LALLUBHAI BHIKHABHAI CHUNAWALLA Vs. RATANCHAND RAICHAND

JUDGEMENT

(1.) THIS is an appeal from the decision of the First Class Subordinate Judge of Surat dismissing the plaintiffs' claim against defendant No.1, the drawers of the hundi in question. The facts are summarised by the trial Judge and are shortly as follows.

(2.) THE plaintiffs had a current deposit account with defendant No.1, who also did business at Surat. THE plaintiffs wanted to remit a sum of Rs. 6,000 to the Bombay firm of Ishverlal Amthalal, and in order to enable them to do so they applied to defendant No.1 for a "namjogi hundi" drawn by defendant No.1 and made payable to Ishverlal Amthalal, whose name was mentioned in the hundi as the payee. A sum of Rs. 1-14-0 was taken for the "hundiaman" charges and debited to the plaintiffs' account, and the sum of Rs. 6,000 was similarly debited. THE plaintiffs on receiving the hundi sent it by ordinary post to Ishverlal Amthalal on April 22, 1935. But the cover containing this hundi appears to have gone astray in post and the hundi was intercepted by some thief who cleverly removed the name of Ishverlal Amthalal, the payee, thereon, thus making the hundi read "payable to Shah. . . ", and on the reverse he made an endorsement making the hundi amount payable to Messrs. Greaves Cotton & Co. This endorsement, however, bears no signature whatever. THE hundi appears to have been delivered to Messrs. Greaves Cotton & Co. , who presented it to the drawees, the firm of Raichand Motichand at Bombay, who paid the amount of the hundi to Messrs. Greaves Cotton & Co. As there was no reference about this hundi in Ishverlal Amthalal's letter to the plaintiffs sent two or three days later, the plaintiffs were put on their enquiry. In reply to their letter, they were informed by Ishverlal Amthalal that the hundi had never reached him, but that enquiries showed that the amount thereof had been paid as a result of the forged endorsement thereon to Messrs. Greaves Cotton & Co. A few days later the plaintiffs served notices of demand on both defendant No.1, the drawers, and defendant No.2, the drawees. Both of them repudiated liability, defendant No.1 on the ground that the hundi given by them at the request of the plaintiffs had in fact been cashed by the drawees thereof and hence they were in no way liable as to what happened to the hundi itself after it had left their possession and had been handed over to the plaintiffs. THE drawees also denied negligence in their reply. Later this suit was filed. Defendant No.1 appeared to defend on the ground mentioned in his written statement, but defendant No.2 failed to appear at the hearing.

(3.) ONE has, however, to look at the plaint in the suit to see that this contention cannot hold water. In para. 9 of the plaint it is stated: In the above circumstances, the present suit has been filed to recover Rs. 6,000 of our principal amount and Rs. 102-0-0 of interest at the rate of 12 annas per month per hundred according to the custom of hundi from April 23, 1935, till the date of the suit and Rs. 1-14-0 of the discount charges (hundiaman), altogether the suit has been filed to recover Rs. 6,103-14-0. It is difficult to reconcile the argument that the suit is on a basis entirely different from that of the hundi as is now sought to be made out with the language of this paragraph in the plaint. In dealing with the basis of his claim the learned Counsel for the plaintiffs in his opening address relied on portions of paragraph 5 of the plaint wherein it is stated: Not only that but the defendant No.1 has been culpably negligent in not discharging his own duty according to law by not giving information to the defendant No, 2 that the said hundi (of ours) was a 'namjogi' hundi, etc. , and the firm of Ishverlal Amthalal not having received the amount of the said hundi from the defendant No.2, the defendant No.1 is also liable to play to us Rs. 6,000 of the hundi and Rs. 1-14-0 being the discount charges thereof. ONE has further to ask the question : If the suit is not on the hundi itself, how are defendant No.2, the drawees, liable and why were they joined in the suit as a co-defendant? The plaintiffs' learned Counsel contends that his suit is based on a cause of action of failure of consideration. Defendant No.2 could certainly not be sued on such a cause of action, and as it is admitted that the identical hundi was honoured and paid to Messrs. Greaves Cotton & Co. , I fail to see how there could be said to have been a failure of consideration. Fortuitous circumstances coming into existence after the hundi left defendant No.1 resulting in Ishverlal Amthalal not getting the hundi payment from defendant No.2 make no difference.