LAWS(CAL)-1976-5-14

OGURMULL CHOUDHURY Vs. CENTRAL BANK OF INDIA

Decided On May 07, 1976
OGURMULL CHOUDHURY Appellant
V/S
CENTRAL BANK OF INDIA Respondents

JUDGEMENT

(1.) THIS Rule has been directed against the judgment and order dated 4. 12. 73 passed by the full Bench of the Presidency Small cause Court, Calcutta, reversing those dated 22. 6. 72 passed by the learned third Bench of the said court in suit no. 1902 of 1971. The suit was instituted by the petitioner-plaintiff against the two branches of the Central Bank of India - one at Burrabazar in Calcutta (Opposite Party No. 1) and the other at Banda in U. P. (Opposite Party no. 2) on the following allegations:

(2.) THE plaintiff-petitioner purchased 222 bags of Moong of Ms. Ram Lal laluram who dispatched the same from Marwi to Howrah under R/r No. 432641 dated 14. 3. 70 and on 16th March, 1970 he made over the said railway receipt to the defendant No. 2 along with the Hundi for Rs. 23, 000. 00 being the price of the same goods drawn by m/s. Ram Lal Laluram upon the plaintiff-petitioner with instruction to deliver the said Moong to the plaintiff-petitioner against payment of the aforesaid amount. The defendant No. 1 - the central Bank of India at Kalakar street, Calcutta presented the said hundi to the plaintiff at 1-30 p. m. on 28th March, 1970 which was a Saturday. The plaintiff on payment of the sum of the said Hundi and on delivery of the R/r on March 30, 1970 immediately presented the same for delivery to the Railway Administration and took delivery of the goods on the same date. But it had to pay a sum of Rs. 642. 00 on account of wharfage or demurrage as the goods had arrived at the destination long before the Hundi was presented to the plaintiff. Owing to delay in presentation of the Hundi and the subsequent delay in the delivery of the R/r to the plaintiff, the plaintiff had to pay the demurrage. The R/r and the Hundi ought to have been presented in the usual course to the plaintiff by 18th March, 1970. Owing to the inordinate delay in presenting the Hundi and the R/r the plaintiff suffered loss and damages amounting to a sum of Rs. 642,00 by way of demurrage and a further sum of Rs. 888. 00 on account of loss of profit due to fall in the market price. The defendant, it was alleged, wrongfully realised a sum of Rs. 75. 61 as interest from the plaintiff which they were not entitled to do in view of the delay in presenting the hundi and the R/r. The total claim was laid at Rs. 1, 605. 61.

(3.) THE defendants alleged that there was no privity of contract between the plaintiff and the defendants and as such the defendants had no liability whatsoever to the plaintiff; that there was understanding that the drawer shall intimate the drawee about the dispatch of the documents and the defendant Bank shall not be liable either to the drawer or to the drawee for delay in presentment of the bill or in sending intimation of the bill to the drawee in Calcutta ; that the defendant no. 1 presented the Hundi and R/r to the plaintiff sufficiently ahead of the closing of the banking hours of the 20th march, 1970 and not at 1-30 p. m. as alleged ; that there was no delay in presentment of the Hundi or in delivery of the R\r; that the documents in question were posted by the Banda office of the defendant No. 2 on or about 16th March, 1970 for delivery to the defendant No. 1 in Calcutta. The documents were delivered at the office of the defendant No. 1 on 21. 3. 70 which was a Saturday and there was no time for taking any action on the said bill and that 22nd and 23rd March, 1970 were bank holidays. The defendant no. 1's diary department received the bill on 24th March, 1970 from where mutual course of business it was forwarded to the I. B. C. department of the bank; that the drawee men could not be found or contacted by the messengers of the defendant No. 1 on the 25th and the 26th March, 1970 despite attempts; and 27th March 1970 was a holiday. The documents were presented on 28th March, 1970 in the early banking hours to enable the drawee to release the documents on the same date; that the defendant's realisation of interest was not illegal.