RAGHUNATH RITHKARAN Vs. IMPERIAL BANK OF INDIA LTD

JUDGEMENT

(1.) This is a reference from the Small Causes Court, Bombay, under Section 69 of the Presidency Small Cause Courts Act, 1882. The occasion for the reference was due to the fact that there was a difference of opinion between the Judges of the Full Court.

(2.) The plaintiffs tiled suit No. 2024/30524 of 1924 in the Small Cause Court to recover from the defendant, the Imperial Bank of India, the amount of Rs. 1,000, which the plaintiffs had paid to the defendant on December 22, 1921, under a mistake of fact. On that day four hundis were presented to the plaintiffs by the defendant for sums aggregating Rs. 7,000, They were all written by she same person. Two of the hundis were drawn by Dhanraj Suganchand for Rs. 1000 each. One of those was as a matter of fact not drawn on the plaintiffs. But by the carelessness of the plaintiffs this fourth hundi was treated as having been drawn on them, and so it was honoured The plaintiffs on the same day made entries in their hundi Nondh of these four hundis, and it should then have discovered that one of the hundis, out of the two which were debited to the account of Dhanraj Suganchand, was not drawn on the plaintiffs. No memo of account was sent to Dhanraj Suganchand until the following November, in his reply of November 10, 1922, he complained that he had been debited with Rs. 1,000 in excess of the true amount. Even then it was not until August 9, 1924, that notice was sent to the defendant demanding back Rs. 1,000. The case came before the Chief Judge who said:- It is the essence of all negotiable instruments that in the case of any mistake whatsoever, notice without any delay has to be given to the party from whom the amount is sought to be recovered, the reason being obvious, as in the meantime the position of the party may have been prejudiced, This has not been done in thin case, and on this ground, if not on any other ground, plaintiffs suit must fail. But even on the facts, I find plaintiffs have no case, Four hundis no doubt written in a similar hand are brought to them Still the party taking down the particulars did not take oven the ordinary precaution of reading the address of the drawee and took it for granted that the drawees were themselves, because defendant's man said so. This sort of want of precaution in a business man could not absolve him, especially where the party to "whom the payment is made has suffered by such absence of caution.

(3.) A rule was obtained from the Full Court, and after arguments, the Chief Judge adhered to his previous opinion.