ESSA ISMAL Vs. INDIAN BANK LTD

JUDGEMENT

(1.) This is an appeal by additional plaintiffs 6 and 8. They are the children of one deceased Ismail Hajee Essa Sait who will be referred to hereafter as Essa Sait. Essa Sait had endorsed a bill of exchange drawn by E. T. Adima & Sons on K. A. Shaik Youseph & Company at Singapore. This bill was negotiated through the respondent bank, the first defendant in the case and along with the documents of title to the goods 15 bundles of coir mats and mattings were sent by the respondent to their Singapore branch. The bill was not accepted by the drawee and on the 5th of December 1941, the Singapore branch of the respondent wrote to the Alleppey branch Ext. E letter stating that the bill "was not accepted on presentation" and that "the drawees promise acceptance on arrival of the steamer." It is the case of the respondent that this information was duly conveyed to Essa Sait by Ext. IX as soon as they received Ext. E, on the 15th of December, 1941. Ext. IX is the press copy of the alleged communication and the delivery of the letter is sought to be proved by the entry, Ext. XII (a), in page 20 of Ext. XII, the letter delivery book of the respondent Bank for the year 1941-42. After the ship reached Singapore, the bill was again presented to the drawee and Ext. F letter dated 9-12-1941 was sent by the Singapore branch to the Alleppey branch of the respondent Bank and the information was conveyed by Ext. G dated 22 12 1941 to Essa Sait. It is said in Ext. F that the draft was again presented for acceptance and that "acceptance was refused and payment promised in the course of 15 days". The drawee, however, made no payment and on the 19th of January, 1942, the respondent debited Essa Sait a sum of Rs. 4,725-9-8. Essa Sait knew about this debit is clear from Exts. T, T (1), U, W, W (1), AE, AF, VIII and X. Essa Sait immediately debited E. T. Adima & Sons with the sum of Rs. 4,725-9-8 and demanded the amount from them. The amount not having been paid, a suit was instituted against them, Ext. X being the copy of the plaint. This suit was dismissed and Ext. B is the copy of the judgment dated 23rd March 1943. Having thus failed to recover the amount from E. T. Adima & Sons, the heirs of Essa Sait, he having died in the meantime, instituted the present suit for recovery of the amount from the respondent bank. It was alleged that there was no proper notice of dishonour, that the documents, Exts. IX and G, relied on would not amount to notices of dishonour, that Ext. IX was not received by Essa Sait, that apart from Ext. G being belated, it did not amount to a notice of dishonour, that Essa Sait should not have been debited with the amount without returning the documents of title to the goods, that an endorsee's liability can arise only on such return, and that in the absence of evidence, as in this case, as to what happened to the goods, the respondent's only right was to claim the amount from the Insurance Company that had insured the goods. On these grounds, it was urged that the debit by the respondent is unjustified. The suit was resisted by the respondent Bank on the ground that the endorsee was liable, that there was proper notice of dishonour in time, that there was no obligation to return the documents of title and the respondent was not obliged to recover under the insurance. It was also stated that Essa Sait had accepted liability, that at any rate he had not contended that there was no proper notice of dishonour, but that on the other hand his conduct clearly showed an implied acceptance of liability, and therefore of a promise to pay the amount, and that the suit filed in the year 1950 was hopelessly barred by limitation. The court below accepted these contentions and dismissed the suit.

(2.) In the view I take it is unnecessary in this appeal to deal with all the points that have been argued; about there being no real notice of dishonour, the alleged notice being out of time and the question of the suit being barred by limitation.

(3.) Ext. G letter written by the respondent Bank to Essa Sait did not contain a demand. But it is clear that Essa Sait knew about the debit entry in his account at least early in February, 1942, the debit having been made on the 19th of January 1942. Ext. T is a letter written by Essa Sait to the respondent on the 7th of February 1942 forwarding Ext. T (1). Ext. T (1) is the letter written to Essa Sait by the drawer of the Bill, E. T. Adima & Sons, and it is seen from Ext. T (1) that the drawer as well as Essa Sait knew about the debit. Even so, all that Essa Sait asked the Bank was for information regarding the "proper course to be pursued for the safety of our interest in circumstances of the kind pointed out by the drawers." The respondent promptly replied Ext. T on the same day, 7-2-1942, by Ext. U letter in which they said that the debit was in order and that if Essa Sait so desired, they will recall the bill as well as the documents from Singapore subject to the conditions that prevailed there at that time. It was about that time that Singapore was occupied by the Japanese. There was no reply to Ext. U by Essa Sait. This indicates that he had no objection to the debit. The respondent again wrote to Essa Sait on 18-3-1942 (Ext. W) forwarding another letter, Ext. W (1), received by Essa Sait from the drawees and the request in Ext. W was for direction regarding the proper course to be pursued for the "safety of our interests." Reply, if any, to Ext. W is not produced. But on the 27th of April 1942, the respondent wrote again to Essa Sait (Ext. AE) informing that the respondent had learnt that some goods directed to Malayan Ports have been brought back and landed at Calcutta and asking them details to enable the Bank to identify the goods so that the respondent Bank may write to their Calcutta Branch. The reply to Ext. AE is Ext. AF dated 30th of May 1942, by which Essa Sait furnished information regarding the details of the goods. There does not seem to have been any direct correspondence thereafter, and, at any rate, no such letter is produced. Soon after, Essa Sait sent a confirmation slip signed to the respondent Bank Ext. I, dated 30th June 1942, and Exts. II to VII are half yearly confirmation slips that followed Ext. I, all admittedly signed for and on behalf of Essa Sait. In the mantime, the suit evidenced by Ext. X plaint was instituted on 27-2-1120 M. E. (14-10-1944 A. D.) against E. T. Adima & Sons and the averments in Para.4 of the plaint seem to indicate that Essa Sait proceeded as if the debit made by the Bank was proper. There is one more letter which is relevant and that is Ext. VIII dated 13th of November 1945 written by Essa Sait to the Bank. He asked whether any information was received from the Singapore Branch of the respondent Bank and requested that if no information had been received steps may be taken to realise the amount and further authorised the respondent "to do all that is essential to realise the amount as quickly as possible."