The Commissioner of Income-Tax Bombay South Ba,y Bombay v. Messrs Ogale Glass Works Ltd Ogale Wadl

Judgment

DAs J.-This appeal arises out of proceedings for the assessment to .income-tax of the respondent Messrs. Ogale Glass Works Ltd., (hereinafter referred to as "the assessee") for the five -assessment years 1941-42 to 1945-46.

The assessee is a limited liability company incor porated anu carrymg on business in Aundh which in those days was an Indian State outside British India. It was accordingly a non-resident company for the purposes of the Indian Income-tax Act.

The assessee manufactures lanterns and other glass wares at its works in Aundh State. In the relevant accounting years the assessee secured some contracts ' for the supply of lanterns and other glasswares to the Government of India. The price of the goods supplied under .the .contracts were paid by cheques drawn on the Reserve Bank of India, Bombay. -The cheques used to be received by the assessee m Aundh and cashed through its bank at Bombay as hereinafter. stated.

The assessee being a non-resident company its liabi lity to British Indian income-tax depended upon its receipt of income within British India. In the course of proceedings for the assessment of the assessee to income-tax for the five years mentioned above, the assessee contended that its profits on the sales accrued and were received in the Aundh State where it received payment by the receipt of the cheques. The Income tax Officer and, on appeal, the Appellate Assistant Commissioner held that the assessee received income, profits or gams m British India inasmuch . as the cheques were drawn on a bank m Bombay and had been cashed m Bombay and accordingly taxed the assessee under section 4(1) (a) of the Indian Income-tax Act. On appeal by the assessee the Income-tax Appel late Tribunal upheld the assessment.

Being aggrieved by .the order of the Tribunal the assessee applied for a reference of the case to the High Court for the determination of the question of law which arose out of the Tribunal's order and the Tribu nal agreeing that a question of law did arise out of its order referred the following question to the High Court along with a statement of the case :

"whether on the facts of the case, income, profits and gains in respect of sales made to the Government of India was received in British India witliin the mean ing 0f: section 4(1) (a) of the AJ:.t."

At the hearing of the reference by the High COurt learned advocate for the assessee contended, inta- alia, tl\.at the checiues were received by the assessee in full satisfactfon of the debt due to it by the Government of fodia and that the debt of the Government of India had been discharged by the acceptance of the cheques by the assessee in Aundh. The High Court felt that in order to determine this· contention it would be neces sary for the Tribunal to find certain further facts and according! y the Hig)l Court remanded the reference back to the Tribunaf with a request to submit a sup plementary statement of the case on the lines indica ted in the order dated the 15th September, 1949. The Tribunal submitted a supplementary statement of · the case on the 8th June, 1951.

In the supplementary statement of the case reference is made to clause 15 of the conditions of ·the contract governing supplies made by the assessee to the Govern ment of India. The system of payment under that clause was that 90% of the price of each consignment would be paid on proof of despatch of the stores from a Railway Station or port in India after inspection and the balance of 10%. would be paid on receipt of the consignment in good condition. That dause also provided:

· ''Unless otherwise agreed between the parties, pay ment for the delivery of the stores will be made on sub mission of bills ·in the prescribed form · in· accordance with instructions given- in the Acceptance of Tender by cheque on a Government Treasury in India or on a branch of the :Reserve Bank of India1 or the Imperial Bank of India tiansacting Government business."

. The assessee used to .s ubmit bills in prescribed form and ori the form used to write : ·

· .. '~Kindly iemit, the amount by a,. cheque in our favour on any. bank.in Bombay." ·

After the submission of,.the bills .. the. assessee: used' to receive from the Govern.ment · cheques drawn· ·on the Bombay branch of the Reserve · Bank · of India along with a memo stating : ·

"The undersigned has the honour to forward · here with cheque No. dated' in payment of the bills noted below" :-

Then followed a tabular statement setting out the number, date and amount of the cheques. On the top of the memo there was a direction that it-

"be immediately returned to the Controller of Supply Accounts with the acknowledgement form on the reverse duly·· signed and stamped when necessary."

The acknowledgement form was thus expressed:

"The undersigned has the honour to acknowledge cheque No. dated for Rs. in payment of the bills noted in the first column in the reverse."

After receipt of the cheques the assessee used to indorse it in favour of Aundh Bank Ltd., Ogale Wadi Branch which in its turn .used to endorse them in favour of the Bombay Provincial Co-operative Bank Ltd., Bombay. The last named bank cleared the cheques through the Clearing House in Bombay. The supplementary statement of the case further records that the A.undh Bank Ltd., used to credit the asses see's account on the very clay the cheques were receiv ed from the assessee with the amount of the cheque less the collection charges and that the assessee used· to credit the account of the Supply Department and make corresponding debits to the bank's account and the bank charges account. A case was sought to be made by the learned advocate for the assessee before the Tribunal that the cheques used to be discounted by the Aundh Bank Ltd., presumably implying thereby that the assessee actually got payment in cash in Aundh. This casl;! was repelled by the . Tribunal which held that the bank only allowed. the assessee to draw money on the security of the cheques but did not . discount them. Our attention has 'been drawn to the following passage in paragraph 8 of ·the supplemen;ary statement . of, .the case:

"By merely issuing . a. cheque to. the assessee .. no payment as such was made by the Government. The payment was only made when the Government's account in the books of the bank was debited."

Paragraph 9 of the supplementary statement of the case thus summarises the Tribunal's findings :

"9. On the above facts our findings are :

(1) Under the agreement with the Government of India . the assessee had undertaken to receive· the pay ment by cheque drawn on a bank in India.

(2) The assessee company made a specific· request to the Government to make payment of the sale pro ceeds by cheque drawn on a bank in Bombay.

(3) When the assessee received the cheque, it did not receive the sale proceeds ; it received the sale pro ceeds subject to the encashment of the cheque.

( 4) The assessee' s bankers allowed the assessee to draw money against the security of the cheque on the very day the cheque was sent for collection to the bank.

(5) The assessee's bankers realised the payment of the cheque from the Reserve Bank of India, Bombay, as agents of the assessee. For rendering this service the bank charged the usual commission charged for collecting an outstation cheque.

(6) The sale proceeds were received in Bombay.

(7) The ,cheque was encashed on behalf of the assessee at Bombay.

(8) The profits on the sales made to the Govern ment of India were received by the assessee in cash in Bombay."

· The supplementary statement of the case concludes with the remark that both parties agreed to the correct ness of the facts.

The main argument advanced before us, as before the High Court, by the learned advocate for the asses see is that the assessee received payment for the goods supplied by it when it received the cheques at Aundh. In other . words the assessee accepted the cheques in full satisfaction and in discharge of its claim against the Government under the contracts. The conclusion press ed upon us 1s that as the cheques · were received at Aundh the payment was received there and consequent ly the assessee which is a non-resident company did not receive any income, profits ·or gains in British India within the meaning of section 4 (I) (a) of the Indian Income-tax Act and the referred question should be answered in the negative.

The contention put forward by the Revenue is two fold. In the first place it is urged that the question whether the assessee accepted the cheques uncondition-

._ ally and in full satisfaction of its claims under the con tracts is concluded by the Tribunal's findings of facts. This contention is not wholly without force. The passage from paragraph 8 of the supplementary state ment of the case and sub-paragraphs 3, 6 and 8 of paragraph 9 do tend to suggest that in the view of the Tribunal no payment was made by the Government by merely issuing the cheques, that when the assessee · received the cheques it did not receive the sale pro ceeds, that it received the sale proceeds subject to the encashment of the cheques, that the bank collected the cheques in Bombay as the agent of the assessee and that the sale proceeds were, therefore, received in cash in Bombay. But in view of the language used in the supplementary statement of the case there is ample scope for the view that the portions referred to above do not amount to findings of fact by the Tribunal but, on the contrary, are only inferences drawn by it from facts found by it. Indeed the High Court was of the opinion that the Tribunal had not in terms come to a finding of fact that the assessee accepted the cheques in complete discharge of its claim for the price of goods supplied by it but on a consideration of the facts actu ally found by the Tribunal the High Court came to the conclusion that the necessary inference to be drawn

' from those facts was that there was an arrangement beitween the assessee and the Government from which it could be said that the acceptance by the assessee of the cheques from the Government resulted in an uncon ditional discharge of the debt. In the .circumstances we have to examine the facts found by the Tribunal which have a bearing on this point.

The assessee contends that on the facts found by the

} -""" Tribunal it must be held that it received the cheques in full and unconditional discharge of its claims for the price of goods sold and delivered by it to the ·Government and not conditionally subject realisation.

to 1'hat a sum of money lllay be received in more ways than one cannot be doubted. It may .be received by the transfer .of coins or currency notes .or a negotiable instrument which· represents and produces cash and is treated as such by businessmen. (.See per Lord Lind ley iB Gresham Life Assurance Society v. Bishop(')). Reference in this connection may also be made .to the .decisions in Commissioner of Income-tax v. Kameshwar Singh(• ), R~ghunandan Prasad v. Commissioner of Income-tax(' ) and Commissioner of Income-tax v. .M aheswari Saran Singh(•). Learned Solicitor-General does not dispute this proposition but .he .argues that, in the absence of any agreement, e~press or implied, to the contrary, a payment by a negotiable instrument is .always under,stood to be .conditional He refers us to Benjamin on Sale, 8th Edition, page 787, in support of the proposition that the intention to take a bill in ab solute payment for goods sold must be clearly shown, .and not deduced from ambiguous expressions, such as that the bill was taken "in payment" for the goods Stedman v. Gooch(⁵ and Maillard v. Duke of Argyle(")

), or "in ,discharge" Kemp v. Watt('), or "in settlement" .of the price Re Rower and Haslam('). In addition to ""' the abo"<e English cases referred to in Benjamin on ,Sale the learned Solicitor"General also relies on the .case of Palaniappa Chetty v. Arunachalam Chetty(⁰ where it was held by the Madras High Court that the execution of a formal receipt for the amount .covered by the bill of exchange or hundi was not sufficient to rebut the general presumption that the deliverey of a bill of exchange or a hundi for. a debt (. operated only as a conditional discharge of the debt. He insists that on the facts of this case there is nothing from which an '1greement may be implied that the .cheques were given ,and received unconditionally in full discharge of the .original contractual liability of the Government for the price of the goods supplied by the assessee. Sri Kolah ·on the other hand, .relied .on the following facts i~ answer to the contentions of the iearned Solicitor-Gerreral :

(i) that there was an arrangement by the contract itself, for payment by cheque (clause 15),

(ii) that ,in the bills submitted by him the assessee expressly asked for payment by cheque,

(iii) that the Government sent cheques in payment of the !bills,

(iv) that on receipt of the cheques the assessee returned the acknowledgement form duly signed and stamped as a formal receipt,

(v) that the ;drawer of the cheques was the Govern ment of India and the drawee was the Reserve Bank of India for whose solvency there could be no appre ·hensian at all in the mind of the assessee.

Sri Kolah contends that the .cumulative effect of these facts 1s clearly enough to establish that the cheques were received unconditionally as payment. Learned Solicitor:General points out that the assessee's request to pay the amount of the bills by cheques carnes the matter no further, for the undertaking to pay by cheque was already there. The point of the request w.as that the cheques · should ;be issued, on some bank in Bombay. The insistence on a stamped receipt in advance of payment was, says the Solicitor-General, m keeping with the usual practice of Government departments. Therefore, we have in this ·case, accord ing to the learned Solicitor-General, nothing more than a term in the ·contract for payment by cheques and the status of the drawer and drawee of the ·cheques. These two circumstances, so submits the Solicitor-General, are not suffic'ient to establish the fact of the acceptance of the cheques as unconditional dischai:ge. He contends that, in the absence of an express agreement, it is only when the creditor elects to ·take a bill or cheque having it in his power to obtain payment in cash, that is to say, takes a bill or cheque by choice or preference instead of cash that an agreement may be implied that he took it as an unconditional and absolute payment of the.debt: Robinson v. Henry Reid( ') and Anderson v. Hi/lies('). Such cases must be rare, for. the credi tor IS not ordinarily likely to give up the advantage of having a double remedy namely one on the bill or cheque and the other, on dishonour of the bill or cheque, on the original ca\Jse of action. He points out that in this case there is no finding of any special agree ment in this behalf and, therefore, submits the learned Solicitor-General, the assessee must be taken to have received the cheques conditionally, i.e., subject to reali sation. The learned Solicitor-General concludes that, m the circumstances, no payment was received by the mere receipt of the cheques and that payment was received only when the cheques were cashed in Bom bay and that such receipts m Bombay became immediately assessable to British Indian tax under section 4(1)(a). The High Court repelled this line of argument and held that the assessee received pay ment on the dates the cheques were delivered to it. We find ourselves substantially in agreement with this conclusion. It is to be remembered that there are four modes in which a contract may be discharged, namely (1) by agreement, (2) by performance, (3) by being excused by law from performing it and ( 4) by breach. In this case clause 15 of the contract provides how the payment of the price is to be made. In short the con tract itself, by that clause, prescribes the manner and the time for performance by the Government of its part of the contract and as the Government made the payments in the prescribed manner, i.e., by cheques, it fulfilled its engagement and such payment would under section 50 of the Indian Contract Act, operate as a discharge of the contract. It should also be remem bered that the assessee sent has formal stamped receipts only after the receipt of the cheques and · not along with the bills submitted by it. Therefore, the receipts cannot be regarded as having been sent in advance; The status of the drawer and the drawee of the cheques IS also a material consideration. Finally there IS no suggestion that any of the cheques was dishonoured on presentation. We, therefore, agree with Sri Kolah that· the several facts relied on by him and alluded to above, taken cumulatively, must lead us to the conclusion that the cheques were received in complete discharge of the claim for the price of the goods.

Learned Solicitor-General, however, contends, on the author.ity of the decision in Kodarmal v. Sagormal(1), that the request by the creditor to send a cheque does not imply any variation of the rule that payment by a negotiable instrument 1s conditional on its being honoured on presentation within due time. Even if we accept his contention that the facts referred to above are not sufficient to raise the implication that the cheques were accepted as payment and even if the sending of the cheques in terms of clause 15 or at the special request of the assessee did not operate as an unconditional discharge of the Government's liability even then the assessee's position will be no better. When it is said that a payment by negotiable instru ment is a conditional payment what 1s meant is that such payment is subject to a condition subsequent that if the negotiable instrument is dishonoured on present ation the creditor may consider it as waste paper and resort to his original demand : Stedman v. Gooch(2). It 1s said m Benjamin on Sale, 8th Edition, page 788 :-

"The payment takes effect from the delivery of the bill, but is defeated by the happening of the condi tion, i.e., non-payment at maturity."

In Byles on Bills, 20th Edition, page 23, the position is summarised pithily as follows :

"A cheque, unless dishonoured, is payment."

To the same effect are the passages to be found in Hart on. Banking, 4th Edition, Volume I, page 342. In Felix Hadley & C. v. Hadley(³ Byrne J. expressed

), the same idea in the following passage m his judgment at page 682:

"In this case I think what took place amounted to a conditional payment of the debt; the condition being that the cheque · or bill should be duly met or honoured at the proper date. If ·that be the true view• then I think the position is exactly as if an agreement had been expressly made that the bill or cheque should operate as payment unless defeated by dishonour or by not being met ; and I think that that agreement is im plied from giving and taking the cheques and bills in question."

The following observations of Lord Maugham m. Rhokana Corporatirm v. Inland Reuenue Commis sioners( are also opposite :

1 )

"Apart from the express terms of section 33, sub section 1, a similar conclusion might be founded on the· well known common law rules as to the effect of the sending of a cheque in payment of a debt, and in the· fact that though the payment is subject to the condition subseqµent · that the cheque must be met· on presentation, the date of payment, if the cheque·

duly met, is the date when the cheque was posted.'.'

In the case before us none of the cheques has been dishonoured on presentation and payment cannot,.. therefore, be said to have been defeated by the happen ing of the condition subsequent, namely dishonour by non-payment and that being so there can be no ques-. tion, therefore, that the assessee did· not receive pay-. ment by the receipt of the cheques. The position, there fore, is that in one view of the matter there was, in the .. circumstances of this case, an implied agreement under· which the cheques were accepted unconditionally as· payment and on another view, even if the cheques were taken conditionally, the cheques not having been dishonoured but having beea cashed, the payment related back to the dates of the receipt 'of the cheques and in law the dates of payments were the dates of the delivery of the cheques,

On the footing, then, that the assessee receiv ed . payment as soon as the cheques were delivered to it the question still remains as to when and --'· J where the assessee recei¥ed such payment. The answer is obvious, says the assessee, namely that it received payment in Aundh where the cheques were delivered to it. The ·learned Solicitor-General, how ·ever, contests that argument. According to him the ·cheques were delivered to the assessee as soon a.s they were posted. The rejoinder of the assessee is two-fold. Jn the first place it is said that this an entirely new

IS question of law which was never raised or argued before the Tribunal and was not dealt with by it and, therefore, ·cannot be said to arise out of the Tribunal's Order and consequently the Court .has no jurisdiction, while exer cising its advisory jurisdiction under section 66 of the Indian Income-tax Act, to permit such a new question of law to be raised at this stage. Learned Counsel for the assessee relies on the cases of Commissioner of Ex cess Profits Tax, . West Bengal v. Jeewanlal Ltd.(¹ Chainrup Sampatram v. C. I. T., West Bengal(² Alla

), habad Bank Ltd. v. C. 1. T., West Bengal(3), Mohan/al Hiralal v. C. I. T., C. P. & Berar(~), and Hira Mills Ltd., Cawnpore v. Income-tax Officer, Cawnpore("), while the learned Solicitor-General refers us to the deci sions in Madan/al Dharnidharka v. Commissioner of In come-tax, Bombay City(⁸ and Commissioner ofi Income

), tax, Delhi v. Punjab National Bank Ltd.(⁷ In the

).

view we have taken it is not necessary for us, on this occasion, to express any opinion on the larger question as to the scope, meaning and import of the words "any question of law arising out of" the Tribunal's order on the interpretation of which there exists a wide diver gence of judicial opinion. It should be noted that this is not a case where .the Tribunal having refused to refer .a question of law an applica~ion was made to the High Court to exer.cise its jurisdiction under sub-section (2) of section 66. Here the Tribunal in exercise of its powers under sub-section (1) of that section did refer a question of law to the High Court. Nobody at any time contended and even now it is not suggested before us that the ques tion of law referred to the High Court did not arise out of the Tribunal's order or had not been properly refer red to the High Court. A question of law arising out of its order having thus been properly referred by the Tribunal under sub-section (1) the High Court had to deal with and answer it in exercise of its jurisdiction under sub-section (5). In support, of its contention that the question should be answered m the affirma tive the Revenue advanced the argument, based on certain facts, that the cheques had been accepted only conditionally and, therefore, there was no payment un til the cheques had been cashed and the cheques having been cashed in Bombay the payment must be regarded as having been received in Bombay. That argument did not find favour with the High Court and that being the position the Revenue sought to raise before the High Court, as it does before us, an alternative argu ment, also based on facts, that the cheques having, at the request of the assessee, been posted at Delhi, the mere posting of the cheques m such circumstances operated as payment in Delhi. Here no new question of law is sought to be raised. The question of law still is, whether on the facts of this case, mcome, profits and gains in respect of sales made to the Government of India was received in British India within the mean ing of section 4(1)(a) of the Act. The argument is that as the cheques were posted at Delhi at the request of the assessee payment was received by it m British India. It is said that although the language in which the question has been framed is wide enough to include this branch of the argument, the question should, nevertheless, be read as circumscribed by the facts on which the Tribunal's decision was made and should not be regarded as at large. This suggestion means that the question must be read as limited only to those facts on which alone reliance was placed in support of the argu ment actually advanced b~fore the Tribunal and on which the Tribunal's decision was fotinded, leaving out all other facts appearing on the record and even refer red to in the Tribunal's order and the statements ·of the case. There 1s no warrant for such suggestion. The language of the question clearly indicates that the question of law has to be determined "on the facts of this case". To accede to the contention of the assessee, will involve the undue cutting down of the scope of the question by altering its language. Seeing that the High Court permitted this argument to be advanced before them we are not prepared to shut it out.

Sri Kolah then contends that the requisite facts, on which this branch of the argument may be based, are not to be found in the order of the Tribunal and the statements of the case and, therefore, this argument should not be entertained. There would have been considerable force in this contention if the facts neces sary to support the new argument advanced by the Revenue were not on the record. But such is not the cases here as will be presently shown. The High Court conceded that if tl1e assessee had requested the Govern ment to send the cheques by post then it wouH have made the post-office its agent and in that event the posting of the cheques by the Government at Delhi would have been deliverey of the cheques to the asses see m Delhi. The High Court, however, held that there was no finding by the Tribunal that it point of fact the assessee had ever requested the Government to send the cheques by post and that that being the position it could not be said that the cheques had been delivered to the assessee in Delhi. In our opinion, for reasons to be presently stated, this part of the decision of the High Court cannot be supported on facts and its conclusion cannot be sustained in law.

Turning to the order of the Tribunal we. find the following passages :

"All payments for the goods supplied were made by cheques drawn by the Government department at Delhi on the Reserve Bank of India, Bombay Branch. The cheques were received by the assessee Company in its office in Aundh State."

The finding of fact recorded in the first statement of the case also comprises the following (inter- alia) :

"These cheques were received by the assessee Company at its office in Aundh State .by post."

The finding of fact m paragraph 3 of the Supple mentary Statement of the case is thus recorded :

"3. The assessee company u"sed to · submit · the

bill bills and on the form of the it used to write "Kindly remit the amount by a cheque in our favour on any bank in Bombay".

The question for our consideration is as to what, on the legal principles laid down in judicial · decisions; these findings of fact amount to."

In Norman v. Rickets(' ), the creditor carrying on business as milliner in Bond Street wrote to one of the customers who resided in Suffolk saying "the favour of a cheque within a week will oblige". The customer upon such request sent a cheque for the amount by post. The cheque was, stolen in the transit and was paid by the Bank to the theif. It will be noted that there was no express request to send the cheque by the post, but nevertheless it was held that the sending· of .the cheque by post was payment. On appeal the Court of Appeal upheld the trial Court and observed :

"An express request to send through the post was not necessary. If what the plaintiffs said amounted to a_ request to send the cheque by the post, then there was payment. To answer that question the existing circumstances must be looked at. A milliner in London wrote to a lady in Suffolk asking for a cheque. Did that letter reasonably lead the lady to suppose, and did she suppose that -she might send the cheque by post ? She could not suppose that she was to send a messen ger with it or come up to London herself. The only reasonable and proper meaning to be attached to it; whatever Madame Phillipe · might have intended ,.was that she was to send the .c heque by post. She, there fore, reasonably believed that she was invited to send her cheque 'by post, and she did what she Was , asked to· ifo; Consequently what she did amounted to payment."

t • ,. ft.. ' . ' ' ... •' - .

In Th{lidwalv. The Great Northern R,ailway Co.,(•) the directors' by their report · recommended (a) .t he declaration of dividend at certain rates, and (b) the --J

LR:

despatch of dividend warrants by post. At the half yearly general meeting the shareholders passed a reso lution that dividends be declared at certain altered rates but said nothing about sending the same by post. Dividend warrants were sent to a stock-holder by post but it was lost in the post. Bray J., held that in the circumstances there was a request by the stock-holder to the company to pay the amount due to him by means of a warrant sent by post. The case of Badische Anilin Und Soda Fabrik v. Basie Chemical Works(¹ was concerned with a Swiss seller who was asked to send the goods by post to England which he did. The goods were manufactured according to an invention protected by an English Patent. The question was as to who brought the goods to England so as to be liable to an action for infringement. It was held that the post-office was the agent of the English buyer . and, therefore, the Swiss seller could not be sued. After stating that the seller had sent the goods in pursuance of the order from the buyer to a particular named ·carrier namely the post-office which is after all only a carrier of parcels like any other carrier Lord Halsbury at p. 204 said :

"It is not necessary that the carrier should have been named. If, according to the ordinary course of delivery, the carrier would be the person who would receive it, that would be just as good, for the purpose of the argument , as if the carrier had been actually named ; but we have not to consider that question here, because the carrier is named. Then, for what reason am I to depart from the well-known and recog nised principle of law that, under these circumstances, when goods are delivered by the order of the buyer to a named carrier, from that moment the goods vest in the buyer?"

The decision in Comber v. Leylqnd(² is very import-

), ant for our purpose in that it explains the meaning and implication of the word "remit" which is the word used by the assessee when it requested the Government

f ~ Department to "remit" the amount by cheque. There was in that case no · express reference to the post-office at all. Said Lord Herschell, at p. 530 :

"I cannot doubt that the word "remrt" there means this and nothing beyond this-that the bank post bills, when obtained in favour of the plaintiffs, should be sent in the ordinary course and the ordinary manner in which such documents are sent by commer cial men, namely, by mail, and that as soon as that had been done all obligation and all liability of the defendant ceased. I think it is impossible on these words to maintain that there was an obligation and a liability incumbent upon him until those bank post bills had reached the hands of the plaintiffs in England.

In Mitchell Henry v. Norwich Union Life Insurance Society Ltd.('), the defendants sent a written notice to the plainiff stating that the ssum of £ 48-5-Sd which would shortly become due should be paid at their office and asking the plaintiff "when remitting" to return the notice. There was no express request to send the amount by post.. Bailhache J. held that by the use of the word "remitting" the · defendants had impliedly authorised the plaintiff to pay them by sending the money through the post in the ordinary way in which money was remitted by post, but that it was not usual to send so large a sum in Treasury notes by post. Apart from the impropriety of sending a large amount in Treasury notes by post, this case does support the view that the request by the· creditor "to remit" the amount due, without more, is tantamount to a request to send the amount by post. This decision was upheld by the Court of Appeal. On the other hand if there be no express or implied request by the creditor to send the amount by post the mere posting of a hundi duly endorsed in favour of the addressee does not operate as delivery of the hundi to the addressee so as to pass the title in the hundi to the addressee, for the post-office in such circumstances does not become the agent of the addressee. The case of Thorappa . v. Umedmalji(¹ is an instance on this point. In the case of ex parte Cate{ • ) also there was no request by the addressee to send the bills by post. The result of the various judicial · decisions are -summarised in Benjamin on Sale, 8th Edition, pp. 769-771, and in Chalmer's Bills of Exchange, 12th Edition, pp. 51-52.

A good deal of stress is laid by Sri Kolah on what he says is the basic difference between the postal regula tions in England and those in India and he insists that the English decisions laying down the effect of sending cheques by post should not be rigidly followed here. He points out that in England the sender of the cheques has no right to reclaim the same after it is posted, and that, accordingly, immediately upon the posting of the cheques the post office becomes irrevocably the agent of the addressee and that, therefore, the delivery of the cheque to the post-office is, in English law, delivery to the addressee. But that, Sri Kolah maintains, is not the position under the Indian Post Office Act, 1898. We have been taken through the different sections of that Act and the rules made thereunder and Sri Kolah contends that under the Indian law the sender has the right to reclaim the letter until it is actually delivered to the addressee and, therefore, until that time the post-office remains the agent of the sender and conse-

~ quently the posting of a cheque cannot in India be regarded as delivery of the cheque to the addressee. We may, however, point out that this right of the sender, on which so much stress and importance are laid by the learned advocate, is by no means an abso lute right, for it is left entirely to the authorities to decide whether a letter once posted should be returned to the sender. This very narrow and qualified right can hardly be regarded as bringing about a position so

f different rom that prevailing in England as to make the English decisions wholly inapplicable. It may also be mentioned that in spite of such contention the English decisions have been adopted by the Courts in India, e.g., Thorappa v. Umedmalji (supra) and the Indian Cotton Company Ltd. v. Hari Poonjoo(¹ It is,

). however, not necessary to pursue this line of reasoning any further for the principles underlying the English decisions are dearly consonant with the provisions of the Indian law. There can be no doubt that as between the sender and the addressee it is the request of the addressee that the cheque be sent by post that makes the post-office the agent of the addressee. After such request the addressee cannot_ be heard to say that the post-office was not his agent and, therefore, the loss of . the cheque in transit must fall on the sender on the specious plea that the sender having the very limited right to r.eclaim the cheque under the Post-Office Act, 1898, the post-office was his agent, when in fact there was no such reclamation. Of course if there be no such request, express or implied, then the delivery of the letter or the cheque to the post-office is delivery to the agent of the sender himself. Apart from this principle of agency there is another principle which makes the delivery of the cheque to the post-office at the request of the addressee a delivery to him and that is that by posting the cheque in pursuance of the request of the creditor the debtor performs his obligation in the manner prescribed and sanctioned by the creditor and thereby discharges the contract by such performance (see section 50 of the Indian Contract Act and illustra tion ( d) thereto).

Sri Kolah points out that when the Indian Contract Act, 1872, was passed, the Indian Post-Office Act, 1866, was in force. He has taken us through the relevant provisions of that old Act and he points out that those provisions were quite different from those of the present Act. According to him illustration ( d) to section 50 of the Indian Contract Act must, after the passing of the Act of 1898, be taken to have become inappropriate, --¹ obsolete and incorrect. We do not think that there is 1 any basic difference between the two Acts in respect of the matter under discussion. It does not appear to us that the Act of 1898 enlarges the right of the sender to reclaim the postal article to such an extent as to nullify illustration ( d) or otherwise to affect the well known general principle that a contractual obligation is discharged by the performance of the engagement or promise in the manner prescribed or sanctioned by the-'- ) promisee.

Applying . the above principles to the facts found by the Tribunal the position appears to be this. The engagement of the Government was to make payment by cheques. The cheques were drawn in Delhi and received by the assessee in Aundh by post. According to the course of business usage in general to which, as Glass W arks Ltd., part of the surrounding cir,cumstances, attention has to be paid under the authorities cited above, the parties must have intended that the cheques should be sent by post which is the usual and normal agency for trans mission of such articles and according to the Tribunal's findings they were in fact received by the assessee by post. Apart from the implication of an agreement arising from such business usage the assessee expressly requested the Government to "remit" the· amounts of the bills by cheques. This, on the authorities cited above, clearly amounted in effect to an express request · by· the assessee to send the cheques by post. The Government did act according to such request and posted the cheques in Delhi. It can scarcely be sug- . gested with any semblance of reasonable plausibility that cheques drawn in Delhi and actually received by post in Aundh would in the normal course of business

_,, · be posted m some place outside British India. This posting in Delhi, in law, amounted to payment in Delhi. In this view of the matter the referred question should, with respect, have been answered by the High Court in the affirmative. We, therefore, allow the appeal and answer the question accordingly. In view of the fact that the appellant has failed in the main.

argument but has succeeded on a new one we think no order should be made as to costs except that eai::h

· \ party should bear and pay his or its own costs before us as well as before the High Court.

Appeals allowed .