HAZARIMULL SHOHANLAL Vs. SATISH CHANDRA GHOSE

JUDGEMENT

(1.) The plaintiff firm claims to be the owner of 25 Baranagore Jute shares, being shares Nos. 51064 to 51088. These shares are now registered in the books of the Company in the name of Shohanlal, who is one of the partners of the plaintiff firm.

(2.) The plaintiffs bought these shares from the defendant firm of Lalchand Premsook on the 7th May 1917 and paid for then at Rs. 87-8 per share. The defendant firm at the time of the sale made over to the plaintiff firm the certificate for the said shares and also a blank transfer deed signed by one Jugal Chandra Roy, whose name appeared up to the 11th May 1917 in the books of the said Company, as the registered owner of the said shares. After the purchase by them the plaintiff firm got the transfer in the name of Shohanlal, on the 12th May 1917. These shares were purchased by the defendant Satis Chandra Ghose in February 1917. In or about April 1917, a person calling himself Upendra Nath Mukherjee came and proposed, to him that he would be able to sell these shares at a better rate than was available in the market. Satish Chandra Ghose thereupon made over these shares to his clerk Panchanan Mukherjee with directions to him not to part with the shares until cash was paid for them, and he sent him with Upendra Nath Mukherjee. This happened on the 17th April 1917. It is stated by Panchanan Mukherjee that when they went to the share market Upendra Nath Mukherjee persuaded him to make over the shares to him and asked him to wait as he was going to get payment for them: but eventually he did not turn up. Panchanan Mukherjee waited for some time and then went to his master and reported that he could not trace the man, and from that time Satis Chandra Ghose could not trace those shares, until, a police enquiry was held. These shares appear to have been purchased by the defendant firm of Lalchand Premsook & Co. from Upendra Nath Mukherjee. It is said by them that a sowda was made on the 5th May 1917, but that the-shares were actually delivered to them on the 7th May; that payment was made to Upendra Nath Mukherjee by a crossed cheque, but that a few days Inter the man came back with the crossed cheque and said that he could not cash the crossed cheque, and thereupon it is said that the defendant firm or Lalchand Premsook & Co. paid him cash and look back the cheque. This payment is said to have been made on the 16th May. The rate at winch they purchased was Rs. 85, and they say that they paid brokerage also. The plaintiffs bought from Lalchand Premsook as above mentioned. I am satisfied upon the evidence that Satis Chandra Ghose owned these shares and that Upendra Nath Mukherjee obtained them by a trick and disappeared with them. I am also satisfied that the plaintiffs purchased from the defendant firm of Lalchand Premsook bond fide, that they paid full value for them and that they subsequently got their name registered as above mentioned. I am not quite satisfied with the account given by Lalchand of the transaction with Upeudra. His account of the matter before me differs from the account given by him in the Police Court in important particulars. His clerk, Lal Behari, was examined but he had no personal knowledge of the sowda. On the first day of the examination of Lalchand, he said nothing about one Jowala Prosad having acted as broker in the transaction, but he made such a statement on the second day of the hearing. Jowala Prosad has been examined and he says that he met Upeudra Nath Mukherjee in the share market and had a conversation with him, that Lalchand came up, and then the matter was discussed, between Lalchand and Upendra Nath Mukherjee and the purchase was effected by Lalchand. He says that although he was not a broker in the transanction, he was present at the time when the matter was discussed and, therefore, he claimed, brokerage and Lalchand. "out of kindness," gave him some brokerage, which he said was Rs. 12-8; but from the books of Lalchand Rs. 25 purports to have been paid to Jowala Prosad, which is more than the ordinary brokerage. Lalchand, although old and illiterate, is a shrewd man of business, it is absolutely impossible to rely upon his statements, and I am not at all satisfied with the account of the transaction given by him. It is not supported with regard to the details by anybody; but having regard to the large dealings of this firm, I will not say that the transaction was malt fide. Even accepting the figure mentioned by Lalchand as having been paid, the rate was somewhat lower than the market-rate. No attempt has been made to prove that Upendra was a broker or that he was known as such. Lalchand s statement to that effect I am not prepared to accept. In his books the name of Dutt and Mukherjee appears but the cheque was drawn in the name of Upendra Nath Mukherjee. It has not been shown that there was any such firm of brokers as Dutt & Mukherjee. I have careful considered the matter and I am not at all satisfied with the account given by Lalchand or with the nature of the transaction between him and Upendra.

(3.) Under these circumstances, what is the result? These shares were obtained by fraud from Satis Chandra Ghose by Upendra Nath Mukherjee. He was tried in the Calcutta Police Court and has been convicted. The conviction is on alternative sections, criminal breach of trust, or cheating, but which section really applies, is immaterial. I hold that he obtained possession of these documents upon a fraudulent representation both to Satish Chandra Ghose and his clerk and that he fraudulently dealt with these shares. If the transaction is covered by Section 108 of the Contract Act. I hold that the person who purchased these shares from him did not acquire good title. The expression "goods" in that section includes all moveable property: see Section 67 of the Contract Act. It was said that inasmuch as Upendra Nath Mukherjee was in possession he could give good title under Section 108, Exception (i), but that exception requires possession with the consent of the owner. Here the consent was obtained by deceit, and I therefore hold that the exception is not applicable. In support of this I refer to Cole v. North Western Bank (1875) L.R. 10 C.P. 354, 373, Calm v. Pocketts Bristol Channel Steam Packet Co. (1899) 1 Q.B. 643, 659, and Oppenheimer v. Fraser (1907) 2 K.B. 50.