- (1.) THIS appeal is from the decision of Ramendra Mohan Datta, J. decreeing the suit of the plaintiff-respondent which was brought against the defendant-appellant on the allegations following : on or about June 8, 1948 the plaintiff deposited with the defendant No. 1, the West Bengal Provincial Co-operative Bank Ltd. , at Calcutta within the Ordinary Original Civil Jurisdiction of this Court two pieces of 3% Government Promissory, First Development, Loan 1970-75 bearing Nos. CA 01875s and CA 015382 of the face value of Rs. 25,000/- each belonging to the plaintiff for the purpose of keeping the same in safe custody, collecting dividend thereon and returning the same to the plaintiff when required to do so. By a letter dated January 29,1951, the plaintiff asked for the return, of the said 2 pieces of Government Promissory Notes but the defendant No. 1 unlawfully contended that the said Government promissory Notes belonged to the defendant No. 2, Bagerhat co-operative. Weaving Union Ltd. Inspite of the plaintiff's demand as aforesaid, the defendant No. 1 refused to return the said Government Promissory Notes and to pay the interest thereon to the plaintiff. In the circumstances aforesaid, the plaintiff asked for a declaration that he was the owner of the two Government promissory Notes, for the return of those promissory Notes or in the alternative payment of the value thereof to the plaintiff. The plaintiff also claimed interest due on the said Government Promissory Notes.
(2.) THE defendant No. 1 alone contested the suit. The deference disclosed by the written statement is as follows : at all material times the plaintiff was and did act as sub-agent of the defendant No. . 2. In or about June, 1948, the defendant No. 2 was in debited to the defendant No. 1 in respect of a large sum of money. On or about June 8,1948 the plaintiff as. the duly authorized agent of and on behalf of the defendant No. 2 deposited with the defendant No. 1 2 pieces of 3% Government Promissory Notes mentioned in the plaint and made over a letter written by the plaintiff on the same late standing, inter aha that the said Government Promissory Notes belonged to the defendant No. 2 and that those Notes were to be kept in safe custody with defendant No. 1 for realisation of interest and for crediting the same to the account of the defendant no. 2. A copy of the said letter was annexed to the written statement and marked with letter "a". The defendant No. 1 in acknowledgement of the said deposit of 2 pieces of Government promissory Notes by the plaintiff for and on behalf of the defendant No. 2 granted a receipt to the plaintiff dated June 8 1948 a copy whereof was also annexed to the written statement and marked with letter "b''. At the time of the aforesaid deposit of the Government Promissory Notes they were endorsed in favour of the defendant No. 1 and they were later renewed in due course in the name of defendant No. 1. Interest due on the Notes, had been realised from time to time and kept in the Suspense Account pending adjustment of the dues of the defendant No. 1 from the defendant No. 2. It is denied that the said Government Promissory Notes belonged to or were the property of the plaintiff or that they were deposited by the plaintiff on the terms alleged by the plaintiff. The defendant No. 1 was also entitled to a lien on the said Government Promissory Notes in respect of the balance of its dues from the defendant No. 2 and claimed the right to retain them till payment thereof. The defendant No. 2 wrongfully failed and neglected to pay its dues to the defendant No. 1. The plaintiff was not accordingly entitled to the return of the said Government Promissory Notes, in any event, the plaintiff while making the deposit intentionally held himself out as a duly authorized agent of the defendant No. 2 the defendant No. 1 having been induced to accept the said Government Promissory Notes from the plaintiff on that footing believing the said representation of the plaintiff to be true and having altered its position accordingly the plaintiff was stopped from, making any claim whatsoever with regard to those Notes. The defendant. No. 1 also denied other allegations contained in the plaint and prayed for the dismissal of the suit.
(3.) THE learned trial Judge found fiat at all material times the said Government Promissory Notes belonged to the plaintiff and not to the defendant No. 2. He also found that the said Government Promissory Notes were deposited by the plaintiff as "bailer" with the defendant No. 1 as "bailer" on the terms stated in paragraph 1 of the plaint. The learned trial Judge's other findings are that the plaintiff did not hold himself out as the duly authorized agent of the defendant No. 2 while depositing the said Notes with the defendant No. 1, that the plaintiff was not stopped from making any claim with regard to the said Government Promissory Notes and that the defendant No. 1 was neither entitled to any lien as claimed on the said Government Promissory Notes nor was it entitled to deny the right, title and interest of the plaintiff therein.;