A suit for declaration and injunction is not maintainable where the cheques in question have already been used by the defendant and the plaintiff is not entitled to a declaration that the defendant is not entitled to their benefit.

M. S. A, Siddiqui, J.

( 1 ) BY this order, I propose to dispose of the application Filed by the defendant under Order 7, Rule II, CPC.

( 2 ) THE plaintiff filed this suit tor declaration and permanent injunction on the allegations that the plaintiff was interested in purchasing a flat for his residence. He, therefore, approached the defendant, who was dealing in real estate business. Some time in the month of December, 1994 the defendant informed the plaintiff about a flat offered lor sale for Rs. 7,00,000. 00. Due to financial constraints, the plaintiff expressed his inability to pay the entire consideration in a lumpsum. However, on the defendant s suggestion to furnish some security in the form of bearer cheques for finalising the deal, the plaintiff issued the following bearer cheques in favour of the defendant.

( 3 ) ACCORDING to the plaintiff, he deliberately omitted to mention the date of issue on the said cheques and it was agreed between the parties that the defendant would lake the plaintiff into confidence before their presentation for encasement. Some lime in the second week of April, 1996, the plaintiff desired to call off the deal and requested the defendant to return the said cheques. The defendant refused to return these cheques as a result whereof the plaintiff advised his Bank to stop the payment. Pursuant to the plaintiffs advice, the aforesaid cheques were dishonoured on presentation. The defendant, after due service of a notice under Section 138 of the Negotiable Instruments Act (for short the Act ) instituted a criminal case against the plaintiff in the. Court of the Metropolitan Magistrate, New Delhi. On these allegations, the plaintiff has asked for the following reliefs by his plaint :

" (A) Declare that the defendant is not entitled to any benefit on account of holding the cheques, more aptly mentioned. in the plaint.

(B) Cancel the instrument more aptly described in the plaint and hold that the holder in due course has no title to the same.

(C) Permanently injunet the defendant or her agent, servant, authority from using, claiming any benefit by virtue of possessing the instruments. "

( 4 ) BY this application, the defendant seeks rejection of the plaint on the ground that the present suit is not maintainable under the provisions of the Specific Reliefs Act.

( 5 ) ADMITTEDLY, the plaintiff had issued the aforesaid cheques in favour of the defendant. A cheque is a negotiable instrument and under section 9 of the Act the payee is the holder in due course. The defendant, as a holder of the said cheques, is entitled to their benefits. Sections 72,73,75a and Section 84 of the Act are specific provisions which protect the interest of the payee under the cheque and also retain the liability of the drawer. Under Section 118 (g) of the Act, the presumption is that the payee had given valuable confsideration for the cheque issued in his favour. Under Section 139 of the Act, it is incumbent upon the Court to presume that the cheque issued was in discharge of debt or other liability. In the instant case, the rebuttable presumptions under Section 118 (g) and 139 of the Act operate in favour of the defendant. It is also beyond the pale of controversy that these cheques were dishonoured on presentation, that. the defendant had served a notice on the plaintiff under Section 138 of the Act, that the plaintiff had failed to respond to the said notice and that the plaintiff has instituted the present suit after institution of a criminal case against him under Section 138 of the Act. It is worth mentioning that under Section 64 of the Act, on default in presentation, the holder of a Negotiable Instrument is bound to loose his remedy against the drawer under the Act. Therefore, it was incumbent upon the defendant to present the said cheques for encasement.

( 6 ) THESE dishonoured cheques are also the foundation of the criminal case instituted by the defendant against the plaintiff. Generally, in a suit for declaration, th

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