JAGJIVANDAS JAMNADAS Vs. NAGAR CENTRAL BANK LIMITED

JUDGEMENT

(1.) The plaintiff carries on business as a sub-agent of the firm of Taraehand Ghanshamdas and sells kerosene oil of the Burma Oil Company, in the district of Ahmednagar. The defendants are bankers doing business at Ahmednagar. It appears that the plaintiff had dealings for the last twenty years with the firm of Taraehand Ghanshamdas and in the course of such business the plaintiff used to send from time to time either hundis or cheques by ordinary post to Taraehand Ghanshamdas. On October 24, 1923, the plaintiff took from the defendants a cheque for Rs. 3,000 payable to themselves-or order, on the Bombay Provincial Go-operative Bank, and the cheque was not crossed at the plaintiff's request. The plaintiff indorsed the cheque in favour of Taraehand Ghanshamdas or order, and it was sent, according to the evidence of the plaintiff, by ordinary post with a letter dated October 21, 1923, along with a hundi for Rs. 600 to Taraehand Ghanshamdas. The letter with the enclosures, namely, the cheque and the hundi, did riot reach Taraehand Ghanshamdas; it ought to have ordinarily reached on October 25 ; but on October 25, some person presented the cheque duly indorsed in the ordinary course of business to the Bombay Provincial Co-operative Bank in Bombay, who in due course made the payment of Rs. 3,000. It appears that the plaintiff, as he did not get an acknowledgment of receipt of the cheque and hundi, sent, reminders and the defendants declining to pay Rs. 3,000, this suit is filed to recover from the defendants the sum of Rs. 3,000, the amount of the cheque.

(2.) It is urged on behalf of the defendants that as the plaintiff sent the cheque in a letter by ordinary post without the cheque being crossed he was guilty of gross and culpable negligence and as the cheque was endorsed in favour of Taraehand Ghanshamdas the plaintiff had no interest left in him in the cheque and therefore this suit is not maintainable by the plaintiff and ought to have been filed by the firm of Taraehand Ghanshamdas. But, in my opinion, there is no delivery within the meaning of Section 46 of the Negotiable Instruments Act simply because the cheque is sent by post; and therefore on the issue whether the suit is maintainable or not, I must find in favour of the plaintiff and hold that there was no delivery within the meaning of Section 46. It must also be mentioned that the firm; of Taraehand Ghanshamdas has not given credit to the plaintiff for this amount, and the practice has been to give credit, only after the cheque is cashed or the moneys of the hundi are recovered; and therefore the firm of Taraehand Ghanshamdas were perfectly justified in not giving credit to the plaintiff for the amount. I also hold that the plaintiff was not guilty of gross and culpable negligence, as alleged by the defendants, simply because he sent the cheque by ordinary post and without it being crossed. There is not the slightest doubt that there was no express or implied request from the firm of Taraehand Ghanshamdas to the plaintiff to send cheques or htmdis by ordinary post. Because the plaintiff for the last twenty years was in the habit of sending chequesand hundis by post, it cannot be inferred that there was an implied request by Taraehand Ghanshamdas or that they approved of the mode of sending cheques or hundis by ordinary post. It is clear from the decision in Pennington V/s. Grossley and Son [1897] 77 L.T. 43 that from the mere fact that cheques were sent from time to; time by post in the ordinary course of; business it cannot be inferred that there was any implied request from the firm of Taraehand Ghanshamdas to the plaintiff to send cheques by post.

(3.) The real defence to this suit is that under Section 85 of the Negotiable Instruments Act protection is given to the drawee if a cheque payable to order purports to be indorsed by or on behalf of the payee and if drawee makes the payment in due course. Section 85 is in these terms: Where a cheque payable to order purports to indorsed by or on behalf of the payee the drawee is discharged by payment in due course.