JUDGMENT

Scott-Smith, J. - This is a second appeal from the order of the District Judge, Mianwali, dismissing the plaintiff's suit for Rs. 994-8-0 based upon a hundi. The hundi was payable at sight and was drawn by the firm, defendant No. 3, upon a Bombay firm not a party to the suit. It was drawn in favour of defendant No, 2, who endorsed it in favour of defendant No. 1. Defendant No. 1 firm in its turn sold it to the plaintiff, plaintiff stated that the hundi had bean lost. According to the plaintiff's allegation the hundi was sent to their Commission Agents in Amritsar an January, 1919, and in May, 1920, when the latter came to settle up accounts, it was ascertained that the hundi was never received by them. As against defendants Nos. 1 and 2 the learned District Judge dismissed the suit on the ground that as the hundi had been lost there had been no presentment thereof for payment in accordance with the provisions of Section 64 of the Negotiable Instruments Act. As regards defendant No. 3 he dismissed the suit as it had not been shown that the drawer, i.e. defendant No. 3 could not suffer damage from the want of such presentment. Plaintiffs stated that when it was discovered that the hundi had been lost he asked defendant No. 3 to supply a duplicate, which, however, defendant No. 3 refused. In the Negotiable Instruments Act by Bhashyam and Adiga, 2nd Edition, at page 284 it is stated that "neither bankruptcy nor death of the party dispenses with presentment under Section 64 and that even the loss of the bill or the note does not excuse non-presentment." I am, therefore, clearly of opinion that jibe learned District Judge has rightly held that defendants Nos. 1 and 2 are not liable. Mr. M. 8. Bhagat on behalf of the appellant says that no plea was raised in the trial Court about non-presentment and that, therefore, such a plea should not be allowed at the present stage. It appears, however, from the pleas of defendant No. 1 that he urged that the drawee should have been asked by the plaintiff for the payment of the amount due, in other words, be meant that there should have been presentment to the drawee. Moreover, from the judgment of the learned District Judge it appears that the point which is a legal one, was fully argued before him.

2. As regards defendant No. 3, the drawer of the hundi, it appears to me that as the hundi was payable at sight the holder was not as of right entitled to demand a duplicate under Section 45 (a) of the Negotiable Instruments Act. Moreover, as it was payable at sight it cannot be said that it was lost before it was overdue. Messrs. Bhashyam and Adiga in the work referred to above at page 214 state the following rule. Power to obtain duplicate in case of loss is a part of the mercantile laws of countries and ample scope is given to it by Court of Equity in England both on : bills lost before and after maturity and on notes as well." The learned authors go on to say that "the section is not so wide as the proposition of law laid down in the above passage; for it is confined in its operation to bills only, and that, too, before they arrive at maturity; moreover, the remedy given by the section to the loser is against the drawer alone. But the Indian Courts administering rules of equity, justice, and good conscience will adopt the above rule as being not only in consonance with the spirit of the section but also as being the rule applied to similar cases in England." Defendant No. 3 never appeared in the trial Court. There was, therefore, no plea by him that the plaintiff was not entitled according to mercantile usage to demand a duplicate of the lost hundi, I have no doubt that be was so entitled and as defendant No. 3 refused to supply him with one it was impossible for the plaintiff to make any presentment to the drawees. Therefore, I am of opinion that, under Section 76 (a) of the Negotiable Instrument. Act, no presentment for payment was necessary as against defendant; No. 3 because, owing to