ORDER George Vadakkel, J. 1. For the price of cement due from the defendant to the plaintiff, the former on 6th March 1973 issued in favour of the latter Ext. A-1 cheque for Rs. 750 drawn on the Syndicate Bank, Sreekariyam. The plaintiff discounted the same with the South Indian Bank Ltd., Trivandrum. On presentment by the second mentioned bank, the Syndicate Bank as per Ext. A-2 Memo dated 12th March 1973 returned the same for the reason: 'Full cover not received'. The South Indian Bank Ltd. in turn returned Ext. A-1 cheque together with Ext. A-2 Memo, to the plaintiff. The plaintiff issued Ext. B-2 notice, dated 9th February 1974 informing the defendant of the dishonour of the cheque, and demanding payment of the sum of Rs. 750, interest thereon from 12th March 1973 and the cost of notice. The defendant did not pay the amount and the plaintiff therefore, on 4th November 1974 instituted the suit for realization of the said amounts. The lower court dismissed the suit on the ground that notice of dishonour was not sent within a reasonable time. The lower court also held that no relief could be granted on the Original Cause of action for the price of cement supplied either, as the notice of dishonour was not sent within a reasonable time. The plaintiff has come up in revision. 2. Ext. B-1 duplicate of defendant's pass book in respect of S.B. Account No. 945 against which Ext. A-1 cheque was drawn shows that during the period 6th March 1973 to 12th March 1973 the credit balance in his favour in that account was only Rs. 13.65. This means that the drawer of the cheque had no sufficient effect in the hands of the drawee bank, sufficient to cover Ext. A-1 cheque. 3. Unlike the drawer of a bill of exchange who is liable thereon as principal debtor only till the drawee accepts the same, the drawer of a cheque is, under S.37 of the Negotiable Instruments Act, 1881, in the absence of a contract to the contrary, always liable thereon as a principal debtor. Under that section, the other parties to the cheque, i.e., the indorsees, are liable thereon only as sureties for the drawer. Under that section, the other parties to the cheque, i.e., the indorsees, are liable thereon only as sureties for the drawer. Though as between the parties so liable as sureties, each prior party is, in the absence of a contract to the contrary, as stated in S.38 of the Act, liable thereon as a principal debtor in respect of each subsequent party, every party thereto, other than the drawer, i.e., every indorsee, remains always a surety for the drawer, and therefore, on an indorsee indemnifying a subsequent indorsee, he is entitled to be compensated by the principal debtor the drawer. Where a person who is an indorsee vis a vis prior parties and an indorser vis a vis subsequent parties to a cheque is sought to be made liable thereon by the holder thereof, on the ground of its dishonour, it is imperative that such person shall not suffer on account of laches on the part of the holder in giving him the information of dishonour and of the holder's intention to make such person liable on the cheque. The object of the notice is, that such person may, if he so chooses, take such steps as against the indorsers prior to him and the drawer, all of whom are, to him, principal debtors in order to protect himself. If by failure to give notice, such person is unable to recover the amount from any of his principal debtors, say, by that debtor becoming insolvent in the meanwhile, he would suffer damages, if he is made liable on the cheque to the holder. This is why law by S.93 of the Act casts a duty upon the holder, or somebody who remains liable thereon to give notice of dishonour to all other parties whom the holder seeks to make severally liable thereon, and to someone of several parties, whom he seeks to make jointly liable thereon, and requires by S.94 thereof, amongst other matters, that such notice is to be given within a reasonable time after dishonour, and further provides in S.98(c) that no such notice is necessary when the party sought to be made liable could not suffer damage for want of notice. 4. 4. That the drawer of a cheque is liable to the holder as a principal debtor is also clear from S.30 of the Act where under the drawer is liable to compensate the holder in case the cheque is dishonoured by the drawee. S.93 of the Act employs the expression 'parties' and 'some one of several parties" whom the holder seeks to make liable on the cheque, so that the drawer also is a person entitled to notice of dishonour thereunder; and S.30, specifically says that the liability of the drawer to compensate the holder is dependant upon due notice of dishonour in the manner provided for in the Act. Therefore, S.98(c) of the Act, governs such cases also. Here again the question is could he suffer any damage on account of want of notice. 5. The leading case on this point, namely, as to whether a drawer who has no sufficient funds with the drawee could suffer damage for want of due notice of dishonour, is Bickerdike v. Bollman ((1786) ITR 405), where it was ruled as follows: "The law requires notice to be given for this reason, because it is presumed that the bill is drawn on account of the drawee's having effects of the drawer in his hands and if the latter has notice that the bill is not accepted, or not paid, he may withdraw them immediately. But if he has no effects in the other's hands, then he cannot be injured for want of notice. Soon after I set on this bench I tried a case at Guildhall, on a bill of exchange which was either drawn or accepted by a person residing in Holland, and a full special jury, under my direction, found a verdict for the plaintiff, notwithstanding no notice had been given to the drawer of the bill's having been dishonoured, because he had no effects in the hands of the person on whom the bill was drawn. That verdict was never objected to and if it be proved on the part of the plaintiff that from the time the bill was drawn, till the time it became due, the drawer never had any effects of the drawee in his hands, I think notice to the drawer is not necessary; for he must know whether he had effects in the hands of the drawee or not; and if he had none, he had no right to draw upon him, and to expect payment from him; nor can he be injured by the non payment of the bill, or the want of notice that it has been dishonoured." In Carew v. Duckworth (1869 (4) Exch. 313) Bramwell, J. said: "The true rule should be, that no notice of dishonour is required where it would convey no information, that is, when the party sued knew beforehand that the bill would not be paid; but that where he did not know, it is right that he should be informed of the nonpayment. If this rule should be adopted, the question would be did he, practically speaking, know beforehand that the bill would not be honoured? This may depend on a variety of circumstances; he might think that the cheque would be honoured by favour, though, in fact, there were no assets to meet it." 6. I will here usefully notice the following passage from Byles on Bills of Exchange, Twenty Third Edition, page 154. "If the drawer had no effects at any time during the currency of the bills in the hands of the drawee, the latter will be under no obligation to accept or, if he has accepted, to pay (viz a viz the drawer), and the drawer will have no remedy against the acceptor or any other person if he is obliged to pay the bill; not being therefore prejudiced by want of notice, the drawer cannot set that up as a defence." The learned author in support of the abovesaid passage says in the footnote as follows:- "Bickerdike v. Bollman [(1786) ITR 405.] Absence of effects will excuse presentment for payment as against the drawer or an accommodated indorser [Code, S.46(2)(c) and (d), ante, p. 109]. Hence, where a cheque is dishonoured for want: of funds, the drawer is chargeable without either presentment for payment or notice of dishonour, unless he had a reasonable expectation that it would be honoured (Wirth v. Austim [(1875) LR 10 C P 689]." Under S.50(2)(e)(4) of the English Bills of Exchange Act, 1882 notice of dishonour is not necessary where the drawee is, as between himself and the drawer, under no obligation to pay the bill. 8. The Madras High Court in Cochin Nayar Bank Ltd. v. M. S. Mohamed Sharifuddin and others (XXVII (1937) Company Case 494) said: "Strictly no notice of dishonour would he necessary to the drawer like the defendant in the present case, who has not provided sufficient funds to meet the cheque, and even if such a notice of dishonour is necessary, this is a case where S.98(c) is applicable and it has been sufficiently established that the defendant did not suffer any damage by reason of the failure to give notice, as he had no cause of action against the holder under the negotiable instrument, namely, the cheque." In that case the defendant issued a cheque on 20th August 1951 for Rs. 3,000 in favour of one Manook Lal D' Sait. He discounted the cheque with the Cochin Nayar Bank Ltd. The cheque, when presented by this Bank was dishonoured by the drawee Bank, the Melarkode Bank Ltd., for the reason that it was not 'arranged for'. This was on 22nd August 1951. The Cochin Nayar Bank Ltd. sent a lawyer's notice on 26th October 1951 to the defendant asking payment of the amount with interest. The accounts of the drawee Bank showed that from 31st July 1951 to 22nd August 1951 the drawer had only Rs. 510-4-0 standing to his credit and that there were no sufficient funds to meet the demand to pay Rs. 3,000 as per the cheque. The accounts of the drawee Bank showed that from 31st July 1951 to 22nd August 1951 the drawer had only Rs. 510-4-0 standing to his credit and that there were no sufficient funds to meet the demand to pay Rs. 3,000 as per the cheque. ....Krishnaswamy Naidu, J. said: "In view of the bank not haying had sufficient funds, the cheque was naturally dishonoured and it is not possible to imagine as to what remedy he could have had against the bank, if he had notice of dishonour in time." The same is the position in the case on hand, and I am unable to think of any remedy the defendant drawer could have had against the drawee -- Bank here, if he had notice of dishonour in time. Any arrangement with the drawee bank enabling the drawer to overdraw, and conferring authority on him in that behalf is within the special knowledge of the parties thereto, the customer drawer and the bank, and is to be established by the drawer. The initial onus of proof that is upon the holder to prove that the drawer could not suffer damage for want of notice of dishonour would stand discharged on establishing that the drawer had no sufficient funds in the drawee bank from the time the cheque is issued to the date of its presentment. The customer drawer knows, or at any rate, is presumed to know the state of his accounts with the bank, and where the state of his account is such that there are no sufficient funds to cover the cheque, he knows or is presumed to know that too, wherefore he need not be informed of the dishonour, nor can be by failure to give notice suffer any damage. S.98(c) governs such cases. 9. The decisions in Chunilal Bhoopal v. Amarendra Chandra Dutta and others (AIR 1953 Assam 94) a case where on the dare of presentment of the cheque the drawer had no funds in the drawee bank because he had closed the accounts and in Punjab National Bank Ltd. v. Iqbal Singh Kalyan Singh and others (AIR 1962 Punjab 158) also a case of closure of accounts, support the above view. 10. 10. The lower court relied on the Division Bench decision in John Chandy v. State Bank of Travancore ( 1973 KLT 742 ) and the learned counsel for the respondent seeks to support the decision of the lower court relying thereon. The defendant appellant in that case had entered into an overdraft agreement with the predecessor bank of the plaintiff respondent bank therein. The suit was on that agreement. The defendant contended that he had endorsed a cheque drawn in his favour for Rs. 8,500 to the plaintiff bank and sought to got deduction of that amount. It appears that this cheque had been dishonoured by the drawee bank for lack of funds of the drawer with that bank and that no notice of dishonour was sent to the defendant payee who had endorsed it to the plaintiff bank. The plaintiff bank on these facts seems to have relied on the original consideration, and this court there considered the question as to whether want of notice of dishonour to an endorser would exonerate him from liability not only on an action on the negotiable instrument, but even on an action on the original consideration. (Emphasis supplied). This court referring to S.35 of the Act noticed that "It is clear from the provisions in the Negotiable Instruments Act, 1881 that the liability of an endorser is not that of a principal debtor, and the liability of the endorser can arise only if a notice of dishonour is issued to him and not otherwise." (Emphasis supplied) and proceeded to point out that besides the legal principle that 'when a negotiable instrument is accepted for a debt due, it is presumed to have been taken only as a conditional payment', there is a further rule that a cheque taken as conditional payment will be treated as taken in absolute payment by the creditor if he did not give notice of dishonour'. This latter rule, this court said, rests on the doctrine that 'a person dealing with instruments which create liabilities on a number of persons has certain obligations imposed on him by the principles which have been evolved in the dealings with those instruments'. This latter rule, this court said, rests on the doctrine that 'a person dealing with instruments which create liabilities on a number of persons has certain obligations imposed on him by the principles which have been evolved in the dealings with those instruments'. So stating the Division Bench accepted as correct the following statement of law in Bhashyam and Adiga on Negotiable Instruments Act, 1881, 12th Edn., P-500, (13th Edn., P. 376): "The drawer and the indorsers to whom notice of dishonour is not given, are discharged from the liability not only on the bill, but also in respect of the original consideration." 11. I need not state that the above rule of law would not govern cases falling under S.98 of the Act where notice of dishonour is unnecessary. The object of notice of dishonour, as already said, is to afford an opportunity to the party to the instrument sought to be made liable thereon to protect himself by taking such steps as he deems fit against those who would in turn be liable to indemnity him, and therefore, one cannot seek to enforce either the liability thereon or the liability under the original consideration to discharge which the instruments has been drawn or indorsed in favour of the suitor (a suit on the original consideration would lie only between immediate parties to the transaction and their successors in interest) after precluding the drawer or the indorser as the case may be from exercising his right to be indemnified by the party thereto who is liable to indemnify him by not affording an opportunity therefor as required by the Law Merchant and the Act - Without informing him of the dishonour and that he would be liable for the sum covered by the instrument. The essential question, therefore, is whether the case is one where notice of dishonour is necessary to make a party to the instrument liable thereon, or is one where such notice is unnecessary. If it is necessary and it has not been sent, the plaintiff would not be entitled to either of the reliefs, on the instrument or on the original consideration; otherwise, he would be entitled to both, each with reference to the law of limitation governing each relief and to other requirements of law governing the same. 12. If it is necessary and it has not been sent, the plaintiff would not be entitled to either of the reliefs, on the instrument or on the original consideration; otherwise, he would be entitled to both, each with reference to the law of limitation governing each relief and to other requirements of law governing the same. 12. In considering the above question in relation to S.98(c) of the Act it is necessary to bear in mind that there is this difference between a drawer and an endorser, namely, that the former knows, or is presumed am? expected to know, as to whether he has effects in the hands of the drawee, and that the latter does not know nor is presumed and expected to know the same. The case in John Chandy v. State Bank of Travancore ( 1973 KLT 742 ) concerned an endorser to whom no notice of dishonour was sent. This court said that, therefore, the endorser was deprived of his right to proceed against a prior party to the instrument, including the drawer. Different considerations would arise where the drawer himself is sought to be made liable on the instrument. When he has not placed sufficient funds in the hands of the drawee, it. cannot be said that he would suffer damage for want of notice, for he cannot have any remedy against the drawee for refusing to honour the instrument. I do not think that the above decision is of any assistance to the respondent. 13. It is contended that there are no sufficient pleadings to rely on S.98(c) of the Act. The plaintiff pleaded that Ext. A-1 cheque was returned with the endorsement 'Full cover not received'. Evidence was let in to support the case advanced that the defendant had no sufficient funds with the drawee bank to honour the cheque. Discussing the evidence the lower court found that S.98(c) of the Act is not of any help to the plaintiff. Despite the fact that the pleading could have been more specified on this point, I do not think, that in the circumstances stated above, it could be said that the defendant was taken by surprise on this point, or that the plaintiff should be non suited on that court alone. Despite the fact that the pleading could have been more specified on this point, I do not think, that in the circumstances stated above, it could be said that the defendant was taken by surprise on this point, or that the plaintiff should be non suited on that court alone. On the facts proved in this case it has been established that the defendant could not suffer damage for the lower court found that he had no sufficient funds in the drawee bank, and the defendant had sufficient opportunity to disprove the same. His contention was that Ext. A-1 cheque was drawn up by the plaintiff on a blank but signed cheque leaf previously given by the? defendant to the plaintiff. On this parties joined issue. This issue was found against the defendant. 14. I set aside the judgment and decree in this case, and decree the same in terms of the reliefs sought for in the plaint with costs throughout.