustained by him from the conduct of indetnention, whereas in the present case, it is yet to be determined that where this fault lies.
11. ' Under these circumstances the impugned order is modified to the extent that appellant is not required to furnish surety in the form of indemnity bond. He is permitted to defend the suit as already granted to him but without any condition. Revision application disposed of accordingly.