AMBALANATTATH PARERI BALARAM Vs. SECRETARY OF STATE

JUDGEMENT

(1.) The petitioner here filed a suit against the Secretary of State for India in Council to recover Rs. 155-11-3. The facts which were undisputed were that on 24 July 1933 the petitioner sent through the Post Office, Tellicherry, a money order for Rs. 150 to the address of the Director, Royal Institute of Technology, Delhi. This money order was No. 3609. Having sent off the money order, the petitioner, fearing that the Institute was not a bona fide one, wished to stop payment of the money order and on 27 July 1933 requested the Post Master Tellicherry to send an express telegram to the Delhi Post Office to stop payment of the money order to the addressee and towards the expenses remitted Rs. 3-6-0. The Post Master, Tellicherry, accordingly sent an urgent telegram to the Delhi Post Office and there is no question at all as regards its receipt at Delhi. In spite of this however the Delhi Post Office paid the money over to the payee on 29 July 1933.

(2.) The petitioner then complained to the Postmaster. General, Madras, and received a reply stating that the money could not be recovered and refunded to the petitioner because the Post Office by reason of Rule 276, Post and Telegraph Guide, was not responsible for "inability" or "failure" to stop payment of the money order in compliance with the remitter's request. The petitioner replied to this letter contending that the rule referred to applied only to cases of "inability" or "failure" and not to a case of wilful refusal done fraudulently and collusively. He accordingly held the Secretary of State for India in Council responsible for all damages and costs which he might be put to and gave notice that legal proceedings would be instituted. In the District Munsif's Court the respondent denied liability relying upon Rule 276, Post and Telegraph Guide, which is a reproduction of Rule 100 made by the Governor-General in Council under the Indian Post Office Act (6 of 1898) and further contended that the payment was made through inadvertence. Rule 100 made under the Indian Post Office Act (6 of 1898) reads as follows: The remitter of a money order which has not been paid may stop payment and require that the money be repaid to himself. This shall be done without additional charge on the remitter's applying in writing to the Post Office at which the money order was issued, and producing the receipt and giving full particulars of the payee's address as entered in the money order. In no case however shall the Post Office be responsible for inability or failure to stop payment of a money order in compliance with the remitter's request.

(3.) This rule is reproduced as Rule 276 in the Post and Telegraph Guide; and it was in accordance with that Rule that the petitioner applied to stop payment and that Rule alone in the Guide lays down the procedure for doing so. The learned District Munsif held that the respondent was not absolved from liability by reason of those Rules. He did this because he was of the opinion that this was not a case of "inability" to stop payment of the money order nor had there been a failure" to stop payment. In his view the term "failure" connotes an attempt to do a thing which is attended with no success and omission to do a thing will not ordinarily mean "failure". He refers to one of the meanings of the word "fail" given in the Concise Oxford Dictionary, namely, "not succeed in the attainment of; not succeed in doing or to do". He then cites what he describes as the homely illustration of failure in an examination and says: If a student omits to appear for an examination it is not a case of failure. If he sits for the examination and fails to pass, it is a case of failure. We are not to judge by the result.