JUDGMENT : This is a plaintiffs second appeal from the dismissal of his claim for the recovery of Rs. 1367-8-0 alleged to be due to him from the respondent.

(2) It is common ground that the appellant is a fruit seller carrying on business at Narkhed. The respondent carries on business of a broker in Madras. The appellant sent 485 baskets of oranges to Madras sometime in the year 1949 for being sold through the respondent. The latter submitted an account to the appellant on 22-3-1949 showing that the oranges had been disposed of for a sum of Rs. 1585/-, and that after deducting the usual charges, a sum of Rs. 1417-8-6 was found due to the appellant. A draft dated 31-3-1949 drawn by the Ex change Bank of India and Africa, Madras Branch, on its Branch at Nagpur for the aforesaid amount was sent by the respondent to the appellant. The appellant tried to cash the draft, three weeks or so after he received the draft, the Bank having gone in liquidation in the meanwhile, he could not cash it. He therefore proceeded to Madras and handed over the draft to the respondent. According to the appellant, the respondent accepted that draft, paid a sum of Rs. 50/- and promised to send him the balance shortly thereafter. While the respondent admits that the appellant handed over the draft to him, he says that his only object in taking the draft was to see what could be realised from the Bank and send to the appellant whatever was realised by him from the Bank. He also says that he gave Rs. 50/-to the appellant when he visited Madras, because the appellant said that he was short of funds and had no money even to pay his railway fare for the return journey.

(3) The trial Court decreed the suit. The lower appellate Court dismissed it on the ground that the appellant was guilty of delay in the presentation of the draft, that this delay on his part caused injury to the respondent and that therefore the latter was protected by Sec. 84 of the Negotiable Instruments Act. Upon this ground it dismissed the suit.

(4) Section 84(1) of the Act reads thus :

"Where a cheque is not presented for payment within a reasonable time of its issue, and the drawer or person on whose account it is drawn had the right, at the time when presentment ought to have been made, as between himself and the banker, to have the cheques paid and suffers actual damage through the delay, he is discharged to the extent of such damage, that is to say, to the extent to which drawer or person is a creditor of the banker to a larger amount than he would have been if such cheque had been paid."

(5) This provision is limited in its application to the cheques. If it was the intention of the Legislature to make it applicable to every negotiable instrument or to drafts drawn by one Branch of a Bank on another Branch thereof, there was nothing easier for the Legislature than to use appropriate expressions. Indeed, when the provisions of See. 84 were enacted, the difference between the position of the drawer of a cheque and of the drawer of a negotiable instrument was present in the mind of the Le gislature. It has been pointed out in Aggarwals LaW of Hundies and Negotiable Instruments, (1954 Edition) at page 287 :

"The position of the drawer of a cheque is different from that of the drawer of a bill on demand in one respect. The drawer of a bill on demand has given consideration to the drawee against which he is entitled to draw the bill and if it is not paid on presentation he has a right to sue the drawee on the original contract." He has also a right against the holder to be informed of the dishonour by a notice of dishonour within reasonable time. The drawer of a cheque on the other hand knows that the banker will not pay unless he has money of his (i.e. drawer) to pay with. He has no recourse to the drawee if the cheque is not paid when the funds are not sufficient. He remains liable on the cheque as principal debtor and yet has no remedy against any one. He is therefore bound to keep money at

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