Affidavit for Lost Cheque under CPC Order VII Rule 16

Affidavit for Declaration of loss of Negotiable Instrument by Banker under Order VII Rule 16 of Code of Civil Procedure.

MR. ____________
 

…………….Plaintiff

VERSUS

MR._____________
 

…………Defendant

AFFIDAVIT

I, __________________, son of Shri _______________, aged about ___ years, residing at ___________________________________, New Delhi - _____, do hereby solemnly affirm and declare as follows:

1. That I am the Branch Manager of the ___________ Branch of the plaintiff bank. I am thoroughly familiar with the facts and circumstances of this case, duly authorised, and competent to affirm this affidavit, and for ease of reference, I shall hereinafter be referred to as the plaintiff bank.
2. That the defendant named above had issued Cheque No. ______________________ dated _______________ for an amount of Rs. ___________________ payable to _______________________.
3. That the said cheque was presented by the defendant on _____________________ for collection through the plaintiff bank.
4. That in the ordinary course of business, the cheque was dispatched by post to ______________________ Bank for collection.
5. That subsequently, the defendant requested the plaintiff bank to credit and permit withdrawal of Rs ________________, representing the amount of the said cheque, and relying on good faith, the plaintiff bank allowed the defendant to withdraw the said funds on _______________________.
6. That upon making enquiries, the ______________________ Bank, ___________________________, informed the plaintiff bank through their letter dated __________ that the aforesaid cheque was never received by them.
7. That it has thus become evident that the cheque was lost in transit.
8. That under these unforeseen circumstances, the plaintiff bank requested the defendant to issue a replacement cheque in substitution of the lost instrument, but the defendant declined to comply with this request.
9. That it is manifest from the facts stated above that the cheque went missing due to factors beyond the plaintiff bank's control and not due to any wilful act, omission, negligence, or fault on its part.
10. That the plaintiff bank further undertakes that in the event the lost cheque is located at any point in the future, the same shall be produced before this Hon'ble Court without delay.

DEPONENT

I, the above-named deponent, do hereby verify that the statements made in this affidavit are true and correct to the best of my personal knowledge and that nothing material has been concealed or misstated.
Verified at New Delhi on this _______________________ day of ____________________, 20.

DEPONENT

Why it is used

This affidavit is filed when a negotiable instrument (like a cheque, bill of exchange, or promissory note) is lost in transit or misplaced and cannot be produced before the court. Since the law usually requires the original instrument to prove the claim, the bank or plaintiff files this affidavit to explain the loss and seek the court's permission to proceed without the original.

When it is used

• When a cheque is lost in transit between two banks.
• When a bill of exchange or promissory note is misplaced before being presented.
• When the plaintiff wants to sue for recovery on the basis of a lost instrument.
• When the original document cannot be filed with the plaint, as normally required.

What it means in simple language

• Normally, if you sue on a negotiable instrument, you must attach the original.
• But if it's lost, the court will not reject your case automatically.
• You must file an affidavit under Order VII Rule 16 CPC to declare:
  • The instrument existed.
  • It got lost without your fault.
  • You are willing to produce it if found later.
• The court then allows the case to continue without the original document.

Other important points

• This protects banks and plaintiffs from being denied justice just because the cheque got lost.
• The affidavit must clearly show no negligence by the bank.
• The plaintiff usually undertakes to produce the cheque if recovered later.
• Sometimes the court may order a security or indemnity bond to prevent double claims if the cheque resurfaces.

FAQs

Q1. What is a negotiable instrument?

Cheque, promissory note, or bill of exchange that can be transferred and used to claim money.

Q2. Why can't a photocopy of the cheque be used instead of an affidavit?

Because law requires the original instrument. A photocopy is not enough unless the loss is explained and an affidavit is filed.

Q3. Who files this affidavit?

Usually the bank manager or authorised officer of the bank/plaintiff.

Q4. Does this affidavit mean the defendant is guilty?

No. It only explains the loss of the cheque. Liability of the defendant is proved separately.

Q5. What does Order VII Rule 16 CPC say?

It says that if a plaintiff sues on a lost negotiable instrument, he must state the loss in the plaint, and the court may require security/indemnity before proceeding.

Q6. Is the affidavit compulsory?

Yes, if the cheque is lost and not available for filing with the plaint.

Q7. What happens if the lost cheque is later found?

The plaintiff must submit it before the court.

Q8. Can the defendant use the excuse of a lost cheque to escape payment?

No. The affidavit ensures the case proceeds even without the cheque.

Q9. Can this be used for electronic transactions?

No, only for paper-based negotiable instruments.

Q10. Does the bank suffer liability for the loss?

Not if the affidavit shows the loss was not due to the bank's negligence.

Q11. Can the court dismiss the case if an affidavit is not filed?

Yes, because the plaint is incomplete without explaining the loss of the original cheque.

Q12. Is the affidavit only for banks?

No, any plaintiff relying on a lost negotiable instrument can file it.

Q13. What security can the court ask for?

A bond or undertaking to indemnify the defendant if the instrument turns up later and is misused.

Q14. Does filing this affidavit delay the case?

No, it helps the case proceed smoothly despite the missing cheque.

Q15. Is it valid across India?

Yes, since it is under the Code of Civil Procedure, 1908 which applies across India.