Ganapatia Pillai, J.
1. This Letters Patent Appeal is directed against the judgment and decree of Basheer Ahmed Sayeed, J., which reversed the decree of the Third Additional City Civil Judge, Madras, in O.S. No. 180 of 1949. That suit was instituted by the firm called M/s. Multanmull Misrimull, carrying on business in Perumal Mudali Street, George Town, Madras, against the Central Bank of India, Ltd., having a branch office in China Bazaar Road, Madras, for recovery of a sum of Rs. 5,055-10-0 with interest from the date of the plaint under the following circumstances. The plaintiff in the suit, the respondent before us, paid a sum of Rs. 5,000 into the China Bazaar branch of the appellant-Bank in Madras on 4th January, 1949, for the purpose of effecting a transfer of this sum by telegram to their representative in Ferozabad, one Milapchand Motaji. The appellant-Bank had a branch at Terozabad. According to the case in the plaint, when Milapchand went to the defendant's branch at Ferozabad on 5th January, 1949, a stamped receipt, was obtained from him for a sum of Rs. 5,000 after he was identified and he was given a metal token in accordance with the practice of the Bank to enable him to receive payment of the telegraphic transfer from the cashier of the Bank. When Milapchand presented this token to the cashier, the latter offered to pay him only Rs. 1,000 and not Rs. 5,000 which was the amount of the telegraphic transfer in his favour. Milapchand naturally refused to receive payment of Rs. 1,000 and informed his principals, the plaintiffs, in Madras. In spite of demand, the defendant-Bank refused to return the sum of Rs. 5,000 paid by the plaintiff into the China Bazaar branch for the purpose of telegraphic transfer.
2. The defendant-Bank pleaded that on 5th January, 1949, a sum of Rs. 5,000 was paid to Milapchand after obtaining from him a duly stamped receipt. In paragraph 3 of the written statement, a further plea was taken that Milapchand was given metal token No. 5451 as soon as he executed the stamped receipt, and when Milapchand's name was called out by the cashier of the Ferozabad branch, metal token No. 5451 was produced and the person who produced that token was paid a sum of Rs. 5,000. In paragraph 4 of the written statement, the further plea taken is that the Bank had reasons to believe that Milapchand conspired with another person and attempted to play a fraud on the Bank, but was not successful.
3. The learned City Civil Judge, without finding definitely that it was Milapchand who produced token No. 5451 and received payment of. Rs. 5,000 from the cashier of the Bank, held on the evidence that the cashier had paid Rs. 5,000 to some person who produced token No. 5451, and this, in his opinion, constituted a valid defence to the claim put forward in the plaint, and he dismissed the suit. On appeal, Basheer Ahmed Sayeed, J., differed from this conclusion of the learned City Civil Judge.
4. The learned Judge held that the evidence did not establish that it was not Milapchand who presented token No. 5451, or that the sum of Rs. 5,000 was paid to Milapchand by the cashier of the Bank. He further found that the payment of Rs. 5,000 by the cashier to the person who tendered token No. 5451, even if true, would not discharge the defendant-Bank from liability.
5. Two questions of fact arise for our consideration. The first is whether it was Milapchand who was paid Rs. 5,000 by the cashier or whether that amount was paid, if at all, to any other individual. The second question is whether this sum of Rs. 5,000 was paid by the cashier of the appellant-Bank to the person who tendered token No. 5451. If, on the first of these questions, the finding is in favour of the appellant-Bank, namely that Milapchand was paid Rs. 5,000 there will be no necessity to consider any question of law arising in the case. But the learned Counsel for the appellant maintained that, even if we came to the conclusion that the cashier paid Rs. 5,000 but this payment was not made to Milapchand, the liability of the Bank would still be discharged in this case, by reason of the fact that the payment was made in exchange for the metal token No. 5451.
6. The story of the payment made by the cashier on 5th January, 1949 has been elaborately discussed by both the trial Judge and Basheer Ahmed Sayeed, J., and it may not be necessary for us to review the evidence in great detail except to indicate the salient features of it. It is common ground that the following procedure is observed in the Ferozabad branch of the appellant-Bank before payment is made to customers who present either negotiable instruments or bills for payment or apply to the Bank for payment of telegraphic transfers. When the person entitled to receive payment presents himself before the concerned clerk, if that person is not already known to the Bank, he is called upon to produce an identifying witness. After being satisfied with the identification made by the witness, the concerned clerk draws up an order form, authorising payment of the money due to the person claiming payment. A stamped receipt is then drawn up and it is executed by the person claiming payment, though no money is paid at that stage. Thereafter, the order for payment is sent to the officer in charge of the Bank who authorises payment. The order authorising payment is then received back by the clerk who prepares the necessary form which gives details of the telegraphic transfer and the name of the payee. This form together with the stamped receipt executed already by the payee is then forwarded to the cashier. At the same time, the concerned clerk hands over to the payee a metal token bearing a number. The number of this metal token is entered in the telegraphic transfer form forwarded to the cashier. On receiving the telegraphic transfer form and the stamped receipt, the cashier calls out the name of the payee. The person called then presents the token to the cashier. The cashier, it is said, does not insist upon any further identification of the person presenting the token, but merely satisfies himself that the token presented corresponds to the number of the token given in the telegraphic transfer form and then pays out the money. The token is then deposited in the box kept by the cashier and entries are made by the cashier in the cash scroll maintained by him showing the payment, which are then forwarded to the accounts branch, where entries are made in the day-book and other books of account. There is no dispute that this was the procedure followed in the case of payment of the telegraphic transfer in dispute in this case.
7. On 5th January, 1949, Milapchand was accompanied by one Hastimull (P.W. 6) and by P.W. 2 when he went to the Bank at Ferozabad to claim payment of this telegraphic transfer. This Hastimull (P.W. 6) had himself a telegraphic transfer in his favour from the Madras Branch of the appellant Bank for a sum of Rs. 1,000. Both he and Milapchand, P.W. 1, presented themselves together before the Telegraphic Transfer Clerk, and it is not in dispute that both of them were identified by P.W. 2, a constituent of the Ferozabad branch of the appellant-Bank. Both of them were given metal tokens. The one given to Milapchand bore No. 5451, while the other given to P.W. 6 bore No. 5469. There is divergence in the evidence as to the order in which these two persons were paid by the cashier. The cashier D.W. 4, states that the T.T. form in favour of Milapchand came first and he called out Milapchand's name, and a man appeared and received payment of Rs. 5,000. Five minutes thereafter, the T.T. form in favour of Hastimull, P.W. 6, was delivered to him, and he then called out Hastimull. A person presented himself and delivered Token No. 5469. As this token was the one referred to in the T.T. form for Rs. 1,000 the cashier took out currency notes for Rs. 1,000 and gave them to the person who had delivered the token. This person protested and refused to receive the money, saying that he was entitled to receive payment of Rs. 5,000. The cashier maintained that he had already, namely, five minutes earlier, paid the telegraphic transfer for Rs. 5,000, and the token given by the person whom he later realised to be Milapchand entitled him to receive only Rs. 1,000. Thereupon, Milapchand denied that he had received the earlier payment of Rs. 5,000 and insisted upon payment of Rs. 5,000 to him. When the cashier refused, Milapchand created an uproar. The cashier then went to the, officer in charge of the Bank, D.W. 2 and reported the matter to him. Thereupon, D.W. 2 came to the counter of the cashier and found a crowd of 10 or 12 persons on the other side of the counter. This officer ordered all the clerks and the cashier to stop all transactions and he started checking the cash with the cashier. He found a difference of Rs. 1,000 between the figures as disclosed by the books and the cash as found with the cashier. There was also an excess of one rupee, which, however, has nothing to do with the dispute we are concerned with in this appeal. To this officer, the cashier produced token No. 5469 and token No. 5451, which he took from the token box. The other token is said to have been kept on the counter of the cashier on the top of the currency notes for Rs. 1,000 which Milapchand had refused to receive. The officer then searched the person of the cashier, but found no money on him. When he questioned Milapchand, he denied that he had been paid Rs. 5,000 and that he had presented token No. 5469.
8. In the token book, No. 5451 is entered first, and thereafter alone, token No. 5469 is entered. Both the T.T. Clerk, D.W. 3, and the officer in charge, D.W. 2, maintained that the order for payment for token No. 5451 was prepared and signed first, and a few minutes later alone, the order for payment regarding the money covered by No. 5469 was passed and signed. Their evidence agreed with the evidence of the cashier that he received the T.T. order form for No. 5451 first, and five minutes thereafter alone, he received the T.T. order form for Token No. 5469. In support of the version given by the cashier, the evidence, of D. W. 5 was relied upon. He is an employee of Madhav Glass Works of Ferozabad. On 5th January, 1949, the proprietor of this Glass works gave this witness a bearer cheque for Rs. 1,400 which he took to the Ferozabad branch of the Central Bank for encashment. He went to the clerk concerned, presented the cheque, and, after getting it translated into English, he took it again to the clerk and obtained in exchange a token. Thereafter, he went to the counter of the cashier. While he was standing there, the cashier is said to have called out the name of Milapchand. The evidence of this witness is that, as soon as this name was called out, one man responded to the call and gave his token. After receiving the token, the cashier paid that man 50 currency notes of hundred-rupee denomination. The man took the notes and went away. Thereupon this witness enquired from the cashier when he could get payment for his cheque. The cashier told him that the cheque had not come yet and there was some delay. This witness thereupon got out from the 'chabutra' of the bank and saw the same man who had received payment of Rs. 5,000 from the cashier a few minutes earlier handing over some currency notes out of the notes received from the cashier to another man: The man who received the notes then went away and the man who gave the notes returned into the banking hall. This witness was not able to identify either the man who paid the money outside the Bank or the man who received it and went away. Five minutes thereafter, he got payment of the amount of his cheque. In the meantime, he made enquiries of the persons standing in front of the cashier's counter and learned that the man who was entitled to receive Rs. 1,000 had taken Rs. 5,000 paid by the cashier and the man who was entitled to receive Rs. 5,000 was not paid that amount. The evidence of this witness lacks details as to identity of the persons concerned and really does not support the case of the Bank, the appellant before us. If his evidence is to be accepted, it might mean that Rs. 5,000 paid by the cashier was paid to the wrong man, namely, Hastimull, and not to Milapchand.
9. The learned Counsel for the appellant-Bank laid stress upon two circumstances as corroborating the evidence of D.W. 4, the cashier. The first is the entries made in the books of the Bank, the pay scroll, the day-book, etc., showing that Rs. 5,000 T.T. was paid first and thereafter alone, the T.T. for Rs. 1,000 was paid. From this, he wants us to draw the inference that the cashier had actually paid out Rs. 5,000 to some person, whether it be Milapchand or not. The second circumstance relied on by the learned Counsel is the fact that token No. 5451 was found in the token box kept by the cashier while token No. 5469 was kept on the counter on the top of the currency notes amounting to Rs. 1,000. We are afraid these circumstances do not support the case of the appellant-Bank that Rs. 5,000 was paid to Milapchand. Admittedly, even though the telegraphic transfer for Rs. 1,000 was not paid out, the cash book of the bank showed as though the money had been already paid out. It is true that this sum was entered that very day in the sundry deposit ledger of the Bank, and therefore there is no question of the Bank making a false entry in the cash book. For our present purpose it is sufficient to say that the mere fact of an entry in the cash book showing the amount as paid or the order in which these two entries relating to Rs. 5,000 and Rs. 1,000 are made in the cash book would not carry any weight by itself. It may be that, according to the practice of the Bank, even though a telegraphic transfer is not paid actually to the payee who had taken the metal token from the Bank, the Bank considers for its accounting purposes that sum as paid, and if cash payment is not made after a metal token has been taken by the payee, the amount is brought over to the sundry deposit ledger. But the point for our consideration is whether the mere entry in the cash scroll or the day book of the bank as also the order of entries made are sufficient to indicate payment of money to the payee concerned. Obviously, no such inference can follow.
10. The other circumstance relating to the receipt of tokens by the cashier is equally inconclusive. As was pointed out by Basheer Ahmed Sayeed, J., with whom we are in respectful agreement, the ordinary course of conduct of business on the part of the cashier would be, as soon at the currency notes are taken and counted, to put the metal token in the token box and not to keep it on the counter. In fact, the evidence of D.W. 4 on this point is not corroborated by the evidence of D.W. 2. According to the evidence of D.W. 2, token No. 5451 was produced by the cashier and he could not state that token No. 5451 alone was taken out from the token box while token No. 5469 was not deposited in the token box. Nothing, however, really turns upon this circumstance.
11. One thing stands out clear from the evidence and it is this. Milapchand was not paid Rs. 5,000. This inference is based upon two findings. The first is that it was not Milapchand who presented token, against which, if at all, Rs. 5,000 was paid by the cashier. The second is that it was Milapchand who presented the second token whatever be the number of that token, and demanded payment of Rs. 5,000. The cashier admitted in cross-examination as follows:
When the T.T. for Rs. 5,000 came to me, I called out Milapchand. A man came and presented token No. 5451. I made the payment, thinking that I was making payment to the person Milapchand, entitled under T.T. 9/3 to the sum of Rs. 5,000, who had signed on the front and reverse of the said T.T. Some time afterwards, I called out Hastimull. A Marwari came. At that moment, my consciousness was of having already paid Milapchand So, I thought this man was Hastimull.... I learnt a few minutes thereafter that man was Milapchand when he told the Manager that he was Milapchand. Then I realised that the person entitled under T.T. 9/3 to Rs. 5,000 had not been paid Rs. 5,000.
12. From this, it is manifest, in our opinion, that if the cashier paid Rs. 5,000 to anyone of the two persons concerned, either Milapchand or Hastimull he was not aware at the time of the payment of the identity of that person. But he became aware on the second occasion when the second token was presented to him that the person presenting that token was Milapchand. If really, as is said by the cashier, when this second person refused to receive Rs. 1,000, he then realised, or, a few minutes later realised, that this person was Milapchand, it is obvious that, at the time when he made the alleged payment of Rs. 5,000 to the first person, he was not aware that the person was Milapchand. In fact, it is impossible to believe that, within a period of five minutes, the same person could have successively presented two tokens and claimed payment twice. It is therefore clear to us that Milapchand was not paid Rs. 5,000 by the cashier.
13. The further question whether the cashier paid out Rs. 5,000 at all to the other man, Hastimull, has to be determined with reference to the case of both the parties. It is true that Hastimull has denied in his evidence that he received payment of Rs. 5,000 or that he presented token No. 5451. His version is that he presented the token given to him and received payment of Rs. 1,000 from the cashier at 12-30' P.M. When he wanted to leave the Bank, Milapchand, P.W. 1, requested him to stay on for a few minutes, in order that both might go together after Milapchand had received payment. Soon after this witness, P.W. 6 was paid, Milapchand, according to the evidence of this witness, asked the cashier whether he could get payment of his T.T. and the cashier asked him to wait. Some time later, Milapchand approached the cashier and gave him the token, and the cashier tendered him only Rs. 1,000. Milapchand refused to receive payment of this sum, saying that he was entitled to receive Rs. 5,000. Thereupon an uproar was created while P.W. 6 was still in the banking hall, and the officer in charge of the Bank, after checking the cash available with the cashier, searched the person of this witness and found that he had only Rs. 1,000.
14. In order to get over the evidence of these two witnesses as well as that of P.W. 2 the Bank attempted to establish a case not pleaded in the written statement. That case was that there was a conspiracy between P.W. 1 and P.W. 6 to exchange tokens and to draw out Rs. 10,000 from the Bank for these two tokens, though the total amount payable for these two tokens would be only Rs. 6,000. Basheer Ahmed Sayeed, J., has elaborately discussed the implications of this case of conspiracy between P.W. 1 and P.W. 6 and it is not really necessary for us to cover the entire ground. We would point out only one circumstance, which, in our opinion, is decisive in regard to this matter. By no stretch of imagination could P.Ws. 1 and 6 have thought that, by merely exchanging tokens, they could each get Rs. 5,000 from the cashier. Token No. 5469 entitled the holder of that token only to payment of Rs. 1,000, whoever it was that presented it. Unless P.Ws. 1 and 6 thought that presentation of token No. 5469 by Milapchand would enable him to get payment of Rs. 5,000 there could have been no object at all in entering into any such conspiracy. Neither P.W. 1 nor P.W. 6 could count upon the stupidity of the cashier to pay Rs. 5,000 on production of token No. 5469. The theory of conspiracy is therefore entirely baseless. Realising this, the learned Counsel for the appellant tried to make out that, even though there was no conspiracy, the tokens might have been misplaced or exchanged as a result of mistake. The witness, Hastimull, was paid Rs. 1,000, according to his case, while Milapchand was standing neably. If, as the cashier wants us to believe, he called out Milapchand in the first instance and paid Rs. 5,000 to the man who answered to that call and if that person was P.W. 6, we cannot believe that Milapchand who was standing nearby would not have protested. It is almost impossible to believe that either Milapchand or Hastimull could have exchanged their tokens or lost them by accident and each picked up the other-man's token. We are therefore in respectful agreement with Basheer Ahmed Sayeed, J., when he holds that the Bank has not shown by its evidence that Rs. 5,000 was paid either to Milapchand or to any person who presented token No. 5451. We are further of opinion that token No. 5451 was not presented by Hastimull but was really presented by Milapchand. This finding should be sufficient to dispose of the appeal. However, out of deference to the argument addressed to us by the learned Counsel for the appellant, we would deal with the question whether the possession of token No. 5451 by the Bank implies payment of Rs. 5,000 to Milapchand and a discharge of the liability of the Bank in regard to this transaction.
15. The argument was propounded thus. The Bank was not under a duty to make a second identification after Milapchand had been identified before the T.T. Clerk by P.W. 2. The issue of a token to Milapchand in exchange for the stamped receipt executed by him would tantamount to the issue of a bearer cheque to him. Consequently, any person who presented the token to the cashier would be entitled to receive payment, just as a payment is made in the case of a bearer cheque and the receipt of the token by the Cashier would amount to full discharge of the liability of the Banker. It was further said that at the time when Milapchand received the token from the T.T. Clerk, he must be deemed to have entered into a contract with the Bank, under which he agreed that payment to anyone who presented the token would discharge the Bank from liability. In support of this argument, the learned Counsel referred to the provisions of Sections 10, 82(c) and 85(2) of the Negotiable Instruments Act. Section 10 defines 'payment in due course '. Section 82(c) indicates the mode in which discharge from liability is obtained by a Bank by payment of a bearer cheque. It provides that payment in due course of the amount due on the bearer cheque would absolve the Bank from all liability on the instrument. Similarly, Section 85(2) provides for discharge by payment in due course in the case of a cheque originally expressed to be payable to bearer, but endorsed in such a manner as to restrict or exclude further negotiation. In our opinion, the principle underlying these provisions can only apply to negotiable instruments. The payment made by the defendant-Bank, according to its case, to Milapchand was not a payment due on negotiable instrument. Section 10 speaks of payment in accordance with the apparent tenor of the instrument in good faith and without negligence. It further speaks of the payment to any person in possession of an instrument under circumstances which do not afford reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned. It will be obvious that all these provisions can only apply to payment of an instrument which mentions an amount payable and which certainly falls under the definition of a negotiable instrument. We are unable to see what analogy there can be between the mode of payment and discharge in the case of such negotiable instruments and the mode of payment and discharge in the case of a telegraphic transfer.
16. The learned Counsel for the appellant invited our attention to the decision in Ouchterloni & Co. v. Midland Bank, Ltd. L.R. (1928) 2 K.B. 294; Lloyds Bank v. E. B. Savery & Co. L.R. (1933) A.C. 201 and London Joint Stock Bank v. Macmillan and Arthur L.R. (1918) A.C. 777 to indicate that payment, made in the usual course of business by a bank without any negligence or without notice of any circumstances arousing suspicion that the person demanding payment was not the real payee would be sufficient answer to a claim upon the bill or the negotiable instrument concerned. All these decisions relate to case of payments of bills of exchange or cheques or other negotiable instruments, and cannot, in our opinion, apply to payment of a telegraphic transfer to the payee indicated in the order for transfer. In this view, it is unnecessary to examine these decisions to find out if the defence taken by the defendant-Bank is an answer to the claim made in the plaint.
17. Some argument was addressed to us on the question that the claim made in the plaint involved fraudulent conduct on the part of the defendant-Bank, and, consequently, the plaintiff should fail, since, it was said, the plaintiff had not succeeded in establishing any fraud on the part of the officers of the defendant-Bank. This, argument is really based upon a misconception of the averments in the plaint. It is true that the word 'fraud' occurs in paragraphs 5 and 9 of the plaint. In paragraph 5, the allegation made is that the defendant's branch office falsely and fraudulently informed Milapchand that only a sum of Rs. 1,000 was payable to him and not more. In paragraph 9, the allegation is that, in the circumstances set out in the plaint, namely, by reason of the defendant's failure and fraudulent omission to pay in terms of the trust accepted by them at their Ferozabad office to the plaintiff's representative, there was a failure of consideration and of the object of the entrustment. From this, it could not be spelled out that the cause of action for the plaintiff was based upon any fraud practised by the defendant-Bank or upon any trust which was created by the transaction of the telegraphic transfer. The transaction was one in the ordinary course of the banking business in which money is accepted by the bank from the plaintiff for the specific purpose of paying it over to a named individual in another place. It should not be understood that we are deciding the case either on the basis of a fraud practised by the defendant-Bank or on the basis of a trust created by the transaction of telegraphic transfer. Indeed the transaction did not convert the Bank into a trustee for the plaintiff. This is a simple case where money had been paid by a person into a bank for a specific purpose, and the Bank had undertaken, in consideration of the charge levied, to carry out that purpose. The purpose was to pay it over to the individual named by the payer. Until and unless this task undertaken by the Bank was discharged, it cannot be heard to say that it was discharged from liability merely by the handing over of a metal token to the payee. It is true that the system of giving metal tokens to payees is a device adopted by the appellant-Bank and also by some other banks for the purpose of enabling payment to be made to the person entitled to it. There is no more virtue in this system than any other system adopted by the Bank for payment of cash to persons holding a claim for payment based upon a telegraphic transfer. It should not be understood that we are deciding this case with reference to a payment made in due course on a negotiable instrument presented to a bank by a holder. It should also be distinctly understood that we are not deciding this case on the basis of any responsibility of the appellant-Bank as an agent of the plaintiff. This latter case was not pleaded in the written statement, and, though one of the grounds of appeal before us mentions this point, the learned Counsel for the appellant did not address any arguments to us on this question.
18. Only one further question remains to be noticed. The learned Counsel for the appellant took exception to the decree granted by Basheer Ahmed Sayeed, J., which included a sum of Rs. 55-10-0 for interest accrued before the date of the plaint. He maintained that interest was not payable in this case either under the Interest Act or under the contract or according to usage. The learned Counsel for the appellant cited the Privy Council decision in Bengal Nagpur Railway Co., Ltd. v. Ratnaji Ramji I.L.R. (1938) Cal. 72 : L.R. 65 IndAp 66 : (1938) 1 M.L.J. 640 for the contention that mere wrognful detention of money by the defendant could not justify the award of interest unless the equitable jurisdiction of the Court was invoked. It is unnecessary for us to consider this question since the learned Counsel for the respondent agrees that this claim for interest for a period prior to the date of plaint may be disallowed.
19. In the result, the appeal is dismissed, but the decree granted by Basheer Ahmed Sayeed, J., would be modified by disallowing the sum of Rs. 55-10-0 included in the plaint amount for interest due up to the date of the plaint. In other respects, that decree is confirmed. The costs of this appeal will be paid by the appellant.