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Union of India (Uoi) Representing South Eastern Railway Vs. Amarendra Nath Sarkara - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 786 of 1961
Judge
Reported inAIR1967Cal119
ActsContract Act, 1872 - Sections 10 and 124
AppellantUnion of India (Uoi) Representing South Eastern Railway
RespondentAmarendra Nath Sarkara
Appellant AdvocatePraphulla Kumar Roy and ;Ajoy Kumar Basu, Advs.
Respondent AdvocateSudhansu Kumar Sen and ;Ganganendra Krishna Deb, Advs.
DispositionAppeal allowed
Cases Referred(see Angurbala v. Debabrata
Excerpt:
- laik, j.1. summarily stated, the circumstances within a small compass, necessary for the decision of this first appeal are: the plaintiff respondent, whom i would hereafter refer to as sarkara, joined the bengal nagpur railway in june, 1928 then, a company-managed railway, in its 'cash and pay branch', which was taken over by the government of india in or about the year 1944 on july 24. 1948. sarkara was promoted to the post of chief cashier. the railway changed its name to eastern railway-in or about the year 1952, which was again changed to south eastern railway in or about the year 1955, which is still current.2. mani pramanik, one of the pay clerks in the cash and pay section was in charge of making payments of provident fund to the retired railway servants and compensation monies to.....
Judgment:

Laik, J.

1. Summarily stated, the circumstances within a small compass, necessary for the decision of this First Appeal are: The plaintiff Respondent, whom I would hereafter refer to as Sarkara, joined the Bengal Nagpur Railway in June, 1928 then, a Company-managed Railway, in its 'Cash and Pay Branch', which was taken over by the Government of India in or about the year 1944 On July 24. 1948. Sarkara was promoted to the post of Chief Cashier. The Railway changed its name to Eastern Railway-in or about the year 1952, which was again changed to South Eastern Railway in or about the year 1955, which is still current.

2. Mani Pramanik, one of the pay clerks in the Cash and Pay Section was in charge of making payments of provident fund to the retired Railway servants and compensation monies to the creditors of the Railways by money orders, prior to and during the relevant period. In December, 1948 Sarkara as Chief Cashier, received the complaint of delay in payment to an outside creditor by the said pay clerk Mani Pramanik, on which an enquiry was directed fo be made by the Chief Inspector Sukumar Mukherjee. On or about December 22. 1948 Sukumar reported that he checked and verified Mani's account which was found to be correct. Towards the latter part of January, 1949 there was another complainl against Mani. This time. Sarkara deputed two Inspectors to check Mani's accounts On March 10, 1949 it was detected that the said pay clerk Mani, bad defalcated a sum of Rs. 51,000/-, in course of several years, covering also a period prior to Sat-kara's appointment as Chief Cashier. The Financial Adviser and Chief Accounts Officer of the defendant Railways (referred to hereafter as F. A. and C. A. O.) was reported by Sarkara about the said defalcation. An enquiry was started. The matter was then referred to the police. A criminal case followed Mani was convicted and sentenced to rigorous imprisonment of one year and a fine of Rs 1000/-, in default, to suffer (sic) for 6 months.

3. The plaintiff Sarkara stated in his plaint that after the discovery of the said embezzlement in March 1949, he was called upon to furnish a bond for the purpose of indemnifying the Railway for any loss which it might sustain, by reason of Sarkara's neglectof duty. The plaintiff's case was that as directed by F. A. and C. A. O., he had to sign a bond on March 18, 1949 and furnished security to the extent of Rs. 30,000/-. The bond was not executed by the plaintiff out of his free will. The defendant Railway illegally and wrongzully i'oreited a sum of Rs. 10,000/- on March 29, 1954 out of his said security deposit in spite of the letter's protest. This suit is filed for a declaration that the said forfeiture by the defendant Railway is illegal and void.

4. The Railways' defence is that the Chief Cashier is responsible for all the liabilities of his pay clerks and for all the monies that are handed over to the Cash Department, until he can show satisfactory disbursement of the sum and get an acquittance in that respect. It is asserted that it is a gross negligence on the part of the plaintiff to fail to detect the defalcation of such a heavy amount. If the plaintiff would have been a little more careful and vigilant and would have discharged his duty properly, the entire sum could have been saved and the Railway would not have had to suffer the loss. The security furnished by Mani, the pay clerk, to the extent of Rupees 5,000/- and odd had been forfeited and realised but as the Railway bad suffered much more loss and as the plaintiff was also liable for the same, the Railway had forfeited only a sum of Rs. 10,000/- in part satisfaction of the entire loss, though as a matter of right the Railways were entitled even to forfeit the plaintiff's entire security money of Rs. 30,000/-. As a matter of fact, the whole of the security of Rs. 30,000/- was initially forfeited but on consi-deralion of several representations made by the plaintiff including that of April 17, 1953, the Railway authorities took a sympathetic and lenient view and ultimately forfeited the sum of only Rs. 10,000/- out of the plaintiff's security deposit. It is also the defence that the bond is executed by the plaintiff out of his own free will and on its terms the plaintiff cannot absolve his liability. The forfeiture was legal and binding and the suit should be dismissed.

5. Evidence, verbal and documentary, was adduced. The learned Subordinate Judge, Ali-pore decraed the suit. Hence the instant First Appeal by the Railways.

6. The history of the case may thus be conveniently divided into three periods The first period ends with the appointment of the plaintiff as Chief Cashier The second period begins from such appointment till March 10, 1949 when the defalcalion was found out and the third period comprehends the principal transaction namely, the Indemnity Bond or the Agreement dated March 18, 1949 and the plaintiff's representation dated April 17, 1953.

7. The soundness of the plaintiff respondent's claim mainly falls to be judged by the terms of the Bond or the Agreement (Ext. F) relevant portions of which are set out below:

'1 Know all men by these presents that I, Amarendra Nath Sarkara of Calcutta am held and firmly bound unto the Governor General (hereinafter referred to as 'Government') in the sum of rupees thirty thousand (Rs. 30,000)to be paid to the Government for which payment, well and truly to be made, I bind myself, my heirs, executors, administrators and legal representatives by these presents,

2. WHEREAS the above bounden Amarendra Nath Sarkara was on the twenty fourth day of July, 1948 appointed to and now holds the office of Chief Cashier in the office of the Financial Adviser and Chief Accounts Officer, Bengal Nagpur Railway and whereas the said Amarendra Nath Sarkara by virtue of such office has amongst other duties the care, charge, and oversight of and responsibility for the safe and proper storing and keeping in the places appointed for the custody thereof res-pectively of all money, specie, bullion, coin, jewels. Government Currency Notes, Stamps and Government Securities of whatever description, gold, silver, copper, lead, goods, stores, chattels or effects stored and used at received into, or despatched from the Cash and Pay Offices of the Bengal Nagpur Railway or paid, deposited or brought into the said Cash and Pay Offices by any person or persons whomsoever and for any purpose or purposes whatsoever, AND WHEREAS the said Amarendra Nath Sarkara as such Chief Cashier and aforesaid is also responsible that all such money, specie, bullion, coin, jewels. Government Currency Notes, Stamps and Government Securities of whatsoever description gold, silver, copper, lead, goods, stores, chattels or effects (hereinafter together only called 'the said property') are and is of full measure and good quality when received into the s;ml Cash and Pay Offices and until he had duly accounted therefor and for every parl thereof in manner hereinafter referred to. AND WHEREAS the said Amarendra Nath Sarkara is bound from time to time whenever called upon so to do to show to his superior officers that the said property and (torn) part thereof save so much thereof as he duly accounted for, at all times intact in the places aforesaid, and is also bound to attend for the purpose of discharging his duties aforesaid at such times and places as his superior officers may appoint and is also hound to keep and render true and faithful accounts of his dealings with all property and money which may come into his hands or possession or under his control, such accounts to be kept in the form and manner that may from lime to time be prescribed by duly constituted authority, and is also bound to prepare and submit such returns, accounts and other documents as may from time to time be required of him

'3. AND WHEREAS the said Amrendra Nath. Sarkara has, in pursuance of Rule 274 of the General Financial Rules delivered to and deposited with Ihe Government the above mentioned sum of Rupees thirty thousand (Rs. 30,000) in the form of Government Promissory Notes and National Saving Certificates as set forth and specified in the schedule here-under written as security Cor the due and faithful performance by the said Amrendra Nath Sarkara of the duties of his said office and of any other office requiring security to which be may be appointed at any time and of otherduties which may be required of him while holding any such office as aforesaid and for the purpose of securing and indemnifying the Government against all loss, injury, damage, costs or expenses which the Government met in any way, suffer, sustain or pay, by reason of the misconduct, neglect, oversight or any other act of omission of the said Amarendra Nath Sarkara or of any person or persons acting under him or for whom he may be responsible.

'4. NOW the condition of the above written bond is such that if the said Amarendra Nath Sarkara has, while he has held the said office of Chief Cashier as aforesaid, always duly performed and fulfilled the duties of his said office, and if he shall, whilst he shall hold the said office or any other office requiring security to which he may be appointed, or in which he may act, always, duly perform and fulfil all and every duties thereof respectively and other duties which may from time to time be required of him while holding any such office as aforesaid, and shall duly pay into the Government Treasury at Calcutta all such moneys as are payable to Government and shall come into his possession or control, by reason of the said office and shall duiv account for and deliver up all moneys, papers and other property which shall come into his possession or control by reason of the said office and if the said Amarendra Nath Sarkara, his heirs, executors or administrators shall pay or cause to be paid unto the Government the amount of any loss or defalcation in the ar counts of the said Cash and Pav Offices within 24 hours after the amount of such loss or defalcation shall have been demanded from the said Amarendra Nath Sarkara by the Financial Adviser and Chief Accounts Officer. Bengal Nag-pur Railway, such demand to be in writing and left at the office or last known place of residence of the said Amrendra Nath Sarkara, and shall also at all times indemnify and save harmless the Government from all and every loss, injury, damage, costs or expenses which has been or shall or may at any times or time hereafter during the service or employment of the said Amarendra Nath Sarkara in such office as aforesaid, or any such offices aforesaid, be sustained, incurred, suffered, or paid by the Government by reason of any act, embezzelement, defalcation, mis-management, neglect, failure, misconduct, default, disobedience, omission or insolvency of the said Amarendra Nath Sarkara or of any person or persons acting under him or for whom he may be responsible, then this obligation shall be void and of no effect otherwise the same shall be and remain in full force Provided always and it is hereby declared and agreed that the said sum of rupees thirty thousand (Rs. 30.000) so delivered and deposited as aforesaid shall be and shall remain with the Financial Adviser and Chief Accounts Officer Bengal Nagpur Railway for the time being as occasion shall require, to apply the said sum of rupees thirty thousand (Rs. 30,000) or anypart thereof, in and towards the Indemnity of the Government or otherwise as aforesaid.

'5. Omitted as not relied on by either side.

'6. Provided further that nothing herein contained nor the security hereby given shall be deemed to limit the liability of the said Amarendra Nath Sarkara in respect of matters aforesaid to the forfeiture of the said sum of rupees thirty thousand (Rs. 30,000) or any part or parts thereof and that should the said sum be insufficient to indemnify the Government in full for any loss or damage sustained by them in respect of matters aforesaid the said Amarendra Nath Sarkara shall pay to the Government on demand such further sum as shall be deemed by the Financial Adviser and Chief Accounts Officer, Bengal Nagpur Railway to he necessary in addition to the said sum of Rupees thirty thousand (Rs. 30,000) to cover such loss or damage as aforesaid and that the Government shall be entitled to recover such further sum payable as aforesaid in any manner open to them.

In witness whereof the said Amarendra Nath Sarkara has hereinto set his hand this 18th day of March, 1949.

A. N. Sarkara.

18-3-49.

Names of witnesses and Schedule omitted.'

8. The contents of the aforesaid paragraphs 2 and 3 stated to be the recitals and those in paragraph 4 being the operative part, have caused the trouble. The contention of the plaintiff-respondent which weighed with the learned Subordinale Judge was that the security was for all future liabilities either of himself or of his subordinates but not for the past acts or defaults of himself or his subordinates. It was a safeguard only for all future contingencies. According to the plaintiffs as well as the learned Subordinate Judge the expressions in the recital portions viz., 'may come', and 'may from time to time', in paragraph 2, and the expression 'may in any way suffer, sustain or pay by reason of the mis-conduct, neglect etc' in paragraph 3 of the bond, refer only to the future transaction and not lo the past. The expression, in the middle of paragraph 4 in the operative part of the said document to the effect 'and shall also and at all times indemnify and save harmless the Government from all and every loss, injury, damage, costs or expenses which has been or shall or may at any times or time hereafter' is controlled by the said provisions in paragraphs 2 and 3 appearing in the recital portions, argues the plaintiff s lawyer.

9. The first question raised by Mr. Pra-phulla Kumar Roy the learned Advocate for the Railway, in support of the appeal, that by the terms of the Bond, the plaintiff made himself liable to indemnify the appellant Railway from all and every loss, at least for the amount which is the subject-matter in dispute namely. Rs. 10.000. The question, strangely enough, turns upon the true effect of few small words ('may come', or 'has been' 'shall' or 'may at any times or time hereafter') of themselves, toall appearances, relatively unimportant. I think, a critical examination of the document is necessary. I will endeavour to confine my reference to those provisions only which have a direct influence upon the conclusions. That the clauses are not well drawn, no one will affirm but in my view something more than a superficial reading of the said three clauses is required before the choice can definitely be made. The first question, if concluded, against the respondent, is in itself sufficient to ensure the success of this appeal. It therefore merits and has received careful consideration in our hands.

10. The importance of fixed rules of interpretation of a document like this is manifest, such rules are necessary in order to ensure just and uniform decisions. It is our dutv to unravel the intricacies and ambiguities, which result from ideas, not sufficiently precise; from views, too litlle comprehensive, or from the unavoidable imperfections of language. In each case, reference must be made to the genera] scope of inlention of the instrument, the nature of the transaction and the legal rights and situation of the parties interested.

11. We the Judges should be not only furious but subtle to apply the golden rule of construction which is, that 'words are to be construed according to their natural meaning, unless such a construction would either render them senseless or would be opposed to the general scope and intent of the instrument or unless there be some very cogent reason nf convenience in favour of a different interpreta-ion.' We should have consideration for the substance than the shadow We should evince our strong anxiety to effectuate the real inten-tion having regard to the object and scope of the instrument. We should endeavour to affix a meaning to the words of doubtful import if any) as may best carry out the plain and manifest intention of the parties, as collected from the four corners of the instrument, but not contrary to the rules of law. We should bring into action every part of the instrument in order to collect from the whole, one uniform and consistent case. We will give to each part its proper office. The whole context and not merely the disjointed parts should be construed. We would be ever astute so to construe a bond as it sets forth a rule of logic as well as of law. The uniform course of authorities fully supports my view that these are nothing more than the conclusions of commonsense, which have been formed and approved by the wisdom of ages.

12. Bearing these broad principles in mind, the question to be considered is whether the recitals in the Bond would operate in restraint of the condition, even if the words of the condition in Clause 4 of the bond import a larger liability than that contemplated bv the recitals. Much industry has been expended in analysing the principle of the effect of recitals and the operative parts in a document like the present one. Because of the welter of confusion caused by a multitude of conflicting decisions, I think it would not be very much fruit-ful to pursue the decisions, because two documents in my opinion are seldom expressed in Identical terms. Certain other principles how ever remain, on this aspect of the question which are staled below.

13. The recital (introductory or general) or what has been illustrated by the Scotch term 'narrative', which should be inserted in an instrument with great caution, may be looked at in order to ascertain the intention of the parlies and is often highly important for that purpose but where the words in the operative part of the instrument are clear they should not be controlled by the words of recital. Recitals, though subordinate to the operative part, are sometimes relied upon to prove the facts mentioned therein but no inflexible rule can be laid dowr as to the proper weight which they are entitled to receive in all cases. The reciting part of a deed is not necessary part in law though it may be made use of, to explain doubt of the intention of the parties, if there be any.

14. The recitals towards the end of Clause 2 of the agreement viz., that the plaintiff is also bound to keep and render true and faithful accounts of his dealings with all property and money which may come into his hands or possession and those in Clause 3 thereof to the effect that the plaintiff has deposited Rs. 30,000 'for the purpose of securing and indemnifying the Government against any loss, injury, damage, costs or expense which the Government may in any way suffer etc.' have been relied on in support of the argument that Sarkara is liable only for the future dealings. The emphasis is on the expression 'may'. It is however for the moment enough to say that the said recitals are neither copious nor selective. They do not strike a reader as being all there only for the future. They are not framed in the instant case so as properly to introduce the operative clause towards the middle of paragraph 4 of the Bond viz., 'the said Amarendra Nath Sarkara and shall also at all times indemnify and save harmless the Government from all and every loss, injury, damage, costs or expense which has been or shall or may at any times or time hereafter during the service etc'. The operative part therefore is not just in the nature of its sweeping clause merely, the object of which is to guard against any accidental omission.

15. The recitals do not, in my view, possess an influence of their own on the solution of the question in their favour. They either become ineffective as words of indemnity or must in construction, be read with the operative clause IT ignored or regarded as struck out of the clause of indemnity.

16. The contention that the earlier part of the instrument viz., towards the end of the Clause 3 referred to above controls latter, i.e., in Clause 4, cannot be too steadily supported. Rather the presumption if any, arising from the earlier part, is displaced by what follows in the same document see Ramkishore Lal v. Kamal Narain : AIR1963SC890 . It seems to me to be a true rule that it is immaterial that a particular covenant comes later, for the construction of a deed does not depend on the order of the covenants even if the recital be taken as a covenant. It is also scarcely necessary to observe that the obligatory part of the bond must be interpreted strictly. Clause 4 in the bond, as I have already stated, is a governing term. The generally received doctrine of law undoubtedly is that the party who makes an instrument, as in the instant case, should take care so to express the amount of his own liabi-lity, as that he may not be bound further than it was his intention that he should be bound. The word of the instrument is his. We conceive that on the proposed construction full effect can be given o all the express stipulations.

17. It is next argued that the operative words must somehow be treated as carrying out the intention as appearing from the statement in the recitals, however refractory from that aspect those words may be. I think such a course would be in truth as illegitimate an to use the expression of intention brought from any other source than the recitals.

18. I think I unnecessary to restate the principle of law at great length or to refer to the authorities on such a point. But in defence to the arguments adduced I will cite the opinions of the learned Judges of he Supreme Court and those of the Judicial Committee of the Privy Council and of the House of Lords which undoubtedly afford a good guidance.

19. S. K. Das. J. in delivering the judgment of the Supreme Court in the case of Raja Rajinder Chand v. Sukhi : [1956]1SCR889 and in dealing with the interpretation of course, applicable to the grants, observed at p. 902 'if the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect, and the operative part, if plainly expressed, may take effect notwithstanding qualifications in the recitals'. Suhba Rao, J. in delivering the judgment of the Court in the case of Ramdhan Puri v. Banker Bihari Saran : [1959]1SCR1085 , observed in paragraph 6 of the said report at p. 945. 'Therefore, whatever ambiguity there might be in the recitals that was dispelled by the unambiguous declaration made by the parties that the property was given as security for the loan and the document was executed as a mortgage'. Gajendragadkar, J. (as his Lordship then was) in delivering the judgment or the Court in the case of Trivenibai v. Smt. Lilabai : AIR1959SC620 in dealing with an agreement, observed at p. 119 of Supreme Court Reports: (at p. (125 of AIR), 'In our opinion, it would be unreasonable to construe these recitals by themselves, apart from other recitals in the document.'

20. Their Lordships of the Judicial Com-mittee in construing a revocable agreement, laid down in the case of Marcar v. Sigg, (1880) 7 Ind App 83 at p. 100: (ILR 2 Mad 239 (PC) ) 'The construction of an ambiguous stipulation in a deed may undoubtedly be governed or qualified by a recital; but on the other hand, if the intention of the parties is clearly to be collected from the operative part of the instrument, that intention is not to be defeated 'or controlled because it may go beyond what is expressed in the recital' Even if we hold that Clause 4 of the agreement has gone beyond Clauses 2 and 3, the plaintiff respondent would still be liable on the aforesaid principle. To the same effect the decisions of the House of Lords are laid down by Lord Warrington of Clyffe delivering his opinion in one of the majority judgment in the cases of the Commissioners of Inland Revenue v. Raphael and Commissioner of Inland Revenue v. Ezra. 1935 AC 96.

21. In support of his contention Mr. Sen cites the decision of the case of Pearsall v. Sum-mersett, reported in (1812) 128 ER 463: 4 Taunt 593 in order to establish that the extent of the condition of the indemnity bond would be restrained by the recitals, though the words of the condition import a larger liability than the recitals contemplate. The principle in my judgment, is inapplicable to the pre-sent case. Mansfield, C. J noted at p. 465 of the Reports 'and therefore coupling the whole with the recital, it appears the clear meaning of the parties, that the defendant should become surety only for the consequences of past transactions'. The learned Judge further observed al next page 'that there is not a single word, that, in its proper signification, relates to future transactions'. That is not the case here. The language of Clause 4 in the present agreement is clear enough, it refers to past as well as to future transactions. The document confides in unambiguous terms the executants to agree. It would be a fallacy to say that the language is ambiguous. There is no ambiguity in it. The onlv ambiguity in the operative part if there be any, is one which is suggested by the recitals. That is not an ambiguity which will induce us to give the operative part, as it stands any other than its natural meaning.

22. The provisions in Clause 4 of the agreement are clearly expressed. In my opinion it is always dangerous to give scope for or make a construction of the express words. It seems desirable to observe that it is not allowable to interpret what has no need of interpretation. The law will not make the exposition against the express words and intent of the parties. We have nol therefore put upon them a construction different from that which the words import. We have understood the words used in their popular sense We have interpreted the language of the parties so that full and complete force may be given to the whole. Following the principle in the case of Radha Sundar Dutta v. Mohd. Jahadur Rahim : [1959]1SCR1309 the document has been read as a whole.

23. I do not refer to very many cases, for they are mere illustrations of what hasbeen done under other circumstance with varying results. Nevertheless I have considered cases including those which held that precise words are to be construed in their natural sense even though they might lead to manifest injustice, but can find no authority which justifies the respondents' contention or which justifies the construction sought to be put by Mr. Sen. I think, therefore impossible, to draw from a perusal nf the whole document, any other than the only conclusion that it fixes the liability on the plaintiff respondent, for the past as also for the future.

24. Even if the words in the operative part be taken as of doubtful import, as argued by Mr. Sen the principle of law is that if a party giving a guarantee, leaves anything ambiguous in his expression, such ambiguity must be taken most strongly against him. It is also a familiar doctrine that where the words of instrument are ambiguous, the Court may call in aid. acts done under it as a clue to the intention. The best evidence of what was understood by the plaintiff to be the nature of the transaction is that afforded by his own representation dated April 17. 1953 Ext. D 11). Apart from the sundry statements paragraph 7 (h) and (c) thereof stated inler alia that al first the plaintiff refused 'to sign the agreement in view of inequitable and repugnant clauses particularly about the collective responsibility of the Chief Cashier', but he had to sign it, after the detection of fraud, on the persuasion of the then F. A. & C. A. O. on a discussion with whom he understood that it was a formal thing and should not be taken seriously. 'In anv case I would not have accepted the appointment of Chief Cashier' stated the plaintiff, 'had I been advised beforehand that the appointment was conditional on the execution of an agreement of such a character The plaintiff admitled in sub-paragraph (c) that the Chief Cashier was responsible for the omission and commission of all the staff under his control i.e., 'he is liable to make good the loss of cash caused by any of them'. The other evidence would be the plaintiff's own statement made in paragraph 10 of the plaint. Though he stated in paragraph 15 that the security bond had no retrospective effect, the plaintiff himself furnished a key to the meaning of words used as stated above.

25. It is not necessary to quote or state more. The whole tone of the guarantor is the admission of his liability for the past as well ae for the future transactions. The surrounding circumstances are relevant consideration on the principle of in the case of A. K. Gopalan v. State of Madras : 1950CriLJ1383 .

26. Mr. Sen's next submission is that the action of the Railways in reducing the amount of the forfeiture of the security from the sum of Rs. 30,000 to Rs. 10,000 is a subsequent conduct between the parties which should be taken note of, in interpreting the document We have no hesitation in rejecting this contention, as this is insufficient to outweigh the terms ofthe document itself. The facts in the instant case do not support it. Nay more. It sins against the familiar principle that where the words in a deed are clear, as they are in this case, the subsequent conduct of the parties is an irrelevant consideration (see the observation of the majority judgment in the case of Commissioner of Income-tax, Delhi v. P. M Rathod & Co. : [1959]37ITR145(SC) . The earlier Supreme Court decision in the case of Abdulla Ahmed v. Animendra Kissen : [1950]1SCR30 does not seem to support Mr. Sen's contention either.

27. Mr, Sen then attempts to challenge the bond on the ground of undue influence fraud and misrepresentation. There are however no particulars of fraud except a bare suggestion in the written statement and in the representation that the plaintiff was made to sign the agreement by the F. A. and C A. O. There is no issue as to whether the agreement is inoperative on the ground of fraud etc. and the parlies did not proceed on the said footing. We do not propose to dwell upon this contention any further for the said reasons. The instant agreement or the bond, in my view, is not made to speak a different language by fraud or mistake or undue influence than what was intended,

28. The construction put by me seems to me to be reasonable. It is agreeable to common understanding. It is near the minds and apparent intents of the parties. It is an application nf and accords with logic and common sense. It is construed in their ordinary and natural sense (see Angurbala v. Debabrata : [1951]2SCR1125 ). It is most agreeable between the maker of the instrument and the holder. It has not depended on the formal arrangement of the words but on the reason and sense of the thing as collected from the whole instrument. The sense of the words is nol in equilibrio. The words in Clauses 2 and 3 of the agreement have not made the deed hollow. The instrument appears on the face of it perfectly intelligible and free from ambiguity. Both reasons and common sense agree that by any means can the language of the instrument be made to speak the real mind of the party. It is construed according to the strict plain common meaning of the words themselves. It is understood in the sense most agreeable to the nature of the agreement. We have considered what is its fair meaning. He who considers merely the letters of an instrument, goes but skin-deep into its meaning. The grammatical construction is nol always in judgment of law to be strictly followed. In my opinion neither false English nor bad Latin makes a deed void when its meaning is apparent; though there is no invincible grammatical objection to the implication of the words in the instant case. If the only construction of the instrument is accepted as is sought to be adopted by the respondent it will be a twist from the natural ordinary meaning and a projection into the void even if a reasonable latitude is allowed. I would hesi-tate in that event long before I declare myself precluded from the cases of harmonious construction. I desire to add that harmony is, here full-toned and not merely partial.

29. We feel the weight of the said several contentions put forth on behalf of the plaintiff respondent hut we are unable to carry thesame with Mr. Sen. On the first question therefore, following the above principles as to theinterpretation of the bond of indemnity, wereach the conclusion for he reasons appearing above, that the plaintiff is liable: that theforfeiture of the plaintiff's security bond forthe sum of Rs. 10.000 by the appellant Railwayis legal and valid.

30. That is sufficient for the determination of this appeal but in as much as the conclusion stated, might be deemed to rest not only on the construction of the bond but on the interpretation of the Forms and the Rules and in asmuch as it is desirable in the interest of the parties and because we have formed an opinion on the second question we do not hesitate to express it.

31. Mr. Roy contends that apart from the liability in the bond, by Rule 274 of the General Financial Rules, Rule 2053 of the Indian Railway General Code Volume I (1950 Edition) and by Rule 2051 of the General Code of the Railways (1959 Edition), the plaintiff is still liable for the laches, negligence or the loss suffered by the Railway. He also refers from Rule 940 to Rule 956 of the State Railway Code for the Accounts Department of the vear 1940 and of the corresponding Rule of the Indian Railway Code of the year 1960. Rules 901 to 903 of the said Codes were also placed in support of the contention of Mr. Roy to the effect that the duty of the Cashier is nut merely the duty of a Post Office. He further submits that it appears from the evidence that there is a lack of supervision by the plaintiff which is apparent from his answer in his oral evidence. The whole responsibility of the Cash is with the Cashier, submits Mr. Roy. He criticises the judgment of the learned Subordinate Judge that there is no reference to the plaintiff's representation (Ext. D/11). He also places the procedure order, different types of forms viz.. Forms p. 1 to p. 6. In dealing with all these, we are relieved from any further consideration of the same, because what has already been sufficiently indicated by the learned Subordinate Judge, has our entire concurrence and particularly when the judgment of the Trial Court does not appear to have proceeded from a scanty note on the question. We do not however express any opinion on the interpretation of the several Rules cited for the first time here and not referred to by the learned Subordinate Judge in his judgment.

32. Mr. Sen next submits that in view of the provisions of Sections 126 and 127 of the Contract Act the plaintiff's suit should succeed. We have heard discussion of the said question but in the view we take, it is unnecessary for us to deal with this somewhat abstruse problem or to consider the authorities that have been cited.

In this case, not one side only but both sides do violence to the actual terms of the said Sections. Upon this contention while I might say much, I will only say this, that these sections do not apply. I must not, in a judgment, already long, proceed to discuss the problem which does not really arise.

33. For the reasons stated above, it is in my view impossible to hold, without departing from the principle, that the forfeiture is not legal. We are accordingly unable to confirm the decree of the Trial Court, which is set aside. This appeal is allowed. The suit is consequently dismissed but in view of the particular circumstances of this case we do not saddle the plaintiff respondent with costs either in this Court or in the Trial Court.

34. The cross-objection is not pressed and same is, therefore, dismissed without any order as to costs.

D. Basu, J.

35. I agree.


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