SHAHID BILAL HASSAN, J. Tersely, the appellant instituted a suit under Order XXXVII, Rules 1 and 2, Code of Civil Procedure, 1908 for recovery of Rs.11,800,000/- against the present respondent on the basis of cheque No.3685676 pertaining to A/C No.0061583724121, KASB Bank to be encashed on 21.09.2016, which was duly contested by the present respondent after seeking leave to appear and defend the suit. Divergence in pleadings of the parties was summed up into issues and evidence of the parties in pro and contra was recorded. On conclusion of trial, the learned trial Court vide impugned judgment and decree dated 26.11.2020 dismissed the suit; hence, the instant appeal.
2. Heard.
3. Considering the arguments and going through the record, it is observed that the appellant while appearing in the witness box as P.W.1, during cross examination, admitted that he got different cheques of the cheque book of the respondent. Ex.D2 to Ex.D13 are encashed cheques of different amounts by the appellant and the cheque in question is also of the cheque book of the said encashed cheques and admittedly at the time of encashment of the cheques Ex.D2 to Ex.D13, the respondent was living abroad; meaning thereby the above said cheques were encashed by the present appellant. When the position remained as such, here comes, section 56 of the Negotiable Instruments Act, 1881, which specifically provides for an endorsement on a Negotiable Instrument with regards to part-payment and the instrument can there-after be negotiated for the balance amount. If the drawer and the payee of the cheque adopt the procedure given in section 56 of the Act, 1881, then it would be open to the payee of the cheque to present the cheque for payment of only the endorsed balance amount, due to him. However, without adopting the procedure as provided in section 56 ibid, the cheque cannot be presented for encashment and suit under Order XXXVII, Rules 1 and 2, Code of Civil Procedure, 1908 cannot be filed, rather a suit for recovery of balance amount of cheque before a Court of plenary jurisdiction has to be instituted. Therefore, when it is established from evidence on record that the appellant has received part payment out of the disputed amount and he did not adopt the procedure as provided under section 56 of the Act, 1881, therefore, he was barred from presenting the cheque in question in the bank for its encashment and instituting suit under Order XXXVII, Rule 1 & 2, Code of Civil Procedure, 1908. The proper forum in this regard is Court of plenary jurisdiction i.e. civil Court for getting his grievance redressed. Therefore, the learned trial Court should have returned the plaint under Order VII, Rule 10, Code of Civil Procedure, 1908 for its presentation before the Court of competent jurisdiction, obviously, keeping in view the barricade of limitation.
4. Crux of the discussion above is that the appeal in hand is allowed, impugned judgment and decree is set aside, consequent whereof, the learned trial Court is directed to return the plaint of the suit to the appellant/plaintiff for its presentation before the Court of competent jurisdiction, if so desired and advised. No order as to the costs.Rasool Awan and Imran A. Mian, Advocates.