Costs and fees- Defended action - Hhethcr trial defended.l'
negotiable 1~.:::i - ~ccoru:lOda.tio?l :lill - \fuether cheque I"as. s~ -
Effect of c!leque being such upon e. ;wlder L'1 due course •

~otiablc Instr'..lI1cnt - ~hcque- Definition t:ier"of - l-f11ether bill not
paya1)le on de; !an~~~~.

HeGotiable D;Stl',,_.:iGl!i- Prote::;t- ",ecf;!c;sit:,' thereof to charge drawer

of bill :'lotpayab l e on demand - 1i11et:ler necessary to charge ,~'arantor
of payment,

1. Where a d.ravJer draw:; a cheque ne1'e1y to lend his name to
another to help t he other rebe ";10r,e~~, the cheque is an c,ccomnodation

'.:lill. !-Io\'/uver,.:!os a:;:linst a i:olcl.cr i!c Jue course, such fact is
i~.1r:l<'.t erie.l.

2. .\ poot-.lated cheque is !lot t: "cheque" \lith:in the mean ing of Bills
of Exchange Ord inance 1917, s , 76, because it is not pa..i'8.ble on d emand ,
3. Protest is nccecsary in order ~.;o charge the dr-auez of e. bill of
axchange , but not -bo charge a :?,"ltara.ntor of payment thereon.

Bills of Exchange Ordinance 1917, so. :3 (1), 27(1), 45 and 76.
Civil Ju::;tice Ordinance 1929, 3. 99.

Act i on ,

1.lac1asen, J.'April 7, 1947. This case bring3 to li5'ht a discredita.ble
and, t~1fortl'natGly, by no meann uncommon not hod '.J~' Hhich unsubsta.ntial
r,lGl'c:-.anto in thiu country contrive to obtain ready cash for their hand.
to raout h existence.

The second defendant, Sid Ahmed Arade:ib, was by 1945 sinking into
L:,olve:lcy, and , i]l order to meet h i,c imnediate needs, he used to obtain
from tiMe to tii.lG a pont.-dat ed cheque froD h i n friend, nohd. Idris nogud,

Court: f.lac1a.:::an ~ J.

first defendant. In exchange for ,!;hese cheques seoond defendant used to
g1w first defendant promisnory 11ote'3 maturing at the same time as th~
cheqn$e. Th~ prornis~ol'Y notes can ha.rd.ly nave been ~lOrth the pa.per they
ir<lre l·;ritt"en on, and wel''9 rea.lly only receipts. First defenda.t¥' has an
accourrt .~ith Barcl£iYs Dank a~li.: alt:houg:1. he seems to have been careful

t~ keep hiD ()<J.1ano(') u.C'l''n tl) a milliwurn, his Cl'Mit l'ic1S good enough to
ena:bte fJeoond d_sfel1dan't to cash his post-d.ated cheques at a dd.s oount in
t~1.3 sul~. The day bef'cz-o r,1at'J.rity second defendant used;to pay into first
def0nda.nt~s acoount tho aI:lo".!nt of the oheque, and reoover his promissory
"!..ot~.

tho ai','} of ,\ugu::t 1945 a cheque for I,E.110 was about to mature,

and second defendant had no money to pay into first defendant's account
to f;'teet it. The cheque ;-m,p in the hands of Henry Israel El Eini_t '-lho was
a£rlli't!I.!'>~·'~;'~ (,wl 1),8k~d to Give further time for paynent , Henry El Eini
~la,3 a,:.:'reeable t but h in lavl;Ter 1 Jr.r. Bout r-oc I adv'ined him that, in order

to pr,,"SGrve :li8 rieht8 against the drf,N0r and inc.orsers, the cheque should
c)C p.·oteGtc,l~ and, l):;:fc:rB thir; ccu Ld be done, the cheque had to be presented
~o t1~.~; Ban).::: for i'<":'1nc:;rt. 2.!.d Jisl;c)1oured. This vraa done $ but. ironically t
ccmeono ~lar!. pa id S('m0 ':.0;1e::; by Hay of amana into first defendant's account,
and -t':16 G]:~e':r,l(7 \-]2:3 honou: .. oe~l. 1'0 :~t the fi:,,'st and second daf'endant e out

of' thi:-; ii113SZ_f fir.::t ~.'!.e:f·;::d.a""t <ire;'/ on SSI)t2mbe-r 1, 1945 .. p';"cheque (Exhibit 1)
fc-r L;:;.l'::O in i'o,v::n:r 0::' ::: ::,:),Y;.d (l'.'d'a:~1ant caahcd it the same day for about
LE.1l2 ~'i-~:l Iia,382,:') S;;.2.2h K'li:ir~ tniri ccfendomt. Seconcl defendant us ad

L1'; .• 110 (':f t:',i:J ~'C pD.y _,f'f hie li<",'..;L'.it;',,· to first d ef'endarrt all the earlier

c.hequ,etJ "llhic~l lc.Ct 1'11.[.1 ~,'itll LB.2 DJ::1 l~cIJO ·~v l'nez-t his cOi'.tincent liability

         of LE.\20 ~~ t!'"i.t-cc r:\~I::J-::" .. . ~ tit·,"I?    ~:lix'l c1J~:(er .. ,d.:-.nt C:,ct plD.intii'f'. Wishan

f~\)~:::',jl.ji~l..,l~ l.c. C.,;!l -r.ⁱ .•. ,-: G_"!I'1.'l·-! '~;l~'\ f·C;"~:: JL~j" ~_;_:1(~,v at acme ~-~'~['igO of the tl'ans-

acb i.on , L'UV0 hiJ'l a l>ror,li.;~'cr'Y note (s.::11i"!:it P.2) da t ed Sept'a::1ber 1, 1945
and due OC-GCb8J:' 31, J.94":; for L:8.120 l!itr. inter'0st at tvl81ve per Gerlt per

e..~.1111!t'Tlo

In: Deoer:tb.er 1945 ae oor.d d(Jfe!1dru"t~. I need hardly say? failerl to meet
his liability, <'~'1d. on Docer.:~)<S'l' :? 1945 A~intiff presented the cheque t o
the Bank for payment, D.r,rl i7. '·:as ,li8honoU1'8(.1. Plaintiff did not protest
the cheque r but ref8rrc1 to Haacan Saleh Khidr (third defmdant) vrho
arranged. for second def<'nd,ant to pay interest at tliO per cent a month
urtder hi$ [;,uara.ntes. By about SepteI?l.er 1946 it f3~ems that second
ddende.nt had fallen belrind l,lith his payment s , and. on November 2l_t 1946
plaintiff raised this act ion against fir£t and seoond defendants on the

cheque. He did not sue on the promissor.y note and it was only at the
hearing for settlement of issues that he applied, somewhat reluctantlY.

for his friend Hassan Saleh Khidr to be joined as third defendant. Summons

was served on third defendant in Egypt; but.e did not trouble to defend

the case. At the hearing second defendant admitted liability.

Those are the facts as believed by the court, and the only real
issue "hich has to be detrmined is \~hether first defendant is ,dischar¢
from liability for lack of protest.

Actually the first issue framed was: "Did first defendant draw the
cheque for LE.120 as an aocommodation bill l'1ithin the meaning of section
27(1) of the Bills of Exchange Ordinance 19171" (Onus on first defendant.)
I find that he did i for in dtawing the cheque he was merely lending his
name to second defendant to help him raise money in the auk, This findine!:,
however, is only of academic interest, as plaintiff is a holder in due
course, so first defendant does not, on that ground, avoid liability.

The defenoe of non-protest, on the other hand, appears to me to be

, good. This instrument (Exhibit P.1), 'l'lhioh we have called a oheque , is
not a cheque \~ithin the meaning of section 76 of the Bills of Exchange
Ordinance, for it \1aS not payable on demand. It is, therefore, a bill
of exchange as defined by section 3(1) of the said ordinance, and, in
accordance Hith section 45 of the said ordinance, first defendant is
discharged as dral-ler for non-protest. Third defendant is not so !iis-
charged, for he guara.nteed payment by second defendant.

There ~1ill be a deoree ordering second and third defendants, joj,ntly
and sevoral1y to pay to pla.intiff;

In principal Court fees and stamp Adv:ocates costs In all

LE.120.000
10.630
7.750

LE.138.380

It \/ill be :f'urther ordered that the said prinoipa1 sum of Ll!l.l,~O
S~1al1 (k"1.rry interest at nine per oent per annum from Novempel' 21, 1946
till date of payment. And it is ordered that plaintiff do pa_y to first
defendant his advocate's costs to b~ taxed.

.ecQnd
whether plaintiff w •• entitled t. claim frem

fer a defended trial and hit heario'i ten.

them hi. adv.cate'. c •• t.

The eeurt i •• f the .pini.n that he i •••• ntitled.

At the hearing

fer' •• t.tlement .f iuuee, •• cand d.fendant made a c.nfuaed 8tateQIent, which
he later admitted wa. untrue, and which l~ft the c.urt in d.ubt as t.

whether be admitted liability .r net. Third defendant neVer admitted