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A.G. Kidston and Co. Ltd. Vs. Seth Brothers - Court Judgment

LegalCrystal Citation
Subject Banking
CourtKolkata
Decided On
Reported inAIR1930Cal692,129Ind.Cas.190
AppellantA.G. Kidston and Co. Ltd.
RespondentSeth Brothers
Excerpt:
- .....a model, makes this clear. in that, the second part of the definition defines an inland bill as a bill drawn within the-british isles-upon some person resident therein. this undoubtedly suggests that in the second part of the definition in section 11 the words 'in british india' were (sic) omitted after the word 'drawn.' if a bill is drawn upon a resident in british india, it still remains an inland bill wherever it may have been drawn. in these circumstances, the other point argued by mr. moore does not arise and this judgment supersedes my former judgment on this point. the remainder of my earlier judgment is incorporated herewith as follows.2. the only other point taken at the hearing is that the plaintiff company have not given the defendants credit; for all payments made on account.....
Judgment:

Buckland, J.

1. This is a suit on dishonoured bills drawn in England on a firm carrying on business in Calcutta. When the case was before me some days ago, Mr. Moore, on behalf of the defendants, contended that, by virtue of Section 104, Negotiable Instruments Act, coupled with Section 51, Bills of Exchange Act, the bills ought to have been protested, and, that not having been done no suit could be brought upon them. I considered the point and expressed my opinion upon it. At that time, it was assumed that the bills were foreign bills. Subsequently, however, for my own satisfaction, I turned to the definition of a foreign bill and it appeared to me clear, as I now think, that the question which was then argued by Mr. Moore never arose, because these bills are not foreign bills at all. A foreign bill is defined by Section 12, Negotiable Instruments Act, which provides that any instrument not drawn or made or made payable, as provided by Section 11, shall be a foreign instrument. Section 11, defines an inland instrument as a note, bill or cheque drawn or made in British India and made payable in or drawn upon any person resident in British India. That should be read thus : (1) a note, etc., drawn or made in British India and made payable in British India, or (2) a note, etc., drawn upon any person resident in British India. In the latter case, it is immaterial where-the promissory note, bill, etc., is drawn. A reference to the definition in the English Act, Section 4, which the draftsman, of the Indian section probably took as a model, makes this clear. In that, the second part of the definition defines an inland bill as a bill drawn within the-British Isles-upon some person resident therein. This undoubtedly suggests that in the second part of the definition in Section 11 the words 'in British India' were (sic) omitted after the word 'drawn.' If a bill is drawn upon a resident in British India, it still remains an inland Bill wherever it may have been drawn. In these circumstances, the other point argued by Mr. Moore does not arise and this judgment supersedes my former judgment on this point. The remainder of my earlier judgment is incorporated herewith as follows.

2. The only other point taken at the hearing is that the plaintiff company have not given the defendants credit; for all payments made on account of these bills and the defendants claim to-be credited with a further sum of Rs. 100. The position is by no means clear, and a small balance, such as a hundred rupees, may involve a protracted account. Learned Counsel for the defendants is not in a position to explain to me with any reasonable exactitude how the figure is arrived at, and, reluctant though Ii am to send so small a point to a reference, I must direct that it be referred to the Assistant Referee to enquire and report as to what payments have beer made by the defendants to the plaintiffs' on account of the sums due in respect of the bills in suit. The defendants must pay the costs of the suit, and if it shall appear that full credit has been given to the defendants for all sums paid by them, then the defendants must pay the costs of the reference as well; on the other hand, if it shall appear that full credit has not been given by the plaintiff company for all payments made by the defendants, then the plaintiff1 company will have to pay the costs of the reference.

3. The plaintiff company claim Rupees 2,651-5-9 due for principal and interest. They admit they have omitted to give credit for 2, apart from the item of Rs. 100 already mentioned. Rs. 28 must therefore, be deducted from the sum claimed, and, as it is not claimed that 4here are more than Rs. 100 still in dispute, I will now make a decree for Rs. 2,523-5-9. The balance of Rs. 100 will depend upon the reference.


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