Initial burden of proof lies on plaintiff.

(Appeal against the Judgment and Decree dated 30.11.1988 in O.S.No.51 of 1985 on the file of the Court of Subordinate Judge at Mayiladuthurai.)

K. Mohan Ram, J.

The unsuccessful plaintiff in O.S.No.51 of 1985 on the file of the Sub-Court, Mayiladuthurai is the appellant in the above appeal.

2. For convenient sake, the parties are referred to as per their ranking in the suit.

3. The plaintiffs case is as follows:

Defendants 2 and 3 borrowed a sum of Rs.60,000/- from the plaintiff on 23.06.1982 for the benefit of their business and also for the first defendant firm and the third defendant as partner of the firm gave a Post Dated Cheque dated 21.08.1982 drawn on United Commercial Bank, New Washermenpet Branch, in favour of the plaintiff for a sum of Rs.60,000/- towards the repayment of the said loan. When the cheque was presented for collection, the same was dishonoured and the defendants were informed about the dishonour of the cheque and the defendants promised to make arrangement for repayment of the loan; but when they failed to do so, a registered Notice dated 26.05.1985 was issued; but the defendants failed to repay the amount hence the suit.

4. The suit was contested by the defendants. The second defendant filed a written statement inter-alia contenting that he is not a partner of the firm, that he issued a blank signed letter for the purpose of forwarding the post dated cheque with a specific instruction to use the same for the purpose of the joint tender at Madras Fertilizers Limited but the plaintiff has forged the same for his own purpose. He further contended that he had not received any consideration from the plaintiff and he had not written the contents of the letter dated 23.06.1982 and on these pleadings, he prayed for the dismissal of the suit.

5. The third defendant contested the suit by filing a separate written statement which was adopted by the first defendant by filing a memo. In the written statement, the third defendant took the following defence, viz., the defendant is residing at Madras and the cause of action arose at Madras and the Court at Mayiladuthurai has no jurisdiction to entertain the suit. The mere issue of post dated cheque and the dishonour of cheque cannot constitute any legal obligation or liability for payment, unless it is supported by any material fact for incurrence of the liability by independent transaction to fix the liability. This defendant does not owe any money to the plaintiff. The post dated cheque issued was on a different context and dishonour was arranged by the third defendant on proper and justifiable grounds only. The specific case of the defendant is that he met the plaintiff at the precincts of the Madras Fertilizers Limited, Manali, Madras – 600 068 and both of them decided on a joint bid on an understanding that when they become successful tenderer, the proceeds were to be shared by all the parties. As a safe-guard for proportionate payments and also to pay for the cost of materials, if their joint tender happen to be accepted by the company offering the sale of scrap by the tender, a cheque was issued by the third defendant to be utilized for payment to the company. Being post dated cheque, a blank letter was also issued by the manager of the defendant's firm to indicate to the plaintiff that the cheque was only a post dated cheque and to incorporate thereon specific instructions to use the cheque only if the bid is accepted by the company. The joint tender of the plaintiff and the defendants was not accepted by the company and with the result the cheque became redundant for the purpose it was handed over to the plaintiff. But the plaintiff retained the cheque without returning the same inspite of repeated requests from the defendants. Suspecting the bonafidies of the plaintiff, he advised his bankers to dishonour the cheque. The suit is not maintainable as no consideration passed from the plaintiff to the defendants under the dishonourned cheque. The defendant