JUDGMENT Mc Nair, J. - The Plaintiff has sued the Defendant for a sum of Rs. 2,000 which he says the Defendant borrowed from him on December 11th, 1989, executing at the same time a hundi payable 45 days after date with interest at the rate of 6 per cent, per annum. There is a further claim for the price of jewellery sold. The Defendant admits the sales of jewellery. He denies the loan, he denies that he drew or accepted a hundi and he denies that the hundi was duly presented. He then refers to the transactions relating to the jewellery and in paragraph 8 of his written statement he pleads that there was an adjustment of the accounts between himself and the Plaintiff up to the year 1939 when a sum of Rs. 1,700 was found due to the Plaintiff. The written statement states further that the Defendant asked for two months' time in which to pay, whereupon it was agreed that the hundi sued on should be executed. This was done. The Plaintiff applied under Ch. XIIIA of the Rules of this Court for final judgment for the amount of his claim but that application was directed to stand to trial. No evidence has been called by the Plaintiff but he claims to be entitled to a decree for the sum of Rs. 1,700 which is admitted to have been due to him on the adjustment alleged in paragraph 8 of the written statement. 2. The Defendant opposes the suit and contends that the Plaintiff can only succeed on the cause of action alleged in his plaint which does not include a claim for money due on an adjustment of accounts. 3. The plaint contains two claims one on the hundi and one for the price of jewellery sold. The sum of Rs. 1,700 cannot be an admission on the claim for the price of the jewellery and it is also argued that it cannot be taken as an admission of liability on the hundi. 4. The Defendant relies on sec. 69 of the Negotiable Instruments Act in support of his plea that the suit must be dismissed. 5. The hundi is in the following terms: Rs. 2,000 Calcutta 11th December, 1939. 45 days (forty five) after date -without grace. 4. The Defendant relies on sec. 69 of the Negotiable Instruments Act in support of his plea that the suit must be dismissed. 5. The hundi is in the following terms: Rs. 2,000 Calcutta 11th December, 1939. 45 days (forty five) after date -without grace. I promise to pay Babu Shankar Lal M. Shah of No. 1 Vivekananda (Road or order at Calcutta the sum of Rupees 2,000 (Two thousand only) from value received in cash. Sd. Narayan Chandra Mullick, 181A, Chittaranjan Avenue, Calcutta, 11th December, 1939 Accepted Narayan Chandra Mullick. Hundi Two rupees four annas India. 6. The instrument is endorsed by the Plaintiff in favour of Rameshwar Chokani! and later endorsed back to the Plaintiff by Rameshwar Chokani. It. is noteworthy that the hundi contains a promise to pay" at Calcutta. 7. Sec. 69 of the Negotiable Instruments Act provides that a promissory note or bill of exchange made, drawn or accepted payable at a specified place must, in order to charge the maker or drawer thereof, be presented for payment at that place. There is no evidence that the document was presented for payment in Calcutta. The Plaintiff in default of evidence seeks to rely on letters of demand from his attorney and from the attorney of Rameshwar Chokani which contain statements that the hundi was duly presented. Those statements cannot take the place of concrete evidence that there was due presentation, nor can the fact that they must be presumed to have been received be construed as an admission that the statements they contain are admitted. There is a definite denial in the written statement that the instrument was ever presented. It must be taken therefore that this was an instrument payable at a specific place which was not presented for payment at that place and the provisions of sec. 69 have not been observed. 8. The Plaintiff then relies on sec. 76 (d) of the Negotiable Instruments Act which provides that no presentment for payment is necessary as against the drawer, if the drawer could not suffer damage from the want of such presentment. 9. 69 have not been observed. 8. The Plaintiff then relies on sec. 76 (d) of the Negotiable Instruments Act which provides that no presentment for payment is necessary as against the drawer, if the drawer could not suffer damage from the want of such presentment. 9. It is argued on behalf of the Defendant that this document, although called a hundi, is in fact a promissory note and in support of his argument he relies on the decision of the Special Bench of this Court in Hursook Das Bal Kissen Vas v. Dhirendra Nath Roy I. L. R. [1941] 2 Cal. 107: s. c. 45 C. W. N. G09 (1941) and in particular on the judgment of the learned Chief Justice. At page 115 of the report the Chief Justice says, "an instrument on which" the word "hundi" is engraved may be either a promissory note or a bill of enchange. The word "hundi" on the stamp does not determine the character of the document. To determine the character of the document, we must look to the provisions of the document itself. From the definition of promissory notes and "bills of exchange" it will be seen that the essential character of a promissory note is that it shall contain a promise, and the essential character of a bill of exchange is that it shall contain an order. 10. The document with which I am now concerned clearly contains a promise and not an order although the promissor has in fact endorsed the document as an acceptor. I find, therefore, that the document with which I am concerned in this suit is a promissory note. 11. The question then arises whether sec. 76 (d) is applicable to a promissory note or whether it is only applicable to a bill of exchange. This question came up before the Allahabad High Court [before the Lahore High Court in AIR 1935 153 (Lahore) ] and a single Judge has taken a view which was not followed by a Bench of the Lahore High Court in Mohammad Ismail--Maula Baksh v. Abdul Majid Khan I. L. R. 18 Lah. 580 (1936). There Mr. Justice Tek Chand who delivered the leading judgment, with which Mr. Justice Dalip Singh concurred, took the view that sec. 76 (d) of the Negotiable Instruments Act is inapplicable to promissory notes. 580 (1936). There Mr. Justice Tek Chand who delivered the leading judgment, with which Mr. Justice Dalip Singh concurred, took the view that sec. 76 (d) of the Negotiable Instruments Act is inapplicable to promissory notes. With deference I agree entirely with the reasoning of the learned Judge. At page 584 of the report he refers to sec. 7 of the Negotiable Instruments Act which defines "drawer" as the "maker of a bill of exchange or cheque," and the word in sec. 76 (d) is "drawer" and not "maker." "Obviously this definition" says the learned Judge, "must be followed in construing the various provisions of the Act, unless there is anything in the context to the contrary" and after considering a number of sections of the Act the learned Judge continues ":" It is significant that in cl. (a) of sec. 76" itself, the words maker, drawee or acceptor" are used, but in cl. (d) the word "drawer" only is mentioned. This clearly shows that the legislature did not intend to use drawer" and "maker" as synonymous terms. It follows, therefore, that the intention was to limit the operation of cl. (d) to bills of exchange and cheques only and not to extend it to promissory notes. 12. I have already held that the instrument in this case is a promissory note. It does not come within the purview of sec. 76 (d) and in the absence of evidence that it was ever presented the suit must be dismissed. It is with some regret that I come to this decision, for it is apparent from the pleadings and from the affidavits and documents before me that the claim is a just one and that the.Plaintiff might well have been successful if he had chosen to call evidence. He has preferred not to do so and the suit is dismissed with costs.