1. I have taken time to consider this case which is not free from difficulty. In May 1927, defendant 1 purchased from the plaintiffs a quantity of corrugated iron sheets for the sum of Rs. 6,689-11-6. The defendant Neogi forthwith paid Rs. 250, part of the price, and instructed the plaintiffs to forward the goods by rail to Khulna. The goods were duly sent to Khulna in two consignments: on 1st June and 8th June 1.927. On 6th June, the plaintiffs, by letter, gave the following instructions to the defendant bank in respect of the first consignment:
Calcutta, 6th June 1027.
National Bank of India Ltd.,
We beg to request you to be good enough to realize the amount of Rs. 2,675-10-6 from our dealer Mr. G.M. Neogi of Khulna through the Khulna Union Bank, Limited, as advised by him, against railway receipt No. 171 of 1st June 1927, as usual.
We are enclosing herewith the abovementioned railway receipt, our bill No. 5342 in duplicate and demand draft as usual requesting your good self to kindly have the amount together with your usual charges realized from the party through the Khulna Union Bank, Ltd., against delivery of the documents (railway receipt, etc.), as usual and oblige.
(Sd) T.G. Chowdhury & Bros.
Railway Receipt No. 171 of 1st June 1927.
Our bill in duplicate.
2. (His Lordship here considered the relevant letters between the plaintiffs, the National Bank of India and the Khulna Bank). The first letter was from the plaintiffs T.C. Choudhury and Bros., authorising the National Bank of India to realize Rs. 2,675-10-6 and other extra charges from Mr. G.M. Neogi through the Khulna Union Bank, Khulna. The National Bank accordingly sent the bills to the Union Bank for collection and remittance, on the same date and informed their clients Choudhury and Bros, the same on the following day. On 20th June the plaintiffs requested the National Bank to realize the bills for Rs. 2,675 and odd and for Rs. 3,764 on account of second consignment within seven days of tile receipt of their letter to the Khulna Bank' as the plaintiffs were afraid that the goods might not be accepted. On the following day the plaintiffs again wrote to their Bank to inform the Khulna Union Bank by telegram not to give delivery of goods to Neogi and ascertain from him if he is willing to pay the bills or not. The plaintiffs' Bank telegraphed the same to the Khulna Bank and a telegram was received by the plaintiffs' Bank that Neogi would inform them his intention tomorrow and that they had taken the delivery of goods and they were lying in their godowns. The same was communicated to the plaintiffs on 23rd June 1927. (His Lordship then considered the letters between the parties to the suit which included the following and then continued): Accordingly, the bank seat the documents under a covering letter of even date to the Union Bank of Khulna:
National Bank of India, Ltd.,
Calcutta, 6th June, 1927.
The Union Bank of Khulna,
We beg to hand you herewith bills as noted below for favour of collection and remittance of proceeds by demand draft on Calcutta.
Number Drawee. Term. Nature. Amount. Remark M.B.C.Rs. a. p.65/2978 G.M. D/D Doety 2,675 10 6Neogi 6 11 0------------------2,682 5 6------------------Rupees two thousands six hundred and eighty two 5/6.
Please collect all your charge from the drawees.
D/A. Indicates documents attached to bedelivered on acceptance of bill.D/P. Indicates documents attached to bedelivered on payment only.C. Indicates clean.National Bank of India Ltd.
3. And on 7th June, the bank replied to the plaintiffs' letter of 6th June as follows:
National Bank of India, Ltd.
Calcutta, 7th June 1927.
Messrs. T.C. Chowdhury Bros.
We beg to acknowledge receipt of your letter of 6th instant enclosing the under noted which we have sent for collection on your account, the proceeds of which will be paid upon receipt-of advice of payment only.
Please note that the bank will not be responsible for any loss that may occur by delay in transmission or collection.
Yours faithfully, Sd.
Manager. Bill On Amount. Remarks.Rs. a. p.Khulna 2,675 10 6
Similar letters were sent in respect of the second consignment. On 20th June 1927, the plaintiffs wrote to the defendant bank.
T.C. Chowdhury Bros,
Calcutta, 27th June 1927. To
The Manager,National Bank of India Ltd.
With reference to your letter of 7th instant, we beg to request you to kindly advice the Khulna Union Bank, Ltd., to receive payment of our bill of Rs. 2,675-10-6 from our party Mr. G. M. Neogi within 7 days from the day of receipt of your letter of advice, if the amount is not realized in the mean-time, as we are afraid the party may refuse the goods.
Also please do the same treatment regarding our hill No. 5344 for Rs. 3,704.
An early compliance into the matter will oblige.
(Sd.) T. C. Chowdhury & Bros.
and the defendant bank forwarded the instructions therein contained to the Khulna Bank.
On 21st Juno the plaintiffs wrote to the defendant bank:
T.G. Chowdhury Bros.
Calcutta 21st June 1927.
National Bank of India, Ltd.
In continuation of our letter No. 1907 of 21st instant please instruct the Khulna Union Bank Ltd., by telegram not to clear or take delivery of the goods from the railway but to retain the railway receipt in case it is not paid for by the drawees, pending further instructions from us for its disposal. Please also instruct the Khulna Union Bank, Ltd., to obtain a definite answer from drawees whether or not they are going to pay the bills.
(Sd.) T.G. Chowdhury & Bros.
4. And on 23rd June, the defendant bank replied:
National Bank of India, Ltd.,
Calcutta, 23rd June 1927.
Messrs. T.G. Chowdhury Bros.,
Re: Your bill on G.M. Neogi, Khulna
Rs. 2,675-10-6 and Rs. 3,764-1-0.
With reference to your letter No. 1913, dated 21st instant, we wired our Khulna agents in terms of your instructions and have received the following telegram from them:
Neogi Calcutta will arrive tomorrow. Informing intention tomorrow goods our go-down. Please note.
We have debited your account Rs. 1-14-0 for cost of our wire.
5. His Lordship proceeded after referring to the letters between the parties including the following:
Dated 11th June 1927.
National Bank of India.
Re: Our bills on G.M. Neogi, Khulna
Rs. 2,675-10-0 and Rs. 3,764-1-0.
With reference to your letter of 23rd instant, we bog to request you to kindly furnish us with the following information, also advise the Khulna Bank as under:
We shall be obliged if you kindly give the matter your careful attention as the party is harrassing us for nothing by taking time unnecessarily.
(Sd.) T. C. Chowdhury & Bros.
1. Whether Khulna Bank has any authority to have the goods cleared from the Railway Co. and stored in their godown without taking any permission or giving any intimation either to yourself as our banker or to us direct?
2. What is the financial condition of the Khulna Bank at present?
3. Please cable tho, Khulna Bank again asking about the intention of Mr. Neogi regarding the payment of our above bills.
4. Place write the Khulna Bank strictly to re-book the goods to us in the 1st week of July if the payment is not made within this half yearly closing.
Calcutta, 18th July 1927.
Re: M. B. G. 65/2978 & 3042 on G.M. Ncogi,
Khulna, Rs. 2,675-10-6 and Rs. 3,764-1-0.
(1) Please instruct Khulna Union Bank, Ltd. to remit to you immediately by wire the 25 per cont margin received by them from the drawees.
(2) To give notice to drawaes that unless the remaining 75 per cont is paid by them, together with all charges and interest within 22nd instant the goods will be returned to Calcutta for disposal on their account and risk according to law.
(3) In the event of default by the drawees to comply with this demand, to return the goods to Calcutta forthwith and send the R/R to you with debit note for the charges incurred by them.
(4) To treat this our final instruction, which should not be deviated from by them, otherwise they will be hold liable for all losses incurred by us in consequence.
(Sd.) T.C. Chowdhury & Bros.
Calcutta, 28th July 1927.
Messrs. T.C. Chowdhury Bros.,
M.B.C. No. etc.
We have received the following wire from the Khulna Union Bank Ltd. of Khulna.
Goods delivered our risk against hundis understanding payment be made definitely by 15th August.
We have written thorn pointing out in delivering the relative goods in this manner they have acted entirely outside their authority as agents for collection and had requested them to remit us forthwith the full amount of the bills. We shall communicate with you in due course.
(Sd.) National Bank.
6. His Lordship then continued:
7. The Khulna Bank having pressed the defendant Bank for time, in which to remit the proceeds of the bills, the defendant Bank, on 2nd September asked the plaintiffs for instructions, and received the following reply on 9th September:
Dated 9th September 1927.
National Bank of India Ltd.
Re: M.B.C. 2978, 3012 on G.M. Neogi,
Khulna for Rs. 2,675-10-6 and Rs. 3,764-1-0.
With reference to your letter of 2nd instant, we beg to advise you kindly inform Khulna Bank to pay the amount within 2(5fch instant, i.e., before our closing with the, local parties for coming Puja holidays also please inform if such payment is not made you are advised to take necessary legal action to realise the amount as usual.
(Sd). T.C. Chowdhury & Bros.
8. No further payments having been made either by Neogi or by the defendant Bank, the plaintiff, on 27th November 1927, brought the present suit, claiming against defendant 1 the balance of the purchase price with interest thereon at 12 per cent, and against the defendant Bank a like sum as damages, which the plaintiffs (alleged that they) had suffered by reason of the negligence and breach of duty of the defendant Bank:
in delivering the said railway receipts and or in causing the same to be delivered by their Khulna agents to the defendant Neogi without receiving payment of the full amount of the said drafts.
9. The defendant Neogi has not appeared and as against him the plaintiffs have proved their claim, and the issue that remains to be determined is whether the defendant bank is liable for the admitted loss caused to the plaintiffs by the negligence and breach of duty of the Khulna Bank.
10. The issue is one of fact whether in connoxion with the collection of the bills in Khulna the Khulna Bank was acting as the agent of the plaintiffs or of the defendant Bank. The material sections of the Contract Act (9 of 1872) are Sections 191, 192, 194 and 195 which run as follows:
11. Section 191. - A 'sub-agent' is a person employed by, and acting under the control of, the original agent in the business of the agency.
12. Section 192. - Where a sub-agent is properly appointed the principal is, so far as regards third persons, represented by the sub-agent, and is bound by and responsible for his acts, as if he were an agent originally appointed by [the principal.
13. The agent is responsible to the principal for the acts of the sub-agent.
14. The sub-agent is responsible for his acts to the agent, but not to the principal, except in case of fraud or wilful wrong.
15. Section 194. - Where an agent, holding an express or implied authority so name another person to act for the principal in the business of the agency, has named another person accordingly, such person is not a sub-agent, but an agent of the principal for such part of the business of the agency as is entrusted to him.
16. Section 195. - In selecting such agent for his principal, an agent is bound to exercise the same amount of discretion as a man of ordinary prudence would exercise in his own case and if he does this he is not responsible to the principal for the acts or negligence of the agent so selected.
17. Now, it is plain and must be borne in mind that at all material times, until after the goods had been delivered to Neogi, communications with the Khulna Bank were carried on by or through the defendant Bank and further that in the course of such communications, the defendant Bank sometimes referred to the Khulna Bank as 'our Khulna agents,' and in the letter of 25th August threatened 'to place the matter in the hands of our solicitors.' But undue stress ought not to be laid upon loose or casual words and phrases used in business letters, and regard must be had to the substance of the transaction to ascertain whether in fact the Khulna Bank was acting as the sub-agent of the defendant Bank in endeavoring to collect the plaintiffs' bills. Now, it cannot be doubted, I think that in so far as the collection was to be carried out at Khulna, the defendant Bank had express authority to appoint the Khulna Bank to act in the transaction as the agents of the plaintiffs. But in my opinion, having regard to the terms of the letters that passed between the plaintiffs and the defendant bank on 6th, 7th, 9th and 13th June the authority thereby conferred upon the defendant bank to appoint the Khulna. Bank the plaintiffs' agent for collection in Khulna was not within the ambit of Section 194, Contract Act. I think that Sections 194 and 195 are to be read together and that the authority to create a third, person an agent of the principal referred to in Section 194 connotes that the agent has a discretion 'in selecting such agent for his principal.' These sections do not apply to cases where the agent has no power of selection, and if he undertakes the agency is compelled to appoint a particular nominee of his principal as the agent of the principal for some part of the business of the agency. In my opinion, the effect of the letters in which the terms of the agreement of agency between the plaintiffs and the defendant Bank are set out was that the defendant Bank became authorized and undertook to appoint the Khulna Bank and no other person as the agent of the plaintiffs for that part of the business of collection that was to be carried out at Khulna.
18. Now, it is common ground that the defendant Bank did appoint the Khulna Bank to carry out that part of the collection which was to take place at Khulna but the question to be decided is whether the defendant Bank appointed the Khulna Bank so to act as the sub-agent of the defendant Bank or as the substituted agent of the plaintiffs. The issue depends upon whether the defendant Bank on behalf of the plaintiffs and the Khulna Bank agreed that the Khulna Bank should act at Khulna as the plaintiffs' agent for the purpose of collecting the bills or, in other words, whether the defendant Bank created privity of contract between the plaintiffs and the Khulna Bank. In my opinion, that is the true test to determine whether the person appointed by an agent authorized in that behalf to perform part of the business of the agency is a substituted agent of the principal or the sub-agent of the agent, and the test to be applied is the same whether the case falls within Section 194 or whether, as in the present case, the person so appointed is the nominee of the principal although there is a difference in the obligation undertaken by the agent, for Section 195 applies to a case falling within Section 194, while in cases where the substituted agent is the nominee of the principal, the agent is not concerned with the character or efficiency of the person so appointed, and his obligation quoad the part of the business of the agency entrusted to the substituted agent ceases if and so soon as privity of contract has been created between the substituted agent and the principal. Solly v. Rathbone  2 M. & S. 298, Schmaling v. Thomlinson  6 Taunt 147, Stephens v. Badoock  3 B. & Ad. 354 Mackersy v. Ramsays  9 Cl. & F. 818, Lockwood v. Abdy  14 Sim. 437, Robbins v. Fennel  11 Q.B. 248, De Bussche v. Alt  8 Ch. D. 286, New Zealand and Australian Land Co. v. Watson  7 Q.B.D. 374, Fine Art, Society v. Union Bank of London  1 T.L.R. 594, Eossaise Steamship Co. v. Lloyd Low & Co.  7 T.L.R. 76, Powell & Thomas v. Evan Jones & Co.  1 K.B. 11. Story on Agency Edn. 9, p. 255 : see also Nensukhdas v. Birdichand  19 Bom. L.R. 948, for a general discussion of the sections. Now, applying this test to the facts of the present case, I am of opinion that, while the letters and telegrams to the Khulna Bank were sent by the defendant Bank, the mandates therein contained came from the plaintiffs. As I apprehend the facts, in endeavouring to carry out the collection of the bills at Khulna, the Khulna Bank was not acting under the control of the defendant Bank, for, so far as the collection at Khulna was concerned, the defendant Bank was acting under the directions of the plaintiffs who throughout took charge of the transaction. The defendant Bank, in my opinion, was merely the conduit pipe through which the plaintiffs communicated their instructions to the Khulna Bank, and, inasmuch as the defendant Bank invariably, I think, forwarded to the Khulna Bank the communications which they received from the plaintiffs, it is clear that the Khulna Bank was fully aware that the instructions which the defendant Bank forwarded to them proceeded from the plaintiffs, and not from the defendant Bank.
19. Take one letter alone by way of illustration, that of 18th July 1927, from the plaintiffs to the defendant Bank, in which the plaintiffs directed the defendant Bank to warn the Khulna Bank that it is:
to treat this as our final instruction which should not be deviated from by them, otherwise they will be held liable for all losses incurred by us in consequence.
20. The fact that the Khulna Bank, to which that letter was sent by the defendant Bank, received it without challenge or protest is cogent evidence that the Khulna Bank had consented to act as the agent of the plaintiffs quoad the part of the collection that was to be carried out at Khulna. The correspondence speaks for itself and it is necessary for me to discuss the letters in detail. Upon a perusal of the evidence as a whole, the conclusion at which I have arrived is that in the collection at Khulna the Khulna Bank was acting as the agent of the plaintiffs, and not as the sub-agent of the defendant Bank. The result is that as against the defendant Bank, the suit will be dismissed with costs on scale 2, but as against the defendant Neogi there will be a decree for the plaintiffs for Rs. 5,157-6-9, interest on judgment at 6 per cent and costs on scale 1.