John Edge, Kt., C.J.
1. How do you show that there was an original letter of which this was a copy, or that if there was such a letter it was ever sent to the appellant
2. By the Evidence of Manohar Chandra Chakarbati read with Sections 16 and 114 of the Evidence Act. The witness proves the existence of a particular course of business, viz., that the press-copies of which the copy in question was one, were taken from original letters which it was then the Secretary's duty to despatch. He proves that this document is a copy of an original letter, and that the course of business was for such originals to be despatched after being coined. Mr. Justice Cunningham in his commentary on the Evidence Act suggests that the illustrations to Section 16 were intended to supply the place of Sections 50 and 51 of Act II of 1855, the former of which provided that when a letter-book duly kept is produced, and it is proved that a letter copied into it was despatched in the ordinary course, the Court may presume its despatch. This being the course of business, the Court may under Section 114, illustration (f) of the Evidence Act, presume that it was followed in this particular case.
Edge C. J.
3. You ask us to make a double presumption; first, from the course of business, that the letter was despatched, and secondly, from the fact of despatch, that it was received.
4. Section 114 of the Evidence Act leaves it to our discretion to presume that the course of business has been followed: we are not bound to presume it.
5. In Wall's Case L.R., 15 Eq., 18, the fact that a letter was despatched was held to raise a presumption of its receipt so strong that the denial of the recipient on oath was not sufficient to rebut it. Here there is no denial upon oath. But it is unnecessary for me to prove that the letter was received by the appellant, it I can prove that it was despatched. The other side have not distinguished Household Fire Insurance Company v. Grant, L. R., 4 Ex. D., 216, from the present case, though of course that applies only if I have proved the despatch of the letter. The doctrine that an unreceived acceptance sent by post cannot bind the proposer unless he has expressly or impliedly assented to the post office being used as the medium of communication with him, and to the risks contingent on such use, is not recognized by the law of India. Section 3 of the Contract Act shows that the communication of an acceptance is deemed to be made by any act by which the acceptor intends to communicate it or (not ' and ') which has the effect of communicating it. The despatch of a letter containing an acceptance is such an act. Section 4 shows that the communication of an acceptance is complete as against the proposer when it is put in a course of transmission to him, so as to be out of the acceptor's power. From that moment, the proposal cannot be revoked (Section 5). It follows from this that a notice of allotment, which is the acceptance of the offer to purchase shares, is communicated to the allottee when it is despatched, and from that moment there is a complete contract for him. Whether or not he receives the letter is absolutely immaterial. This is the effect of the case last cited.
John Edge, Kt., C.J.
6. Assuming that the letters of the 19th May and the 24th August 1884, were despatched, what evidence is there that they were properly addressed
7. The address mentioned in the press-copy is correct, and it ought to be presumed under Section 114 of the Evidence Act that the same address would be written on the envelope containing the letter. In Townsend's Case L.R., 13 Eq., 148, a letter posted to a wrong address was held to be a good notice of allotment.
8. In the next place, communication of the notice of allotment may be inferred from conduct of the allottee showing knowledge of the allotment: Crawley's Case L.R., 4 Ch., 322. In this case such knowledge is shown by the appellant's letter of the 28th April 1886, and his receipt of the letter of the 19th May 1886. The former letter taken with the conduct of the appellant amounts to a waiver of more formal notice. The application for scrip and for a receipt for the money paid by Charu Chandra were acts without meaning unless the appellant was a shareholder.
John Edge, Kt., C.J.
9. How do you distinguish Gunn's Case L.R., 3 Ch., 40, from the present? The facts seem very similar. The Court there refused to act on the prima facie evidence afforded by the register.
10. It was there held that the mere entry of a person's name upon the register was insufficient to make him a shareholder, if he had no notice of the allotment. There however, the alleged shareholder, gave evidence contradicting the register. There is no case in which, the register being supported by some evidence and not contradicted by any, the alleged shareholder's name was held to have been improperly placed upon it. Even if the copies of the letters of the 19th May and 14th August 1884, are inadmissible, and there is no specific proof of communication of the notice of allotment, still the register is prima facie evidence of that and of all the other elements of the contract, and, in the absence of evidence to the contrary, it must prevail.
11. The evidence of Manohar Chandra Chakarbati, the respondent's own witness, appears to me to discredit the register.
12. The register merely states the fact of shares having been purchased: it is necessarily silent as to how the purchase was made, or other particulars not required by Section 47 of the Act. The witness explains how the purchase was made.
13. Mr. C. H. Hill, in reply.--The Company having adopted Table A of the first schedule of the Act, clause 97 applies, which shows that proof must be given that notices sent through the post were properly addressed and put into the post-office. No such proof has been given in connection with the alleged letter of the 19th May 1884, and consequently the service of notice of allotment is not proved. The appellant's offer to purchase the shares, if ever made, was revoked by the lapse of a reasonable time, without communication of the acceptance,--Section 6 of the Contract Act. His letter of the 28th April 1886, could not be a valid ratification of Charu Chandra's acts, because it shows that his knowledge of what had happened was materially defective--Section 198. The respondent might, if he had chosen, have relied on the prima facie evidence afforded by the register; but, instead of doing so, he produced oral evidence an to the purchase of the shares, and so raised the question whether that register was correct. This evidence is unsatisfactory, and raises a counter inference that there was no purchase of shares by the appellant, and no notice of allotment communicated to him.
Edge, C. J. and Oldfield, J.
14. This is an appeal from an order of the Judge of Cawnpore, dated the 4th of October 1886, declaring the appellant a contributory in respect of ten shares in the Cotton Ginning Company, Limited, of Cawnpore, and ordering him to pay the official liquidator's costs.
15. The Company was registered in 1883 as a limited liability Company, under the Indian Companies Act, 1882, with a capital consisting of Rs. 100 shares. Table A in the first schedule to the Act was adopted by the Company. An order for the winding up of the Company was made in July 1886. The respondent was appointed the official liquidator of the Company.
16. On the settlement of the list of contributories, the appellant objected to being placed on the list in respect of ten shares which appeared by the register of the Company to have been allotted to him in 1884. The Judge of Cawnpore appointed the 27th September 1886, and following days, for the hearing of objections and the settlement of the list of contributories. Of this appointment a notice was, on the 24th of August 1886, duly sent to the appellant.
17. On the 27th, 28th and 29th September 1886, the appellant, with a vakil instructed by him, attended the Judge's Court, and on the 29th September 1886, his case was reached. The 27th, 28th and 29th of September 1886, were days which were included in the list prepared by this Court in accordance with Section 17 of the Bengal Civil Courts Act, 1871, of days to be observed as close holidays in the Courts subordinate to this Court, of which the Court of the Judge of Cawnpore was one. On the hearing of the appellant's objection on the 29th September 1886, the register of the Company was put in evidence, and one witness was examined on behalf of the liquidator. The Judge also admitted as evidence on behalf of the liquidator press-copies of two letters or notices addressed on behalf of the Company to the appellant, dated respectively the 19th May 1884, and the 14th August 1884. These press-copies were contained in a press-copy letter-book, which was proved by Manohar Chandra Chakarbati, the liquidator's witness, to be the copy letter-book of the Company. This witness proved that the press-copy letter of the 19th May 1884, including the signature, was in the writing of a deceased Secretary of the Company, and that it was the duty of the Secretary to despatch letters after they were copied. A book was also produced and admitted in evidence by the Judge, which appears to have been a postage account-book of the Company, but by whom kept was not proved, which, under the dates of the 19th May 1884, and the 14th August, contained entries of charges for postage stamps for letters to the appellant. These press-copy letters we have, for reasons which we shall state presently, considered inadmissible in evidence, and have not admitted them in evidence before us.
18. Manohar Chandra Chakarbati, who had been a managing director of the Company, and was the liquidator's witness, in addition to the evidence above referred to, stated, according to his deposition before us, so far as is material, as follows: ' In May and August there was manager, secretary, and clerk. The clerk had to do time-keeping and register-keeping, and what he was ordered. I believe the Secretary despatched letters. I cannot swear the clerk did not. I remember once seeing a postage book for stamp account. As far as I am aware, Ram Das did not personally apply to the Company. Application came through Charu Chandra. I do not remember Charu Chandra making written application. He told me he was going to take ten shares for Babu Ram Das, and I understood he went to the office. I cannot remember any application being produced with entry in register. The prospectus stated that ten per cent, was to accompany application. It was not adhered to. There was a printed form of application. I wrote the letter of 19th May (produced) for shares bought after time prescribed for payment of all calls. The practice was to demand the whole price at once. No immediate demand for payment was made as far as the letter-book shows. I saw no written authority from Ram Das. Charu Chandra paid something on account of the shares. I cannot say if Charu Chandra said he was authorized to take the shares. The Secretary could allot shares.'
19. The other evidence on behalf of the liquidator consisted of two letters, one written by the appellant to the witness Manohar Chandra Chakarbati, dated the 28th April 1886, and the reply of the witness, dated the 19th May 1886.
20. The appellant and his vakil took part in the inquiry. The appellant answered some questions which were put to him by the Judge. Neither the questions nor answers are recorded. The appellant did not give any evidence, nor was any tendered on his behalf. The appellant, who is a vakil on the rolls of, and practising in, this High Court, did not, nor did his vakil, make any protest or objection to the Judge proceeding with the inquiry on a close holiday. In the result, the Judge made the order the subject of this appeal.
21. The first point which was raised on the argument before us was as to the jurisdiction of the Judge to hold the inquiry on a close holiday. Mr. Hill, on behalf of the appellant, contended that, by reason of Section 17 of the Bengal Civil Courts Acts, 1871, the Judge had no jurisdiction, and the parties could not, by consent or otherwise, give him, as a Judge, jurisdiction to enter upon the inquiry, or to hear or determine the matter which was before him, or, in fact, any matter on the civil side of his Court, upon a day which was one of those included in the list prepared by this Court of days to be observed as close holidays in the Courts subordinate to this Court. Section 17 of the Bengal Civil Courts Act, 1871, is as follows: 'Subject to such orders as may from time to time be issued by the Governor-General in Council, the High Court shall prepare a list of days to be observed in each year as close holidays in the Courts subordinate thereto. Such list shall be published in the local official Gazette, and the said days shall be observed accordingly.'
22. This section, it appears to us, was framed in the interests of the Judges and the officials of the Courts, and probably also in that of the Hindu and Muhammadan pleaders, suitors, and witnesses, whose religious observances might interfere with their attendance in Court on particular days.
23. There are, so far as we are aware, few authorities, from the consideration of which we can obtain any assistance as to the construction and effect of the section above set out. Cases in which the subject-matter in dispute was one outside the Judge's jurisdiction, do not assist us In such cases the Judge would not, even with the consent of the parties, have jurisdiction, as a Judge, to enter upon the inquiry at any time. Here an inquiry and determination as to the persons who are liable to be placed upon the list of contributories in the winding up of a Company in liquidation, are within the jurisdiction of a District Judge; and the want of jurisdiction, if any, arises, not from the nature of the subject of the inquiry, but from the nature of the procedure. The cases which have been decided upon the construction of Section 6 of the 29 Car. II, cap. 7, commonly known as the Lord's Day Act, do not, in our opinion, afford any assistance to us in the present case; but the difference between the wording of that section and the section in question. in this case is striking. That section provides that no person or persons upon the Lord's Day shall serve or execute, or cause to be served or executed, any writ, process, warrant, order, judgment or decree (except in cases of treason, felony or breach of the peace); and by that section it is specifically enacted that ' the service of any such writ, process, warrant, order, judgment, or decree shall be void to all intents and purposes whatsoever.' In the section under consideration there are no such specific words as those above quoted. If it had been intended by the Legislature that a Judge should have no jurisdiction or power to enter upon a judicial proceeding or inquiry on a close holiday, and that if the Judge did on a close holiday hold a judicial inquiry the proceedings should be void, it would have been easy for the Legislature to have expressed such intention by the use of apt words, such as we find in Section 6 of the Lord's Day Act.
24. By the Rules of Hilary Term, 6 Will. IV, it was ordered that certain days ' shall be observed or kept as holidays in the several offices belonging to the said Court,' With reference to the days mentioned in the rules, we find it stated in note (l) at page 50 of Petersdorff's Abridgment of Common and Statute Law, vol. 5, 2nd ed.: 'These are not dies non, but periods of vacation for the Courts and offices. The proceedings are not suspended.' And again in the same note: ' The offices may be opened at any time when regularly they are shut. They are closed on a holiday for the benefit of the officers, and if they think fit to attend they may, and if open, judgment may be signed.--Bennett v. Potter, 2 C. and J. 622.' Unfortunately we have not the opportunity here of examining the authority cited in Serjeant Petersdorff's note.
25. We are of opinion that on such a close holiday as that in question, a Judge might properly decline to proceed with any inquiry, trial or other matter on the civil side of his Court; and any party to any judicial proceeding, if present, could successfully object to any such inquiry being proceeded with; and in the event of any such inquiry having been proceeded with in his absence and without his consent, would be entitled to have the proceeding set aside as irregular, probably in any event, and certainly if his interests had been prejudiced by such irregularity. In this case the question arises whether a party who, on a close holiday, does attend, and without protest takes part in a judicial proceeding, can subsequently successfully dispute the jurisdiction of the Judge to hear and determine the matter on such close holiday.
26. It appears to us that at the furthest the entertaining on a close holiday, and deciding upon a matter within the ordinary jurisdiction of the Court, is an irregularity the right to object to which can be, and was in this case, waived by the conduct of the parties. The case of Andrews v. Elliott, 5 E. and B. 502; 6 E. and B. 338; 25 L. J., Q. B. 336, affirmed in the Exchequer Chamber is an authority for the proposition that consent takes away error. If we were to hold, as it has been contended that we ought to hold, that in no case could a District Judge exercise on a close holiday any judicial function on the civil side of his Court, cases of great hardship might arise. Take, for instance, the case of a judgment-debtor applying, at the commencement of the Dasehra holidays of last year, to be discharged from jail, on the ground that the decree was fully satisfied within the meaning of clause (b) of Section 341 of the Civil Procedure Code. To obtain his discharge an order of the Court would be necessary, and before the Judge could make such an order, it would be necessary that he should satisfy himself by admission of the judgment-creditor, or by inquiry, that the decree had, in fact been satisfied. In such a case it surely could not have been the intention of the Legislature that the Judge should be compelled to abstain from holding any such inquiry. or granting an order of discharge until the termination of the Dasehra holidays, which last year lasted for twenty-eight consecutive days. In the course of the argument on this point, the ease of Bisram Mahton v. Sdhib-un-nissa I. L. R., 3 AIL, 333, was cited.
27. Mr. Hill on behalf of the appellant, applied to us to allow him to be examined before us. Mr. Arthur Strachey, on behalf of the liquidator, opposed this application, which we rejected on the ground that the appellant, having had ample opportunity of giving evidence in the Court below, and having elected not to do so, but to rest his case on the evidence as it stood, ought not to be allowed at this stage to give evidence which he could have given below.
28. Before considering the effect of the evidence which has been admitted by us, it will be convenient to state our reasons for rejecting as evidence the two press-copy letters already referred to.
29. It was alleged on behalf of the liquidator and denied on behalf of the appellant, that a notice to produce the originals of the two press-copy letters had at the hearing been given to the appellant through the Court, under Section 131 of the Civil Procedure Code. In the view which we take, it is unnecessary to consider whether or not such notice was in fact given. There is no evidence of it on the record before us, nor is it necessary for us to consider whether, having regard to the fact that the inquiry was taking place at Cawnpore whilst the appellant's residence was at Allahabad, such notice, if given, was a reasonable one. Mr. Hill, on behalf of the appellant, objected to the press-copy letters being admitted in evidence, on the grounds that there was no evidence that the appellant had assented to the post-office being used as the medium of communication with him ; and further, that there was no evidence that the originals had ever been properly addressed or posted. He drew our attention to paragraph 97 of schedule I, Table A of the Indian Companies Act, 1882. On the other side, Mr. Strachey referred to Sections 16 and 114 of the Indian Evidence Act, 1872, and contended that there was evidence in that already referred to, that in the ordinary course of business of the Company the letter in question would have been posted; and that we ought to infer that they bad been posted properly addressed. He also contended that if we inferred that the letters had been posted, it was immaterial whether or not they had been properly addressed; and in support of this latter contention he relied upon Townsend's Case L.R., 13 Eq. 148, and referred to Sections 3 and 4 of the Indian Contract Act, 1872. We are of opinion that there is no evidence whatsoever that the letters, if posted, were properly addressed, and we decline to draw, and do not draw, the inference that the letters in question were properly addressed or posted. To hold that such an inference ought to be drawn on the evidence in this case would, in our opinion, be opening the door to fraudulent persons in other cases putting in evidence copies of letters which were never posted, or, if posted, were fraudulently misaddressed. There is here no evidence that the letters, if posted, were not returned to the Company through the Dead Letter Office. In fact, we infer from the appellant's letter of the 28th April 1886, that he had not received either of the letters referred to. It is possible that the letters in question may have been handed to Charu Chandra for delivery to the appellant; or it is possible, having regard to the apparently loose manner in which the business of the Company was conducted, that the letters may have gone into the waste paper basket in the office; or that the peon who may have been entrusted with the posting of the letters, may have appropriated the stamps and destroyed the letters; or that the letters may have been incorrectly addressed and returned to the Company through the Dead Letter Office. Section 4 of the Indian Contract Act, 1872, appears to us to support the contention of Mr. Hill, and to be against that of Mr. Strachey, for it is there enacted that 'the communication of an acceptance is complete as against the proposer when it is put in a course of transmission to him,' &c.; A letter to a proposer not correctly addressed could not, although posted, be said to have been 'put in a course of transmission' to him.
30. Townsend's Case L.R., 13 Eq. 148, decided that a notice of allotment sent to the allottee to the address given by him was sufficient, although, owing to the insufficiency of the address, the notice never reached him. In that case it would appear that the insufficiency of the address arose from the negligence of the allottee. It does not appear to us to have any bearing on the question whether the press-copy letters in this case are admissible in evidence. Besides, paragraph 97 of Schedule A of the Indian Companies Act, 1882, contemplates that proof should be given that notices sent through the post by companies which adopted that schedule, were properly addressed and put into the post-office. As we have said, there is no evidence before us that either of the letters was properly addressed or put into the post-office, and we decline to draw, and do not draw, the inference that the letters were properly addressed or posted, and we accordingly exclude the press-copy letters in question from the evidence in this case.
31. It has been contended by Mr. Strachey that there was evidence that Charu Chandra was the authorized agent of the appellant to obtain an allotment of the ten shares in question ; that the appellant had ratified the acts of Charu Chandra ; that the appellant had had notice of the allotment; and that the appellant having taken no action after the receipt of Manohar Chandra Chakarbati's letter of the 19th May 1886, until after the Company went into liquidation, to repudiate the acts of Charu Chandra, he could not now be heard to say that he was not liable in respect of the ten shares. Mr. Strachey also contended that a notice of allotment of sharesmay bewaived, and need not necessarily be in writing. With this latter contention we agree. Mr. Strachey also contended that there was no evidence to rebut the prima facie evidence that the appellant was a member of the Company in respect of the ten shares afforded by the section in the register, and that as the appellant had given no evidence on the inquiry to rebut this prima facie evidence afforded by the register, the register was conclusive. The oral evidence in this case does not support any of the contentions of Mr. Strachey so far as they depend on questions of fact. There is nothing in the oral evidence to show that the appellant ever authorized or ratified the acts of Charu Chandra, or that he had ever received any notice that the ten shares in question had been allotted to him. The other evidence now before us consists of the letters of the 28th April 1886, and the 19th May 1886, and the register. No doubt the register affords prima facie evidence that the appellant was the holder of the ten shares and a member of the Company in respect of them in 1884. The liquidator might, if he had chosen so to do, have put the register in evidence and waited, before giving any further evidence, until the appellant had given some to displace the prima facie evidence afforded by the register, or to impugn the character of the register. But this course was not that which the liquidator adopted. The liquidator, instead of standing, in the first instance, upon the prima facie evidence afforded by the register, called, as a witness, Manohar Chandra Chakarbati, whose evidence, in our opinion, went far to throw discredit on the register, and to raise more than reasonable doubts in our minds as to the liability of the appellant. In addition to this oral evidence, the liquidator put in evidence the letters of the 24th April and the 19th May 1886, which for reasons which we shall presently state, this placed the presumption which the register afforded. The liquidator's case must be looked at as a whole, and having taken the line which he did, he must take the consequence of his other evidence contradicting or impugning the prima facie evidence afforded by the register, and this notwithstanding that the appellant gave no evidence.
32. The appellant's letter of the 28th April 1886, was as follows:[His Lordship read the letter, and proceeded:]
33. After careful consideration, we have come to the conclusion that this letter bond fide expressed the appellant's views and intention at the time it was written, and the extent of his knowledge, such as it was, of what had taken place prior to that date. We know as an admitted fact that Charu Chandra had not paid Rs. 326 in respect of the shares, and that the total amount paid by him, and for which credit was given in respect of the shares, was Rs. 251 only. We also know as an admitted fact that the shares which, according to the register, had been allotted to the appellant, did not correspond with the numbers mentioned in the letter. The latter fact is, we think, only material as showing the inaccuracy of the information upon which this letter was written,--an inaccuracy which we would not expect to have found in this letter if the appellant had received a notice of allotment of the shares. The inference which we draw from this letter is, that the appellant had received from Charu Chandra some inaccurate information as to the purchase of these, shares; that he had received no notice of allotment; that he did not know whether or not the shares had in fact been allotted, or how far he could depend on the information which he had received from Charu Chandra; and that he was willing to take shares if they had in fact been allotted to him, and Rs. 326 been paid in respect of them; and that he had never authorized Charu Chandra to obtain the shares for him, and would not take them unless the Company gave him a valid receipt for the Rs. 326. To this letter no reply was sent until the 19th May 1886. That reply was as follows: [His Lordship read the letter, and proceeded:]
34. That reply did not give the appellant any material information as to what had taken place. It did not state what number of shares had been allotted, and--what would be most material--the amount which had been paid in respect of them. The particulars, which were promised in that reply were never sent to the appellant until the Company went into liquidation. The receipt for Rs. 326 was never sent to the appellant--we presume for the good reason that Rs. 251 only having been paid by Charu Chandra, the Company could not have given a valid receipt for Rs. 326. Under these circumstances no question of laches on the part of the appellant can arise. The appellant could not be held to have ratified the acts of Charu Chandra when the information in the possession of the appellant was materially incorrect, and incorrect to the knowledge of an official of the Company through whom the Company acted, and upon the correspondence with and by whom the liquidator as representing the Company relied.
35. In the course of the arguments before us several cases have been cited, including Gunn's Case L.R., 3 Ch. 40; Wall's Case L.R., 15 Eq. 18; Reidpath's Case, L. R, 11 Eq. 86; Ward's Case L.R., 10 Eq. 659 ; Robinson's Case L.R., 4 Ch. 330; Wallis's Case L.R., 4 Ch. 325; Shewell's Case L.R., 2 Ch. 387 ; Fyfe's Case L.R., 4 Ch, 768 ; Ind's Case L.R., 7 Ch. 485 ; Crawley's Case L.R., 4 Ch. 322; and Household Fire Insurance Company v. Grant, L. R., 4 Ex. D. 216.
36. This case has, if we may say so, been argued with very great ability by Mr. Hill and Mr. Strachey.
37. In the result, we find that the appellant had not authorized Charu Chandra to obtain any shares in the Company for him, and never ratified the acts of Charu Chandra, and had not received any notice of allotment, and that it is not proved that any notice of allotment, properly addressed, was posted to the appellant, and that there was no contract or ratification of a contract by or on behalf of the appellant, to take any shares in the Company, and that he never acted as a share-holder of the Company. Under these circumstances the appeal must be allowed with costs, and the order below set aside, and the appellant's name must be removed from the list, of contributories. The liquidator's costs, including those which he may have to pay to the appellant, will come out of the estate.