- (1.) This is a suit by Tarini Charan Nandi for recovery of a sum of Rs. 4,767-8 as against two Defendants. The cause of action against the first Defendant, Ajit Kumar Kundu, arose out of the following facts. The Plaintiff is a stock-broker and a member of the Calcutta Stock Exchange Association, Ltd. On August 29, 1945, the Plaintiff sold and delivered one hundred shares of the East India Coal Co., Ltd., to Kundu at the rate of Rs. 47-6 as per share and received a cheque for the price of the said shares on August 31, 1945, amounting to Rs. 4,767-8 as. including the stamp of the value of Rs. 30 affixed to the transfer deed. The said cheque, according to the Plaintiff, was deposited on August 31, 1945 with the Plaintiff's bankers, the Allahabad Bank, Ltd., the Defendant No. 2 in this suit, for collection and credit of the proceeds. The Defendant bank, according to the Plaintiff, wrongfully failed and neglected to present the cheque for payment to the Calcutta National Bank and/or to collect the same. Unfortunately for the Plaintiff, he did not discover the fact that the cheque had not been credited to his account until nearly three years had elapsed since the date of deposit of the cheque with his bankers. In August, 1948, the Plaintiff, on discovering the above fact, got in touch with the bank. The bank made certain investigations but nothing came out of it and neither the bank nor the Defendant Kundu was willing to pay the Plaintiff the sum of Rs. 4,767-8 as. Hence this suit.
(2.) The writ of summons was attempted to be served on Ajit Kumar Kundu at P14, Bentinck Street, Calcutta. Kundu was not found in spite of diligent efforts in that behalf and the writ of summons was ultimately served on him by affixing a copy of the same on the outer door of the said premises. Kundu has not appeared herein or taken any steps to defend the suit. The Defendant bank put in a written statement not admitting that the cheque was deposited with the bank as alleged and further denying that the Plaintiff did not discover the non-deposit of the cheque till August, 1948, as alleged. By para. 6 of the written statement the Defendant bank contended that- Since 31st of August, 1945, the Plaintiff has repeatedly seen and/or has had the opportunity to see and has acknowledged as correct the Defendant's statement of the Plaintiff's account with the Defendant and must in the premises be deemed at all material times to have been aware that the amount of the said alleged cheque had not been credited to his account.
(3.) The contention made in para. 7 of the written statement is that by reason of the above conduct of the Plaintiff, he must be taken to have waived his rights, if any, against the Defendant bank. When the suit came up for hearing in July, 1953, counsel appearing for the bank wanted to raise an issue as to estoppel. It was pointed out to him that on the pleadings such an issue could not be raised and that if he wanted to do so, he must amend his pleadings. Leave was given to the Defendant to amend the written statement and the written statement has since been amended by putting in para. 7(a) which reads as follows: The Defendant bank states that it is the practice of the bank to send to its customers periodical statements of account and to have such account signed by the customers when the account is overdrawn. This practice was followed in the case of the Plaintiff who ought to have given but did not give timely information to the bank that the alleged cheque for Rs. 4,767-8 as., though received by the bank, was not credited to his account as alleged. On the other hand, the Plaintiff admitted and acknowledged in writing signed by the Plaintiff on May 19, 1947, October 16, 1947 and October 16, 1948, that the Plaintiff had examined his said account and that there were debit balance in his said account in the sums of Rs. 789-9-6, Rs. 786-8 as. and Rs. 767-12-6 pies as on March 31, 1947, September 30, 1947 and March 31, 1948, respectively. The Plaintiff thus by his declarations, acts or omissions as aforesaid intentionally caused or permitted the Defendant bank to believe at all material times that the account of the Plaintiff was in order and that all cheques sent by the Plaintiff to the Defendant bank for collection and credit were duly collected and credited or accounted for. Acting on the said belief the Defendant altered its position to its prejudice and accordingly treated the Plaintiff as a debtor to the bank at the material times and took no steps to protect itself or to retrieve its position until it was too late. In the premises, the Defendant submits that the Plaintiff has ratified the non-credited of the said alleged cheque and/or is estopped from making or proving the allegations made in paras. 3, 4, 5 and 7 of the plaint.;