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Judgment
Sarjoo Praosad, C.J.—The above appeal relates to a suit for recovery of money due on transactions on Khata account instituted by the Plaintiff-Appellant. The claim is for a total sum of lis. 9,938-8-9, including interest and expenses.
The Plaintiff is a firm registered under the Indian Partnership Act and carries on business'' at Gauhati. Jwala Dutta Chokani, the Defendant No. 2, is the proprietor of Anr. firm at Raha in Nowgong district, which carries on business in the name and style of the Defendant No. 1, Firm Ramlal Onkarmal. The Defendants had transactions in cash and kind with the Plaintiff and on accounting a sum of lis. 9,447-4-9 was found payable by them. In order to satisfy the dues the Defendants sent a cheque to the Plaintiff duly endorsed for a sum of Rs. 9,461-4-0.
The cheque was drawn by a Firm called Nathu-ram Jai Dayal of Sibasagar on the Tripura Modern Bank at Sibsagar in favour of the Defendant No. 1, who endorsed it to the Plaintiff. It is numbered as 030578 and is dated 31st August, 1948. The Plaintiff'' sent die cheque to its bank, the Calcutta Commercial Bank at Gauhati, for collection. The Bank sent the cheque to the Tripura Modern Bank at Sibsagar for payment. The latter bank in its turn sent a demand'', draft for Rs. 9,455/- (deducting commission) to the Calcutta Commercial Bank at Gauhati payable at the Calcutta office of the Tripura Modern Bank and not at Gauhati where also the Tripura Modern Bank had its branch, The Plaintiff says that this was not in accordance with its instructions. The demand draft is numbered 12963 and is dated 14-9-1948. The Calcutta Commercial Bank then sent the draft under registered post for collection to its head office in Calcutta, but before it could be encashed, the head office closed its business on 17-9-1948, and almost a month later, on 16-10-1948 before the expiry of the period for which the demand draft was current, from the date of its issue, the head office of the Tripura Bank at Calcutta also failed and stopped its business. Eventually the draft was returned to the Plaintiff on 28-1-1949. The Plaintiff'' thus having failed to receive payment of its dues instituted the suit out of which this appeal arises on the original consideration and based his cause of; action on 2-11-1948, the last date of the transactions between the parties.
The Defendants have not disputed the account of the transactions as stated in the plaint. Their substantial plea is that their liability was ifuEy discharged by endorsement dated 3-9-1948 and delivery of the cheque in favour of the Plaintiff. They alleged that the drawers of the cheque had sufficient funds to their credit in the Tripura Modern Bank Ltd., at Sibsagar, to cover the amount of the cheque and the cheque was in fact presented and cashed by the Plaintiff, who obtained in lieu thereof a demand draft for payment by the head office of the bank. They attribute the failure of the Plaintiff to receive payment to the laches of the Plaintiff''s agent, the Calcutta Commercial Bank, which closed its business in Calcutta and for which the Defendants could not be held responsible. According to these Defendants, the acceptance of the demand draft amounted to payment in cash and Was in the nature of a purchase of the draft for cash consideration; and the Plaintiff''s claim, if any, is now on the draft against its debtor, the Tripura Bank in Calcutta and not;? gainst these Defendants.
The learned Subordinate Judge found that the payment of the cheque in question by the issue of a demand draft at the instance of the Plaintiff and its agent amounted to satisfaction of the Plaintiff''s dues by the Defendants. He observed that if it is held that the cheque had been duly cashed on presentation, the Defendants'' debt would be deemed to have been discharged and on a consideration of the facts, he concluded that the cheque was honoured and paid by the Defendants'' bank on 10-9-1948, on which date the Defendants'' bank had remitted the money deducting their commission charges to the Plaintiff''s bank as usual by a demand draft.
It is true that the Plaintiff did not receive the money, but that was because the Plaintiff''s bank had in the meantime suspended business and by the time the draft came back to the Plaintiff, the Tripura Modern Bank at Calcutta had also stopped operating. He accepted the contention of the Defendants that the Plaintiff was in the circumstances a creditor on the basis of the demand draft and entitled to recover the amount from the bank which issued it or the bank on which it was issued; and even if the Plaintiff was unable to realise the amount due, the Defendants could not be liable for the same. He accordingly dismissed the Plaintiff''s suit, but left the parties to bear their own costs.
The main question, therefore, which we have to decide in this case is whether the issue of the demand draft amounted to satisfaction of the Plaintiff''s dues by the Defendants. It is to be noticed that the material facts of the case are not in controversy, and it is also clear that the Plaintiff has not yet recovered the dues to which it was entitled from the Defendants on the transactions between them. It is well established that where a bill of exchange or a promissory note is given by a debtor to a creditor in satisfaction of his dues, it is presumed to be a conditional payment and in case the creditor is unable to obtain satisfaction on the bill of exchange or promissory note in question, he may fall back upon the original debt as due to recover the amount.
In certain cases it may well be that the circumstances might suggest conclusively that the acceptance of the bill of exchange or promissory note was in full satisfaction or accord of the creditor''s debt in which event the right to sue on the original debt may be extinguished. That would be a question of, fact to be decided on the circumstances of each case but, the ordinary presumption is in favour of the creditor that the acceptance of the promissory note or bill of exchange by him was merely a conditional payment of the debt and in case of his failure to obtain payment, his right to sue on the original consideration would revive. Section 62 (82?), Negotiable In stnimenls Act will not affect the rights of the parties under those circumstances.
In all such cases, one has to look to the sub slauce of the matter and not to the mere form, So, where a creditor accepts a cheque in payment of his dues, but is unable to realise the same, it can hardly l)c correct to say that merely because of his acceptance of the cheque, it should became that his outstanding dues have been satisfied and that his right to sue to recover them is barred, except for the right which ho may possess to recover damages on account of his failure to obtain payment of the cheque given to him by the debtor. In this case, there is nothing to prove that the intention the Plaintiff in accepting the cheque was to wipe out its original cause of action. Plaintiff''s evidence on the contrary is that it was reluctant to accept the cheque.
A banker''s draft is a bill of exchange and as such a negotiable instrument, It is, therefore, also in the nature of a conditional payment and if the creditor is unable to obtain satisfaction of the draft, he can fall back upon the original consideration and recover the amount from the debtor. In the present instance, the suit is for recovery of the amount due on account of transactions between the parties and not for recovery of any damages or compensation for non-payment of the demand draft issued by the Tripura Modern Bank on its Calcutta office. The claim of the Plaintiff, therefore, cannot be defeated when we know that actually it has not received payment or satisfaction of the amount due. But the question which arises is whether the payment by the cheque and, the acceptance there of in the circumstances amountu-to satisfaction of the Plaintiff''s claim.
It has been observed in Leake on Contract, 7th edition at page 671 that:
Whether a bill or nolo of the debtor is given '' and taken in satisfaction or as conditional payment is a question of fact as to the intention shown by the parties, the presumption being that it is conditional payment with a recourse to the original debt if the bill is not paid; but if the bill is outstanding in the hands of a third party the remedy of the creditor is still further suspended until the bill or not gets back to his hands.
Where, therefore, a creditor is not actually paid his dues, but he takes a bill or a promissory note for his debts, it can hardly be said that the old debt had been paid off by the acceptance of the bill. In Alexander Stewart v. Delhi and London Bank Ltd., 17 Suth WR 20.1 (A), the question arose whether if a creditor without being paid takes a new promissory note from the debtor in order to extend the time for payment or for any other purpose but has not been actually paid, is it to be considered that the old debt is discharged. It was held that:
though a receipt on the back of a bill of exchange or promissory note prima facie imports that the bill or note has been paid, yet the receipt is capable of being explained and if it appears that the bill or note.
Has'' not teen'' paid, and that Anr. bill or note was -substituted for it, the Comt will hot be justified in .concluding that the party who gave up the note in that'' way meant that the debt secured by the note was'' to be considered to have been paid. "The'' same principles have been reiterated in Kshetra Nath Sikdar and Others Vs. Harasukdas Balkissen Das and Others, One of the contentions urged on behalf of the Appellants in that case was that there had been a discharge of the debt which had been incurred on the dates on which the first series of hundis were drawn by the renewal of the hundis and reliance was placed on Section 62 of the Contract Act urging that the old debt having been substituted by the acceptance of new hundis, those debts had been paid off. It was also urged that the Plaintiffs having entered in their books that the old hundis had been paid off for which new hundis had been drawn, they could not rely upon the old debt to enforce their claim.
These contentions were overruled by the learned Judges, who upheld the claim of the Plaintiffs on the original debt. Their Lordships recognised that if the parties to a contract agree to substitute a new contract for it or to rescind or alter it, the original contact need not be performed. That is what Section 62 itself says. But whether there was an agreement to substitute a new contract or not is a question of fact depending on the intention of the parties, and the true rule was to look to the substance of the matter and not to mere form and in the circumstances of the case, they found themselves unable to hold that a new contract had been substituted for the old debt. These principles also find ample support from the Full Bench decision of the Rangoon High Court in Maung Chit v. Roshan N. M. A. Kareem Oomcr & Co. AIR 1934 Rang 389 (C). The question referred to the Full Bench in that case was:
When a creditor sties oh a claim for money in respect of which the debtor has executed a promissory note, under what circumstances can the creditor sue for the original consideration it the promissory note cannot be proved?
The answer to the question was supplied by Page, C. J. in the following words:
I apprehend that the same principles apply as between borrower and lender, and that when a promissory note or bill of exchange is given for a loan prima facie it is given and taken as conditional payment, and not in accord and satisfaction of the debt. The learned Chief Justice felt surprised that Courts should be disposed to hold that a lender would agree to accept a promissory note or bill of exchange in satisfaction of the loan and not as conditional payment thereof, when it would be to his advantage to keep alive his cause of action on the original debt, He says:
Why should he do so? Why should the lender be ready or willing to forego his right to recover on the original consideration for the loan on receipt of a promissory note or bill of exchange which may never be met, or may be unenforceable? Take an ordinary and simple illustration. A trader sells goods in his office or in the bazaar and takes a promissory note from the buyer. In ninety-nine cases out of a hundred it is a term expressed or implied of the contract that tire goods shall be up to description, and if they are not the purchaser is exonerated. Why ''should not the seller in like manner take the promissory note or bill of exchange upon the terms that unless the note or bill is met at maturity, and unless. the rights there under are enforceable he is to been, titled to sue for the price of the goods that he had sold? Why should the seller agree to take the negotiable instrument upon the terms that unless the bill or note is met and-is enforceable he shall lose his money? In my opinion, it is neither common law. Sixnor common sense that normally he would act so foolishly?
I respectfully agree with these forceful observations of the learned Chief Justice to which the other learned Judges who were a party to the Full Bench also agreed. These principles have been also recognised in Abdul Majid Vs. Ganesh Das Kalooram Ltd. and Another, In that case, it was held that where a cheque given for amount due is dishonoured on presentation, the creditor could sue on the original consideration and get a decree for recovery of the amount and unless it was unequivocally established that the creditor had accepted the cheque as a complete and unconditional payment, it should be presumed drat it was only a conditional acceptance.
It was further explained in that case that a drawer of a cheque, who wanted to take advantage of Section 84, Negotiable Instruments Act, had to look to two factors: (I) that ho had sufficient money deposit in the bank in his account to honour the cheque and (2) that he had suffered actual damage on account of non-presentation of the cheque within a reasonable time. It was also explained that where the suit by a lender is not for compensation on account f"4 of dishonour of the cheque, but on the contrary for recovery of the balance of money due on the original transaction and in discharge of which the dishonoured cheque was given, no question of notice of dishonour provided by S. 98, Negotiable Instruments Act, could arise. On these principles, it is apparent that the Plaintiff would be entitled to sue to recover its dues on the original transactions and the mere fact that it had accepted a cheque endorsed by the Defendants in its favour for which it really did not get any payment would be no bar to its claim against the Defendants.
It is, however, contended on behalf of the Defendants that the cheque in question has been duly cashed and that Plaintiff obtained a demand draft for the value of the cheque. This issue of a demand draft to the Plaintiff''s bank has introduced some amount of complication in the case. The learned Counsel for the Respondents has vehemently urged that the demand draft was in the nature of a cash purchase of the draft at the counter.
The Plaintiff''s dues were accordingly satisfied by the issue of the demand draft by the Tripura Modern Bank of Sibsagar. He also points to the fact that a -debit entry was made by the Bank in the account of the drawer of the cheque to the extent of the; amount covered thereby. This appears from Exhibit "C", which shows that on 10-9-1948, the date in'', question, there was such a debit entry for Rs. 9,401-4-0. The total debit entry on that day came to Rs. 1,28,141-10-8 against the drawer (vide Exhibit "G").
The debit entry by itself will not necessarily M amount to payment. For instance, in Lachhmi Na-''af rain Beriwala v. Bharat Bank Ltd. AIR 1951 Pat 6211 J (E), a decision to which I was myself a party, it was held that the mere fact that the bank made a debit entry in the current account of a person did not extinguish the right of suit on the dishonoured cheque by discharge of liability within the meaning of S. 82, Negotiable Instruments Act; nor was the right of suit extinguished either by merger or accord and satisfaction. Normally, when a draft is issued by a bank payable on its branch at some other place or on some Other bank, a debit entry is mado in the accounts of the issuing bank in advance in anticipation of the fact that the bank draft would be cashed and payment made to the holder at the bank on winch it is issued. But, if actually no such payment is made and the draft encashed, then the debit entry is accordingly corrected.
This usually happens when drafts are taken for transmission of the money payable from one place to Anr. . It, therefore, follows that a mere debit entry in the account of the bank does not necessarily amount to payment unless the facts show that the payment has been actually made or oilier liabilities incurred by the bank in respect of the draft, so as to preclude the holder of the draft from recovering the amount. In the instant case, a draft had been issued on the Calcutta branch of the Tripura Modern Bank in payment of the cheque and a debit entry made accordingly.
. . But, if the draft was nob paid by tire bank in question, as in fact it has not been so paid, the debit entry in the account of the drawer of the clioque does not preclude the drawer from recovering the amount from tile bank, if otherwise on the basis of tho accounts such an amount is payable to the drawer. Tho result is that tho cheque also, which was replaced by the demand draft, remains unpaid. The Defendants, if they have any right to sue the drawer for recovery of the amount, can avail themselves of this right when the cheque itself has not been cashed and the drawer has not suffered any loss on. that account.
It would be open to the Defendants to fall back also upon their original consideration against the drawer of the cheque or to recover damages from him on account of the fact that the cheque was not actually paid or honoured as such by the bank on which the cheque had been drawn. As I pointed out, one has to look to tire substance of the transaction and not merely to the form. It is well settled that a draft is as much a bill of exchange as a cheque and there would be hardly any difference between a dishonoured draft and a dishonoured cheque issued by a bank on itself; for in such cases, it cannot be argued that the bank has taken commitments of its own in favour of third persons at the instance of the purchaser or accounted for the monies in its own hands to the principal by paying it over to him or to his nominee or to any other bank. A demand draft is very nearly allied to a cheque.
In Polavarapu Venkataswarlu Vs. Polavarapu Subbayya, it was held that a demand draft is a bill of exchange drawn by a bank on Anr. bank or by itself on its own branch and is a negotiable instrument, not offending the . Reserve ! Bank of India Act. It is very nearly allied to a cheque and the difference between it and a cheque consists [largely in two facts; firstly, that it can. be drawn only (by a bank on Anr. bank and not by a private individual as in the case of cheques and secondly that lit cannot be so easily countermanded as a cheque either by the person purchasing it or by the bank to which it is presented. It is true that ordinarily the purchaser of a creditor of a bank and there is no fiduciary relationship between the bank which is send the draft and the customer, who took it.
The ownership of the money paid for the puts chase of the draft passes to the bank as one of them usual and well recognised banking practice and these purchaser gets what he has bargained for, namely of draft of the bank the payment whereof depends the solvency of the head'' office at the time of thg presentation of the draft. But as I pointed out, the decision in question, there is an exception to the'' general rule where a bank issues a draft on its ownt branch and there is an exnress or implied agreement between the parties at the time of the issue of the draft by the bank on its own branch that the soll; object of the issue of the draft is to transmit thjj .money from one place to Anr. for the express purpose of being paid to the person applying for the); draft or some nominee of his. ,-fif In such a case, the fiduciary relationship is creafered between the bank which issued the draft and customer who took it, provided the bank has not actually parted with the money held by it as agent aiming on the instructions of the principal, thus ter: nating the relationship of principal and agent the present case, the obvious intention of the Plaintiff was that the money should be transmitted to the Calcutta branch of the bank for the purpose of Election by the Plaintiff''s agent, the Calcutta Coi mercial Bank.
Mr. Ghose contends that applying the prini pie of the above decision, there was a relations! of principal and agent between the Plaintiff and Tripura Modern Bank and though the Plaintiff mass have a preferential claim against the bank in question, it has no longer any claim against the Defendants. The contention ignores the other aspect the picture, namely that the Tripura Modern Bank was not merely an agent of the Plaintiff, but ajg the agent of the Defendants and held monies on behalf and also on behalf of the drawer of the check in their favour.
Whatever rights, therefore, the Plaintiff have enjoyed against the bank in question, it not altogether absolve the Defendants of their lity to discharge the dues of the Plaintiff; and I; not see anything in the law, which prevents the ptiff from falling back upon the cause of action will it has against these Defendants on the original sideration, instead of trying to enforce a precari claim against a bank, which is now said to be witting under a moratorium.
Mr. Ghose has further argued that the failuri, obtain payment of the draft in question was dui the laches of the Plaintiff''s bank, namely, the Calcutta Commercial Bank, which closed its business on 17-9-1948, even before the draft was received?by the bank. It is suggested that the Plaintiff should not have obtained the draft in favour of the bank in question and should have taken care-.to obtijjn payment either direct from the bank or through s0rhe other source; and since it preferred to adopt the course, which was detrimental to its own intefest, it cannot now assert that the demand drafts remained unpaid because of any laches on the part; the Defendants.
It is further argued that the demand draft (Exhibit 4) dated 10-9-1948 was not returned to the bank or to the Defendants and the Plaintiff claimed under letter dated the 19th November, 1948 (Exhibit "D") written to the Tripura Bank that the amount of the demand draft belonged to the Plaintiff and not to jthe Calcutta Commercial Bank, who were only acting as its agent for collection purposes. It should be remembered, however, that according to die apparent tenor of the demand draft, it was current for three months from the date of issue, that is 10-9-1948; but long before the period expired, it is the admitted case of the parties that the Calcutta branch of the Tripura Modern Bank stopped transacting business on 16-9-1948. In the circumstances, the Plaintiff could not have presented the demand draft to the Tripura Modern Bank at Calcutta for payment, as the bank in question by its own act had deprived the Plaintiff of its right to obtain payment on such presentation.
In fact, it appears that the agent of die Calcutta Commercial Bank wrote to the Plaintiff (Exhibit "F") that .the drawee bank having closed its doors, the said draft remained uncollected and if the Plaintiff so desired, it could take delivery of the draft. It has been argued that the draft should have been presented for payment almost immediately after it was issued and the presentation should not have been delayed. Therefore, if a month after the issue of the draft the bank closed its business, the Plaintiff has to thank itself for the delay and could not fasten liability for the non-payment on the Defendants. The argument, in my opinion, cannot be entertained.
It is true that the demand draft should have been presented for payment as early as possible, because delay in presentation in commercial practice might lead to complications and cause some loss or damage to the parties concerned. But, here the circumstances show that the Plaintiff was not responsible for the delay at all and in any event, there is nothing to i.qiLicate that the Defendants had suffered any loss on actojmt of the unavoidable delay in the presentation of the draft or that the bank itself had taken on commitments of its own in favour of third persons at the instance of the Plaintiff. The Plaintiff had the right to present the draft for payment at any time during the period for which the draft was current, and if during the period the delay in presentation had caused loss to any party, the Plaintiff could be liable for damages on that account.
But, there is no such case here; and long before the period for payment had expired, tire Calcutta Commercial Bank had already closed its doors, which in effect meant refusal to honour the draft. Sections 64 and 105, Negotiable Instruments Act, to which my attention has been drawn by the learned Counsel do not help the contention of the Defendants. Clause (2) of Section 84 makes it clear that in determining what is a reasonable time, regard should be had to the nature of the instrument, the usage of trade and of bankers and the facts of the particular case; nor do 1 think that the other provisions of the Negotiable Instruments Act to which reference has been made by the learned Counsel have application to the case, because the suit in the present instance is not upon the demand draft, but upon the original consideration for which the Defendants are liable; and therefore, any right which the Plaintiff may have alternately enjoyed to enforce the claim, if any, on the demand draft does not affect its rights against the Defendants. It is open to the Plaintiff to forego its claims on the demand draft and to revert t;j tlu original cause of action against these Defendants. To such a suit the provisions of the Negotiable Instruments Act will not. be attracted, unless it is shown, which in this case/ has not been shown, that either the Defendants or the bank had otherwise made any commitments or; suffered any loss at the instance of the Plaintiff or on his account. j (9) Mr. Chose has tried to fortify his submissions! with reference to several decisions, which may be briefly discussed at this stage. The decision In re Calcutta Commercial Bank Ltd., 54 Cal WN 747 (G) is a single Judge decision by Banerjee, J. That decision is clearly distinguishable. It was a case where a person employed a bank to collect money with instructions to remit the same to him either by a draft or by a cheque. Banerjee, J. held that die bank in such a case becomes an agent for the collection of the money and when the bank actually collects the money, it is accountable as a trustee. But he went on further to hold diat the moment the bank carried ovate the instructions of the principal and the draft was despatched, the relationship of a trustee and cestui que trust ceased and was converted into that of a-debtor and a creditor.
It is unnecessary for me to say anything about the correctness or otherwise of this observation in the judgment, because, in my opinion, it does not affect the nature of the claim in the present action. � Birbhum Central Co-operative Bank Ltd. Vs. Pioneer Bank Ltd., (in liquidation), is equally distinguishable and if at all, it goes to support the view point to which I have referred earlier. It was recognised in that case that a banker''s draft is a bill of exchange and as such a negotiable instrument, though at the same time it was rightly pointed out that the issue of a draft in banking practice is regarded as a matter of purchase and ordinarily, the relationship between the holder of the draft atid the bank is that of a creditor and debtor and his remedy is on the draft.
But their Lordships also recognised that the holder could show that it is no more than a contract for the transmission of die money and die issue at one end of the draft payable at the other end was only chosen as a convenient and expeditious method of remitting the amount covered. In such a case, the position of the holder was that of a trustor and not that of an ordinary creditor. These considerations would be relevant if the Plaintiff had chosen to enforce its claim on the draft as against the bank, who issued it on its own branch. As I have shown earlier, the case here is different. The decision in The Commissioner of Income Tax, Bombay South, Bombay Vs. Ogale Glass Works Ltd., Ogale Wadi, is also of no advantage to the learned Counsel.
This was a case where posting of cheques in Delhi as in payment of die dues of the Assessee was held to amount to payment in Delhi for purposes of assessment of Income Tax. The delivery of the cheque to the post office at the request of the addressee was in substance delivery to him, inasmuch as by posting a cheque in pursuance of the request of the creditor, the debtor performed his obligation in the manner prescribed and sanctioned by die creditor and thereby discharged the contract by Buch performance. Reliance was placed by the learned Counsel on the observations of the Court to the effect that what was meant by saying that payment by cheque is conditional payment is, that if the instrument is dishonoured on presentation, the creditor may consider it as waste paper and resort to his original demand.
It was also observed that a cheque unless dishonoured, its payment takes effect from the date of delivery, but is defeated by the happening of the condition, that is non-payment at maturity. These principles cannot be contested. In fact, the learned Advocate-General fully appreciates the importance of these observations; but, ho contends that in tills case the cheque which was a conditional payment was replaced by Anr. conditional payment in the shape of a demand draft, and which ultimately stood dishonoured by the fact that even be (ore the date of its maturity, the bank had closed its business. That being so, the payment by cheque or demand draft could not take effect, but was defeated by the happening of the condition that the bank closed its business long before the period for which the demand draft was current.
Therefore, the condition for payment of the cheque or the demand draft had not been fulfilled and in law and in fact there was no payment. In. my opinion, these contentions apjiear to me to be quite sound. After giving nty very careful consideration to the matter, 1 hold that the plaint ill''s case against the Defendants is well-founded and that the Defendants could not be exonerated from liability on account of the cheque, which was delivered to the Plaintiff or on account of the issue of the demand draft which in fact was dishonored by the bank to which it was issued, because the bank had closed its business; and the present suit, which is based on the original cause of action could not, therefore, be defeated. The decision of the learned Subordinate Judge, therefore, has to be set aside and the Plaintiff''s suit should be decreed with costs.
I regret to say that the decision in this case was to some extent delayed due to unavoidable reasons. The case was originally heard by me sitting with Mr. Justice Ram Labhaya. After hearing the parties, the Court reserved judgment; but before the judgment could be delivered, the learned Judge had retired. The matter had, therefore, to bo hoard afresh by the Bench as at present constituted.
Deka, J.
I fully agree with the decision of my Lord the Chief Justice and have nothing effective to add.