If cheque was not presented then it is his mistake. You have to raise the preliminary issue by filing application under order 7 rule 11 cpc about maintainability of suit. The law is as follows:
Order 7 Rule 11 of CPC
O 7 R 11. Rejection of plaint.- The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails comply with the provision of Rule 9.
Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.
HIGH COURT AMENDMENTS
Andhra, Pradesh.- Same as that of Madras.
Assam and Nagaland.- Same as that of Calcutta.
Calcutta Andaman and Nicobar Islands.- Add the following as clause (e):
“(e) where any of the provisions of Rule 9(1-A) is not complied with and the plaintiff on being required by the Court to comply therewith within a time to be fixed by the Court fails to do so.”(25.7.1928).
Karnataka.- For item (c), substitute the following:
“(c) where the relief claimed is properly valued, but the Court fee actually paid is insufficient and plaintiff does not make good the deficiency within the time, if any, granted by the Court” (30.3.1967).
Madras and Pondicherry.- For clause (c), substitute the following:
“(e) where the relief claimed is properly valued, but the plaint is written on paper insufficiently stamped, and the plaintiff does not make good the deficiency within the time, if any, granted by the Court.” (9.2.1967).