DADI BHOGALINGAM Vs. INDO COMMERCIAL BANK LIMITED

JUDGEMENT

(1.) This appeal entered on behalf of the plaintiff raises a short point of some interest in law. As a matter of fact two questions arise for determination. While the one pertains to the statute of limitation, the other which is rather vital to the case is concerned with the determination of the exact legal relationship between the 2nd defendant on the one hand, and the 1st defendant or the plaintiff on the other.The question is whether the 2nd defendant is a sub-agent of the 1st defendant or an agent or a substituted agent of the plaintiff for the 1st defendant for purpose of collection of bill amount from the drawee. If it be found that the case is well within the pale of substituted agency or even if privity of contract in any wise be found established between the plaintiff and the 2nd defendant it is indisputable that this appeal must fail.

(2.) In order to appreciate the arguments advanced in this respect, it is necessary to relate the material facts of the case in all their essential particulars. The 1st defendant, the Indo Commercial Bank Ltd. is a banking concern with one of its branch offices at Anakapalli. The plaintiff is a general merchant and commission agent at Anakapalle and is a constituent of the said Bank. He sold certain goods in the usual course of his business to one Sait Joharmal Prabhudayal of Belda near Calcutta and despatched the same by rail from Anakapalli Railway Station under R.R. No. 86.Admittedly the 1st defendant had no branch office at Belda where the consignment was to be delivered to the vendee. Nevertheless the plaintiff drew a bill payable at sight for a sum of Rs. 6295-15-0 and delivered it along with R.R., to the first defendant. His case is that the bill was entrusted to the 1st defendant for collection from the drawee and that the first defendant in accordance with the terms of business and established practice of the Bank credited to the account or the plaintiff in advance the bill amount after deducting the usual commission subject of course to the condition that the drawer shall pay back the amount in Case the bill at the other end is not honoured and the amount not received; that for purposes of collection the 1st defendant appointed the 2nd defendant, the Bank of Calcutta Ltd., Belda Branch, the latter (2nd defendant) accordingly collected the amount from the drawee and sent a demand draft to the 1st defendant on the Head Office of Calcutta: the 1st defendant on receipt sent the same for collection to its Agent, Indo Commercial Bank Ltd. at Calcutta but that the 2nd defendant mean-while was black-listed and, therefore, the draft was left unpaid with the result that the 1st defendant demanded back from the plaintiff the money credited to his account in advance and that the plaintiff accordingly paid it back to the 1st defendant.

(3.) The plaintiff contends that he was coerced into repayment of the bill amount on 30-12-1946, that the first defendant had also represented to him that he will take steps to collect the money but that he failed to be as good as his word, The plaintiff, after notice to the defendant on 13-9-1951 which was replied to on 12-11-1951 brought the present suit holding both the defendants liable for the bill amount.