MANICK CHAND BAGRI Vs. CHARTERED BANK

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the respondent Chartered Bank claiming Rs. 28904/2/- as the holder of a hundi against the respondent Dawoodayal Kothari as the drawer and the appellant Manick Chand Bagri as the alleged acceptor of the hundi. The defendants filed separate writ ten statements denying their liability. Dawoodayal Kothari did not contest the suit at the hearing. Manik Chand Bagri contested the suit but the learned trial Judge decreed the suit against both the defendants. Manik Chand Bagri has preferred this appeal from the decree Passed against him. On the 3rd February, 1950, Sadasukh Gambhirchand of Bombay drew a darshani hundi on A Bill of Exchange payable at sight for the sum of Rs. 25,000/- on Manick Chand Bagri at Calcutta . in favour of the respondent Chartered Bank. On the top of the hundi the drawer wrote the following words: "Please accept the hundi according to the terms written". On the back of the hundi the following words appear in print: "Pay in full Rs. 25,000/- four times of Rs. 6000/- and a quarter-half of the half thereof." One Basdeo Chowbey a darwan in the employ of the bank presented the hundi at the Gadi of Manik Chand Bagri at Calcutta on the 7th February, 1950. It is common case that on that date one Harisankar Tewari, an employee of Manick Chand, put his signature and date '7-2-50' on the back of the hundi. On the top of the signature he affixed a rubber stamp reading: "For Manick Chand Bagri". The case of the Bank is that by the aforesaid signature Tewari accepted the hundi on behalf of Manick Chand. Manick Chand denies that Tewari had any authority to accept the hundi on his behalf or that Tewari accepted the hundi. His case further is that Tewari affixed his signature on the hundi solely for the purpose of enabling Basdeo to satisfy the Bank authorities that the hundi was duly presented for payment.

(2.) The evidence on the record establishes the following facts: Originally the defendant Dawoodayal Kothari and one Kastur Chand Kothari used to carry on a business in co-partnership under the name and style of Sadasukh Gambhirchand in Bombay. Kastur Chand Kothari thed on the 19th January, 1950. On the 3rd February, 1950, when the hundi in suit was drawn the defendant Dawoodayal Kothari was the sole surviving "partner of Sadasukh Gambhirchand. On the 3rd February, 1950, the hundi was sent by the drawer Sadasukh Gambhirchand to the Chartered Bank with a covering letter requesting the Bank to credit the amount of the hundi to the account of the drawer with the Bank. The Bank discounted the hundi and allowed the drawer to cash a cheque for Rs. 25000/-against the hundi. The hundi was then sent by the Bombay office of the Bank to its Calcutta office for collection. On the 6th February, 1950, one Basdeo Chowbey a collecting Jamadar in the employ of the Bank went to the gaddi of Manick Chand at 32 Cross Street, Calcutta with the hundi. He presented the hundi to one of the Babus in the gaddi together with a memo, giving the particulars of the hundi. The Babu retained the memo and told Chowbey that he would ask his master and send the money if it is feasible (See Basdeo Q. 20 and 57). On the 7th February, 1950, Basdeo again went to the gaddi of Manick Chand with the hundi and a fresh memo. On reaching the place he presented the memo and the hundi to Harishanker Tewari. Manick Chand Eagri was present at the gaddi. After showing the hundi to Manick Chand and making enquires of him. Tewari said that the memo was taken, then put his signature on the hundi and added that the money would be sent. The memo was retained by Tewari and Basdeo came back with the hundi. Basdeo stated that the parties who were to make payment to the Bank used to sign the papers which were presented to them. In answer to a question put in cross-examination whether he told Tewari that he must get Tewari's signature to satisfy the Bank authorities that he had brought the hundi to Tewari and whether Tewari accordingly signed, he answered in the affrmative adding that he asked Tewari to put the signature. (Basdeo Q. 29 to 39, 49 and 60 to 65). On the 8th February, Basdeo again went to the gaddi of Manick Chand Bagri with the hundi and another memo., and showed the papers to a Babu who sat there, who took the memo., and said, "Go away. It is all right." (Basdeo Q. 42 to 44 and 69-70). Basdeo then came-back to the office of the Bank with the hundi. On the 8th February the Calcutta Office of the Bank sent a telegram to its Bombay office stating that the bill was unpaid and that no reason was given. The Bombay office received the telegram on the 9th February. On receipt of the telegram, one Chandrasekhar Ananta Krishnan, an employee of the Bombay office of the Bank, rang up Messrs. Sadasukh Gambhirchand, told them that the hundi was unpaid and requested them to refund the amount. In reply, he was told that Sadasukh Gambhirchand were not in a Position to pay the amount, immediately and that they were referring the matter to their Head Office in Calcutta. (See Chandrasekhar Ananta Krishnan, Q. 68). Thereafter, the Bombay office of the Bank sent a telegram to its Calcutta Office stating that the bill should be re-presented and should be protested if still unpaid, and adding that the drawer was awaiting advise from its Calcutta Office. On the same date the Bombay office of the Bank sent a letter to Sadasukh Gambhirchand stating that the hundi remained unpaid and that no reason was furnished by the drawers for their failure to pay the hundi on demand. The letter accordingly requested Sadasukh Gambhirchand to refund the amount. On the 9th February, Basdeo Chowbey again went with the hundi and a fresh memo., to the gaddi of Manick Chand and presented the documents to Tewari. Tewari did not accept the memo, and stated that Manick Chand would not make payment of the hundi. Basdeo thereupon returned to the office with the hundi and the memo. (See Basdeo Q. 45-48, 71-75). Basdeo met Tewari both on the 7th and on the 9th February, but he is unable to identify the person or persons whom he met at the gaddi on the 6th and the 8th February. The Calcutta office of the Bank maintained an Inward Bills Department Cash Book. Particulars of the bills sent out for collection used to be entered in that book. On the report of the collecting Durwan the drawee's remarks used to be entered in the book. Under the column, "Drawee's remarks", the following entry appears in the book on the 6th February 1950 "Memo, taken. Will send." On the 7th February, the following entry appears under this column : "Memo, taken. Will send." Under that column the following entry appears on the 8th February : Will send." Under that column, the following entry appears on the 9th February : "Refused to pay. Not prepared write anything." It is plain from these entries that the Bank authorities took the drawee's remarks on the 9th February to be the definite refusal by the drawee to pay the hundi. The Head Jamadar of the Bank maintains a collection book in which the particulars of the bills sent out for collection and the name of the collecting Durwan are entered. The entries in the collection book show that the hundi was sent out for collection through Basdeo on the 6th, 7th, 8th and 9th February. On the 10th February the hundi was protested for non-payment by a Notary Public, On that date, the hundi was presented to some person at the gaddi of Manick Chand Bagri who described, himself to be the Cashier of Manick Chand Bagri but who refused to give his name. The Cashier stated that Manick Chand Bagri would not pay the bill. Four or five days after despatch of the letter dated the 9th February 1950, Chandratan Domani, a person in the employ of Sadasukh Gambhirchand, came to the Bombay office of the Bank and saw Chandrasekhar Ananta Krishnan who took him to one Mr. Dodds. Chandratan assured the Bank that the amount on the Hundi would be repaid as it was not honoured. . (See Chandrasekhar Ananta Krishnan Q. 90). The Bank was unable to obtain payment of the amount of the hundi. Eventually after a lapse of about two and a half years, on August 26, 1952 a formal letter of demand was sent by the Bank's Attorneys Messrs. Sanderson and Morgans, to Manick Chand Bagri demanding payment of the amount of the hundi. The letter stated that Manick Chand Bagri had accepted the hundi but had later dishonoured it. On receipt of the letter, Manick Chand Bagri took inspection of the original hundi and caused his attorneys. Messrs. Dutt and Sen, to write a letter to the Bank on the 10th September 1950, denying his liability in respect of the hundi. Messrs. Dutt and Sen stated that the draft had never been accepted by Manick Chand Bagri and as such the question of payment did not arise. The suit was instituted on the 11th September, 1952.

(3.) The Bank adduced both oral and documentary evidence. The Bank called 7 witnesses. Of these seven witnesses Chandra Sekhar Anant Krishnan works in the Outward Bills Department of the Bombay office of the Bank. He has satisfactorily proved the relevant Bombay records and the operations of the Bombay office relating to the hundi. Karsi Jasarawanji Seodia Works in the Postage Department of the Bombay office. He proved an entry relating to postage expenses. Sachindra Nath Ghose of the Inward Bills Department Kartick Chandra Dutta and Tarak Nath Pal both of the Cash Department and Srikrishna Singh, the head Durwan have satisfactorily proved the relevant records of the Calcutta office of the Bank. These four employees of the Bank work in its Calcutta office. The main witness on behalf of the Bank was Basdeo Chowbey. He gave consistent and acceptable evidence. His evidence was not shaken in cross-examination. In agreement with the learned trial Judge I have no hesitation in accepting his testimony. His testimony shows that Hari Sankar Tewari was specifically authorised by Manick Chand Bagri on the 7th February, 1950 to sign the hundi on behalf of Manick Chand Bagri, The signature was put by Tewari and the rubber stamp was affixed in the presence of Manick Chand and with his approval. The testimony of Basdeo also establishes that Tewari affixed the signature with a view to signify the drawee's assent to the hundi. Tewari signed the hundi on behalf of Manick Chand Bagri to signify the acceptance of the hundi by Manick Chand. The" hundi was presented for payment. Tewari accepted the accompanying memo, and orally promised to pay the amount of the hundi. The acceptance of the memo, and the oral promise to honour the hundi were contemporaneous with the signature. To emphasise the formal nature of the signature, the rubber stamp was affixed above the "signature indicating that Tewari signed the hundi on behalf of Manick Chand. The hundi was payable at sight, that is to say, on demand. In that context the presentment for payment also implied presentment for acceptance. The affixing of the signature on the hundi by the drawee on that occasion indicated acceptance of the hundi by the drawee. When the drawee to whom the hundi is presented for payment signs the hundi it is understood that he intends to pay the hundi. Basdeo told Tewari that his signature would satisfy the Bank authorities that the hundi was duly presented for payment. The signature of the drawee on the bill would no doubt show that the hundi was presented to him for payment. But before affixing his signature Tewari accepted the memo, and orally promised to honour the bill. In the circumstances his signature on tile hundi plainly indicated his acceptance of the hundi on behalf of Manick Chand. I accept Basdeo's testimony and I hold that Basdeo did go to Manick Chand's gaddi on four successive days, namely, on the 6th, 7th, 8th and 9th February and I also accept his version of what happened at the gaddi on those occasions. The fact that Basdeo went to the gaddi on those four dates is corroborated by the entries in the collection book and by the other records of the Bank.