Das Gupta, C.J.
1. This appeal is from a judgment of G. K. Milter, J. by which he decreed a suit brought by the respondent, Tata Scob Dealers (Controlled Stock) Calcutta Ltd., for the amount of its claim, namely, Rs. 3316-12-9 with interim interest at 6 per cent and also allowed interest on the amount decreed at 6 per cent and costs.
2. On the 14th of May 1947 the respondent company sent to the appellant bank railway receipt and two bills in favour of Messrs. Champaran Hardware Stores at Raxaul and requested the Bank to collect the sum of Rs. 3616-12-9 as due under the bills from the firm and to remit the amount to them. The bank obtained payment of this sum from the firm and made over the railway receipt to them. It appears also that a draft for Rs. 300/- was sent by the bank to the pllaintiff company on the 4th of August 1947 and payment was duly received by the company for the same. The dispute is over the balance of Rs. 3316-12-9. The plaintiff's case is that this sum has not been paid to them though collected. The defence of the appellant company is that a draft No. 7420 for this sum of Rs. 3316-12-9 was, in fact, sent by it to the plaintiff company and payment was duly received.
3. It appears that a draft for this sum of Rs. 3316-12-9 was, in fact, drawn by the appellant bank on its Calcutta branch on the 10th of June 1947 and was on the basis of an endorsement purporting to be by B. T. Ghatak as Director of the plaintiff company in favour of Gopeswar Kar, Ashutosh Kar, deposited by Messrs. Gopeswar Kar, Ashutosh Kar with the Bank of Assam Ltd., and the amount was collected by the Comilla Union Bank Ltd., on behalf of the Bank of Assam Ltd.
4. Three questions of fact arose for decision. First whether the plaintiff company bad received this draft; secondly, whether the plaintiff had endorsed the draft; and thirdly. whether the defendant Bank had sent the draft duly addressed to the plaintiff company in a proper manner.
5. A question of law arose whether if the defendant bank did send it, it discharged its liability even though the plaintiff company had not received it or endorsed it. The learned Judge held on the evidence that it had not been proved that the draft ever reached the plaintiff. He also held that there was no satisfactory evidence of the draft having been put in the post. He further held that the draft was not endorsed by the plaintiff as alleged by the defendant. On thequestion of law the learned Judge held that the defendant was negligent in carrying out the instruction of the plaintiff with regard to remission of the money and was not justified in sendingthis sum, of Rs. 3000/- by ordinary post.
6. The endorsement on the draft for Rs. 3316-12-9 purports to be in the hand of B. T. Ghatak. There is a rubber stamp for the Tata Scob Dealers (Controlled Stock) Calcutta Ltd., below the words 'Pay to Gopeswar Kar, Ashutosh Kar'. B. T. Ghatak has given evidence that this is not his signature. There is not the slightest reason to disbelieve his evidence. There is equally convincing evidence that the rubber stamp impression is not of any of the rubber stamps which is used by the company. I am, therefore, clearly of the opinion that the plaintiff did not make on the draft the endorsement that appears thereupon.
7. Mr. Ghatak who was one of the Directors is really not competent to say whether this draft was received in the company's office. On that point, however, the evidence of B.K. Guha, who was at the relevant time the Deputy Secretary of the company is important. On being shown the draft (Exhibit B) he has stated that this draft was not received by the company. His evidence further is that Mr. S.K. Nag, who was the Secretary, used to open the letters and sent to him all letters which related to accounts. Comment has been made by the learned Counsel for the appellant on the non-examination of Mr. Nag. It is clear, however, from Mr. Guha's evidence that Mr. Nag used to look after many associations while Mr. Guha was looking after the affairs of this company. I do not think it would be proper to draw any presumption against the plaintiff for non-examination of Mr. Nag. It is reasonable, in my opinion, to believe that if this draft had reached the company's office, it would have reached the hands of the witness, Bani Kanta Guha and that his evidence that it was not received by him should be accepted. My conclusion, therefore, is that this draft did not reach the plaintiff's office.
8. On the question whether after the draft was made out by the appellant bank it was actually put in the post addressed to the plaintiff company, the evidence consists of the testimony of Biswambhur Prosad, the only witness examined by the defendant bank. He was employed as a general clerk of the defendant bank at the relevant time and says that in course of his duty he used to make over covers containing drafts which were being sent out, to a peon of the office for posting the same and that he recollects that in this case also the draft (Exhibit B) with the forwarding letter was brought to him in an envelope; that he had the envelope sealed in his presence and made it over to the peon. It is also his evidence that the certificates of posting used to come back to him and he used to inspect them and as regards this draft he had definite recollection that the certificate of posting was brought to him and he saw it. If this evidence is believed, the fact that the appellant bank posted the draft of Exhibit B for Rs. 3316-12-9 would certainly stand proved, tt is to be noticed, however, that the learned judge has not thought the fact proved satisfactorily. That can only be due to the fact that he has not accepted this witness's evidence about his having examined the certificate of pasting. I see no reason to differ from him on this point.
9. Assuming that the witness has told the truth as regards having the letter containing the draft sealed in his presence and having made it over to the peon for posting, the position is thatthe peon has not been examined. Reliance was placed on behalf of the appellant on the decision in Skilbeck v. Garbett, (1845) 7 QB 846, in support of his contention that non-examination ot the peon is immaterial. In (1845) 7 QB 846, the facts were that the clerk of the plaintiff proved that various letters including bills had been addressed by the plaintiff to the defendant, that these letters had been placed in a box in the plaintiffs office and that all letters were delivered by him to the bellman who always called daily to the plaintiff's office for letters. Lord Denman, C.J. and Coleridge, T. held that this was sufficient evidence of proof of posting. It is to be noticed, however, that in that case they considered the delivery to the bellman as amounting to be delivery to the post office. The Lord Justice referred in this connection to Hetherington v. Kemp (1815-4 Camp 193) where, according to the usage, all letters for the post were always deposited for the porter to carry to the post office. But the porter was not called, and there was no evidence as to what had become of the letter after it was put down upon the table. Lord Ellenborough in that case held that it was not prima facie evidence that the letter was sent by post and observed:
'Had you called the porter, and he had said that although he had no recollection of the letter in question, he invariably carried to the post office all the letters found upon the table, this might have done.'
10. I think it can be reasonably said in the present case also that if the peon had been called and he had said that though he had no recollection of posting of this particular letter, he invariably carried to the post office all the letters made over to him by Biswambhur Prosad, that might have been considered to be satisfactory if the peon was not disbelieved. The peon has. however, not been examined and there is no explanation why he could not be.
11. My conclusion is that the learned Judge is justified in his view that the posting of the draft has not been satisfactorily proved.
12. Even assuming, however, that the posting had been proved, I agree with the learned Judge that the defendant cannot escape liability. It is true that when the plaintiff asked the defendant to remit the amount collected, he authorised the defendant to send it by post. If the authority had been to send a cheque or draft by post, a question would have arisen whether the omission to send it by registered post would be negligence on the defendant's conduct. Here, however, there was no authority to send the amount by a cheque or draft. The authority was to send the amount collected. It was, therefore, the defendant's duty as agent of the plaintiff to use due care in sending the amount. If the prudence required that the amount should be sent by money order, that should have been done. If sending the money in notes by insured post was what a prudent man would have done, that is the defendant's duty to do so. Before the defendant can escape liability by the act of sending a draft by ordinary post, we have to convince ourselves that is what a prudent man would do. In my judgment no man of ordinary prudence would send such a big amount of Rs. 3316-12-9 by a draft placed in a letter sent by ordinary post.
13. In Mitchell-Henry v. Norwich Union Life insurance Society Limited 1918-2 K.B. 67, to which the learned Judge has referred, the defendant had asked the plaintiff to remit a sum of 48-5-8d. The plaintiff sent to the defendant byregistered post a packet containing 48 Pounds in Treasury notes and a postal order and stamps for 5s. 8d. The packet was stolen before it reached the defendants and they never received the money. It was held that this was not a proper way of sending such a sum even though there was a direction to send it by post and that sending this even by registered post in that way was not payment.
14. In this instant case the cheque was not even sent by registered post.
15. My conclusion, therefore, is that the defendant was negligent in sending the amount in this manner and that it did not amount to payment to the plaintiff. The suit has, therefore, been rightly decreed. I would dismiss the appeal with costs.
16. Certified for two Counsel.
17. I entirely agree with my Lord the Chief Justice.