“5. The question posed is simply this. Can a cheque which is not presented for encashment within its validity period be made the basis of a suit under Order XXXVII of CPC? We feel that the answer must go in favor of the appellant. A mere issuance of a cheque, kept dormant, in say, a drawer, would not invest the drawee with a cause of action. The cause of action in such a case would arise only when the cheque, on presentation, is dishonoured or not encashed for any fault attributable to the drawer. The drawee cannot be allowed to complain when he himself allows the validity period to lapse rendering the same invalid. What was required of the respondent in this case was to present the cheque for encashment. However what happened is that the respondent sat over the cheque, did not present it for encashment and allowed the validity of the cheque to lapse. He has now made an issue which stems out of its masterly inactivity. Of course, the respondent has made an effort to cover its lapse. It has come up with a plea that it was only on the asking of the appellant that the cheque was never presented. We feel that even if it was on that account that the cheque was not presented still the fact remains that the basis of the suit is a cheque which remained un-presented. This, we further feel, takes away the shine from the suit and robs it of the cause of action under Order XXXVII CPC. This view that we have taken is also the view taken in two judgments emanating from this Court, AIR 2001 Del 341 Goyal Tax Fab. Pvt. Ltd. v. Anil Kapoor and (1983) 24 DLT (SN) 3 Suri and Suri Private Ltd. v. Ram Swarup Arora & Co. In both these judgments it was held that for filing a suit under Order XXXVII, it is necessary to present the cheque to the Bank. We approve both the aforesaid judgments holding that it lays down the law correctly.”
