JUDGMENT Shamsuddin Ahmed, J. These two revisional applications are taken up together for hearing as they arise out of the same order passed by the learned Assistant District Judge, 2nd Court at Alipur in Money Suit No. 14 of 88. 2. By the impugned order the learned Judge held on the point raised by the defendant Monoj Kumar Chakraborty in the suit that the suit in question was not covered by provisions of Order 37 of the CPC. As the court has held that the suit is maintainable under Order 37 he has preferred a revisional application challenging that part of the order. The other revisional application is filed by the plaintiff S.B. Associates challenging that part of the same order by which the learned Judge has granted leave to defend the suit to the defendant without any condition. 3. It appears that an order no. 39 dated 6.9.89 passed by the same court in the same suit was quashed in Civil Order no. 27722 of 88 on the ground that the impugned order was passed without applying judicial mind and not considering the entire facts and circumstances of the case as well as the principles governing the grant of leave to defend in summery suits. The order impugned in the revisional application was the grant of leave to the defendant in the suit on condition of deposit of Rs. 1,50,000/- The matter was remanded back to the trial Court for re-hearing and for deciding the question afresh in accordance with law. At the time of re-hearing an application was filed by the defendant raising the question of maintainability of the suit under Order 37. The learned Trial Judge after hearing the parties held that the revisional order passed earlier by the High Court did not by implication decide that the suit is maintainable under Order 37. Accordingly, the learned Judge took up the case if the suit was maintainable under Order 37 of the CPC. The learned Judge held that Order 37 rule 1(2) of the CPC provides that Order 37 will apply to the following classes of suits along with others enumerated therein; a suit upon the bill of exchange, hundies and promissory notes. 4. The plaintiff's suit was that the defendant took Rs. The learned Judge held that Order 37 rule 1(2) of the CPC provides that Order 37 will apply to the following classes of suits along with others enumerated therein; a suit upon the bill of exchange, hundies and promissory notes. 4. The plaintiff's suit was that the defendant took Rs. 1,50,000/- by two separate cheques issued in the name of M/s. Nirala Property Pvt. Ltd. The cheques were issued by the defendant in his personal name as the said company had nothing to do with the recipient of the said amount, the amount was paid to the defendant as an accommodation loan. The defendant claimed that the receipt of amount by two cheques does not by itself prove the transaction to be an accommodation loan. According to them, the amount received was subject to full and final accounting of the business of which the defendant was the Managing Director and there was also a counter claim against the plaintiff. In this background the question of maintainability of the suit under Order 37 cropped up. According to the learned Judge the cheque is a bill of exchange. According to s. 13(1) of the Negotiable Instrument Act, 1881, a Negotiable Instrument means a promissory note, bill of exchange or cheque payable either to order or to a bearer. Bill of exchange according to s. 5 of the said Act is an instrument in writing containing an unconditional order signed by the maker directing a certain person to pay a certain sum of money, or to the order of, a certain person or the bearer of the instrument. A promissory note is defined in s. 4 of the said Act and s. 4 defines a cheque. A cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand. Considering this definition, the learned Judge held cheque is a bill of exchange. A promissory note is defined in s. 4 of the said Act and s. 4 defines a cheque. A cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand. Considering this definition, the learned Judge held cheque is a bill of exchange. The learned Judge also took into consideration the provisions of s. 8 of the said Act and held that the holder of a cheque or bill of exchange or promissory note is entitled in his own name of the possession thereof and to receive or recover the amount due thereon from the parties thereto, Only on this finding the learned Judge came to the conclusion that the claim in the suit is based upon the amounts of the two cheques drawn in favour of the defendant which were encashed by him. 5. Mr. Dasgupta, learned Advocate appearing for the defendant-petitioner submitted that the court made an error in law in arriving at its finding that since the cheque is a bill of exchange the instant suit is upon the cheques drawn in favour of the defendant. The plaintiff's case as it appears was that the plaintiff granted an accommodation loan to the defendant and the amount was paid by the two cheques drawn in favour of the defendant which he encashed. Mr. Dasgupta, submits that the suit is for recovery of an accommodation loan granted in favour of the defendant. The cheque is only a mode of payment of the amount so paid. The instant suit is not upon the cheque drawn in favour of the defendant but for recovery of a loan granted to the defendant. The transaction is only evidenced by two cheques. Mr. Dasgupta does not dispute the proposition that the cheque is a bill of exchange but he strongly contends that the learned Judge erred in law in holding that the suit is based on the two cheques by which the payment was made to the defendant. Mr. Dasgupta relied on a single Bench decision of the Delhi High Court reported in AIR 1982 Delhi 590. The learned Judge held that for a suit to be said to be based on cheque, the cheque must be in favour of the plaintiff. Mr. Dasgupta relied on a single Bench decision of the Delhi High Court reported in AIR 1982 Delhi 590. The learned Judge held that for a suit to be said to be based on cheque, the cheque must be in favour of the plaintiff. When somebody files a suit on the basis of a bill of exchange, hundies or promissory notes and other documents are annexed to the plaint and are drawn in favour of the plaintiff or endorsed in his favour. The court further observed “where the cheque on the basis of which a suit was allegedly filed had already been honoured by the bankers of the plaintiff and also in favour of the defendant respondent and the money was utilised by the defendants, the suit could not be called a suit based upon a cheque. It was in fact based on loan transaction. To such a suit the provisions of Order 37 rule 1 would apply." Order 37 rule 5 lays down that in any proceeding under this Order the court may order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the court and may further order that all proceedings shall be stayed until the plaintiff give security for the costs thereof. From the provisions of rule 5 it is clearly established that the bill of exchange, hundi or promissory note on which the suit is based must be drawn in favour of the plaintiff and the plaintiff must be in possession thereof. Otherwise the plaintiff cannot be directed to forthwith deposit those documents on which the suit is founded with an officer of the court. If the cheque has already been encashed by the payee there is no scope of the same being deposited in the court along with the suit or under direction passed by the court in terms of the provisions of rule 5. Taking into consideration the provisions of rule 5 it appears to us that the suit which is based on a cheque must be drawn in favour of the plaintiff; otherwise a suit cannot be called a suit upon the cheque as contemplated by rule 1 sub-rule (2) of order 37. Mr. Mitra, learned advocate has drawn our attention to a decision reported in AIR 1955 Bom. 276 . Mr. Mitra, learned advocate has drawn our attention to a decision reported in AIR 1955 Bom. 276 . The decision is based on the provisions of Order 37 rule 2 (Bombay Amendment). The Bombay Amendment of Order 37 rule 2 runs as follows: “All suit upon bill of exchange, hundies or promissory notes of all suits in which the plaintiff seeks only to recover a debt or liquidated demand any money payable by the defendant with or without interest arising on contract express or implied, or an enactment where the sum sought to be recovered is a fixed sum of money, The case under report of the Bombay High Court was based on payment by three hundies drawn in favour of the defendant and the defendant received the amount. On those facts Bombay High Court held that the suit was for recovery of a debt or liquidated demand payable by the defendant arising on a contract contemplated may also be oral and need not be in writing. The decision is, therefore, based on the provisions of recovery of debt or liquidated demand. The Bombay decision is not based on a bill of exchange. The court held “now here a specific sum is demanded by the plaintiff which is the amount of the hundies honoured by the plaintiff, under an agreement with the defendant. Therefore, there can be no doubt that on the interpretation of the rule the plaintiffs are suing on a debt or liquidated (demand ?) which arises on an express contract although the contract is oral and not in writing.”. Therefore, the Bombay decision has no application in the facts of the case. Moreover, rule 1 of Order 37 has been amended and a suit to recover a debt or liquidated demand in money payable by the defendant, with or without interest must arise on a written contract. Therefore there is no bearing of the Bombay decision in the facts of this case. 6. As in the instant case the cheques in question are not drawn in favour of the plaintiff the instant suit cannot be proceeded with in terms of the provisions of Order 37 of the CPC. Accordingly, the conclusion arrived at by the learned Judge is not sustainable in law. Accordingly, that part of the impugned order by which the learned Judge held that the suit is covered by Order 37 is set aside. Accordingly, the conclusion arrived at by the learned Judge is not sustainable in law. Accordingly, that part of the impugned order by which the learned Judge held that the suit is covered by Order 37 is set aside. The suit is not maintainable under Order 37 of CPC. 7. The other application viz. C.O. No. 1152 of 88 filed by the plaintiff challenging the order of the learned Judge granting leave to contest without security has lost all its force because of the finding above. If the suit is not maintainable under Order 37 there is no question of granting leave to defend. Accordingly, that part of the order by which the learned Judge has granted leave to defend is also set aside as taken up granted under the law, the suit not being maintainable under Order 37 of the CPC. 8. These two applications are accordingly disposed of without any order as to costs. The court below is directed to proceed with the suit in accordance with law and procedure as laid down as a simple money suit. Haridas Das, J. : I agree. Order set aside.