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Judgment
Venkataramana Rao, J.—The material facts necessary for the decision of the points involved in this revision petition are these. The plaintiffs
who are a firm of merchants carrying on business under the name of the Champion Automobiles, Ltd., entered into a contract with Eis
Manufacturing Company, New York, through their representatives the Automotive Products Company, in and by which they indented for certain
goods. Under the terms of the contract an invoice had to be sent in the name of the Champion Automobiles, Ltd., the bill to be drawn on them
through the Chartered Bank of India and the shipment of goods to be by post parcel and the condition as regards payment to be thirty days after
sight documents against payment. On the 12th December, 1932, the Chartered Bank of India presented a bill of exchange drawn on the plaintiffs
by Eis Manufacturing Company and endorsed in their favour in and by which the drawees ought to pay the amount within thirty days after sight and
it was accepted by the plaintiffs on the 12th December, 1932. The bill became due and payable on 14th January, 1933, adding the customary
days of grace and which date was stamped on the bill itself. On the 14th January, 1933, the Bank -presented a memorandum of the Champion
amount payable by the plaintiffs and in accordance therewith the plaintiffs paid a sum of Rs. 214-1-0. The defendants delivered an invoice and a
second bill of exchange. The Bank of plaintiffs complained that these documents would not enable Australia them to obtain delivery of the post
parcel and thereupon the defendants gave a letter of authority enabling the plaintiffs to obtain delivery of the goods from the post office on the 17th
January, 1933. In pursuance thereof when the plaintiffs applied to the post office to deliver them, the- post office authorities replied by their letter
dated 24th January, 1933, that the parcel arrived on the 12th December, 1932, that due intimation thereof was given to the defendant Bank but
the Bank requested them to keep in deposit by a letter dated 16th December, 1932, and as the parcel was not taken delivery of within the
prescribed period, namely, thirty days, it was returned to London on 12th January, 1933, with remarks ""Not claimed "". The suit is therefore
brought for the recovery of the amount paid to the defendants on the ground of failure of consideration and as money had and received for their
use. The defendants denied liability alleging that they were only a collecting Bank, that by letters dated 23rd December, 1932, and 6th January,
1933(Exs. C and D)they duly intimated the arrival of the parcels to the plaintiffs, that they were under no obligation to keep the parcel in the post
office, that they were not liable for the payment of the amount and that there wasno cause of action as against them. The learned third Judge of the
Small Cause Court, who tried the case, gave a decree in favour of the plaintiffs on the ground that the defendant Bank was guilty of negligence in
not keeping the parcel till the due date of payment. On appeal to the Full Bench the learned Judges of the Full Bench reversed this decision on the
ground that the Bank was under no obligation to keep the parcel and that there was no warranty given by them about the genuineness of these
documents or the usefulness of the documents which they delivered to the plaintiffs. It is against this decision that the civil revision petition has been
filed.
The question in this case is, is the Bank liable to refund the amount paid by the plaintiffs? Before deciding this question it is necessary to find out
exactly what the relative rights of the parties are under the terms of the contract and the obligation of the defendants in relation thereto. The
contract was not with the Bank but with Eis Manufacturing Company through their agents the Automatic Products Company. On a fair reading of
the contract it is clear that the plaintiffs are entitled on payment to have delivery of all the documents which would enable them to have delivery of
the parcel consigned to them. The due date in this case was the 14th January, 1933. Therefore, as soon as the payment was demanded and made,
the Bank was bound to have put the plaintiffs in possession of all the customary documents. If this were an ordinary c.i.f. contract, there can be no
doubt what the plaintiffs would have been really entitled to. "" The essential feature of an ordinary c.i.f. contract"" as observed by McCardie, J., in
Manbre Saccharine Company v. Corn Products Co (1919) 1 K.B. 198 :
Rests in the fact that the performance of the bargain is to be fulfilled by delivery of documents and not by the actual physical delivery of goods by
the vendor. All that the buyer can call for is delivery of the customary documents. This represents the measure of the buyer''s right and the extent of
the vendor''s duty.
He later on observes:
It is also clear that he can make an effective tender even though he possesses at the time of tender actual knowledge of the loss of the ship or
goods. For the purchaser in case of loss will get the documents he bargained for; and if the policy be that required by the contract, and if the loss
be covered thereby, he will secure the insurance moneys. The contingency of loss is within and not outside the contemplation of the parties to a
c.i.f. contract.
In such a case therefore the bill of lading represents the goods and the transfer of the bill of lading is enough to pass the property in the goods
and entitle the buyer to take delivery of the goods and in case of loss he gets the policy of insurance which will compensate him in case he is not
able to get the goods.
In this case there is no bill of lading because the goods are to be sent by parcel post; there is no policy of insurance to cover any question of
loss. Even giving effect to the said principles, so far as they can be applied to the facts of this case, when the parties contemplated shipment by
parcel post, it must be presumed that the buyer is entitled to a tender of all the customary documents which would be effective enough to obtain
delivery of the goods. No evidence of what the customary documents are, has been given in this case. From the correspondence it appears that a
letter of authority the Bank to the post office authorising the post office to deliver the goods to the plaintiffs was apparently treated as one of the
documents which the plaintiffs were entitled to get from the Bank on payment. It will be seen that the post parcel was consigned to the Chartered
Bank of India and without such a letter there could be no valid tender.
What happened in this case is that on the 14th January the defendant Bank did not tender such a letter and not until the 17th such a letter was
tendered. It may be contended by the noti-delivery of such a letter on the 14th, the Bank did not forearm what was expected of them and there
Was a breach of the terms of the contract or obligation which the Bank must be ideetned to have undertaken on behalf of the sellers; but as the
plaintiffs did not complain of any such breach and the Bank did deliver such a letter on the 17th, the Bank must be deemed to have tendered this
letter on the 14th January, 1933. But the point in controversy between the parties is whether the Bank is under any obligation to keep the goods in
the post office till the date of payment; and if the Bank is not, are they liable?. Mr. Venkatesa Aiyar''s argument is that the Bank is a collecting
Bank and the law fastens no obligation on them.
The rule in regard to the liability of a collecting Bank is thus stated in Hart on Banking:
The collecting Banker is under no special duty, as such, to protect the interests of the person to whom he presents a draft for acceptance or
payment. So Icing as he does not give any personal undertaking or make ""any misrepresentation, he incurs no responsibility to him.
So it may be that the Bank is under no obligation to keep the goods-but they are under a duty to see that by any act or omission of theirs the
buyer is not prevented from taking delivery of the goods. As one of the terms of the contract is that (he shipment is to be by parcel post, it may be
assumed that it was in the contemplation of the parties that such a parcel according to the rules of the post office could only be kept for a specified
period and after the lapse of that period the goods will not be available for delivery until steps arc taken to keep the property without being
returned. So, it may be, that the plaintiffs must be deemed to have been aware of the fact that the goods cannot be kept more than thirty days after
the arrival at the post office if they have not been cleared in the meanwhile, and if the plaintiffs are apprised of the date of arrival, an obligation may
be said to have been cast on time�s for taking steps to see that the goods are not: sent back,1 but before such an obligation is cast upon the
plaintiffs, it is, in my opinion, the duty of the Bank to inform the plaintiffs that the goods arrived on the 12th so that the plaintiffs may be aware of
the fact that, if the goods were not cleared by 12th January, they would be sent back. The letter of the 23rd December, 1932, simply states that
the parcel relating to the bill arrived at the post office and that the plaintiffs are required (o take delivery of the parcel at an early date. Ordinarily,
one would understand that the goods arrived on that'' date or at about that date and the plaintiffs may well have thought that the goods would be
cleared within a month from that date. Even in the letter of the 6th January, 1933, except the bare intimation that if the goods were not cleared at
an early date, the parcel would be returned to the senders by the post office, no intimation of the date of arrival was given therein. It seems to me
that the Bank was clearly guilty of negligence in not intimating the date of arrival to the plaintiffs.
Mr. T.S. Venkatesa Aiyar relied on Leather v. Simpson (1871) 11 Eq. 398 and Guaranty Trust Company of New York v. Hannay and
Company (1918) 2 K.B. 623 for the position that the Banks in those cases were held not responsible when the bill of lading turned out to be a
forgery because they did not give any personal undertaking as to the bill of lading being genuine. But still, if the Bank had done anything with
reference to that bill of lading by which the buyer is prevented from taking delivery of the goods, could the Bank say that they are not responsible?
To take a concrete illustration, if by some act or omission of the Bank a sheet of the bill of lading is torn or burnt and the document delivered
would not identify the goods that were shipped to the consignee, could the Bank escape responsibility? The omission of the Bank in not intimating
the date of arrival would stand on a similar footing and their conduct in taking the money, when they were aware or must be deemed to have been
aware that the goods were sent back to the consignors amounts to a misrepresentation within the meaning of the rule enunciated in Hart and
referred to above by me.
I therefore reverse the decision of the Full Bench1 ""and restore that of the trial judge. In the result the Civil Revision Petition is allowed, but in
the circumstances of the case, I direct each party to bear his own costs throughout.