Deoki Nandan, J. - (1.) THIS is a plaintiff's second appeal-in a suit for recovery of Rs. 1700/- plus Rs. 600/- as interest thereon, total Rs. 2300/- on account of unpaid price of an oil engine sold through the defendants.
(2.) THE plaintiff had originally purchased the engine in question from the company Hardmen Engineers Private Ltd., defendant-respondent no. 3, of which the defendant-respondent no. 1 is the Managing Director and defendant-respondent no. 3 was the Manager of its Kanpur Branch at the relevant time. Having found the engine to be defective, the plaintiff returned it to the defendant-respondents' Kanpur Branch from where it was taken to its Calcutta Branch and sold there for Rs. 1700/- to a person, whose name remains undisclosed, and thereafter the defendant-respondents gave the plaintiff a cheque dated 1st October 1962 drawn on a Delhi Bank, but the cheque rebounded with the remark 'refer to drawer'. THE plaintiff served a notice dated 23rd October, 1962 on the defendants but with no result. Even a criminal complaint was filed by the plaintiff against the first two defendants. That was said to be pending when the suit was filed on 1st October, 1965 for recovery of the amount of the cheque with interest. The defence was that the cheque had been given to the plaintiff on a representation made by him at Delhi on 11th August, 1962, that the price of the engine had been realised by the defendant-respondents' Calcutta office from the purchaser to whom the engine had been sold on the plaintiff's instructions, as his agents, but it later transpired that payment had not been received from the purchaser, and the defendant-respondents did not arrange for payment of the cheque. Following were the issues on which the parties went to trial:- "(1) Whether the oil engine was sold by any of the defendants on behalf of the plaintiff? (2) Whether the defendants or any of them received Rs. 1700/-as price of the oil engine, if not, its effect ? (3) Whether the cheque was obtained by the plaintiff, by misrepresentation of fact as alleged by the defendants ? (4) Whether the plaintiff is entitled to interest ? If so at what rate ? (5) Whether the Court has jurisdiction to try the suit ? (6) To what relief, if any, is the plaintiff entitled and against which of the defendants ?"
(3.) THE trial court took up issues nos. 1 and 2 together for consideration and held that since the defendants did not receive Rs. 1700/- from the purchaser at Calcutta they were not liable to pay the amount to the plaintiff. On issue no 3 it held that the plaintiff had obtained the cheque on making a false representation on issue no. 4, that since the plaintiff was not entitled to recover the amount of Rs. 1700/- there could be no question of awarding any interest on issue no. 5 that the Kanpur Courts had jurisdiction to try the suit on the finding that the cheque was made over to the plaintiff at Kanpur and also on the ground that the plaintiff had purchased the oil engine at Kanpur and therefore, a part of the cause of action did definitely arise at Kanpur and on issue no. 6, that the plaintiff was not entitled to any relief. In the result the trial court dismissed the suit with costs. THE lower appellate court confirmed the same hence the second appeal in this court. The principal point raised by the learned counsel for the plaintiff-appellant was that the two courts below approached the case from an entirely wrong view point. They completely missed the presumption of law under Section 118 of the Negotiable Instruments Act, which operated in the plaintiff's favour, and illegally placed the burden of proof of issue no. 3 on the plaintiff. The result was that although the plaintiff was clearly entitled to a decree for recovery of the amount claimed on admission of the fact that the cheque for Rs. 1700/-had been passed on by the defendants to the plaintiff on the 11 th August, 1962, though it was post-dated to 1st October, 1962, and was dishonoured by the defendant's bankers, the two courts below considered the case from a wrong view point and came to wrong conclusions, which were vitiated in law and opposed to sound practice of the Courts.;