Execution Proceedings

Querist : Anonymous (Querist) 09 February 2011 This query is : Resolved
Please suggest a provision in Civil Procedure Code for obtaining deposited amount return in the execution proceedings as the case is in appeal before the high court.

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Vijayashankar (Expert) 16 May 2012
I have an opinion different from the above. When a cheque becomes stale, it means that the Bank will not be considered to have made a "Payment in due course" if it is paid. A Holder cannot get the rights of a "holder in due course".
The bank can return the cheque. However it does not mean that the consideration of the cheque has been satisfied. The Benefiary of the cheque including an endorsee who is a "holder" of the cheque has the right to demand from the drawer that he be issued a new instrument in lieu of the stale instrument.
Unless the underlying contract says that "This debt is deemed to have extinguished if the beneficiary does not present the cheque within the period of validity of the cheque", cheque remains an evidence of an underlying consideration.

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