the New Marine Coal Co. (Bengal) Private Ltd. v. Union of India

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 421 of 1961. Appeal from the judgment and decree dated December 24, 1959 of the Calcutta High Court in Appeal from Original Decree No. 181 of 1956. M. 0. Setalvad, S. 0. Ghose, J.B. Daikichanji, 0. 0. Mathur and Ravinder Narain, for the ;ippellant. New Mdrine Coal Co. (B••z•l) P. Ltd. Uni•n of India Bishan Narain and P. D. Menon, for the · "'"' M<Ti•• Coal rc~pondcnt. lo (B111:al) P. Lid Union of btdia 19U:l. April 5. The J udgmclll of the Court was delivered by G•juriro1adk" J, GAJE~DUAGADKA!\ J.-This appeal anses out of a suit filed by the appellant, the l\ew :Marine Coal (Bengal) Private Ltd. against the respondent, the Union of India, on the original side of the Calcutta High Court to recover Rs. '20,34:~/8/·. The appellant's case was that it had supplied coal to the Bengal Nagpur Railway Administration in the month of June, 1949, and the amount claimed by it represented the price of the said coal· and salestax thereon.

The appellant also made an alternative case, because it was apprehended that the respondent may urge that the contract sued on was illegal and invalid since it did not comply with s.175 (3) of the Government of hdia Act, I935. Under this alternative claim, the appellant alleged that the coal had been supplied by the appellant not intending so to do gratuitously, and the respondent had enjoyed the benefit thereof, and so, the respondent was bound to make compensation to the appellant in the form of the value of the said Coal under s. 70 of the Indian Contract Act. The appellant's case was that since the said amount had . to be paid to it at its Esplanade Office in Calcutta, the original side of the Calcutta High Court had jurisdiction to entertain the said suit. Since a part of the cause of action had accrued outside the limits of the original jurisdiction of the Calcutta High Court, the appellant obtained leave 10 sec under cl. 12 of the Letters_ Patent.

In its written statcm~nt, the respondent admitted the delivery of the coal to the Bengal Nagpur Railway Administration and did not dispute the appellant's case that it had forwarded to the 2 s.a.R.. SUPREME couR. T R.Ei>oR. ts s6i . respondent bills in regard to the amount alleged to be payable to the appellant for the said supply. The respondent, however, pleaded that the contract on which the suit was based was illegal inasmuch as it had been entered into in contravention of the provisions of s. 175 (3) of the Government of India Act, 1935; and it was urged thats. 70 of the Indian Contract Act had no application. Besides, the respondent 'alleged that following the usual practice and course of dealings between the parties, an intimation card was issued and sent to the appellant by the respondent requesting the appellant to obtain payment on presentation of a proper receipt· and authority against its bills in question.

Thereafter, the respondent, on receipt of the said intimation card and a proper receipt executed on behalf of theappellant, paid the amount covered by the said bills by an 'account payee' cheque on the Reserve Bank of India drawn in favour of the appellant which was delivered to the person purporting to have authority to receive payment on behalf of the appellant. The respondent thus alternatively pleaded· satisfaction of the claim, and so, urged that the appellant had no cause of action for the suit. On these pleadings, seven substantive issues were framed by the learned trial Judge. Issues l & 2 which were framed in respect of the jurisdiction of the Court were not pressed by the respondent, and so, no findings were recorded on them. On issue No. 3 the learned trial Judge found that the contract on which the appellant based his claim was invalid and unenforceable. Issue No. 4 in regard to the alleged payment of the bills was found against the respondent. On issue· No. 5, the trial Court held that the respondent was bound to pay to the appellant the amount claimed by way of compensa- . tion.

Issue :'~o. 6 which was raised by the respondent under s. 80 of the Code of Civil Procedure was not pressed, and therefore, no finding was recorded J963 N~w Marini Coal Co. (Bengal) P. Lid. Union of InditJ Gaj1ndratadkar J. 19fJ N1w MoritU Codi Co. (Bt•z•I) P. Ltd. Ulli .. oj lw SUPllEME COURT REPOlltS [1964] vot. on it, Issue No. 7 which was framed on the appe· llant's allegation that its claim had been aqmitted by the respondent wa~ answered against rhc appc· llant. In the result, the main finding on issue I\o. 5 decided the fate of the suit and since the said find· ing was in favour of the appellant, a decree was passed directing the respondent to pay to the appellant Rs. :!0,030/8/·· This amount, according to the decree, had to carry interest at the rate of 6 percent per annum. This decree was challenged by the respondent by an appeal before a Division Bench of the said High Court. The appeal was heard by P. B. Mukarji and Bose JJ.'

Both the learned judges agreed that the resporident's appeal should be allowed and the appellant's claim dismissed with costs, but their decision was based on different grounds. Bose J. held that the contract sued on was invalid and that the claim made by the appellant for compensation under s. 70 of the Indian Contract Act was not sustainable. He also found that the appellant's contention that the said contract which was initially invalid had been duly ratified, had not been proved. It is on these grounds that Bose J. came to the con cl u. sion that the appellant's claim could not be granted. Incidentally, it may be added that Bose J., was not prepared to consider the plea of negligence which was raised by the respondent for the first time in appeal. Mukarji, J., who delivered the principal Judgment ·of the Appeal Court agreed with Bose J. ·in holding that the contract was invalid and s. 70 was inapplicable.

He, however, took the view that the said contract had been duly ratified and so, he pro· cecdcd to examine the question as to whether the appellant's claim was justified on the merits. On this part of the case, the learned Judge took the view that even if both the appellant and the respondent wero held to be innocent, since the respondent had actually parted with the money, the appellant was not entitled to require the respondent to pay over the said money again, because he thought that as held by Ashhurst J. in Lickbarrow v. Mason (1)1 it was a well-recognised principle of law "that when· ever one of two innocent persons must suffer by the acts of a third, he who enables such third person to occasion the loss must sustain it."

In the opinion of the learned Judge, the intimation card had been duly sent by post by the respondent to the appellant and the fact that the said intimation card went into unauthorised hands of dishonest persons who used it fraudulently for the purpose of obtaining a cheque for the amount in questfon from the respondent, showed that the appellant had by his negligence enable'cl the said fraudulent persons to secure the cheque, and so, it was not open to the appellant to claim the amount from the respondent. . It is oil these grounds that Mukharji, J., allowed the appeal and dismissed the appellant's suit with costs. It is against this judgment and degree that the appellant has come to this Court with a certificate granted by the said High Court.

In the courts below, elaborate arguments were urgaj by the parties on the question as to whether the contract, the subject-matter of the suit, was invalid and if yes, whether a claim for compen· sation made by the appellant could be sustained under s. 70 of the Indian Contract Act. Both these questions are concluded by a recent decision of this Court in the SI.ate of West Bengal v. M/B. B. K. Mondal & Sons (2). As a result of this decision, there can be no deubt that the contract on which the suit is based is void and unenforceable, and thia part of the decision is against the appellant. It is also clear under this decision that if in pursuance or the said void contract, the appellant has performed his part and the respondent has received the benefit of-the performance of the contract by· the appellant, (1) 2 T.R. 6i; 70. (2) [1962) Supp. 1 S.C.R. 876. J96J N1w .Matiu Coal Ct. (B,.gal) P. Ltd. Union of l'ftt!"11J Gaj•ndratodluiT I. New Marine ~al C• (B1ngal) P. Ltd, · U11iorz of India GajtrzdragadJ;tn J. section 70 would justify the claim made by the appellant against the respondent.

This part of the decision is in favour of •.he appellant. It is therefore unnecessary to deal with this aspect of the matter at length. Assuming then that the appellanr is entitled to claim the amount from the respondent, two questions still remain to be considered. The first question is whether the intimation card on the production of which the respondent always proceeded to issue a cheque against 1he bills received by it from the appellant, was received by the appellant or not, and if this question is answered in the affirmative, the other question which will call for our decision is whether by virtue of the fact that after the intimation_ card had been duly posted by the respondent to the appellant it fell into dishonest hands and was fraudulently used by some persons, that would create an impediment in the way of the· appellant's claim on the ground that the appellant was negligent and his negligence creates estoppel.

Before addressing ourselves to these questions, it would be necessary to set out the material facts as to the despatch of the intimation card and the fraudulent use ·which was made of it by persons in whose hands the said card appears to have fallen. It appears that according to the ordinary course of business, on receiving the bills from the appellant, the respondent used to send an intimation card to 1hc appellant and the said card had to be sent back by the appellant with a person having the au1hority of the appellant to .receive the payment and when it was so produced before the respondent, a cheque used to be issued. In the present case, it is common ground that a bill . was sent by the appellant to the respondent making a total claim of Rs. ~0,34a/8/- on August 18; 1949. Thereafter, on October JO, 1949, the respondent sent the intimation card to the appellant addressed at its place of business 135, Canning Street, . Calcutta. This card intimated to the appcl:ant

.2 S.C.R. that its claim for the amount specified in its bill· would be paid on presentation of a proper receipt and authority between 11 A. M, to 3 l'. M. on ordinary days and between ll A. M. to 1 P. M. on Saturdays. Along with the card, a form of the receipt was sent and the appellant was asked to ~ign it. This intimation card was duly posted. Later, one Mr. B. L. Aggarwal produced the intimation card before the respondent. In doing so he projuced an endrosement which purported to show that the appellant had authorised him to receive the payment on its behalf. When the intimation card with the appropriate authority was shown to the respondent, Mr. Aggarwal was asked to pass a receipt and when the receipt was passed in the usual form, an 'account payee' cheque for the amount in question was given to him. Mr. Aggarwal took the cheque and left the respondent's office.

Meanwhile, it appears that some persons had entered into a conspiracy to make fraudulent use of the intimation card which had gone into their custody. In order to carry out this conspiracy, they purported to form a limited company bearing the same name as that of the appellant. A resolution purported to have been passed by the Directors of this fictitious company on October 17, authorised the opening of an account in favour of the Company in the United Commercial Bank Ltd., Calcutta. This resolution purported to be signed by the Chairman of the Board of Directors Mr. Abinash Chander Chatterji. Armed with . this resolution an application was made to open an account in the United Commercial Bank Ltd., and. while doing so, the Articles of Association purporting to be the Articles of the said fictitious Company were produced and the account was opened with a cheque of Rs. 500/- on October 27, 1949. · On October 26, 19i9, the cheque received from. the New Matine Coal Co. (Bmg,l) P. Ltd. Union oj India Gajendragadka.r J. N1w M.nru Coal Co. (R,.1all P. Lli.

Union of lruli4 Gaj,,.dragUAar J. respondent was credited in the said account, and as was to be expected, withdrawals from this account, began in quick succession, with the result that by November I, 194\1, ouly Rs. 68/- were left in this account. That, in brief, is the story of the fraud which has been committed in respect of the cheque issued by the respondent to the appellant for the bill dated August 18, 1949. In the courts below, the appellant denied that it had received the intimation card from the respondent, and it was alleged on its behalf that in delivering the cheque to the person who presented the said card with the authority purporting to have been issued by the appellant, it cannot be said that the respondent had given the cheque to any person authorised by the appellant, and so, the appellant was justified in saying that it had not received the payment for its bill. In support of its case, the appellant examined its Director, Mr. Parikh and its officer, Mr. Bhat.

The respondent led no oral evidence; it, however, relied on the fact that the intimation card bore the postal mark which showed that it had been posted and it was urged that the said postal mark raised a presumption that the card which had been duly posted in the Post Office must have, in ordinary course, reached the addressee- The trial Court noticed the fact that the intimation card did not bear a corresponding delivery mark as it should have, and it took the view that the onus was on the respondent to show that the ~aid card had in fact bern delivered to the appellant. It then considered the oral evidence adduced by the appellant and having regard to the fact that no evidence had been led by the respondent, it came to the conclusion that the respondent had failed in showing that"the intimation card had been duly delivered to the appellant. Substantially, it is on the basis of this finding that the decree was passed by the trial Court in favour of the appellant.

In appeal, Mukarji, J. took the view, and we think, rightly, that the posting of the card having been duly proved, a presumption arose that it must have been delivered to the addressee in ordinary course. He also considered the oral evidence given by Mr. Parikh and Mr. Bhat and was not satisfied that it was trustworthy. In particular, the learned Judge was ·inclined to take the view that Mr. Parikh's statement that his office did not employ any despatch clerk and did not keep any Chiti note-book like the Inward and Outward Register was unbelievable. In the result, he made a finding that the appellant was negligent in receiving, arranging, recording and dealing with letters addressed to it. The position of the evidence in respect of this point is no doubt unsatisfactory. It appears that Mr. Parik4 who is the Director of the appellant Company since 1948 is also the Director of K, Wara Ltd. which manages eight collieries like that of the appellant. K. Wara Ltd., has its office at 135, Canning Street.

The appellant Company also has one office at the said place. A Post Box in which letters addressed to the appellant and K. Wara Ltd. could be dropped has been kept on the ground floor of the building in which the said offices are situated. The said Post Box is locked and naturally the key is given to one or the other of the Peons to open the said Box and take out the letters and deliver them to Mr. Parikh. Mr. Parikh's evidence shows that his denial that he had received any · intimation card could not be accepted at its face value for two reasons; the first was that even if the intimation card had been received by the Peon and had not been deliverd by him to Mr. Parikh, Mr. Parikh would n;;,t know that the card had been received and though his statement that he did not get the card may be literally true,. it would not be true in the 1ense that the card had not been delivered to the N1w Marine Caal Co. \B<ngal) P. Ltd. Union of India Gojena1agadkar J. ,,63 Jlt•' V nrint C"•l Co. (ll1n1.J1 r. l.td.

Un·o11 of /11,,a (,1j1nlrcgadi:ar J. 870, SUPRE'.'vlE COURT REPORTS [1!!64] VOL. appellant Company. Besides, Mr. Parikh 's statement that he did not employ any despatch clerk and kept no inward or outward register is prima f"c.ie unbelievable, and so, Mukarji J. was inclined to hold that the intimation card may have been received by the appellant Company. Having made this finding, Mukarji J. proceeded to examine the true legal position in regard to the appellant's claim, and a., we have already observed, he held that since the appellant was guilty of negligence which facilitated the commission of the offence by some strangen, it was precluded from making a claim against the respondent. As we have a I ready iccn, !lose, J., has put his decision' on the narrow ·grou11d that the contract was invalid and s. 70 did not help the appellant. That ground, however, cannot now sustain the final condusion of Bose, .J., in view of the recent decision of this Court in the case of .II JS. B. J(. °Jlfonda.l ch Solis (1).

Therefore, io dealing with the present appeal, we will assume that the finding recorded by l\fokarji J., is correct and that the intimation card sent by the respondent to the appellant can be deemed to have been delivered to the appellant. The· question which arises for our decision then is: if the intimation card was thereafter taken by somebody else and fraudulently med, does that create an cstoppel against the appellant in regard to the claim made by it in the present case ? In <lealing with this point, it is necessary to bear in mind that though the evidence given by · Mr. Parikh may be unsatisfactory and may justify the conclusion that despite his denial, the intimation card may have been delivered to Mr. Parikh, it ia not the respondent's case that Mr. Parikh deliberately allowed either one of his employees or somebody else to make fraudulent use of the said intimation card. In other words, we must deal with the point . of law raised by the appellant on the basis that Mr. Parikh had no connection whatever with the (II (1962j Supp.

I S.C.R. 876. fraud committed on the respondent and that whoever obtained the intimation card from Mr. Parikh's office and , used it for a fraudulent purpose acted on his own without the knowledge or consent of Mr. Parikh. The short question which falls to be considered is if the arrangement for keeping the intimation card in safe custody was not as good and effective as it should have been and somebody managed to pilfer the said card, does it justify the reipondent's case that the appellant was negligent and by virtue ofits negligence, it is estopped from making the present claim ? In dealing with this question, it is necessary to remember that the plea of negligence on which estoppel was pleaded by the respondent against the appellant had not been alleged in the written statement.

It is remarkable that the pleadings of both the parties completely ignored the fact known to both of them before the present suit was filed that a cheque had been issued by the respondent and had been fraudulently used by some strangers. The appellant in its plaint does not refer to the issue of the cheque and its.fradulent use and makes a claim as though the respondent had not honoured the bill submitted to it by the appellant; whereas the respondent in its written statement ignores the fact that the cheque had not been received by the appellant but had been fraudulently obtained and encashed by some other persons. That being the nature of the pleadings filed by the parties in the Trial Court, neither party· pleaded any negligence against the other. It is true that both the par.ties argued the point of negligence against each other in the appellate Court.

The appellant urged that the respondent 11hould not have delivered the cheque to the person who presented the bill and the intimation card because a stamped receipt had not been produced by the said person as it should have peen; the appellant's case was that it wa·s usual that New ,'vJarin1 Coal Co. (Bengal) P. Ltd. Unio1t 'lf India Gaj1ndragadkar J, /96S Nim Man·n, Coal C.. (lleagol) P. lli, C/niim of frulit1 GojnulragadMr J • a stamped receipt had to be produced alongwith the intimation card by a person duly authorised by the appellant before the cheque was deliveud to hirri and since without a stamped receipt the cheque had been delivered, the respondent was guilty of negligence. This point has been rejected by Mukarji J., but that is another matter.

On the other hand, the respondent pleaded that the appellant was negligent imumuch as the intimation card which had been sent to it and which must be presumed to have been delivered to it I.ell into the hands of strangers owing to the negligent manner in which it was handled after it was delivered in the Letter Box of the appellant in 135, Canning Street, Calcutta. As we have already noticed, Bose, J., refused to entertain the plea of negligence urged by both the parties, whereas Mukarji J ., considered it and made a finding in favour of the respondent and against the appellant. Mr. Setalvad contends that a plea of negligence should have been raised by the respondent in its pleadim1;s and the appellate Court was, therefore, in error in allowing such a pica to be raised for the first time .in appeal. In our opinion, there is some force in this contention. Negligence in popular language aud in common sense means failure to exercise that care and diligence which the circumstances require.

Naturally what amounts to negligence would always depend upon the circumstances and facts in any particular case. The nature of the contract, the circumstances in which the performance of the contract by one party or the other was expected, the degree of diligence, care and attention which, in ordinary course, was expected to be shown by the parties to the contract, the circumstances under which and the reason for which failure to show due diligence occurred are all facts which would be relevant before a judicial finding -0an be made on the plea 2 S.C,R. of negligence. Since a plea of negligence was not raised by the respondent in the trial Court, the appettant is entitled to contend that it had no opportunity to meet this plea and dealing with 1t in appeal has, therefore, been unfair to it. Apart from this aspect of the matter, there is another serious objection which has been taken by Mr. Setalvad against the view which prevailed with Mukarji, J. He argues that when a plea of estoppel on the ,ground of negligence is raised, ·negligence to which reference is made in support of such a plea is not the negligence as is understood in popular language or in common sense ; it has a technical denotation.

In support of a plea of estoppel on the gi:ound of negligence, it must be shown that the party against whom the plea is raised owed a duty to 'the party who raises the plea. Just as estoppel can be pleaded on the ground of misrepresentation or act or omission, so can estoppel be pleaded on theground of negligence ; but before such a plea can succeed, negligence must be established in this technical sense. As Halsbury has observed : "before anyone can 'be estopped by a representation inferred from negligent conduct, there must be a duty to use due care towards the party misled, or towards the general public of which he is one (')." There is another requirement which has to be proved before a plea of cstoppel on the ground of negligence can be upheld and that requirement is that "the negligence on which it is based should not ~e indirectly or remotely connected with the misleading effect assigned to it, but must be the proximate or real cause of that result (')."

Negligence, according to Halsbury, which can sustain a plea of estoppel must be in the transaction itself and it should be so connected with the result to which it led that it is impossible . to treat the two separately. This aspect of the matter has . not been duly examined by Mukarji J. when he made his finding against the appellant. (I) Halsbury's Laws ofEng1and Vol. 15, page 248, para 451. \2) Hal1burv'1 Law1 of E1111and Vol, 1' pap 245 para 453, Nem Marini Co•l Ca. (B1ngol) P. Lrd. Urtien oj India. Aiw Manne C.•I Co. (dm1al) P ui. Union of lnd1t1 874 SUPREME C6URT REPORTS [1!}64] VOL. Mukarji, J. thought that the principle laid down by Ashhurst, J. in the case oj Lackbarrow ('), was a broad and general principle which applid to the facts in the present case. It may .be conceded that as it was expressed by Ashhurst, J., in the case of Lickbarrow, the proposition no doubt has been stated in a broad and general manner.

Indeed, the 1ame proposition has been affirmed in the same broad and general way by the Privy Council in Common· wealth Trust Ltd. v. A.kotey ('). In that case, the respondent who was a grower of cocoa in the Gold Coast Colony, consigned by railway 1050 bags of cocoa to L., to whom he had previously sold cocoa. Before a difference as to the price had been settled, L. sold the cocoa to the appellants and handed the consignment notci to their agent, who reconsigned the cocoa to the appellants. The appellants bought in good faid1 and for the full price. The respondent then sued the appellants for damages for conversion. It was held by the Privy Council that by his conduct the respondent was precluded from setting up his title against the appellant.!, and so his claim wa.~ rejected.

In support of the view taken by the Privy Council, reliance· was placed on the well-known statement of Ashhurst, J., in the case of J.Ackl!arrmv) '), and so, it may be conceded that the broad principle enunciated by Ashhurst,J., received approval from the Privy Council. s'ubsequently, however, this question has been elaborately examined by the Privy Council in Mercantile Bank of India Ltd. v. Central Ba11k oj India Ltd., (1), and the validity of the broad and general proposition to which we have just referred has been seriously doubted by . the Privy Council. Lord Wright who delivered the judgment of the Board, referred to the decision in the ca8e of Lickbarrow ('),and observed "that it may well be that there were facts in that case not fully elucidated in th• report which woulq justify the decision; Dut on the (I) 2 T.R. 63, 70. (2J l1926) A.O. 72. (S) (t937) L.R, '5 I.A. 75, 86, face of it their Lordships do not think that the case is one which it would be safe to follow."

Then reference was made to the opinion of Lord Sumner in the case of R.E. Jones Ltd. v. Waring &: Gilloul Ltd., (') where the principle enunciated by Ashhunt .J. was not accepted, because it was held that the principle of estoppel must ultimately depend upon a duty. Lord Lindley similarly in Farquhar~on Bro~. &: Co. v. King &: Co. ('), pointed out that the dictum of Ashhurst J. was too wide. A similar comment has been made as to the said ob1ervation by other Judges to which Lord Wright has referred in the course of his judgment. It would thus be seen that . in the case of The Mercantile Bank of Ind·ia Ltd. (') the Privy Council has seriously doubted the correctness of the broad observations made by AshhurstJ, in the case of Liclcbarrow ('),and has not followed the decision in the ca~t of Commonwealth Trust Ltd. (').

Therefore, it must be held that the decision of Mukarji J, which proceeded on the basis of the broad and unqualified proposition enunciated by Ashhurst, J., in the case of Lick barrow cannot be sustained as valid in law. There are two other decisions to which reference may usefully be made in considering this point. In Arnold v. 'l'he Cheque Bank, ('), Lord Coleridge, C.J., in dealing with the question of negligence, obser\!Cd that "no authority whatever - had been cited before the.m for the contention that negligence in the custody of the draft will diSentitle the owner of it to recover it· or its proceeds from a person who has wrongfully obtained possession of it. In the case before them, there was nothing in the draft or the endorsement with which the plaintiff had anything to do, calculated in any way to mislead the defendants. It was regularly endorsed and was then enclosed in a letter to the plaintiffs correspondent1, to be sent through the post.

There could be no negligence in relying on the honesty of their (I) [1926] A.C. 670, (SJ (1937) L.R. 651.A. 75, 86. ($) [1926] A.O. 72. (2) [1902] A:C. 325. (41 2 T.R. 63, 70. (6) \1876) C P.D, 578, 588, I96S New M•rlne Co•l Co, (Btnt•l) P. Lti. Unfon •f lnJic Gajenir1igadkat _ J . N1w Marinr Cttal Co ( Bt1tal) P. Ltd. UnU. of tni;a servants in the discharge of their ordinary duty, that of conveying letters to the post; nor can there be any duty to the general public to exercise the same care in transmission of the draft as if any or every servant employed were a notorious thief." These observations illustrate how before invoking a plea of estoppel on the ground of negligence, 1mme duty must be shown to exist between the parties and negligence must be proved in relation to such duty. Similarly, in Baxendale v. Bennett, Bramwell, L.J., had occasion to consider the same point.

In that case, the defendant gave H. his blank acceptance on a stamped paper and authorised H. to fill in his name as drawer. H. returned the blank acceptance to the defendant in the same st.ate in which he received it. The defendant put it into a drawer of his writing table at his chambers, which was unlocked, and it was lost or stolen. C. afterwards filled in his own name without the defendant's authority, and an action was brought on it by the plaintiff as endorsee for value. The court of Appeal held that the defendant was not liable on the bill. Dealing with the question of negligence attributed to the defendant, Bramwell L.J. observed that "the defendant may have been negligent, that is to say, if he had the paper from a third person, as a bailee bound to keep it with ordinary care', he would not have kept it in a drawer unlocked." But, said the learned Judge, this negligence is not the proximate or effective cause . of the fraud.

A crime was necessary for its completion, and so, it was held that the defendant was not liable on the bill. This decision shows that negligence must be based on a duty ,owed by one party to the other and must, besides, be shown to have been the proximate or the immediate cause of the loss. It is in the light of this legal position that the question about estoppel. raised by the respondent (I)) (1878) SQ.. B. D. 525, 530. against the appellant in the AppeUate Court may be considered. ·Can it be said that when the appellant received the intimation card, it owed a duty to the respondent to keep' the said card in a locked drawer maintaining the key all the time with its Director?

It would not be easy to answer this question in the affirmative; but assuming that the' appellant had a kind of duty towards the respondent having regard to the fact that the intimation card was an important document ·the presentation of which with an endorsement as to authorisation duly made woiild induce the respondent to issue a cheque to the person presenting it, can the Court say that in trusting its employees to bring letters from the letter box to the Director, the appellant had been negligent ? As we have already observed, in deal· ing with the present dispute on the basis that the intimation card had been dropped in the letter box of the appellant, it is possible to bold either that . the said card was collected by the Peon and given over to Mr. Parikh, or it was not. In the former case, after Mr. Parikh got the said card, it ·had been removed from Mr. Parikh's table by someone, either by one of the employees of Mr. Parikh or some stranger.

In the latter case, though, technically, the card had been delivered in the latter box of the appellant, it had not reached Mr. Parikh. In the absence of any collusion between. Mr. Parikh and the person who made fraudulent use of the intimation· card, can the respondent be heard to say that Mr. Parikh did not show that degree of diligence in receiving the card or in . keepiQg it in safe custody after it was received as he should have ? In our opinion, it would be difficult to answer this question in favour of the respondent. In ordinary course of business, every office that receives large correspondence keeps a letter box outside the premises of the office. The box is locked and the key is in. variably given to the Peon to collect the letters after they are delivered by postal Peons. This course Jl1w Marini_ Colli C•. (B••t•I) P. Lli. Uoio• of lnJia Goj ... ragalhir J N1w Marini Coal Co. (B,.ial) P. Ltd. Union of India CajtnltagadA11r J. of business proceeds on the assumption which muat inevitably be made by all businessmen that the servants entrusted with the task of collecting the letters would act honestly.

Similarly, in ordinary course of business, it would be assumed by a businessman that after letters are placed on the table or in a file which is kept at some other place, they would not be pilferred by any of his employees. L'nder these circumstances, if the intimation card in ques· tion was taken away by some fraudulent person, it would be difficult to hold that the appellant ca11 be charged with negligence which, in turn, can be held to be the proximate cause of the loss caused to the respondent. In our opinion, therefore, M ukarji J., was in error in holding that 1 he res· pondent could successfully plead estoppel by negligence against the appellant. As we have already observed, the que~tion as to whether the claim made by the appellant against the respondent under s. 70 is concluded by the decision of this Court in the case of M/s. B. K. Jfondal & Sons ('), in fa1·our of the appellant, and so, it mmt be held that the Division Bench of the High Court erred in dismissing the appellant's claim.

The result is, the appeal is allo\\ed, the decree pas>• d by the appellate Court is set a.•ide and that of the trial Court restored wirh costs throughout. Appeal allowed. ; i:(19G2] Su: p. I S.C.R. 876.