1. ' The plaintiffs have filed this suit under Order XXXVII, C. P. C. For recovery of Rs, 1,53,024, on the basis of two cheques, one bearing No, D/9194679 dated 13th October, 1969, for Rs, 1,00,000 and the other bearing No, D/9-194680 dated 20th November, 1969, for Rs, 40,000, that were allegedly dishonoured on presentation by the Muslim Commercial Bank Ltd. On whom they were drawn. The plaintiffs have also claimed in the suit a sum of Rs, 13,024, on account of interest at the rate of 6% per annum from the respective dates of the cheques in accordance with the provisions of section 80 of the Negotiable Instruments Act, 1881.
2. ' The defendant applied for leave to appeal and defend the suit which was granted by the order dated 26-5-1971 on his furnishing security for the amount claimed in the suit.
3. ' Thereafter, the defendant filed his written statement denying the execution of the two cheques and inter alia, pleading as follows:- (a)That the two cheques are not in the handwriting of the defendant and do not bear his signature.
4. (b)That the suit is barred by the provisions of section 69 of the Partnership Act, 1932, as the firm which has sued that is, Messrs Muhammad Re-Rolling Mills is not registered but the firm which is stated to be registered under section 69 of the Partnership Act and shown in the certificate of registration, a photostat copy whereof is annexed to the plaint is Muhammadi Re-Rolling Mills and Muhammadi Utensil Products.
(c) The two cheques are without consideration.
5. (d)The defendant is not the drawer of the cheque and is not liable under section 30 of the Negotiable Instruments Act.
(e) That the return of the cheque for Rs, 1 lac by the Bank on the ground that the alteration required drawer's signature in full does not amount to dishonour of the cheque and therefore the suit was not maintainable.
(f) That no notice of alleged dishonour was given by the plaintiffs to defendant as required under section 30 (1)(b) of the Negotiable Instruments Act.
6. ' However, the learned counsel for the parties filed the following consent issues which were adopted by the Court by the order dated 25th October, 1971, and on which they went to trial:- (1)Whether the plaintiffs Firm is not registered under the provisions of Partnership Act of 1932?
7. (2)Whether the name of the firm as registered is Muhammadi Re-Rolling Mills and Muhammad], Utensil Products and not as described in the title of plaint and with what effect?
8. (3)Whether the suit is barred under section 69 of Partnership Act of 1932?
9. (4)Whether the defendant did not enter into final settlement with the plaintiffs as stated in Paras.
10. Nos. 6 and 7 of the plaint?
11. (5)Whether the defendant issued, two cheques in suit, vide Annexure E/1 duly signed by defendant as well, in full. And final settlement of all the plaintiffs' dues?
12. (6)Whether the plaintiffs presented Cheque No, D/5/194679 dated 13-10-69 for encashment to the defendant's bankers and it was dishonoured only on the ground that the alteration requires Drawer's signature in full?
13. (7)Whether the plaintiffs presented Cheque No, D/5/194680 dated 20-11-1969 for encashment to the defendant's Bankers and it was dishonoured only on the ground, "Refer to Drawee'?
14. (8)Whether the defendants can legally deny the signature and writings on the two cheques in suit?
15. (9)Whether the contents of the two cheques in suit are forged by the defendant and therefore, the defendant is not liable under section 30 of N. I. Act?
(10) Whether the defendant kept the plaintiffs on promises of paying the suit amount after the two cheques were dishonoured?
(II) Whether the defendant is not liable to pay the suit amount or any portion thereof?
(12) Whether the suit is not maintainable on all or any of the grounds in sub-paras. (ii) to (iv) of para. 12 of the written statement?
(13) To what relief, if any, the plaintiffs are entitled to?
(14) General."
16. ' During the pendency of the suit the plaintiffs made an application under Order VI, rule 17, C. P. C.
17. Praying that in the name of the plaintiffs mentioned in the title of the plaint the words "and Muhammadi Utensil Products" may be added. The reason given was that they were omitted due to over-sight. This application was allowed on 26-5-1976 by consent but subject to condition mentioned in the order. I may reproduce the order at this stage for some arguments have been advanced in relation to the condition imposed therein:- "Mr. Muhammad Arif Advocate has applied for amendment in the name of plaintiff by addition of the words Muhammadi Utensil Product'. Mr. Arif states that it was due to over sight that these words were not typed in the plaint and the amendment is formal. He does not wish to examine any witnesses after the amendment. Mr. Mohsin has no objection, provided he is allowed to raise any plea available to him regarding this amendment and the consequences arising out of it at the time of argument, Mr. Arif agrees to the condition. I, therefore, grant the application subject to the above condition and allow the plaintiffs to make the amendment in red ink in the plaint. Mr. Mohsin states that he does not wish to file any amended written statement at this stage."
18. ' The plaintiffs in support of their case examined their partner Ismail Bha ; (Exh. I) who produced:-
(i) A photostat copy of the certificate registration of the firm (Exh. 1/A) ;
(ii) Cheque dated 13-10-1969 (Exh. 1/B);
(iii) Cheque dated 20-11-1969 (Exh. 1/C);
(iv) Memorandum of return of cheque dated 23-10-1969 (Exh. 1/D); (v)Memorandum of return of cheque dated 24-11-1969 (Exh. 1/E);
(vi) Receipt dated 14-10-1969 (Exh. 1/F).
(vii) a photostat copy of the agreement dated 24th July, 1969, (Exh. 1/G);
(viii) a photostat copy of the agreement dated 28th January, 1967, (Exh. 1/I); and
(ix) a photostat copy of the order passed in J. Miscellaneous No, 106/69 (Exh. 1/K).
19. ' The witness deposed he was carrying on the business in the name and style of Muhammadi Re- Rolling Mills and Muhammadi Utensil Products and that he and his elder brother Ibrahim Muhammad Bhai were the partners in the firm which was registered with the Registrar of Firms. He produced a receipt (Exh. 1/F), purporting to be a copy of receipt by which he acknowledged the receipt of two cheques for Rs, 1,00,000, and Rs, 40,000, which were received and receipt thereof passed on by him to the defendant at his residence. According to the witness the defendant had signed the copy of receipt (Exh. 1/F) which is in the handwriting of his Manager Azhar Ali Chisty, and the two cheques in his presence. He further deposed that the plaintiffs had sold a ship by the name of 'Ocean Endeavor' to the defendant and that one of the terms of the sale was that the defendant would supply to the plaintiffs 100 tons of scrap material free of cost which was not delivered and the two cheques were delivered to him in lieu thereof. He produced the agreement (Exh. 1/G) of sale of the ship with the defendant. He further stated that he had not received the amount of the two cheques even after the filing of the suit and he claimed interest thereon.
20. ' In cross-examination he stated the partnership was formed in the years 1947-48 and in the beginning it was a propriety concern owned by him and at no time was there any other partner in the firm except he and his brother. He however, failed to explain as to why the date of 31-12-1955 of his joining as a partner in the firm and the date of 26-1-1956 as the date of joining of his brother as partner were shown in Exh. 1/A. However, in my opinion nothing turns on it. He admitted that he was in possession of the partnership deeds which he could produce. He, however, was unable to give the date of the partnership deed. He further stated in cross-examination that the plaintiffs had separate bank accounts in the name of Muhammadi Re-Rolling Mills and Muhammadi Utensil Products. He also admitted that he knew that one H. K. Tayeb Dada and that certain cheques were issued by Muhammadi Re-Rolling Mills and Muhammadi Utensil Products separately in favour of H.
21. K. Tayab Dada, that he, explained, were issued under compulsion. He further admitted that H. K.
22. Tayab Dada had filed a suit against the partners i. e. Against him and his brother and Muhammadi Re-Rolling Mills., He however, did not remember if the defendants, in their written statement, had raised defence to the effect that the suit against Muhammadi Re-Rolling Mills was not legally competent in respect of the cheques issued in the two names and that the two firms were different.
23. Then he was cross-examined on the two agreements (Exhs. 1/I and 1/G). He further stated in cross- examination that the two cheques were written and the receipt was passed on in the house of the defendant which was situated at a place known as either Prince Ali Khan Society or Masalawala Society near Gandhi Garden and that his brother Ebrahim Muhammad Bhai was not with him at that time. The settlement pursuant to which the two cheques were given had taken place at his Mills on 13-10-1969 one day before the date when the two cheques were given and that he and his Manager had gone to receive the cheques and that both the cheques were written by somebody who was present in the house and thereafter were signed by the defendant and that except his Manager Azhar Ali Chisty, and the defendant and the other person who wrote the cheques no one else was present. He denied the suggestion that the cheques were written by him or Azhar Ali Chisty. He asserted that the cheques were written by the other person in his presence. He further stated in the cross-examination that on 13-10-1969, it was settled that the defendant would pay Rs, 1,40,000, and on 14-10-1969, the defendant stated that he would pay the amount in two instalments of Rs, 1,00,000, payable immediately and Rs, 40,000, payable on 20-11-1969. The receipt (Exh. 1/F) was written by Azhar Ali Chisty there and then and that Azhar Ali Chisty had taken a letter head of their Mills alongwith him. He was confronted with the written statement in Suit No, 294/74 and he admitted that in the written statement a preliminary objection was taken in the following terms:- "That out of the 9 disputed cheques, 3 cheques bearing Nos. 5410321 dated 1-9-1969 each for Rs, 25,000, were signed and issued on behalf of Muhammadi Utensils Product. This firm is separately registered and is carrying on difference business than Muhammadi Re-Rolling Mills. The plaintiff should have brought separate suits against the two firms. His suit is therefore bad in law for the misjoinder of causes of action."
24. ' Next witness examined by the plaintiffs was their Manager Syed M. Azhar Ali Chisty (Exh. 2). He stated that "s. s. Ocean Endeavour' was purchased by the plaintiffs firm and was sold to Shamsuddin Ali Bhai and Yousuf Ali Ibrahim and finally was sold to the defendant. According to the final settlement defendant agreed to pay Rs, 1,40,000. He and P. W. 1 Ismail went to receive the payment from defendant who gave two cheques (Exhs. 1/B & 1/C) for the amounts of Rs, 1,00,000, and Rs, 40,000. The cheque Exh. 1/C) was written and signed in his presence but the cheque (Exh.
25. 1/B) was already written and signed and was given to P. W. I Ismail Bhai. He identified his writing (Exh. 1/F). He was asked only two questions in cross-examination and thereunder he deposed that the agreement with regard to payment of the amount by installment was arrived at the house of the defendant when they had gone there to receive the payment and that they had reached the house near about 10-00 or 11-00 in the morning.
26. ' The third witness who was examined by the plaintiffs was Muhammad Iqbal (Exh. 3) an employee of Muslim Commercial Bank. He stated that defendant had current account with the Bank Bearing No,
124. The two cheques (Exhs. 1/B & 1/C) were presented to his Bank for encashment. The cheque for Rs, 1,00,000, was returned for the reason that it required drawer's Signature in full on the alteration. The other cheque for Rs, 40,000, was returned with the note "refer to drawer". He had an account opening form of shamsuddin bearing his specimen signatures. But he refused to verify the signature on the ground that he was not empowered to do so and the power to verify the signature was with the Manager and Accountant of his Bank. He however, produced a copy of statement of account of the defendant from 30th September to December, 1969 (Exh. 3/A), showing that on 30- 9-1969 there was a debit balance of Rs, 513, and on 12-10-1969 and 1-12-1969, on both dates, there was a credit balance of Rs, 11.94 therein. He was not cross-examined.
27. ' The next witness who deposed on behalf of the plaintiffs was, Javaid, Assistant Manager Muslim, Commercial Bank, Mithadar Saraffa Bazar Branch Karachi (Exh. 4). He also deposed that the defendant had a current account bearing No, 124 with his Bank. He produced the specimen signature card of the defendant (Exh. 4/1) and stated that the account was not being operated for the last 4/5 years. He further deposed that he had power to verify the signatures of account- holders in the Bank. He examined Exhs. 1/B and 1/C and confirmed that both the cheques bore the signatures of the defendant. He further deposed he had deposed so after comparing the signatures on the two cheques with the signatures on the specimen signature card (Exh. 4/1). He also deposed that Exh. 1/B was dishonoured because of material alteration made therein and Exh.
28. 1/C was dishonoured for the reason that there was not enough fund of the defendant with the Bank.
29. He identified the initials of authorised Officers of Muslim Commercial Bank on the memoranda (Exhs. 1/D and 1/E) under which the cheques were returned. He gave the names of the Officers who had initialed Exhs. 1/D and 1/E as Abdul Sayeed Kapadia and G. H. Wadiwalla respectively. In cross- examination he stated that he was familiar with the handwriting as well as the signature of the defendant. He further stated that the dates and writings on Exhs. 1/B and 1/C were not those of the defendant Shamsuddin. He was then asked some more questions with regard to some differences in the signatures on Exhs. 1/B and 4/1. He admitted that he had no diploma in identification of handwritings. He further admitted that there was a difference between the two signatures on Exhs.
30. 4/1 and 1/F. He was shown three signatures on three pieces of papers marked "X", "X1" and "X2". He identified the signatures on papers marked as "XI" and "xr those of Shamsuddin and stated that signature on piece of paper marked X2 is not in the handwriting of Shamsuddin. He denied the suggestion that signatures on Exhs. 1/B and 1/C were not of the defendant.
31. ' The defendant examined himself as the only witness in defence. He deposed that the cheques Exhs. 1/B and I/C were not written by him nor had he signed the same. He denied that he had to pay to the plaintiffs a sum of Rs, 1,40,000, or any other amount. This is all what he deposed in the examination-in-chief. In cross examination he admitted that Exh. 4/1, the specimen signature card, bears his signature. He also admitted that the original of Exh. 1/G bore his signature. He admitted that under Exh. 1/G he had to give 100 tons of iron steel of the dismantled ship to the plaintiffs free of charge. He also admitted that he had not given 100 tons of iron steel to the plaintiff free of charge.
32. He however, stated that 1C0 tons of iron steel was given to the plaintiff against payment of Rs, 1,00,000, but this was pursuant to clause 5 of the Agreement (Exh. 1/G). He admitted that the Bank had returned the cheque Exh. 1/B with the memorandum stating that the alteration made in the cheque required his signature. I may mention that the alteration made in this cheque is in the date.
33. The cheque bears the date of 13-10-1969. The figure of 10 is overwritten. He also admitted that the cheque Exh. 1/C was returned with the memorandum requesting "refer to drawer". This is the entire evidence led on behalf of the parties.
34. ' Having generally reviewed the evidence led by the parties, I, now, proceed to decide the issues.
35. ' I shall take up Issues Nos. 1, 2 and 3 together.
36. ' Issues Nos. 1, 2 and 3: ' The plaintiffs have filed a photostat copy of the registration certificate alongwith the plaint which shows the name of the firm registered as Muhammadi Re-Rolling Mills and Muhammadi Utensil Products. This certificate was exhibited as Exh, 1/A subject to the production of the original. Mr. Muhammad Arif Advocate has placed on record the Original Certificate. This Certificate also shows that Ibrahim Muhammad Bhai who has signed the plaint, is one of the two partners constituting the firm. I, therefore, find no difficulty in holding that the firm by the name of Messrs Muhammadi Re- Rolling Mills and Muhammadi Utensil Products is a registered firm.
37. ' However, I may mention here that initially the suit was filed in the name of Messrs Muhammadi Re-Rolling Mills but subsequently the words "Muhammadi Utensil Products" were added in the name by way of amendment of the plaint under the order of the Court dated 26-5-1976 but the defendant was allowed to raise any plea available to him with regard to amendment and consequences arising of the amendment at the time of arguments. I would deal with this aspect later on. Issue No, 4: ' According to the learned counsel for the plaintiffs terms of settlement are contained in agreement dated 24th July, 1969 (Exh. 1/G) but it was finally settled at plaintiffs Mills on 13-10-1969 one day before the day when the cheques said to have been given by defendant at his house to P. W. 1 Since the defendant has denied the execution of the two cheques, the decision whether these cheques were given pursuant to final settlement and for consideration or not would depend entirely on the decision of the issue whether the cheques were signed by defendant or not for it is agreed and rightly so, by Mr. Mohsin Tayebali that if it is found that the cheques were executed by the defendant then they are presumed to have been issued for consideration and therefore the statement of P. W. 1 Ismail in respect of settlement will prevail particularly when the defendant has not led any evidence explaining why and under what circumstances he gave the two cheques to the defendant. The plaintiffs have also produced one receipt dated 14-10-1969 purporting to be a copy of the receipt given to the defendant which acknowledges the receipt of the two cheques and states that the plaintiffs have received the same in full and final settlement of their account according to their previous agreement. This receipt is alleged to have been signed by the defendant. I will take up the question whether the defendant has signed this receipt or not later but it is clear that if this receipt is signed by the defendant then the two cheques were given in full and final settlement. But if the receipt is not signed by the defendant then it will by itself not prove that the two cheques were given in full and final settlement for the receipt is admittedly in the handwriting of the Manager of the plaintiffs. However, here I may state that on comparison of the signature on the receipt (Exh. 1/F) with the signature on the specimen signature card (Exh. 4/1) I find the two signatures identical.
38. ' Issues Nos. 6 and 7: ' Javaid P. W. 4 has proved the initials of the Bank Officers on Exhs. 1-D. And 1-E., the memoranda under which the two cheques were returned for the reasons stated therein. P. W. Mohammad Iqbal (Exh. 3) has also deposed that these cheques were returned on the ground mentioned in the memoranda. The defendant has also in his cross-examination admitted that the cheques were returned with the memoranda, one containing the reason that alteration made in a cheque required his signature and the other requesting to refer to drawer. Therefore, both these were returned unpaid on presentation though for different reasons and accordingly both issues stand proved and 1 accordingly decide the same against the defendant.
39. ' Issues Nos. 5, 8 and 9 : ' Now, I would take up Issues Nos. 5, 8 and 9 together.
40. ' The defendant has denied his signature on the two cheques. He has deposed that the writing on the cheques was not his. However, Ismail Mohammad Bhai has deposed that he and his Manager had gone to the house of the defendant where he received the cheques and both of them were written and signed in his presence. The cheques according to him were written by another person who was present in the house and thereafter were signed by the defendant and no one else except he his Manager Azhar Ali Chisty the defendant and the other person who wrote the cheques, was present. He denied the suggestion that these cheques were written by him or Azhar Ali Chisty. His deposition finds support by the deposition of Azhar Ali Chisty that both had gone to the house of the defendant and where the defendant gave the two cheques. There is slight difference in the deposition of this witness and the deposition of Azhar Ali Chisty. According to Ismail Bhai both the cheques were written and signed in his presence and in the presence of Azhar Ali Chisty besides the other persons mentioned above, while according to Azhar Ali Chisty the Cheque (Exh. 1-C.) was written and signed in their presence and the other cheque (Exh. 1-B.) dated 13-10-1969 had already been written and signed and was given to Ismail Bhai. They have further supported their evidence by producing a receipt which is though in the handwriting of Azhar Ali Chisty is said to bear the signature of the defendant acknowledges the receipt (delivery) of the two cheques in full and final settlement according to the previous agreement of the partners. The P. W. 1 has stated it bears the signature of the defendant. However this is not the only evidence. P. W. 4 Javaid who has identified the signatures of the defendant on the two cheques and has in cross-examination stated that he was familiar with the handwriting as well as the signature of Shamsuddin and according to him these cheques bear the signatures of the defendant and he said so after comparing the signatures. It was submitted by Mr. Mohsin Tayebali that the evidence of this witness is not relevant because he is not an expert. However Mr. Mohammad Arif has relied on a passage from M. Monir's Law of Evidence Pakistan Edition Had, Vol. II, p. 619 to show that his evidence is relevant. The passage reads as follows :- "Any person who, from his circumstances and employment, possess special means of knowledge, has given the subject particular attention, and is more than ordinarily conversant with its details will be considered specially skilled for the purposes of this section. "Writers, engravers, lithographers, tellers, cashiers and other Officers of Banks, post Office officials, book-keepers and cashiers of commercial houses" have been permitted to testify as experts."
41. ' Reference may also be made to R. v. Silverlock (1) wherein a solicitor who had for some years compared handwriting for purposes of evidence, though never testified as expert, was held competent. It is further stated by Monir that the higher or lower qualifications of an expert merely affect the weight and not the strict relevancy of his opinion.
42. ' For proving the handwriting or signature of a person the Evidence Act provides the following for modern of proving the same (1) by proof of signature and handwriting of person alleged to have signed or written the document (section 67); (2). By the opinion of experts who can compare handwriting (section 45); (3) by a witness who is acquainted with the handwriting of the person by whom it supposed to be written and signed (section 47); (4) by comparison of signature or writing with other admitted and proved (section 73). The evidence of P. W. 4 who is acquainted with the handwriting and signature of the defendant is already before me but I have also compared the signature on Exhs. 1-B. And I-C. And with the {{FOOT NOTE}}
(1) (1894) 2 Q B 766 {{FOOT NOTE}} ' admitted signatures of the defendant on specimen signature card (Exh. 4/1) and on the agreement (Exh. 1/G) and to me all these signatures appear to of one and the same person i,e, the defendant. Such a course is permitted under section 73. Reliance is placed on S. M. Zahir v. Pirzada Syed Fatal Ali Afineri (1), Ch. Muhammad Sadly v. Mumtaz Ali and another (2), Messrs Muhammad Yousaf lqbal Ahmed v. IVth Sind Labour Court, Karachi and another (3).
43. ' In the Supreme Court case it was observed by Anwarul Hach J. (as his Lordship then was) at p. 492 of the report as follows :- "As to the pronote and the receipt having become disputed documents, it is true that it would have been preferable for the learned trial Judge to examine expert evidence in this behalf, but there is no rule of law that this must be done in every case. The learned Judge has observed that the resemblance bets, even the sample writing of the petitioner and the writing embodied in the pronote and the receipt was so visible that he did not feel it necessary to call for expert examination of the documents. We cannot hold that the procedure adopted by him was contrary to Law."
44. ' In the Karachi case it was observed by Channa, J. At p. 713 of the report as follows :- "The next question, which falls to be considered, is whether comparison of signatures by the Court itself is valid evidence. Section 73 of the Evidence Act empowers the Court to compare the signature on a disputed document with other admitted or proved signatures. If on such comparison, the Court comes definitely to the conclusion that the signature on the disputed document and the admitted signatures are identical, it may act on such comparison, though such course ordinarily may be unsatisfactory or even dangerous. In support of this view, Mr. S. H. Rizvi relied upon the decisions reported in PLD 1968 Dacca 167 and PLD 1968 Kar.
263. In a recent case, being L. P. A. No, 109 of 1969, to the decision whereof I was a party, we have held that comparison of signature on a disputed document with admitted or proved signatures of the party alleged to have signed the 4 disputed document, in the presence and with the assistance of the Advocate of the parties, is one of the modes for establishing the genuineness or otherwise of the signatures on the disputed documents."
45. ' However, I am not basing my finding only on the comparison of the disputed signatures with the admitted signatures of the defendant but 1 have also the evidence of P. W. 4 Javid, the Bank Officer, P. W. 1 and P. W.
2. Further, the defendant has not said that the two cheques are not from his cheque book then the question does arise as to how the plaintiffs came into possession of these cheques. I have no explanation from the defendant. He has also not produced his cheque book containing the counter-foils of the cheques to show that they were blank or the cheques were issued to some other person. I am again not basing my finding on this weakness of the defendant's case but this is a circumstance which also induces me to believe the testimony of P. Ws. 1, 2 and 4 on these issues.
46. I, therefore, decide all the three issues against the defendant. {{FOOT NOTE}}
(1) 1974 SCMR 490 (2) PLD 1976 Quetta 53
(3) PLD 1977 Kar. 711 {{FOOT NOTE}} ' Issue No, 10 : ' So far Issue No, 10 is concerned P. W. 1 has in his cross-examination stated that he did not present the earlier cheque (Exh. 1/0 because the defendant promised to pay in cash. He further stated in cross-examination that he filed the present suit on 11-5-1971, because the defendant kept him on promises that he would pay the amount. Defendant has not said even one word in rebuttal. There is no other evidence. I therefore, decide this issue in favour of the plaintiffs. My finding is that the defendant did promise to pay the amount in cash.
47. ' Issue No, 11: ' Regarding this issue it was submitted by Mr. Mohsin that since no notice of dishonour of the cheques as required under section 30 of the Negotiable Instruments Act, was given therefore, the plaintiffs have no right to sue on the two cheques. Section 30 of the Negotiable Instruments, Act, 1881 inter alia provides that 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 provided in the subsequent sections. However, in my view no notice was necessary on the facts of this case for although the cheque of Rs, 1,00,000 was returned on the ground that alteration required drawer's signature in full, and the second cheque was dishonoured with the note refer to drawer, it stands proved by the statement of account (Exh. 3/A) produced by P. W. 3 that on 30-9-1969, there was a debit balance of Rs, 513.06 therein, and thereafter, from 1-10-1969 upto 1-12-1969 there was credit balance of Rs, 11.94 only.
48. ' Here I may refer to the provisions of sections 76 and 98 of the Negotiable Instruments Act, 1881.
49. Section 76 provides that no presentment for payment is necessary, and the instrument shall be deemed to be dishonoured at the due date for presentment, in any of the following cases :- "(a) as against the drawer, if the drawer could not suffer damage from the want of such presentment; ' Section 98(c) provides that no notice of dishonour is necessary when the party charged not suffer damage for want of notice. It is in evidence that in the account with the Bank on which the defendant drew the cheques when the cheques were dishonoured or returned on presentment, the defendant had in credit only Rs, 11.94 and therefore, if notice of such dishonour was not given then the defendant could not be said to have suffered any damage. Mr. Arif has relied on Cochin Nayar Bank Ltd. v. M. S. Mohammad Sharifuddin and others (1), Chunilal Bhooplal v. Chandra Dutta and others (2) and Messrs Khazana Mal Kub Chand v. G. De la. Rue Brown (3).
50. ' In the first named case it was ruled by Krishnaswamy Nayudu, J., "strictly no notice of dishonour would be necessary to the drawer like the {{FOOT NOTE}}
(1) 11957) 27 Corn. Cas. 494 (2) AIR 1953 Assam 94
(3) AIR 1935 Lah. 413 {{FOOT NOTE}} ' defendant in the present case, who has not provided sufficient funds to meet the cheque, and even if such a notice of dishonour is necessary, that was a case where section 98(c) was applicable and it has been sufficiently established that the defendant did not suffer any damage by reason of the failure to give notice".
51. ' In the Lahore case Tek Chand, J. Has ruled as follows :- "In these circumstances the presentment of the cheque was not necessary, in order to make the drawer liable. Under section 76(d). Negotiable Instruments Act, no presentment is necessary, as against the drawer, if the drawer could not suffer damage from the want of such presentment. It has been held that this clause applies to a case where the drawer has no funds with the drawee at the time the bill is being drawn or when it should have been presented, as also to a case where the drawer has no reasonable expectation that the drawee will accept for his accommodation.
52. Bickerdike v. Bollman (I. T. R. 405), Genda Lal v. Balkishan 1922 All.
53. 422."
54. ' In the Assam case it was held that where the reason for dishonour of the cheque was that the drawer's account had been closed, no question of any damage to the drawer or his representatives by reason of absence of notice of dishonour would arise.
55. Since defendant has not suffered any damage for non-service of notice', of return or dishonour of cheques he is liable to pay the amounts of the cheques.
56. ' Issues No, 12: ' In regard to this issue Mr. Mohsin Tayebali submitted that under section 8 of the Negotiable Instruments Act, 1881 the plaintiffs could have sued only if they were the holder or holders in due course of the cheques but the cheque was drawn in favour of Mohammadi Re-Rolling Mills and not in the favour of Mohammadi Re-Rolling Mills & Mohammadi Utensile Products. However, it has come in evidence in the cross-examination of P. W. 1 that Mohammadi Re-Rolling Mills and Mohammadi Utensil Products are in fact one partnership firm. These two are located in same premises and the books of accounts are maintained and income-tax etc. Is paid as one firm.
57. Therefore, the ownership of these businesses vested in the plaintiffs. No contrary evidence was produced by the defendant. However, Mr. Mohsin relied on the plea of the plaintiffs in the written D statement filed by them in the case of Dada already referred to above. Now, firstly the written statement is not verified on oath, secondly, it is common experience that defendant to a suit takes all sorts of pleas. If there was slightest evidence before me that Mohammadi Re-Rolling Mills and Mohammadi Utensil Products were, in fact, two different firms, owned by different persons. I would have accepted the same in view of the plea raised in defence to the suit filed by Dada. Defendant did not amend his written statement though he had opportunity to do so. A plea of fact which it controverted requires proof, cannot be raised simply in arguments. Even the reservations made in the order of 26-5-1976 would not in my opinion, permit raising such a plea without amendment of the written statement.
58. ' Mr. Mohammad Arif has referred to Madubai Francia Damel and others v. Vaddilal Kashidas and others (1). In this case a promissory note was executed in favour of a Joint Hindu family firm and the suit on the basis of the note was brought by the individual member who constitute the firm. It was held that they were the holders of the promissory note within the meaning of sections 8 and 9 of the Negotiable Instruments Act, 1881. Here although the cheques were issued in the name of Mohammadi Re-Rolling Mills but the holder of the cheques was the firm and it is the firm which has sued. The plaintiffs are therefore, the holders of the cheques and could have sued thereon. .
59. ' Mr. Mohsin Tayebali also argued that the suit is barred under section 22 of the Limitation Act as the cheques are dated 13-10-1969 and 20-11-1969 but the amendment in the name of the plaintiffs was allowed on 26-5-1976 and therefore the suit was barred by time on that date. It would have been so, if a new party was added as the plaintiff, but here it is the case of correction of the name of the plaintiffs who were not initially fully and properly described in the plaint. Therefore, the suit is not barred by time.
60. ' The defendant has denied the execution and delivery of the cheques to the plaintiffs. If the cheques were executed by the defendant and it is my finding they were, then they are not only presumed to have been executed and delivered for consideration but the plaintiffs have proved through the mouth of the defendant that he did not deliver 100 tons of iron steel scrap free of charge which he was bound to give under the agreement (Exh. 1/G).
61. ' I therefore, hold that the suit is maintainable. Issue No, 13: In the result, in my opinion, the plaintiffs are entitled to a decree for the amount claimed in suit with simple interest at 6 per cent per annum from the date of the suit till payment and costs of the suit and I accordingly pass the same. {{FOOT NOTE}}
(1) AIR 1939 Born. 147 {{FOOT NOTE}}