R EZEKIEL Vs. PROVINCE OF BENGAL

JUDGEMENT

(1.) The facts of this case are as follows: There was a company named Davidsons Limited which carried on business as importers of wines and spirits. For the purposes of this business they owned a private bonded warehouse, and as a condition of owning it they were required by the excise authorities to secure the liability, which would arise from time to time to pay duty in respect of dutiable liquors imported by them. On 20 September 1933 the company wrote to the Collector of Excise enclosing a Government promissory note in the five per cent, loan, 1945.55, of the face value of Rs. 10,000. The company in their letter to the Collector describe the note as deposit money in connexion with the establishment of a private warehouse by us at 6, Cooper's Lane in lieu of executing a hypothecation bond.

(2.) This Government promissory note has never been endorsed to the company. The last endorsement is as follows: "Pay David Ezekiel and Mrs. Ezekiel either or survivor or order," the endorser being the Imperial Bank of India. On 9 January 1934 the Collector acknowledged receipt of the promissory note, which he described as deposit by you in Connexion with the establishment of a private warehouse at 6, Cooper's Lane in lieu of executing a hypothecation bond required for this purpose.

(3.) There is a document of 11 November 1934 whereby the Collector certifies that the company have deposited the bond in connexion with the establishment of a private warehouse, and that the bond is lying in the Collector's custody. It appears from a letter of 28 may 1935, that on 18 March 1935 the company had written to the Collector stating that they desired to withdraw the note and to deposit in lieu thereof either cash or other Government securities. This letter is of no particular importance, except as evidencing the date when the company first attempted to recover possession of the note. On 23 July 1936 the company's solicitors wrote to the Commissioner of Excise saying that as the company's excise licenses have been can celled and they have been prevented by the excise from selling their goods, they have been instructed to ask for the return of the note. This letter failed td elicit a reply and in a reminder of 1 September 1936, the solicitors again ask for the promissory note and point out that as their clients excise license has been suspended and they are not permitted to sell the goods lying in their bond, their security has been automatically discharged, and they are entitled to the refund of their deposit. A further reminder was sent on 2 October, 1936.