1. The plaintiff-appellant Mateshwar Dayal (hereinafter referred to as the plaintiff) sought to recover Rs. 3,490/- (Rs. 3,000/- as principal and Rs. 490/- as interest thereon) from Amar Singh, defendant-respondent (hereinafter referred to as the defendant) on the basis of pronote (Ext. P-1) dated 19th May, 1970.
2. The case as laid in the plaint by the plaintiff was that, he repeatedly asked the defendant to pay the said amount. He also sent a registered notice (Ext. P. 4) to him on Jan. 27,. 1971, to pay the amount covered by the pronote. Instead of paying the said amount, the defendant sent reply (Ext. P. 3) dated Feb. 1, 1971, refuting his obligation and denying that he executed any pronote or took loan of any kind.
3. In the written statement, the defendant, inter alia, took the stand that there had been no presentment of the pronote and therefore he stood discharged of any obligation thereunder in view of the provisions of Secs. 64 and 69 of the Negotiable Instruments Act, 1881(hereinafter referred to as the Act).
4. In the replication, the plaintiff, for one thing, averred that the presentation was not necessary and, for another, the pronote had been presented.
5. The trial Court struck the following issues :--
"(1) Whether the defendant executed the pronote and receipt in dispute ? OPP.
(2) If issue No. 1 is proved, whether the pronote and receipt were without consideration ? OPD.
(3) Whether there has been proper presentation of the pronote ? If not, to what effect ? OPP.
(4) Whether the plaintiff has no locus standi to file the present suit ? OPD.
(5) Whether the defendant is entitled to special costs under S. 35A, C. P. C. ? OPD.
6. The trial Court found all issues in favour of the plaintiff and decreed the suit. On an appeal, at the instance of the defendant, the District Judge found all issues, excepting issue No. 3, in favour of the plaintiff. Under issue No. 3, it was held by the District Judge, that there had not been any presentation of the pronote and, therefore, the defendant stood discharged of his liability under the said pronote. In view of that finding, he allowed the appeal and dismissed the suit.
7. In the second appeal, the stand taken on behalf of the plaintiff is that, in view of the fact that the defendant refuted the factum of execution of any agreement or pronote and any obligation thereunder, he should be taken to have waived the right of presentment of the pronote in view of the provisions of S. 76(c) of the Act. Mr. P. S. Jain, the learned counsel for the appellant, sought to sustain his above mentioned contention from a Division Bench judgment of Madras High Court, reported as C. M. Sivaram v. V. S. Jayaram Mudaliar, AIR 1966 Mad 297, and drew my pointed attention to its para No. 14, which reads as under :
"Finally, on the last point we are clearly of the opinion that both under S. 76(c) as well as under general principles of law presentment is wholly unnecessary and would be futile in the instant case. It is settled law that when a maker refuses to pay the money or puts forward certain defences it is not necessary to present to bill for payment, and the maker would be deemed to have waived his right to require that the note should be shown to him. It must be held that the defendant must be deemed to have waived his right to take advantage of any default in presentment for payment. Due presentment is insisted upon solely for the benefit of the maker who is prepared to honour his obligation. But this requirement can obviously have no application to a party who repudiates his obligation. Waiver may not only be express but may also be implied and any conduct of the makers leading of the inference that the note if presented would not be honoured would dispense with the necessity of presentment. The principle of the decision in International Contractors Ltd. v. Prasanta Kumar Sur, AIR 1962 SC 77, clearly applies to this instant case. In that case a party who was bound to reconvey the property under an agreement of reconveyance denied the very truth of the agreement and repudiated his obligation. It was held that when the party sued him for specific performance, it was not necessary for that party to have made a formal tender of the amount payable to the other party who had definitely and unequivocally repudiated his obligation. We, therefore, hold that presentment is dispensed with and unnecessary under S. 76 of the Act."
8. On the other hand, stand taken on behalf of the respondent by Mr. Liberhan, his learned counsel, is that plea of waiver is a plea of fact and has to be pleaded and since such a plea was not taken in the plaint, defendant could not meet the plea and was thus prejudiced in the defence of his case.
9. In my opinion, the observations cited above, with which I entirely agree, squarely cover the facts of this case. In view of the said observations and the facts stated in the plaint which have been duly proved on the record, an inference of waiver shall have to be drawn.
10. As regards the contention advanced on behalf of the defendant that the plea of waiver had not been raised, it may be observed that the necessary facts had been pleaded in the plaint as also in the replication. The facts pleaded therein are (i) that a registered notice was sent to the defendant by the plaintiff asking him to pay the amount that he had agreed to pay under the pronote in question : (ii) that the defendant sent a reply denying his liability under any such pronote or he having executed any such pronote; and (iii) that it was asserted in that replication, answering a plea in the written statement that there had been no presentment, that, in fact, presentment of pronote was not necessary.
11. The plaintiff duly proved the fact that he had sent a registered notice (Exhibit P.4). He also led evidence to prove the fact that the defendant had sent reply (Exhibit P. 3) denying his obligation under the pronote or having executed any such pronote. Both the Courts below have give a finding that the registered notice (Exhibit P. 4) had been served upon the defendant and that defendant had sent reply thereto which is Ext. P. 3.
12. The only question that remains to be considered is, as to what inference should be drawn from the facts so proved. The said question has been resolved by Madras High Court in C. M. Sivaram's case (AIR 1966 Mad 297)(supra) observing that such a denial on the part of the defendant would amount to a waiver in terms of Section 76(c) of the Act.
13. Mr. Liberhan then argued that in terms of clause (c) of S. 76 of the Act, it has to be shown that the debt had matured and also the knowledge that the instrument had not been presented and then he waived his right to take advantage of any default in presentment for payment.
14. So far as maturity of date is concerned, if may be observed that payment under the registered notice of demand (Exhibit P. 4) was asked to be made only because the debt had matured and the payment had become due. It was also to his knowledge that pronote had not been presented and that if the pronote was not presented, then he stood discharged thereof by virtue of the provisions of Ss. 64 and 69 of the Act, the knowledge whereof shall have to be attributed to him. Despite that fact, he chose of refute his obligation instead of requiring the plaintiff of present the instrument before demanding payment of the money secured vide instrument in question.
15. Before parting with the judgment, I may also make a passing reference to the fact that the learned District Judge was greatly influenced by the fact that the plaintiff had not specifically mentioned in the plaint that he had presented the pronote for payment. The mention of that fact in the replication, according to him, was of no consequence. According to him, a fact not pleaded cannot be proved.
16. To see as to whether a fact has been pleaded by the plaintiff, the Court is not to confine its gage to the plaint, it has to extend to the replication also. Replication and plaint together constitute pleading of the plaintiff, and if any authority is needed, one can make reference to a Division Bench decision in Jag Dutta v. Smt. Savitri Devi, AIR 1977 Pun & Har 68.
17. For the reasons above-mentioned, I allow the appeal, set aside the judgment and decree of the first appellate Court and restore that the trial Court. The appellant shall have costs of the trial Court and first appellate Court.
18. Appeal allowed.