A creditor who accepts a promissory note, bill of exchange, or cheque as conditional payment of an outstanding loan can recover on the original consideration if the negotiable instrument is dishonoured or the rights thereunder are not enforceable.

MOHAPATKA, J.

( 1 ) THIS is a plaintiff's Second Appeal against the judgment and decree dated 8-111950 of Sri A. R. Guru, Additional District Judge of Cuttack, dismissing the plaintiff's suit after reversing the judgment and decree dated 31-3-1949 of Sri B. K. Misra, Munsif of Kendrapara. The appeal arises out of a suit for recovery of Rs. 3141/710/- on the allegation that defendant No. 1 being the purchasing agent under the Government of Orissa and defendant No. 2, the agent of defendant No, 1, the plaintiff supplied 971 maunds of paddy in three instalments in the months of October and November, 1948, to defendant No. 2 acting as agent of defendant no. 1, the value of the paddy being Rs. 4005767 -. Defendant No. 2 made a cash payment of Rs. 1005/6/- towards the aforesaid value of the paddy supplied by the plaintiff and for the remaining amount of Rs. 3000/- defendant No. 2 drew three cheques on 20-11-1948 to be drawn from the deposit account of defendant No, 1 in the Darjeeling Bank Ltd. (defendant No. 3) and to be presented at the Branch. Office of the Bank at Kendrapara. The plaintiff further alleges that the cheques were presented on 22-11-1946, but the Manager of the Bank deferred payment from time to time and ultimately the cheques were dishonoured and the Bank closed all transactions with the public from 30-11-1946. The said amount of Rs. 3000/-remains still due from defendants 1 and 2 as the cheques were not encashed, so the plaintiff has brought the suit for recovery of the said amount with interest at 61/4 P. CP. A.

( 2 ) THE defence was that defendant No. 2, as the agent of defendant No. 1, purchased from the plaintiff paddy worth Rs. 4005/6/- and made cash payment of rs. 1005/6/- as alleged by the plaintiff. Defendant No. 2 issued three cheques of the total value of Rs. 3000/- for the balance dues. The main defence is that the cheques were not presented within a reasonable time to the Bank for encashment and the plaintiff did not serve any notice of the fact that the cheques were dishonoured. The Bank having closed all transactions from 30-11-1946 they have suffered a damage to the extent of Rs. 3000/-, that is, the value of the cheques issued in favour of the plaintiff, and, as such, they are absolved from the liability.

( 3 ) THE trial Court found that in fact the plaintiff presented the cheques on 22-111946 in the Bank for encashment and that the cheques were not paid and the plaintiff also had given due notice of dishonour of the cheques to the defendants; as such, the plaintiff, according to the trial Court, is entitled to get a decree.

( 4 ) THE lower appellate Court, after discussing the provisions of several sections of the Negotiable Instruments Act dismissed the plaintiff's suit mainly relying upon the provisions of Section 84 of the Act. The basis of his judgment is his finding that, in fact, there was no presentation of the cheques; and, as such, under the provisions of Section 34, the defendants are absolved from the liability of the value of the cheques.

( 5 ) IT has got to be observed at the outset that tooth the Courts below have missed one of the elementary principles of law and have unnecessarily complicated the matter by entering into the discussion of several sections of the Negotiable instruments Act. On a plain reading of the plaint itself, it is clear that the present suit of the plaintiff, as I have indicated above, is for recovery of the amount as the balance of the value of the paddy supplied to defendants 1 and 2 in three instalments. Indeed, he has set forth the fact of defendant No. 2 having drawn three cheques which were ultimately not encashed; but the suit is based upon the original cause of action arising on the supply of paddy by the plaintiff. The matter is still more simplified on account of the admitted plea of the defendants that in fact they have taken delivery of paddy worth Rs. 4005/6/- and had made a cash payment of Rs. I005/6/ -. When manifestly the cheques issued by d