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TMI Blog1910 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... Pucca Delivery order. Three delivery orders Nos. M 1/50, M 1/51 and M 1/52 bearing the date the 2nd March 1909 were issued by the defendant company to Messrs. Janki Dass Co. by whom they were pledged to the firm of Chandermull Serahmull to secure repayment with interest of the sum of Its. 18,000 then advanced by the plaintiff firm to Messrs. Janki Dass Co. The plaintiff Luchminarain Kanoria was also interested in the advance. Subsequently an agreement was made between the plaintiffs and Messrs. Janki Dass Co. under which for valuable consideration the plaintiffs gave up the delivery orders M 1/51 and M 1/52 and obtained from Messrs. Janki Dass Co. an assignment of their equity of redemption in delivery order M 1/50 and the 1,00,000 yards of Hessian cloth represented thereby. It is on this delivery older, M 1/50 that the plaintiffs' present claim is based. The defendant company resist the plaintiffs' claim on the ground that they are unpaid sellers of the goods, and that they have a lien on them so long as they remain in their possession, and the price or any part of It remains unpaid. 4. So fax I have merely set out the broad outline of the case; the details st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiffs and of the sum of ₹ 18,000 was advanced and was paid into Janki Dass Co.'s account with the Bengal National Bank. 7. On the same date Messrs. Janki Dass Co. handed the defendant company a cheque dated the 5th, but this post-dated cheque was in fact not paid into the defendant company's bank till the 8th of March when it was dishonoured. The defendant company have given no evidence in explanation of this delay, but the plaintiffs show from Janki Dass Co.'s Pass-book which was by consent admitted in evidence before Fletcher. J., that though the ₹ 18,000 received from the plaintiffs did not actually go to pay what was payable on the post-dated cheque, almost the whole of it went to satisfy other claims of the defendant company. 8. The delivery order in suit was in these terms: Please deliver to Messrs. Janki Dass Co.'s Principals or Order 50 Rs. = 100,000 yds. Hessian Cloth 40 in. 71/2 oz. 9 x 9 each 2,000 yds. (One hundred thousand yards only) ready shipment ₹ 113. 9. This delivery order was indorsed to the plaintiffs by way of pledge on the 4th of March and this the plaintiffs maintain entitles them in the circumstances to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tta Jute Trade delivery orders are only issued on cash payment, and that they are dealt with in the market as absolutely re-presenting the goods to which they relate. This is borne out by the contract in this case which specifically provides that payments are to be made in cash in exchange for delivery orders on sellers, and contain the stipulation Ready payment against pucca delivery order. And in this connection it is worthy of notice that the delivery order in suit which is a pucca-delivery order embodies the term Ready shipment. 15. Then we have the interview with Mr. Young, which I have already held to be proved. 16. An attempt has been made to minimise its effect, but it appears to me to be matter of plain commonsense that, as between business men Mr. Young's reply would be regarded as an assurance that the delivery orders could be safely dealt with an the ordinary course of business, and I have been in no way impressed with the analytical argument to which Ave have been subjected by counsel for the defendant Company on tins point. Mr. Young could not have honestly replied as he did and I absolutely, decline to impute dishonesty to him - if he gave his reply w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plain how the delivery orders came to be issued on the 3rd., or why post-dated cheques were taken, or to repel the argument that they acted as they did to enable Janki Dass Co. to raise money on the delivery orders, or to deny that the issue of delivery orders has the implication, and conveys to those engaged in this trade the assurance for which the plaintiffs contend. The conclusion then to which I come is that the defendant Company intentionally caused or permitted the plaintiffs to believe that the cash payable in respect of the goods to which the delivery order related had in fact been paid, and that the plaintiffs acted on that belief, and I therefore hold that the defendant Company cannot in this suit be allowed to deny that such cash was paid, and therefore they cannot claim to be entitled to a lien as against the plaintiffs., But then it is argued for the defendant Company that the plaintiffs cannot succeed, as the property in the goods did not pass since there was no appropriation of them to this delivery order; and it is contended that no reliance can be placed on the 1st exception to Section 108 of the Contract Act, inasmuch as, in the, circumstances, the delivery ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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