KHITENDRA NATH ROY CHOWDHARY Vs. MADANESWAR CHATTERJEE

JUDGEMENT

(1.) This suit relates to a ticket taken in the sweepstake organized by the Royal Calcutta Turf Club Derby for the year 1934. The undisputed facts are as follows: The defendant Madaneswar Chatterjee, who was at all material times a clerk in the cash department of the Imperial Bank, applied for a ticket on 23 May 1934, through his superior, the accountant of the Bank, Mr. Wright, giving as nom-de-plume "Annapurna". On 5 June 1934, a Tuesday, the draw was announced, and ticket No. 08090, the ticket which Mr. Wright obtained for Madaneswar Chatterjee, drew a horse called Bondsman, a non-starter. On 9 June 1934, Khitendra Nath Roy Chowdhury, the plaintiff, claimed that the ticket had been obtained for him, and that Rs. 10 had been paid to Madaneswar Chatterjee by his father for the purpose of applying for a ticket through Mr. Wright. On 15 June 1934 Mr. Wright stated in correspondence that he claimed no interest in the ticket or the prize, the ticket having been obtained by him for Madaneswar Chatterjee. By 22 June, 1934, Mr. Wright tad received the prize-money amounting to Rs. 4,435.8.0. He stated his intention of making this over to Madaneswar Chatterjee, but withheld it at the request of the plaintiff until an injunction was obtained. I have not the order before me but an injunction was granted by this Court. Mr. Wright has left India and the money now remains with the accountant of the Imperial Bank for the time being, Mr. Wright claiming no interest therein.

(2.) There are two utterly divergent stories as to what happened. These in outline are as follows. According to the plaintiff, the plaintiff's father, an old but active and very intelligent man, saw the defendant on 23 May 1934. He did not know the defendant before, but ascertained that he was the uncle of another clerk who had previously obtained a ticket for the plaintiff. The plaintiff's father says that he handed the defendant Rs. 10 to obtain a ticket through Mr. Wright giving the nom-de-plume "Annapurna", that the defendant promised to do so and asked him to call on the following Thursday. That was 31 May. The plaintiff's father did not find him in the bank on the 31 as the defendant was away on leave in connexion with his daughter's marriage. On Saturday 2nd June, according to the plaintiff, a Gomastha called Durgapada Bhattacharjee was sent to the defendant at Utterpara with a letter asking for the ticket and a certificate. The letter as tendered before me (Ex. H) contains writing purporting to be that of the defendant, which, if genuine, is fatal to the defendant's case. According to Durgapada this writing was made in his presence. 4 June was a holiday. On 5 June it is common ground that the plaintiff's father and the defendant met in the bank, but the respective stories are very different.

(3.) The defendant says that having received his ticket from Mr. Wright and having been told that it had drawn a horse, on his way to some obscure portion of the bank he met the plaintiff's father, announced to him that his ticket had won a horse, that it would all be found in the "Statesman" together with the nom-de-plume, and he also suggests that he told the plaintiff's father that if he had only sent the money he might also have drawn a horse. This refers to what the defendant says happened at his first interview with the plaintiff's father, indeed the only other interview. The defendant says that the plaintiff's father, Joy Chunder Babu, came on 24 May, that he had no money with him, and that he said that he would send his gomastha with the money the next day, and that the gomastha never came. He says further that on 5 June, 1934 the plaintiff's father asked him whether his gomastha had not brought him the money and certain other questions. Those are briefly the divergent stories. The onus is undoubtedly on the plaintiff. He did not get a receipt for the Rs. 10, and this is perhaps the strongest point in favour of the defendant. Mr. Chatterjee relies also upon certain improbabilities, namely, the mention of Thursday when the defendant must have known that he would not attend the bank that day and the fact that Durgapada at Utterpara did not insist upon the certificate being signed. He relies also on the fact that no evidence has been produced in the way of books as to the payment of Rs. 10.