(1.) THIS is a defendant's appeal against a decree for Rs. 5,912/- with proportionate costs and future interest granted in favour of the plaintiff-firm Roor Chand Kura mal. The said firm had a cash credit account with the Uklana pay office of the defendant-bank which has its head office at Bombay. On 21-1-1947, the plaintiff-firm gave a hundi for Rs. 5,300/-to the Uklana pay office together with a railway receipt of 245 bags of gram for realisation from Messrs. Guranditta Mal Saudagar Mal of Anjera, District Campbellpur, and on the same date credit was given to the said firm for the aforesaid amount in their account. The Uklana pay office sent the hundi along with the railway receipt to the branch of the defendant-bank at Rawalpindi for realisation from the drawee-firm. The rawalpindi Branch contacted the drawee-firm who insisted that the aforesaid documents be sent through the Oriental Bank which had its head office at rawalpindi and a branch office at Tamman, a town which was at a distance of about 17 miles from Anjera, and with which the drawee-firm had dealings. On 1-2-1947, the Rawalpindi branch of the defendant-firm sent a telegram to the uklana pay office, intimating that the party in question desired to retire the hundi through the Oriental Bank Tamman and sought instructions on the point. On the same date the Uklana pay office sent a reply confirming that the same might be done. On 3-2-1947, the hundi along with the other papers was sent by the rawalpindi branch of the defendant-bank to the Oriental Bank, Rawalpindi, for collection. On 7-2-47, the Uklana pay office wired (vide Exhibit D. 17) to the Rawalpindi branch enquiring about the fate of the hundi which was described in all these telegrams as Beepee 209. On 10-2-1947, the Rawalpindi branch wrote to the oriental Bank there enquiring as to what had happened to the Beepee in question (Exhibit D. 21 ). On 19-2-1947, a telegram, Exhibit D. 20, was sent by the rawalpindi branch to Uklana that the bill had been realised. This, however, as will be seen later was the result of a mistake. Thereafter the rawalpindi branch kept on enquiring by several letters from the Oriental Bank about the fate of the hundi. On 26-3-1947, the Managing Director of the Oriental bank wrote to the Rawalpindi branch of the defendant bank a letter, Exhibit D. 31, saying that the Tamman office was situate in a district near the boundary of mianwali where in the radius of 20 miles there was hardly any town which had not been entirely burnt or looted. It was stated that normal business was expected to be resumed shortly and then the required information would be sent. It is alleged by the defendant that on 1-4-1947, a letter, Exhibit D. 62, was written by the officer-in-charge of the Uklana pay office to the plaintiff-firm as follows:
"we have been intimated by our Rawalpindi office that we have not so far received the payment of the above bill from the Oriental Bank, tamman, and as such please note that your bill in question stands unpaid on your risk and responsibility. " It may be stated that there is a dispute with regard to the correct date on which this letter was written as also with regard to the factum of its delivery. On 9-41947, the Rawalpindi branch wrote to Uklana, a letter, Exhibit D. 36, conveying information that no payment had yet been received from the Oriental Bank. After further correspondence on 26-4-1947, the Rawalpindi branch served a notice, exhibit C. 1, through counsel on the Oriental Bank informing the Oriental Bank that the legal responsibility for the amount together with expenses etc. , was of that bank. According to the defendant-bank confirmation was obtained on a voucher dated 8-3-1948, Exhibit D. l, from Jagdish Chander who throughout acted on behalf of the plaintiff-firm with regard to the debit of Rs. 5,300/- to the account of the firm, this having been done on account of the non-realisation of the hundi in question. The plaintiff-firm, however, disputes that the confirmation was so made. A letter is alleged to have been addressed on the same date, Exhibit D. 64, to the plaintiff-firm intimating that the cash credit account of the firm had been debited with Rs. 5,300/- on account of the hundi in question sent to the Oriental Bank Limited, tamman, at the risk and responsibility for collection of the plaintiff-firm. The receipt of this letter also is not admitted by the plaintiff-firm. On 30-3-1948, the officer-in-Charge of the Uklana pay I office sent a letter to the plaintiff-firm to the following effect:
"in response to your registered notice dated 12-3-1948, we beg to inform you that the bill in question was discounted and sent in collection at your risk and responsibility and as the amount thereof has not so far been received by us, you are naturally responsible for the same. " On the same date the Amritsar branch of the defendant-bank sent a letter to the plaintiff-firm stating that the total debit balance in the account of the plaintiff-firm was Rs. 22,960/8/3 and unless the amount was adjusted within a week, the securities would be sold. In April 1948 the plaintiff firm is said to have paid the entire sum demanded under protest and took delivery of the bales of cotton which had been pledged with the defendant-bank. It was on 22-4-1948, that the present suit was filed for recovery of Rs. 7,200/-, stated to have been realised by the defendant-bank in excess in the account which the plaintiff-firm maintained with the defendant-bank.
(2.) IN the suit it was pleaded that the plaintiff-firm was a joint Hindu family firm and that it gave the R. R. in respect of 245 bags of gram along with a hundi of Rs. 5,300/- to the Uklana pay office. It was also alleged that another R. R. was got prepared on 2-2-1947, for being sent to the same drawees for a sum of Rs. 4,850/- which amount the Bank had credited as also the amount of Rs. 5,300/ -. The defendant's employees had informed the plaintiff-firm in April 1947 that the amount of hundi had been realised. Later on the plaintiff-firm wanted the delivery of 100 bales of cotton on payment of the money due. The defendant-bank demanded more money and refused to give credit for the hundi in the sum of Rs. 5,300/ -. The amount was paid under protest and it was only when the plaintiff firm wanted to see the account that information was given to them that they had been debited with the aforesaid amount. The Bank had also charged Rs. 1,900/-as interest together with costs in respect of godown-keeper, insurance, etc. The defendant-bank denied that the plaintiff- firm was a joint family firm. It was pleaded that the hundi of Rs. 5,300/-along with the relevant R. R. was sent to the Rawalpindi branch by B. P. Bill No. 209 and the Rawalpindi branch called upon the drawees to receive the R. R. against payment but as that firm refused to do so and desired that the R. R. and the hundi be presented through the Oriental Bank, Tamman, the same was done after getting instructions from Uklana pay office and that the plaintiff-firm gave the uklana pay office written instructions on 1-2-1947, to collect the hundi through the Oriental Bank, Tamman, on their risk and responsibility. It was further stated that it had not been possible in spite of repeated enquiries to find out whether Guaranditta Mal Saudagar Mal paid off the hundi and took delivery of the R. R. or not. It was pleaded that in any case as the defendant bank had not realised the money due, the credit entry of Rs. 5,300/- made in the bank's book had to be reversed. A definite plea was raised that the defendant had acted only as an agent of the plaintiff for sending the R. R. and the hundi to the Oriental bank Ltd. , Tamman, on plaintiff's risk and responsibility and the defendant had no liability to pay the amount unless it was proved that the amount had been received by the bank. On the pleadings of the parties the following issues were raised: 1. Is the plaintiff firm a joint family firm and can sue without registration? 2. Was the sum of Rs. 1,900. 00 or more duly debited to plaintiff's account?
(3.) WAS the sum of Rs. 5,300. 00 duly debited to plaintiff's account?;