LAWS(CAL)-1953-12-33

TARINI CHARAN NANDI Vs. AJIT KUMAR KUNDU

Decided On December 17, 1953
Tarini Charan Nandi Appellant
V/S
Ajit Kumar Kundu Respondents

JUDGEMENT

(1.) This is a suit by Tarini Charan Nandi for recovery of a sum of Rs. 4,767-8 as against two Defendants. The cause of action against the first Defendant, Ajit Kumar Kundu, arose out of the following facts. The Plaintiff is a stock-broker and a member of the Calcutta Stock Exchange Association, Ltd. On August 29, 1945, the Plaintiff sold and delivered one hundred shares of the East India Coal Co., Ltd., to Kundu at the rate of Rs. 47-6 as per share and received a cheque for the price of the said shares on August 31, 1945, amounting to Rs. 4,767-8 as. including the stamp of the value of Rs. 30 affixed to the transfer deed. The said cheque, according to the Plaintiff, was deposited on August 31, 1945 with the Plaintiff's bankers, the Allahabad Bank, Ltd., the Defendant No. 2 in this suit, for collection and credit of the proceeds. The Defendant bank, according to the Plaintiff, wrongfully failed and neglected to present the cheque for payment to the Calcutta National Bank and/or to collect the same. Unfortunately for the Plaintiff, he did not discover the fact that the cheque had not been credited to his account until nearly three years had elapsed since the date of deposit of the cheque with his bankers. In August, 1948, the Plaintiff, on discovering the above fact, got in touch with the bank. The bank made certain investigations but nothing came out of it and neither the bank nor the Defendant Kundu was willing to pay the Plaintiff the sum of Rs. 4,767-8 as. Hence this suit.

(2.) The writ of summons was attempted to be served on Ajit Kumar Kundu at P14, Bentinck Street, Calcutta. Kundu was not found in spite of diligent efforts in that behalf and the writ of summons was ultimately served on him by affixing a copy of the same on the outer door of the said premises. Kundu has not appeared herein or taken any steps to defend the suit. The Defendant bank put in a written statement not admitting that the cheque was deposited with the bank as alleged and further denying that the Plaintiff did not discover the non-deposit of the cheque till August, 1948, as alleged. By para. 6 of the written statement the Defendant bank contended that-

(3.) The contention made in para. 7 of the written statement is that by reason of the above conduct of the Plaintiff, he must be taken to have waived his rights, if any, against the Defendant bank. When the suit came up for hearing in July, 1953, counsel appearing for the bank wanted to raise an issue as to estoppel. It was pointed out to him that on the pleadings such an issue could not be raised and that if he wanted to do so, he must amend his pleadings. Leave was given to the Defendant to amend the written statement and the written statement has since been amended by putting in para. 7(a) which reads as follows: