BHANDARI, J.—This Civil Second Appeal by Hira Lal plaintiff arises out of the suit filed by him against Ratanlal, Jethmal and Himmatram defendants No.l, 2 & 3 respectively. The suit is for the recovery of Rs. 6,215/- and is based on a cheque(Ex. P/l) executed by Shri J. M. Rathor (Jeth Mal Rathor) Defendant No. 2 directing the Bank of Jaipur Ltd. to pay Rs. 6,000/- to the plaintiff out of the joint account of Defendants No. 1 & 2. It is the admitted case of the parties that this cheque was a post-dated cheque bearing the date 6th April, 1949, but was executed on 6th March, 1949. The case of the plaintiff is that Defendants Nos. 1 & 2 carried on business under the name and style of the Motor Exchange Company., Jodhpur in which Himmat Ram Defendant No. 3 was the sub-partner of Ratanlal. The plaintiff had dealings with Himmat Ram Defendant who had from time to time borrowed Rs. 8,000/- for purchasing a house. Himmat Ram Defendant when pressed by the plaintiff to pay the said amount represented that he had invested the aforesaid amount in the aforesaid Firm and on 28th December, 1947, he executed a fruqqa in favour of the plaintiff for Rs. 8,000/-. When the plaintiff demanded this amount he took a false stand that out of this amount, Rs. 2,000/-had been paid to the plaintiff. Later on, Defendants Nos. 1 and 2 intervened and informed the plaintiff that Himmat Ram defendant had suffered loss in the business and that the plaintiff should reduce his claim by Rs. 2,000/- and also forbear to file the suit, and they would for Rs. 6,000/- to the plaintiff. On this, the plaintiff relinquished Rs. 2,000/-/- and agreed to accept Rs. 6,000/-. In pursuance of the aforesaid agreement, Jeth Mal Rathor Defendant No. 2 on 6th March, 1949 handed over the cheque (Ex.P/l) for Rs. 6,000/- which the plaintiff accepted. The cheque was not honoured by the Jaipur Bank Ltd. The plaintiff filed a complaint under Sec. 420 IPC. in a criminal court and also filed the suit on 1lth November, 1949 for the recovery of Rs. 6,000/- principal and Rs. 215/- as interest, in all Rs. 6,215/-. 2. Ratanlal defendant No. 1 denied the allegation made in the plaint. He also pleaded that he had not signed the cheque and was not liable. in a criminal court and also filed the suit on 1lth November, 1949 for the recovery of Rs. 6,000/- principal and Rs. 215/- as interest, in all Rs. 6,215/-. 2. Ratanlal defendant No. 1 denied the allegation made in the plaint. He also pleaded that he had not signed the cheque and was not liable. Alternatively he pleaded that even if it; be held that he carried on business in partnership with Jethmal, he was not liable as Jethmal has acted beyond his authority. 3. Jethmal Defendant No. 2 admitted that he and Ratanlal Defendant No. 1 carried on the business of the Motor Exchange Company. He, however, denied the other allegations, except that he had signed the cheque(Ex. P/l). His case is that the plaintiff required money to be sent to his agent and he approached Ratanlal Defendant No. 1 to give him a post-dated cheque. He also promised that he would deposit within one month the amount of the cheque in the account of Defendant No. 1 Ratanlal. He, therefore, handed over the cheque(Ex. P/l) to be paid from the joint account of Defendants Nos. 1 and 2. The defendant also pleaded that the cheque was without consideration. 4. Himmat Ram Defendant No. 3 admitted that from time to time he had borrowed Rs, 8,000/- which, however, were not invested in the Motor Exchange Company. He denied that there was ever an agreement for giving up Rs. 2,000/-as alleged by the plaintiff and forbearing to sue him. He stated that Rs. 2,000/-had in fact been paid. Relating to the handing over of the cheque, he took the stand taken by Defendant No. 2. He also pleaded that as Defendants Nos. 1 & 2 had taken upon themselves the liability to pay the amount due against him, he stood discharged and the suit could not be filed against him. He however, also prayed for fixing up instalments in case a decree was passed against him. 5. The trial court decreed the suit for the recovery of Rs. 6,000/- against Ratanlal and Jethmal and dismissed the suit against Himmat Ram holding that Himmatram stood discharged as a result of what took place between the parties on 6th March 1949. He however, also prayed for fixing up instalments in case a decree was passed against him. 5. The trial court decreed the suit for the recovery of Rs. 6,000/- against Ratanlal and Jethmal and dismissed the suit against Himmat Ram holding that Himmatram stood discharged as a result of what took place between the parties on 6th March 1949. It also held that Ratanlal was liable on the basis of the cheque signed by Jethmal as Ratanlal and Jethmal were partners and the cheque was given in the joint account by Jethmal to the plaintiff in the presence of Ratanlal, and that in the notice (Ex. P/2) sent by Jethmal and Ratanlal in reply to the telegraphic notice of the plaintiff to pay the amount due under the cheque after it had been dishonoured, Ratanlal had admitted that the cheque had been handed over to him on behalf of the partnership. 6. Ratanlal Defendant preferred an appeal in the court of the District Judge, Jodhpur and the plaintiff filed cross-objection regarding interest and costs. 7. The learned District Judge by his judgment dated 27th August, 1960 allowed the appeal of Ratanlal and the decree of the Civil Judge was set aside against the appellant Ratanlal and the respondent Jethmal. The plaintiffs suit for the recovery of Rs. 6,000/-/- was decreed against Himmatram. Parties were ordered to bear their own costs. The cross-objection was dismissed as it was not pressed. The lower appellate court took the view that as the plaintiff had not pleaded that the liability of Himmatram was extinguished because the other two defendants had undertaken to pay Rs. 6,000/-/-, it was not correct on the part of the trial court to record a finding of novation of contract in favour of the plaintiff. He further took the view that it was not also a case of guarantee. It was further held that so far as the cheque(Ex. P/l) was concerned, forbearance to sue Himmat Ram was only consideration for the liability, but as Himmatram was actually being sued by the plaintiff and as the plaintiff had during the course of the trial of the suit insisted that Himmatram continued to be liable alongwith the other defendants, it must be held that there was no consideration. P/l) was concerned, forbearance to sue Himmat Ram was only consideration for the liability, but as Himmatram was actually being sued by the plaintiff and as the plaintiff had during the course of the trial of the suit insisted that Himmatram continued to be liable alongwith the other defendants, it must be held that there was no consideration. In other words, it was urged that since the plaintiff did not forbear to sue Himmatram, he was not entitled to sue Ratanlal and Jethmal and the suit against them must fail. A decree for Rs. 6,000/- was however passed against Himmatram under Order 41, Rule 33 C.P.C. Hence this second appeal. 8. Learned counsel for the plaintiff-appellant has strenuously urged that it must be held that the cheque (Ex. P/l) was with consideration and the case put forward by Defendants Nos. 1 and 2 for handing over the cheque to the plaintiff was not borne out by the evidence on record. It has been further contended that as a result of what took place between the parties on the 6th March, 1949 when the cheque was handed over, it must be taken that the plaintiff had discharged Himmat Ram from paying Rs. 8,000/-, or, in any case, Rs. 6,000/- on Defendants Nos. 1 and 2 having handed over the cheque(Ex P/l) to him, and thus, the cheque was with consideration. It has been pointed out that the learned District Judge has laid too much emphasis on the fact that the plaintiff had also sued Himmatram and had insisted for a decree against him in the course of the trial of the suit and it has been urged that merely because of these circumstances Defendants Nos. 1 and 2 could not be exonerated from their liability to pay the amount of the cheque with interest. 9. Learned counsel for Ratanlal has argued that the view taken by the trial court is correct. He has further urged that he had not signed the cheque and there was nothing in that document to show that it was executed on behalf of the partnership firm of Defendants Nos. 1 and 2, and, as such, Ratanlal could not be held liable for the issue of the cheque. 10. He has further urged that he had not signed the cheque and there was nothing in that document to show that it was executed on behalf of the partnership firm of Defendants Nos. 1 and 2, and, as such, Ratanlal could not be held liable for the issue of the cheque. 10. Learned counsel for Jethmal defendant-respondent has supported the view taken by the trial court and has further urged that the cheque was without consideration inasmuch as there is no evidence to show that the plaintiff has discharged Himmatram Defendant No. 3 of his liability. He has also urged that the case be remanded to the lower appellate court as that court had not given any finding on the oral evidence on the point of consideration and has based its finding only on the plaintiffs statement. 11. The first point for determination in this appeal is whether Jethmal has been rightly exonerated from his liability in spite of the fact that he is the maker of the cheque (Ex. P/l). Sec. 37 of the Negotiable Instruments Act clearly says that the maker of a cheque, in the absence of a contract to the contrary, is liable there on as a principal debtor. For exonerating biro of his liability under the cheque the plea of want of consideration was set up by Jethmal in his written statement. His case is that the plaintiff required to send some money to his agent outside Jodhpur and as he had no account in the Bank, he requested Defendant No. 1 Ratanlal that he may be given a post-dated cheque of one month which he may send to his agent, and as it will take time for the cheque to be honoured, he would in the meanwhile arrange for the money and deposit it in the account of Defendant No. 1. Defendant No. 2 then handed ever the cheque (Ex. P/l) to the plaintiff on the request of Defendant No. 1. This has been denied by the plaintiff. The trial court has disbelieved this case of Defendants Nos.) and 2. The lower appellate court has given no finding on this point. Learned counsel for Defendant No. 2 has argued that if a finding on this point is material, the case may be remanded to the lower appellate court. This has been denied by the plaintiff. The trial court has disbelieved this case of Defendants Nos.) and 2. The lower appellate court has given no finding on this point. Learned counsel for Defendant No. 2 has argued that if a finding on this point is material, the case may be remanded to the lower appellate court. The suit was instituted in the year 1949 and I am not inclined to remand the case and would prefer to examine the evidence myself. 12. There are three witnesses including himself produced by Defendant Jeth Mal on this point. They are Ambalal(D.W.l), and Jethmal (D.W.3). Ambalal stated that Hiralal went to the shop of Dfdts. Nos. 1 & 2 and stated that he stood in need of money and wanted to take a loan which was to be repaid when he received the money. Then the witness stated that Hiralal asked for a post dated cheque and the defendant handed over the cheque. Jindas witness stated that Hiralal plaintiff went to the shop of the defendant and talked with Ratanlal taking him aside and thereafter Ratanlal came and asked Jethmal defendant to hand over the cheque. This version is slightly different from the varsion given by Ambalal (DW. 1). Jethmal (DW. 3) stated that he haej handed over the cheque at the instance of Ratanlal defendant. Himmatram owed seme money to Hiralal plaintiff. Himmatram told Ratanlal that the plaintiff stood in need of money, that he was a man of credit and wanted to send money outside, and so a post-dated cheque may be given to him. This is yet another version and is not in consonance with the version given by the other two witnesses. Jindas had even stated that Himmatram defendant was not at all present at that time. Hiralal has denied all this on oath. I am not at all impress-ed by the evidence produced by Jethmal defendant on this point. It cannot be easily believed that defendant Jethmal will pass over a postdated cheque under the circumstances mentioned by him in his evidence. The plaintiffs case on the other hand, is that the cheque was given as a result of the settlement which Ratan-Lal and Jethmal had got effected between him and Himmatram. It cannot be easily believed that defendant Jethmal will pass over a postdated cheque under the circumstances mentioned by him in his evidence. The plaintiffs case on the other hand, is that the cheque was given as a result of the settlement which Ratan-Lal and Jethmal had got effected between him and Himmatram. I am of the opinion that the version given by the plaintiff regarding the passing of the cheque to him is believable and is in consonance with the circumstances of the case. Thus, the theory put forward by Jethmal about want of consideration is not acceptable. 13. Learned counsel for Jethmal, however, has argued that even if the case put forward by his client for want of consideration is rejected, he is still entitled to show that no consideration passed for the cheque between Jethmal and the plaintiff as it is clear from the circumstances of the case that Jethmal was not benefited at all in the entire transaction. His argument is that for proving want of consideration the defendant is entitled to press into his service all the circumstances which appear on the record and when want of consideration is proved from the evidence of the plaintiff himself, Jethmal defendant cannot be held liable. 14. Now there is a presumption under Sec. 118 of the Negotiable Instruments Act that every negotiable instrument was made for consideration, and it was for Jethmal to rebut this presumption. No doubt in rebutting this presumption, he is entitled to rely on the circumstances which appear from the evidence of the plaintiff himself. I may, however, point out that it is not necessary in law that the promisor himself should be benefited. Consideration has been defined in sec. 2(d) of the Contract Act and the consideration for a promise may be doing or abstaining from doing something by the promisee at the desire of the promisor. In this case, the plaintiff has stated in the plaint that Defendants Nos. 1 and 2 had agreed to pay Rs. 6,000/-to the plaintiff if he relinquished Rs. 2,000/- from his claim of Rs. 8,000/- against Himmatram and also did not sue him. In pursuance of this agreement, it is alleged by the plaintiff, the cheque (Ex. P/l) was handed over to him on the 6th March, 1949. 1 and 2 had agreed to pay Rs. 6,000/-to the plaintiff if he relinquished Rs. 2,000/- from his claim of Rs. 8,000/- against Himmatram and also did not sue him. In pursuance of this agreement, it is alleged by the plaintiff, the cheque (Ex. P/l) was handed over to him on the 6th March, 1949. The plaintiff on cross-examination stated that it was not correct that there was no agreement between him and Ratanlal and Jethmal that if he would not file the suit against Himmat Ram and they would pay him Rs. 6,000/-. The plaintiff stated on oath that what he had stated in the plaint was correct. Learned counsel for defendants Ratanlal and Jethmal have argued that the case of the plaintiff for the relinquishment of Rs. 2,000/- was not correct as according to the account (Ex. P.W. 5/1) the amount of Rs. 2,000/- had already been paid by Himmatram to the plaintiff even before he had executed the ruqqa-(Ex. P/2). Yet, it cannot be denied that Himmatram was liable to pay at least Rs. 6,000/- to the plaintiff. I have, therefore, to examine whether the plaintiffs case that he had agreed to forbear to sue Himmatram at the instance of Defendants Nos. 1 and 2 is correct or not. 15. It may be stated that forbearance to sue is a question of fact to be decided on the evidence on the record and circumstances of a case may sometimes furnish surer ground for holding in favour of the plaintiff. I may refer in this connection to the case of Fullerton and Provincial Bank of Ireland(l). In this case, a customer of a Bank of Ireland having overdrawn his account and being pressed by the bank undertook by letter to deposit a title-deed of an Irish estate as security for his overdraft. He deposited the title-deed with the bank, who did not register the charge. The customer afterwards mortgaged the estate to the appellants, who registered their charge without notice of the prior charge. While deciding the question of the priority of the two incumbrances, the following observations were made in the speech of Lord Macnaghten : — "The other point on which the learned Solicitor-General relied was that there was no proof of consideration. The customer afterwards mortgaged the estate to the appellants, who registered their charge without notice of the prior charge. While deciding the question of the priority of the two incumbrances, the following observations were made in the speech of Lord Macnaghten : — "The other point on which the learned Solicitor-General relied was that there was no proof of consideration. The promise, he said, if it was a definite promise, was "nudum pactum" no doubt, he said Colonel Stevenson had overdrawn his account, but there was no stipulation for forbearance for any definite time. The point does not seem to have been argued in the Courts below, though it was suggested and touched upon by Fitz Gibbon L.J. My Lords, this point seems to me to be settled by authority. In such a case as this it is not necessary that there should be an arrangement for forbearance for any definite or particular time. It is quite enough if you can infer from Lord Davey also observed, as follows— "The bank did exercise patience, and gave some forbearance by not demanding, as they might have done, immediate payment of the debt, and by giving Colonel Stevenson the required time to effect the security. I think that such forbearance in fact, although there was no agreement by the bank to forbear suing Colonel Stevenson for any definite period, was sufficient consideration to support his promise to give the security, on the principle stated by Kinderaley V.—C. in Alliance Bank vs. Broom (2 Dr, & the surrounding circumstances that there was an implied request for forbearance for a time, and that forbearance for a reasonable time was in fact extended to the person who asked for it. That proposition seems to me to be established by the case of Atliance Bank vs. Broom—(1864) 2 Dr. & sec. 289. to which my noble and learned friend Lord Lindley referred yesterday, and other cases, among which I may mention Oldershaw vs. King (1857) 2 H. & N.517: with the observations on that case and the case in Drewry and Smale by Bowen L. J. in Miles vs. New Zealand Alford Estate Co. (1886) 32 Ch. D. 289, and I may add that the proposition seems to be good sense " (on Pages 313-314) S. 289). (1886) 32 Ch. D. 289, and I may add that the proposition seems to be good sense " (on Pages 313-314) S. 289). The Vice Chancellors Judgment in that case was quoted with approval by Lord Bowen in Miles vs. New Zealand Alford Estate Co. (32 Ch.D, 266, 290) as laying down a sound principle. In the case before Lord Bowen the question was whether a guarantee which had been given by the promoter of a company at a general meeting of the shareholders to guarantee a dividend of a certain amount for a certain time on the shares was given with or without consideration, and in referring to the case before him Lord Bowen said, after quoting the Vice-Chancellors judgment: "So it will be sufficient here that the director, did not bear if their forbearance was at the request expressed or implied of the guarantor and in consequence of his guarantee being given, and it seems to me there is no sort of necessity to discover language of any particular form, or writing of any particular character, embodying the resolution of the directors. We must treat the thing in a business way and draw an inference of fact as to what the real nature of the transaction was as between business men." My Lords, that seems to me to be directly applicable to the present question. There can be no doubt that the forbearance was given in this case, and f think it is a just inference of fact that it was given at the request of Colonel Stevenson in consequence of his undertaking to secure the account and place it on what he describes as a satisfactory basis." (Pages 315/316) This authority lays down that forbearance may be inferred from the circumstances of case and! forbearance even for a reasonable time was sufficient to be called a good consideration in law. Spencer J. referred to this case in Srinivasa Raghava Aiyangar vs. K.R. Ranganatha Aiyangar(2) and made the following observations which may be quoted with advantage— "In the present ca$e forbearance from suing has been set up in the plaint, there is evidence to support the plea, and there is the fact that the first defendant was not actually sued upon the promissory note from the date of its execution 4th December, 1913 till this suit was brought on 12th July 1915. Even in the absence of evidence it was open to the lower Courts to have presumed from the circumstances of the l case that the security bond would no! have been given unless the creditor had expressed his dissatisfaction with the promissory note payable oh demand." 16. Learned counsel for Jethmal has relied on Oliver vs. Davis(3). The facts of that case may be taken from the head note —On July 18, 1947, the plaintiff lent £350 to W.D, and received from him a cheque for £400 post-dated to Aug.8, but it was not presented by Aug. 19. On that date W.S. who was unable to meet his cheque, persuaded M.W. to draw a cheque for £ 400 in favour of the plaintiff, and an envelope containing M.W.s cheque without any covering letter was left at the plaintiffs house. The plaintiff was away at the time and did not return home until Aug. 22, when he received M.W.s cheque but did not know why she-had sent it. In the meanwhile M.W. had discovered certain facts about WD. and she informed the plaintiff, within an hour or two of his receiving her cheque, why she had sent it and also that she had stopped payment of it. On Aug. 23 the plaintiff presented W.D.s cheque, which was dishonoured. Later he presented M.W.s cheque, but it was returned by the bank marked: "Stopped by order of drawer." In an action by the plaintiff against M.W. suing her on her cheque, the plaintiff relied inter alia on sec. 27 (l)(b) of the Act of 1882, but M.W. contended that there was no consideration for the cheque." It was held that M.W. was not liable on the cheque as there was no valuable consideration as defined in Sec. 27(1) of the Bills of Exchange Act, 1882 which runs, as follows— "Valuable consideration for a bill may be constituted by (a) Any consideration sufficient to support a simple contract; an antecedent debt or liability. Such a bebt or liability is deemed valuable consideration whether the bill is payable on demand or at a future time." It was held that in that section "an antecedent debt" or liability was a debt or liability due from the maker or negotiator of the instrument and not from a third party, and, therefore, the plaintiff could not rely on S. 27(l)(b), and he could not also invoke in assistance S. 27(1)(a) for the reason that although M.W. drew her cheque with the intention that it should be substituted for W.D.s cheque, her motives were 6 not communicated at the material time to the plaintiff, and he gave her no promise, express or implied, to forbear in respect of any remedy he might have against W.D. nor, as a result of her cheque, had he changed his position in any way to his detriment in regard to his claim on W.D.s cheque. So far as the Indian law is concerned, there is no provision of the nature in Section 27(1) of the Bills of Exchange Act, 1882 in the Indian Negotiable Instruments Act. Consideration has been defined in the Indian Contract Act, and under that definition the promisor or any other person must have acted at the desire of the promisee. If it is not shown that the promisor had acted at the desire of the promisor, but had acted for any other reason or motive, at his own instance in doing something, then under the Indian Contract Act, it is,no consideration. The ratio decidendi in Olivers case (3) on the point of the applicability of Sec. 27(1)(b) is that the plaintiff in that case did not act at the instance of M.W. who drew the cheque. The following observations of Lord Lopes, L. J. in Crears vs. Hunter(4) have been quoted in that case— The law appears to be that a promise to forbear is a good consideration but also that actual forbearance at the request, express or implied, of the defendant would be a good consideration. Taking the latter of these two alternatives, it is undisputed that there was actual forbearance from suing in. this case. That by itself would not be sufficient; such forbearance must have been at the request, express or implied of the defendant." I am of the opinion that on facts Olivers case (3) is distinguishable. Taking the latter of these two alternatives, it is undisputed that there was actual forbearance from suing in. this case. That by itself would not be sufficient; such forbearance must have been at the request, express or implied of the defendant." I am of the opinion that on facts Olivers case (3) is distinguishable. In the circumstances of the present case, it was at the instance of Jethmal and Ratanlal, that the plaintiff had forborne to sue the defendant or had at least forborne to sue defendant Himmatram till the date of honouring the cheque arrived. Such is the conclusion which must be drawn from the facts and circumstances of the case and also from the statement of the plaintiff already referred to in answer to the question put to him in cross-examination. 17. A great deal of controversy in this case was raised on the point whether the plaintiff had agreed not to sue Himmatram for ever which in other words amounts to saying whether he had discharged Himmatram altogether from his liability as soon as he received the cheque from Jethmal, or he had only agreed to give a temporary respite to Himmatram. Learned counsel for the plaintiff-appellant has candidly stated that in fact the arrangement which was arrived at the time of the taking of the cheque was that he (the plaintiff) had given complete discharge to Himmatram in receipt of his liability of Rs. 8,000/-. He has stated that such is also the evidence produced by the plaintiff. He has admitted that in spite of such being the correct legal position of the entire transaction which took place at the time of the passing of the cheque, the plaintiff either through ignorance of his legal rights, or through foolishness sued Himmatram and persisted in obtaining some relief against him. He has further urged that the plaintiff might have taken the view that after the cheque was dishonoured, the liability of Himmatram revived. 18. The lower appellate court has taken a very grave view of this attitude of the plaintiff. The lower appellate court has while considering the provisions of sec. 62 of the Contract Act on the point of novation observed that— "It is well settled that novation is not consistent with the original debtor remaining liable in any form. 18. The lower appellate court has taken a very grave view of this attitude of the plaintiff. The lower appellate court has while considering the provisions of sec. 62 of the Contract Act on the point of novation observed that— "It is well settled that novation is not consistent with the original debtor remaining liable in any form. In other words, the right against the original debtor is relinquished, gets extinguished." At another place it has been observed by the learned Judge of the lower appellate court that there was no plea of novation in the plaint. On the other hand, it was stated in the plaint that Himmatram was not absolved and that all the three defendants were responsible to pay the money of the cheque, and that in the replication filed by the plaintiff it is stated that Defendant No. 3 was liable to pay the money on the basis of the ruqqa The plaintiff also opposed the application dated 1st February, 1951 filed by Himmatram for framing certain issues, one of which related to the question whether the suit was maintainable against Himmat Ram when the plaintiff accepted the cheque. 19. All these circumstances relate to the persistence of the plaintiff in seeking relief against Himmatram but they are not sufficient to dis-entitle him to relief against Defendants Nos. 1 and 2 in case it is held that they were liable for payment of the amount of Rs. 6,000/- on account of the cheque (Ex. P/2). These circumstances can only be taken into account for refusing the plaintiff any costs of the suit. In my view, the learned Judge of the lower appellate court has laid too much emphasis on these circumstances which cannot be taken to be of such consequence as to refuse the plaintiff a decree against Defendants Nos. 1 and 2 if he is otherwise entitled to get it on the true appreciation of the contract. 20. I have examined the evidence on record and I find that the plaintiff while adducing evidence had taken the attitude that Himmatram stood discharged of his old liability and it was not only merely a temporary forbearance which was promised to him. This is also the stand taken by the learned counsel for the plaintiff-appellant in this Court. In this view of the matter, sec. This is also the stand taken by the learned counsel for the plaintiff-appellant in this Court. In this view of the matter, sec. 62 of the Indian Contract Act which relates to novation of contract need not therefore be discussed at length. I may, however, point out that sec. 62 not only relates to novation but also to recession or alteration of control and says that if the parties to a contract agree to substitute a new contract for it or to rescind or alter it, the original contract need not be performed. The section says that either by substituting new contract for the old one or by rescinding the old contract altogether, or altering its character the old contract is extinguished and the rights and liabilities of the parties are not to be governed by the old contract, but by the new contract that has come into being. It only means that parties agree to be governed by the terms and conditions of the new contract in place of the old contract. The observation of the learned Judge of the lower appellate court that novation is not consistent with the original debtor remaining liable in any form is true only to the extent that no liability can be attached to the original debtor under the old contract. 21. So far as Jethmal is concerned, the cheque (Ex. P/l) being with consideration, he cannot be exonerated. Now I proceed to exmine whether in the circumstances of the case, Ratanlal Defendant No. 1 is liable for the payment of any amount due as a result of the transaction referred to above. This matter is not free from difficulty. For the sake of clarity it would be proper to examine it from two stand points, firstly from the standpoint whether any liability can be cast upon Ratanlal on the basis of the cheque (Ex. P/l) and secondly, from the standponit whether from the other material on record it is possible to hold Ratanlal liable. 22. As already pointed out, the maker of the cheque is liable on the cheque under sec. 37 of the Nagotiable Instruments Act. Learned counsel for the plaintiff-appellant has strenuously contended that in the circumstances of the case, the partnership firm which carried on business under the name and style of the Motor Exchange Company should be held to be the maker of the cheque. 37 of the Nagotiable Instruments Act. Learned counsel for the plaintiff-appellant has strenuously contended that in the circumstances of the case, the partnership firm which carried on business under the name and style of the Motor Exchange Company should be held to be the maker of the cheque. He has urged that it was proved that Defendants Nos. 1 and 2 were the partners of that firm at the material time when the cheque was made. He has further urged that at the time of the making of the cheque. Ratanlal was present. It is also urged that in reply to the telegraphic notice given by the plaintiff-appellant to Defendant Nos. 1 and 2 soon after the notice was delivered, they made no distiction between themselves in the making of the cheque. As against this, learned counsel for Ratanlal has urged that on the face of it, the cheque was signed by J. H. (Jethmal) Rathor, and there was no mention in the cheque that it was made on behalf of the Firm Motor Exchange Company, and as such, nobody except Jethmal Defendant No. 2 who had signed the cheque could be held liable on it. 23. Learned counsel for the plaintiff-appellant during the course of argue-ments relied on sec. 22 of the Indian Partnership Act and on the case of Pt. Lalmani Pande vs. Lala Gopal Sah(5). Learned counsel for Ratanlal defendant relied on a large number of cases, the most important of which is the decision of their Lordships of the Privy Council in Firm Sadasuk Janki Das vs. Sir Kishen Parshad(6^. Before I refer to the case law on the subject, I think it proper to take into consideration the provisions of the Indian Partnership Act and of the Negotiable Instruments Act bearing on this point. The first part of sec 22 of the Indian Partnership Act lays down that in order to bind a firm, an act or instrument done or executed by a partner or other person on behalf of the firm shall be done or executed in the firms name. As I shall presently point out this provision is not applicable as the cheque was not made in the name of the firm. Learned counsels for the plaintiff-appellant, however, stated that in the second part of sec. As I shall presently point out this provision is not applicable as the cheque was not made in the name of the firm. Learned counsels for the plaintiff-appellant, however, stated that in the second part of sec. 22, it has been stated that if the act or instrument is done or executed in any other manner expressing or implying an intention to bind a firm, it shall bind the firm and from the circumstances of this case it is proved that Jethmal intended to bind the firm. It is contended by learned counsel for Ratanlal that the second part cannot be applied to a negotiable instrument. Let me examine how far this contention is correct. Sec. 18 of the Indian Partnership Act lays down thai subject to the provisions of that Act, a partner is the agent of the firm for the purpose of the business of the firm. Sec. 19 lays down in what circumstances it must be held that a partner has implied authority as agent of the firm. It is to be examined how far these provisions are affected by the provisions of the Negotiable Instruments Act. In England usage of merchants and traders in different departments of commerce relating to negotiable instruments was consolidated and introduced in the provisions of the Bills of Exchange Act is that under sec. 22 of the Indian Partnership Act, did in England, the Negotiable Instruments Act did for India. A negotiable instrument possesses certain characteristics, the primary characteristic being that it is negotiable. It is presumed that it is with valuable consideration and that the transferee who takes such an instrument for value gets it in spite of any defect in the title of the transferor. The provisions of the Negotiable Instruments Act, therefore, not only define with exactitude the nature of the instruments which were so negotiable but also specify the liabilities of the various parties to such instruments. It is for this reason that we find that the form in which various negotiable instruments is to be executed is defined in the provisions of Negotiable Instruments Act and cheque is one of the instruments which is negotiable under the provisions of the Indian Negotiable Instruments Act. It is for this reason that we find that the form in which various negotiable instruments is to be executed is defined in the provisions of Negotiable Instruments Act and cheque is one of the instruments which is negotiable under the provisions of the Indian Negotiable Instruments Act. It this state, I may refer to the following passage from Di.ceys Conflict of Laws, 7th Edn.— "It is, however, clear that, in view of the exigencies of commerce, the proper law doctrine cannot be applied to contracts embodied in negotiable instruments in the same way in which it is applied to other contracts, and it is also clear that the Act has not so applied it The main characteristic of a negotiable instrument is that it is intended to circulate, and that, for this purpose, anyone becoming a party to it should be able to see from the instruments itself what are going to be his rights and his obligations. Agreements which do not appear on the face of the instrument should therefore not be allowed to affect the rights and duties of those who are parties to it. Moreover, in order to permit rapid circulation, all those agreements which are embodied in the instrument must be reduced to a strict form the "rigor cambialis", which does not leave room for any ambiguity of interpretation. These may be counsels of perfection, and it must be admitted that the legislation of various countries has not always lived up to these standards". (Pages 843 & 844) 24. No doubt under the ordinary law of contracts, a principal can get what he can do himself done through an agent. This is stated in the first paragraph of sec. 27 of the Negotiable Instruments Act :— "Every person capable of binding himself or of being bound as mentioned in sec. 26, may so bind himself or be bound by a duly authorized agent acting in his name". It cannot be disputed that a partner is an agent of the partnership firm as laid down in sec. 18 of the Indian Partnership Act. Now the important point for distinction between sec. 22 of the Indian Partnership Act and sec. 27 of the Negotiable Instruments Act is that under sec. It cannot be disputed that a partner is an agent of the partnership firm as laid down in sec. 18 of the Indian Partnership Act. Now the important point for distinction between sec. 22 of the Indian Partnership Act and sec. 27 of the Negotiable Instruments Act is that under sec. 22 of the Indian Partnership Act, an act or instrument executed by a partner or other person on behalf of the firm if executed in any manner expressing or implying an intention to bind the firm will bind the firm but sec. 27 of the Negotiable Instruments Act lays down that the principal is bound when his duly authorised agent has acted in his name. Sec. 28 of the Negotiable Instruments Act warns an agent who signs his name to a promissory note, bill of exchange or cheque without indicating thereon that he signs as an agent, or that he does not intend thereby to in our personal responsibility, that he shall be liable personally on the instrument, except to those who induced him to sign upon the belief that the principal only would be held liable. 25. When a suit has been filed on the basis of a negotiable instrument, the rights and liabilities of the parties are governed by the special provisions of the Negotiable Instruments Act and if any of the provisions of the Partnership Act or Contract Act are in conflict, the provisions contained in the Negotiable Instruments Act must prevail. What Sec. 27 of that Act says is that if a duly authorised agent has acted in the name of the principal, the principal is liable on the instrument, otherwise not. It is, therefore, essential that from the instrument, it must be plain that the agent was acting in the name of the principal.) So far as the case law on the subject is concerned, the matter is placed beyond the pale of doubt by the authoritative pronouncement of their Lordships of the Privy Council in Firm Sada-suk Janki Das vs. Sir Kishen Pershad (6). In that case 14 hundis were executed, each being of the same form. In that case 14 hundis were executed, each being of the same form. The form of one hundi is given below— "By order of Sirkar, may his happiness increase; To Mohan Lal, son of Hira Lal, Six months from the date of the execution of this hundi, please pay to Seth Sadasuk Janki Das Sahu of the Residency Bazars or to his order the sum of H.S. Rs. 2,500 (half of which is Rs. 1,250/-/-) which sum I have received in cash in the Residency Bazars from the said Seth Sahib . Dated 3rd Rabi-us-sani 1328-H. 14.4.1910) Mohan Lal (in Urdu) Acting Superintendent of the Private Treasury of His Excellency Sir Maharaja, the Prime Minister of H.H. the Nizam. (On the back) The hundi has been accepted by Mohan Lal, son of Hira Lal, in favour of Seth Sadasuk Janki Das, inhabitant of the Residency Bazars, Hyderabad. Dated 3rd Rabi-us-sani 1328 Hijri, Mohan Lal (in Urdu)" The holder of the hundis sought to recover the amount from Mohan Lal and Maharaja Sir Kishan Pershad Bahadur. The point for decision in that case was whether the hundis had been so drawn that in form they bound the Maharaja. Their Lordships of the Privy Council held that each one of the hundis was drawn in the name of Mohanlal alone and accepted by him without qualification and that the addition of the words "Acting Superintendent of the Private Treasury of His Ex-ceilency Sir Maharaja, the Prime Minister of H. H. the Nizam," was in their Lordships opinion, nothing but a description of Mohan Lais position, and was certainly not a signature in the form necessary for an agent signing on a principals behalf. It was contended that the opening words "By order of Sirkar, may his happiness increase" implied that the signatures were the signatures on behalf of the Sirkar. Their Lordships over-ruled this contention in the following words: — "Their Lordships cannot accept this contention. It is of the utmost importance that the name of a person or firm to be charged upon a negotiable document should be clearly stated on the face or on the back of the document, so that the responsibility is made plain and can be instanly recognised as the document passes from hand to hand." It was further observed that it was not sufficient that the principals name should be "in some way" disclosed. It was pointed out that there was nothing in Sec. 26, 27 and 28 of the Negotiable Instruments Act of 1881 to support the contention., which is contrary to all established rules, "that in an action on a bill of exchange or promissory note against a person whose name properly appears as party to the instrument, it is open either by way of claim or defence to show that the signatory was in reality acting for an undisclosed principal," This case has been followed in a number of cases. I may refer to some of them which are cases of partnership. They are Sitaram Krishna Padhye vs. Chimandas Fatehchand (7), Penumatsa Rangaraju vs. Firm Sait Devi Chand Bhootaji, partner Sait Seshmull Kasturji (8), D. Johnstone vs. Mt. Jan Bibi (9), Punjab United Bank, Ltd. Lahore vs. Mohammad Hussain (10), Kwong Hip Lone Saw Mill Co. vs. C.A.M.A.L. Firm (11), Soma Ramanjulu vs. Soma Narasimhulu (12), Madangopal vs. Narsingdas & Sons (13) and K.V. Srinivasayya vs. K.M. Nagappa (14). 26. In Penumatsa Rangaraju vs. Firm Sait Devichand Bhootaji partner Sait Seshmull Kasturji (8), Patanjali Sastri, J. (as he then was) pointed out the distinction when the suit is brought solely on the promissory note and when it is not so brought. The promissory note in that case was executed by Defendant No. 1 in that case. It was, however, found that Defendant No. 1 was the managing partner of a rice mill business carried on in partnership with Defendant No. 2 and others. It was observed, as follows— "It is not disputed that defendant 1 is liable under the note and no question accordingly arises under sec. 28, Negotiable Instruments Act. Nor it is disputed that defendant 1 had power as managing partner to execute promissory notes binding on the firm. And it is recited in the note itself that the money was borrowed for the purposes of the partnership business. In these circumstances, there can be no question but that under ss. 28, Negotiable Instruments Act. Nor it is disputed that defendant 1 had power as managing partner to execute promissory notes binding on the firm. And it is recited in the note itself that the money was borrowed for the purposes of the partnership business. In these circumstances, there can be no question but that under ss. 19 and 22, Partnership Act, 1932, the debt is binding on the firm, but the suit having been based solely on the note, the question arises as to whether the note has been executed in such a form as to make the petitioner also liable on the note as a partner, Sec. 27, Negotiable Instruments Act, enacts that every person capable of binding himself or of being bound as mentioned in s. 26 may also bind himself or be bound by a duly authorised agent acting in his name This involves the consequence that, so far as the making, drawing, acceptance, indorsement, delivery and negotiation of a promissory note, bill of exchange or cheque are concerned, these acts must, in order to bind the firm be done by a partner in the name of the firm, and it is not sufficient that they are done in any other manner expressing or implying an intention to bind the firm, which, under s. 22 Partnership Act, would otherwise be sufficient to bind the firm, for the latter section must yield to the special provisions of the Negotiable Instruments Act." Thus, when a suit is based only on the Negotiable Instruments Act, it is the instrument only which can be looked into for determining the rights and liabilities of the parties. 27. Learned counsel for the plaintiff-appellant has argued that in the instant case it can be inferred that Ex. P/l was executed on behalf of the partnership. In this connection, he has pointed out that in the cheque the Jaipur Bank Ltd. is directed to pay from the joint account of R.B. Dabi & J.H. Rathor and this indicated that Jethmal Rathor defendant was acting on behalf of the firm. As their Lordships of the Privy Council have pointed out that the name of the principal must be disclosed in a definite manner in the instrument and not disclosed in some manner. I am reluctant to treat this reference to the joint account as sufficient to hold that on the face of it Ex. As their Lordships of the Privy Council have pointed out that the name of the principal must be disclosed in a definite manner in the instrument and not disclosed in some manner. I am reluctant to treat this reference to the joint account as sufficient to hold that on the face of it Ex. P/l was made by Jethmal defendant on behalf of the firm. 28. Then it is urged that from the circumstances of the case and evidence on record, it must be held that Jethmal defendant had made the cheque on behalf of the firm. In this connection, it is urged that for this purpose not only the instrument but the other circumstances and evidence appearing on record should be taken into consideration. This contention cannot prevail. It is the contents of the instrument which must show that the agent has signed for the principal. Extrinsic evidence may be considered only to interpret the contents of the instrument and not for any other purpose. Similar contention raised in Sitaram Krishna Padhye vs, Chimandas Fatehchand(7) was rejected by Blackwell J. in these words:— "It was contended by Mr. Taraporewala that it was an open question in India whether a principal whose name does not appear on the negotiable instrument can be made liable on the Instrument as a party thereto. He cited in support of his argument a passage from Pollock and Mullas Indian Contract Act, Edn. 5, p. 728, where it is pointed out that in England it is provided by the Bills of Exchange Act, sec. 23, that the principal is not liable in such a case, and that there is no specific provision in the Negotiable Instruments Act dealing with the matter, and that accordingly in the view of the authors it is a question whether, having regard to secs. 233 and 234, Contract Act, the principal cannot be proceeded against upon a negotiable instrument executed by the agent in his own name. Mr. Taraporewalas argument amounted to this, that even assuming that the hundis had been signed by Athale in his own name, evidence ought to be admissible to show that in fact he was signing as an agent for the owner of Gangadhar and B. Friends. Mr. Taraporewalas argument amounted to this, that even assuming that the hundis had been signed by Athale in his own name, evidence ought to be admissible to show that in fact he was signing as an agent for the owner of Gangadhar and B. Friends. In my opinion, having regard to the decision in Sadasuk Jankidas vs. Kishan Pershad — AIR 1918 P. C. 146; to which the learned Chief Justice has referred, such a contention is wholly untenable. A similar argument was raised in that case reference being made to sec. 233, Contract Act, and their Lordships in terms pointed out (hat although secs. 26, 11 and 28, Negotiable Instruments Act 1881, did not correspond precisely with the sections of the English Bills of Exchange Act 1882, nevertheless the sections of the Indian Negotiable Instruments Act contained nothing to support the contention which, as their Lordships of the Privy Council pointed out, is contrary to all established rules, that in an action on a bill of exchange or promissory note against a person whose name properly appears as party to the instrument, it is open either by way of claim or defence to show that the signatory was in reality acting for an undisclosed principal. In my opinion, having regard to the fact that such instruments pass constantly from hand to hand, it would be dangerous in the extreme to introduce any doctrine which permitted evidence to be given that a person who had signed a negotiable instrument apparently as the person liable thereon was in fact the agent for an undisclosed principal. In my opinion any person who takes a negotiable instrument ought only to be obliged to look at the form of the instrument drawn, indorsed or accepted, and ought to be able to rely upon the signature, if apparently the signature of a principal, as in fact the signature of a principal." The same view has been taken by the Full Bench of the Madras High Court in Sivagurunatha Pillai vs. Padmavathi Ammal(15) : where it was held that the court cannot look into the surrounding circumstances when deciding whether the maker of a promissory note has executed it as the agent or the representative of another. It has been pointed out that the court cannot look beyond what is stated in the instrument in a case. It has been pointed out that the court cannot look beyond what is stated in the instrument in a case. The same view has been taken in Manchersha Ardesar vs.-Govind Ganesh Joshi(16) and P.R.M.P.R. Perchiappa Chettyar vs. Muniyandi Servai(17). 29. Learned counsel for the plaintiff-appellant has argued relying on Pandit Lalmani Pande vs. Lala Gopal Sah (5) that, the principal enunciated in Maharaja Kishen Pershads case should be confined to the case of an agent. No doubt in that case, it was held that the Privy Council case did not cover the case of partnership in which one partner is sought to be bound by the conduct of the other partner. In that case, the learned Judges relied on Karmali Abdulla Allarakia vs. Karimji Jiwanji (18) and M R.P.R.S. Shanmuganatha Chettiar vs. K. Srinivasa Aiyar (19), and held that in case of joint business, a promissory note made by one partner may be deemed to have been executed by all the partners. With great respect, I may point out that in the Allahabad case (5), it was lost sight of that the provisions of secs. 26, 27 and 28 of the Negotiable Instruments Act left no scope for the application of the provisions of the Contract Act or Partnership Act. If a suit is brought on the Negotiable Instruments Act alone, in my humble opinion, rights and liabilities of the parties to the instrument are governed by the provisions of the Negotiable Instruments Act and anything contained in the Contract Act or the Partnership Act to the contrary must be deemed to be over-ridden by the provisions of the Negotiable Instruments Act. It is a different matter if the suit is not based exclusively on a negotiable instrument and the document is produced only in evidence in proof of the transactions between the parties. The court is then to decide the matter in accordance with what is established in the case. The case of Karmali Abdulla Allarakia vs. Karimji Jiwanji(18) relied on by the Allahabad High Court proceeded on the basis that ".it was erroneous to treat the question as purely a question of liability on the bill." The same can be said of Shanmughanatha Chettiar vs. Srinivasa(19). These cases are., therefore, distinguishable. The case of Karmali Abdulla Allarakia vs. Karimji Jiwanji(18) relied on by the Allahabad High Court proceeded on the basis that ".it was erroneous to treat the question as purely a question of liability on the bill." The same can be said of Shanmughanatha Chettiar vs. Srinivasa(19). These cases are., therefore, distinguishable. It may also be pointed out that in the Allahabad case(5), the suit was decreed against a partner who had not signed on another ground also that he had benfited by the consideration. As a result of the aforesaid discussion, I am of the opinion that no liability is cast on Ratanlal on the basis of the cheque. 30. Then it is argued by the learned counsel for the plaintiff-appellant that in this case the allegations made by the plaintiff are comprehensive enough to show that defendant Ratanlal was liable, otherwise than on the cheque (Ex. P/l) as he was one of the partners who had agreed to give the amount of Rs. 6,000/- to the plaintiff in case he forebore to sue Himmatram and thereafter the cheque was given on 6th March, 1949. Even taking the view that the evidence of such an agreement is admissible in evidence, I find that the evidence of the plaintiff is neither specific enough nor sufficient to hold Ratanlal liable. It may be pointed out that there was a specific issue—Issue No. 1- in this case, as to whether Ratanlal was liable for the amount sued upon. The plaintiff should have taken care to produce sufficient evidence to show that Ratanlal became liable to the plaintiff otherwise than on Ex. P/l. The evidence on record shows that Ratanlal and Jethmal were partners in the Motor Exchange Company at the time when the cheque was given and that Ratanlal was present at the time when the cheque was given. These circumstances by themselves are not sufficient to hold that Ratanlal had taken upon himself the liability for the amount of the cheque independently of the cheque. In this view of the matter, the plaintiff cannot succeed in getting a decree against Ratanlal. 31. The result is that in this case out of the three defendants, only Jethmal is liable for the payment of Rs. 6,000/- on the basis of the cheque (Ex. P/l). The trial court decreed the suit against Ratanlal and Jethmal for Rs. In this view of the matter, the plaintiff cannot succeed in getting a decree against Ratanlal. 31. The result is that in this case out of the three defendants, only Jethmal is liable for the payment of Rs. 6,000/- on the basis of the cheque (Ex. P/l). The trial court decreed the suit against Ratanlal and Jethmal for Rs. 6,000/- and dismissed it against Himmat Ram and the parties were ordered to bear their own costs. It was further ordered that the plaintiff shall be entitled to get interest at six annas per cent per mensem from the date of the suit till realization. As already pointed out, only Ratanlal defendant filed the first appeal. To this appeal Hiralal, Jethmal and Himmatram were made respondents. Cross-objections were filed by the plaintiff in that appeal and he claimed interest at 6 per cent per annum and also costs. The lower appellate court allowed the appeal and the decree of the trial court was set aside against Ratanlal and Jethmal both and instead the suit for the recovery of Rs. 6,000/- was decreed against Himmatram. No order was passed with regard to interest. It was, however, ordered that the parties shall bear their own costs. It appears from the judgment of the learned District Judge that the cross-objections filed by Hiralal plaintiff for payment of interest and costs were not pressed before him. 32. The decree against Himmatram was passed under Order 41, Rule 33 C.P.C. on the ground that Himmatram had categorically admitted to pay Rs. 6,000/- to the plaintiff. The learned District Judge overlooked that in the written statement filed by Himmatram he had definitely pleaded that he was not liable as his liability was extinguished because of the fact that Jethmal had passed the cheque (Ex. P/l) to the plaintiff and the plaintiff had accepted that cheque. Learned counsel for Jethmal has argued that in his statement recorded under Order 10, Rule 1 C.P.C, Himmat Ram had stated that he had to pay Rs. 6,000/- to the plaintiff and this was also written in the letter (Ex. A) sent by him to the plaintiff. The statement under Order 10, Rule 1 C.P.C. cannot replace the written statement. Learned counsel for Jethmal has argued that in his statement recorded under Order 10, Rule 1 C.P.C, Himmat Ram had stated that he had to pay Rs. 6,000/- to the plaintiff and this was also written in the letter (Ex. A) sent by him to the plaintiff. The statement under Order 10, Rule 1 C.P.C. cannot replace the written statement. Order 10, Rule 1 C.P.C. is meant for clarifying only those allegations of fact made in the plaint or written statement which are not expressly or by necessary implication admitted or denied by the parties against whom they are made. No doubt admissions made in the statement under Order 10, Rule 1 C.P.C. are conclusive for the purposes of the case and can be used against a party making an admission. But such admissions do not replace the other pleas taken in the written statement. In this view of the matter, the lower appellate court could not have decreed the suit against Himmatram without examining his plea that his liability was extinguished simply on the statement made by him under Order 10, Rule 1 C.P.G. 33. As a result of the aforesaid discussion, the judgment and decree of the lower appellate court cannot stand and the judgment and decree dated 27th August, 1960 under appeal are set aside and the suit dismissed against Himmatram and Ratanlal. The trial courts decree against Jethmal is restored. The parties shall bear their costs of this appeal. 34. Learned counsel for Jethmal respondent prays for leave to appeal to a Division Bench. Leave to appeal is granted.