AMRIT BANSPATI CO. LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a plaintiffs second appeal from the decree of the 1st Additional Civil Judge of Meerut dismissing their suit for recovery of damages from the respondent Union of India. The plaintiff-appellant, Messrs Amrit Vanaspati Limited, is a company carrying on business in Ghaziabad and the defendant is the Union of India as the owner of the Central and Northern Railways. The plaintiff-appellant alleged into a plaint that a wagon containing ground-nut oil was booked from Sholapur to be delivered at Ghaziabad and the railway receipt was endorsed in its favour. It is common ground that the wagon was never delivered. The plaintiff then claimed a sum of Rs. 26472/11 as the cost price of the oil which was lost. Before this amount could be paid by the railway, the plaintiff made a second additional claim for Rs. 5556/- on account of losses alleged to have been suffered as a result of the rise in the price of the oil. The respondent Railway sent a sum of Rs. 26338.12 np. by a cheque dated 19th September 1957. The appellant Company cashed the cheque and sued for the balance. The Railway resisted the claim on the ground that the cheque had been sent in full and final settlement of the Companys claim. The trial court decreed the suit in part and awarded a sum of Rs. 2634.34 np. The Company accepted the decision but the Railway filed an appeal. The learned Judge held that the appellant could not claim anything more than the sum of Rs. 26338.12 np. because it had been sent in full and final satisfaction of its claim. He allowed the appeal and dismissed the suit of the Company who has come in this court in second appeal.

(2.) I have heard Mr. Varma at some length and am of the opinion that the appeal must be dismissed. The Company made its first claim for Rs. 26472/11/- on 4th October 1956 and the second for Rs. 5556/- on 26th September 1957. While both claims were pending, the Railway sent it a cheque for Rs. 26338.12 np. making it clear that it was in full and final settlement of the plaintiffs claim. In these circumstances, the appellant must be deemed to have accepted the implied condition that the amount was tendered in full settlement.

(3.) MR . Varma relied upon two decisions, one of this court and another of the Calcutta High Court in support of his argument that the appellant Company was entitled to disregard the condition attached to the cheque sent by the Railway. But the question in both these cases related to S. 63 of the Indian Contract Act which deals with what is known as accord and satisfaction. It was held in these cases that a person entitled to a promise may accept a lesser performance and if he does so the obligation will be fully discharged. In cases of accord and satisfaction there is no dispute with regard to the performance of the contract nor any conditional offer by one party.