- (1.) The suit out of which this appeal arises, was instituted by the appellant on a hundi for Rs. 10,000 dated 4-12-1947, drawn in his favour by Haji Jethabhai Gokul and Co. of Basra on the respondent, who are merchants and commission agents in Bombay. The hundi was sent by registered post to the appellant in Bombay, and was actually received by one Parikh Vrajlal Narandas, who presented it to the respondents on 10-12-1947, and received payment therefor. It may be mentioned that the appellant had been doing business in forward contracts through Vrajlal as his commission agent, and was actually residing at his Pedhi. On 12-1-1948, the appellant sent a notice to the respondents repudiating the authority of Vrajlal to act for him and demanding the return of hundi, to which they sent a reply on 10-2-1948 denying their liability and stating that Vrajlal was the agent of the appellant, and that the amount was paid to him bona fide on his representation that he was authorised to receive the payment.
(2.) On 9-12-1950 the appellant substituted the present suit in the Court of the City Civil Judge, Bombay. In the plaint he merely alleged that the payment to Vrajlal was not binding on him, and that "The defendant-drawee" remained liable on the hundi. The defendants, apart from relying on the authority of Vrajlal to grant discharge, also pleaded that the plaint did not disclose a cause of action against them, as there was no averment therein that the hundi had been accepted by them.
(3.) As the trial the appellant gave evidence that Vrajlal had received the registered covered containing the hundi in his absence, and collected the amount due thereunder without his knowledge or authority. The learned City Civil Judge accepted this evidence, and held that Vrajlal had not been authorised to receive the amount of the Hundi. He also held that the plea of discharge put forward by the respondents implied that the hundi had been accepted by them. In the result, he decreed the suit.;