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TMI Blog1954 (1) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant Prosanta Kumar Sen Gupta is the drawee who accepted it on the same date. This also was transferred by the Bank on 24-5-1947. The transfer in both the cases was by wav of adjustment against dues of the transferees against the Bank on account of several deposits. Of the several defences taken, we are concerned with only a few now. The first of these is that the transfer was altogether void as it was against the order of the High Court in proceedings before the Original Side of the Court. The second defence is that in any case this amounted to fraudulent preference in favour of some of the debtors and so was invalid under Section 231, Companies Act. Thirdly, it was contended that there having been no presentation of the bills to the acceptors in accordance with the provisions of Section 64, Negotiable Instruments Act, the consequence of the provision in that section is that neither the drawer nor the acceptor is liable. Lastly, it was contended that no interest is payable as there was no presentation. 3. It has been contended before us on behalf of the appellant that this Court by its order dated 27-3-1947 directed the Bank of Calcutta not to pay off more t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its debtors or otherwise . In my judgment, this contention of the defendants has rightly been rejected by the Court below. 5.. As regards the contention that there was fraudulent preference by the Bank, reliance was placed by the learned Advocate for the appellant on facts showing intimacy between the local Manager of the Bank and one of the plaintiffs. Assuming that there was such intimacy and that by this transfer the Bank intended to give the plaintiff some help which it was not giving to others, that would not, in my judgment, amount to fraudulent preference within the meaning of Section 231, Companies Act. Section 231 is in these words ; Any transfer, delivery of goods, payment, execution or other act relating to property which would, if made or done by or against an individual, be deemed in his insolvency a fraudulent preference, shall, if made or done by or against a company, be deemed, in the event of its being wound up, a fraudulent preference of its creditors, and be invalid accordingly. 6. Clearly therefore before any transfer or payment can be held to be invalid under this section, it must first be found if it had been done by an individua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the section provides for presentment of the three classes of negotiable instrument to three parties. Promissory notes must be presented for payment to the maker; bills of exchange must be presented for payment to the acceptor, while cheques must be presented for payment to the drawee. It seems to me to necessarily follow therefrom that, the ether parties in the case of a promissory note will be parties other than the maker; in the case of a bill of exchange, it will be all parties other than! the acceptor while in the case of a cheque other parties must be parties other than the drawee. 9. This view was taken by the Allahabad High Court in -- 'Banares Bank Ltd. v. Hormusji Pestonji MANU/UP/0129/1930 : AIR1930All648 . A different view appears to have been taken by a single Judge in Oudh Judicial Commissioner's Court in -- Oudh Commercial Bank Ltd., Lucknow v. Gur Din' AIR 1920 Oudh 191 (B). The learned Judge has dealt with the matter in these words: The respondents' construction is the only possible construction if the latter portion of the section is to have any meaning at all. The last paragraph of the section consists of an exception an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the law, the banker will be able to avoid that. The plain meaning of the words used in Section 64 however afford him no such immunity from liability. In my judgment, the Oudh Commissioner's Court took a wrong view of the law. 11. In Appeal No. 137 of 1949, as has been already stated Manick Ratan was the drawer. As there was no presentation of the bill, he would on the above interpretation of Section 64 be free from any liability. This position is sought to be avoided by the respondents on the ground that provision of Section 76(e), Negotiable Instruments Act applies and no presentment is necessary because a part payment was made by the drawer Manick Ratan on 6-1-1947. The fact of such payment is not disputed. Before however presentment becomes unnecessary under Section 76(c), it has to be further established that Manick Ratan at the date of payment bad knowledge that there had been no presentment of the bill. This rule that Manick Ratan must have had knowledge though there was no presentment before he can be saddled with liability is merely an application of the ordinary rule that there could be no waiver unless the person against whom the waiver is claimed had full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ems proper to allow interest by way of damages. My conclusion therefore is that interest has rightly been, allowed by the learned Subordinate Judge from the date of maturity. 13. In view of the fact that the dates fixed for the instalments have already passed, I would modify the decree in both the suits to this extent, namely, that the amount still remaining due shall be paid in two equal instalments, the first to be payable by the last date of Ashar 1361 and the second by the last day of Ashar 1362. In default of payment of any of the instalments, the entire amount will fall due. 14. The appeal No. 137 of 1949 is allowed and the judgment and decree passed by the learned Subordinate Judge as against Manick Ratan Guin is set aside and the suit dismissed against them, and the decree passed against the other appellant is affirmed subject to the directions as regards instalments, mentioned above. 15. The Appeal No. 136 of 1949 is dismissed with costs, subject to the directions as regards instalments mentioned above. 16. In Appeal No. 137 of 1949 the respondent will get his costs from the appellant Prasanta Kumar Sengupta. 17. The cross-obje ..... 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