JUDGMENT

1) Heard learned counsel for the parties and perused the record.

2) This Civil First Appeal is directed against judgment and decree dated 12.08.2025 passed by learned Additional District Judge, Budgam (Trial Court) in a summary suit titled “Sheikh Ghulam Hassan vs Mohammad Amin Dar”, whereby the plaint was rejected.

3) For the sake of clarity, it is noted at the outset that the appellant was the plaintiff and the respondent was defendant before the Trial Court. The parties shall, therefore, be referred to as the appellant and respondent, respectively.

4) Briefly put, the case of the appellant is that he extended a friendly loan of ₹ 5.00 lakhs to the respondent for the performance of Hajj by his father.

5) In discharge of the said liability, the respondent is stated to have issued a cheque for ₹4.00 lakhs in December 2024 with a promise to pay the balance ₹1.00 lakh in cash. It is further the case of the appellant that the respondent, through the intervention of some respectable persons, requested the appellant not to present the cheque for encashment and assured payment in cash. The appellant, trusting the said assurance, did not present the cheque. Consequently, the said cheque expired and the respondent thereafter refused to repay the amount.

6) Left with no other option, the appellant filed a suit under Order XXXVII of CPC for recovery of ₹4.00 lakhs.

7) The respondent filed an application seeking leave to defend the suit on the ground inter alia, that the parties were business partners in a brick kiln; that the appellant owed the respondent a sum of ₹24,76,000/- in respect of which a recovery suit was already pending before the learned Principal District Judge, Budgam; That the appellant was in possession of certain post-dated cheques on account of fiduciary relationship; and that the signature on the cheque in question was not genuine.

8) Before the application for leave to defend could be considered, the respondent raised an objection to the maintainability of the suit on the ground that the suit was based on a stale and unrepresented cheque and, therefore, did not disclose any cause of action.

9) The Trial Court held that the cheque in question was never presented to the banker, a fact admitted by the appellant himself, who had taken the plea of assurance of cash payment. The Trial Court further held that once the cheque was not presented, no cause of action arose for maintaining a suit under Order XXXVII CPC. Accordingly, the plaint was rejected under Order 7 Rule 11 of CPC.

10) The principal contention of the appellant is that even if the cheque is stale, the underlying debt survives; That non-presentation of the cheque does not extinguish the liability; and that the plaint discloses a cause of action for recovery of money. It is further contended that Order 7 Rule 11 CPC could not have been invoked at the stage of appearance in a summary suit; That the Trial Court mixed up the requirements of a summary suit with those of a regular suit.

11) The key observations of the Trial Court while rejecting the plaint under Order 7 Rule 11 CPC were, that the cheque was never presented for encashment and the appellant did not present it because of the assurance of cash payment given by the respondent. It was further held that the cheque had a validity of three months and having not been presented within that period, became a stale cheque. It is also held that the cause of action pleaded in the plaint was ambiguous and did not arise from any dishonour of cheque.

12) Relying upon the judgments passed in “Rajesh Madanlal Anand Vs. Rakesh Madanlal Anand & Anr bearing CR No. 30/2018” passed by a Coordinate Bench of this Court; and “Baldev Singh v. Rare Fuel Automobile Technologies (P) Ltd 119 (2005) DLt44”, the Trial Court held that

“No suit on the basis of cheque under Order 37 of CPС, would lie unless the cheque has been presented to the banker and has been bounced for one or the another reason and the payment represen