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TMI Blog1974 (4) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant-respondent was a tenant of a portion of premises No. 105/336, Chamanganj , Kanpur at a monthly rent of ₹ 5. Appellants Bhikha Lal and others are owners of the said premises. The respondent fell in arrears of rent and consequently the appellant filed civil suit No. 570 of 1961 for his ejectment and for recovery of arrears of rent and damages for use and occupation amounting to a sum of ₹ 89.75 P. The suit for recovery of rent was ultimately decreed. The decretal amount and certain other amounts were deposited by the judgment-debtor in the trial court in compliance with a conditional interim order passed by the appellate court. The appellants did not withdraw the decretal amount in those proceedings. The respondent again fell in arrears of rent for the period 25th November, 1962 to 24th June, 1963 amounting to ₹ 35. The appellants thereupon served upon the respondent a notice on 23rd of July, 1963 demanding the amount decreed in suit No. 570 of 1961 as also arrears of rent amounting to ₹ 35. The appellants are residents of a village in Kanpur served by a post office situate at Kandhana. On receipt of the notice served on him on the 23rd of July, 1963 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant had failed to pay the arrears of rent of ₹ 35 within one month of the service of the notice of demand inasmuch as the money order sent by the tenant reached the landlords beyond that period. According to the trial court, consequently, the defendant was not entitled to claim protection of Section 3 (1) (a) of the Act and was liable to be ejected. In appeal by the defendant the lower appellate court affirmed the finding of the trial court to the effect that the defendant could not be considered to be a defaulter as far as the amount of ₹ 89.75 P. was concerned. So far as the demand for rent amounting to ₹ 35 was concerned the lower appellate court held that the money had been remitted by the tenant by money order well within time. The court below presumed that it must have reached the landlords within one month of the 23rd of July, 1963 on which date the notice of demand was served on the tenant. According to the lower appellate court the fact that on the money order coupon there was an endorsement dated 26th August, 1963 showing that the landlords had refused to accept the money did not mean that the money was not tendered to the landlords before that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the cause of delay which took place before the amount under that money order was offered to the plaintiffs-respondents for the first time on 29th November, 1968, the responsibility lay with the agent of the appellant for which the appellant has to suffer. There is nothing on record to suggest any agreement between the parties to the effect that the payment of rent was to be made by money order nor was any such request contained in the notice of demand. In the circumstances the agency of the post office employed by the appellants for making the payment was of the appellants own choice. 4. Thus, according to the decision in 1971 All LJ 1399 (supra), a statutory agency comes into existence between the tenant-remitter and the post office when the tenant chooses to send the arrears of rent demanded, by means of money order. The only exception to this sort of statutory agency, according to that decision, may be a case where there was an express agreement between the parties to the effect that the payment of rent was to be made by money order or there is a request that the amount claimed in the notice of demand be sent by a money order. The learned single Judge was disinclined to ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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. In the case of a money order, in view of the provisions of Section 44 of the Indian Post Office Act there can be no doubt that the post office is the agent of the remitter and not of the payee. It appears that in the view of the learned Judges who decided Rahat Husain v. Mst. Husain Fatima Bibi, while in the case of a cheque sent by post, the post office, in certain circumstances, could be consider-ed to be the agent of the payee but not so in the case of an amount remitted by money order because of Section 44 of the Post Office Act. With profound respect to the learned Judges who decided Govind Rao v. Kanhaiya Lal (supra) and Rahat Husain v. Mst. Husain Fatima Bibi, no such conclusion as has been arrived at in those cases is justified on the basis of the decision of the Supreme Court in the Commissioner of Income Tax, Bombay v. Ogale Glass Works Ltd. (supra). Section 44(1) of the Post Office Act, on which the decision of the two cases of this Court mentioned above, rest runs as follows:-- 44 (1) Subject to such conditions as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court there was an express request by the assessee to the Government of India to remit the cheques through the post office and consequently the post office became an agent of the assessee. After citing a number of English and Indian cases, the Supreme Court held as follows:-- According to the course of business usage in general to which, as part of the surrounding circumstances 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 transmission of such articles and according to the Tribunal's findings they were in fact received by the assessee by post, 8. The abovequoted decision was reiterated and given effect to by the Supreme Court in its subsequent decisions in Commr. of Income Tax, Bihar and Orissa v. Patney Co., Shri Jagdish Mills Ltd. v. Commr. of Income Tax AIR 1959 SC 1160 and Indore Malwa United Mills Ltd. v. Commr. of Income Tax (Central) Bombay AIR 1966 SC 1466. 9. It is, thus, clear from these decisions of the Supreme Court that it is not necessary for the post office to be treated as an agent of the payee that there should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na Corporation Ltd. v. Inland Revenue Commissioners. (1938) AC 380 was also considered by the Supreme Court as apposite:-- Apart from the express terms of Section 33, Sub-section (1), a similar con-elusion might be founded on the well known common law rule as to the effect of sending of a cheque in payment of 3 debt, and in the fact that though the payment is subject to the condition subsequent that the cheque must be met on presentation, the date of payment, if the cheque is duly met, is the date when the cheque was posted. 11. Again, in Shri Jagdish Mills Ltd. by its successor Shri Ambica Mills Ltd. v. The Commr. of Income Tax, Bombay North, Kutch and Saurashtra, Ahmedabad (supra), the contention that there was no payment in the eye of law till cheques delivered were encased was repelled by the Supreme Court in the following words:-- Even if the receipts of the cheques at Baroda be treated as a conditional payment of the appellant's claims for the goods supplied to the Government the position was no better, for the simple reason that the cheques not having been dishonoured but having been duly cashed the payments related back to the dates of the receipts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have had the right to stop payment by countermanding his order, by communication to the postal authorities in time. To my mind, Section 44(1) of the Post Office Act has only made explicit the right which remitters of money orders impliedly have. In any case the fact that the remitter of a money order has been given powers by statute to countermand his order for payment to the payee does not render inapplicable the principle applied by the Supreme Court to bank cheques sent by post because the drawer of a cheque has an identical right though otherwise than by statute. 13. In my view, if there is an express or implied request by the landlord for payment of the amount claimed as arrears of rent, through a money order, the payment to the post office is payment to the payee unless by subsequent action under Section 44 of the Post Office Act the remitter cancels the money order. In such an event the payment shall stand thwarted by a subsequent act and shall be deemed never to have been made. 14. In support of the view taken by it, the Supreme Court in Commr. of Income Tax v. Ogale Glass Works Ltd. placed reliance on a number of English decisions wherein it had been held, taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as to make the English decisions wholly inapplicable.'' ..... It is, however, not necessary to pursue this line of reasoning any further for the principles underlying the English decision are clearly 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 reclaim the cheque under the Post Office Act, 1898, the post office was his agent, when in fact there was no such reclamation. 15. A similar argument was again rejected by the Supreme Court in Shri Jagdish Mills Ltd. v. The Commr. of Income Tax, Bombay North, Kutch Saurashtra , Ahmedabad (supra) as would ap-pear from the following passage:-- Learned counsel for the appellant further drew our attention to certain provisions of the Post Office Act, 1898 and the postal regulations framed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e oavee or the addressee, as the case might be has the right to prevent the sender from exercising the right of stopping payment of the money orders or recalling the postal articles. In this connection I wish again to point out that at far as bank cheques are concerned the drawers thereof have an unqualified right to countermand their orders for their encashment, in my judgment as soon as the remitter of a money order places an order with the post office for payment of a specified amount to a payee named without authorisation express or implied for payment by money order, the relationship of principal and agent between the remitter and the post office comes into existence. The post office does not become the statutory agent of the remitter by reason of Section 44(1) of the Post Office Act which comes into play only after he has constituted it his agent by choice exercised already. To my mind, Section 44(1) of the Post Office Act has no relevance to the determination of the question as to whether in respect of a particular transaction the post office is the agent of the remitter or of the payee of a money order. If the learned Judges who decided Govind Rao v. Kanhaiya Lal and Rahat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost 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 messenger with it or come 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 cheque by post. She, therefore, reasonably believed that she was invited to send her cheque by post, and she did what she was asked to do. Consequently what she did amounted to payment. 20. This decision was cited with approval by the Supreme Court in the Commissioner of Income Tax v. Ogale Glass Works Ltd. (supra) and in Shri Jagdish Mills Ltd. by its successor Shri Ambika Mills Ltd. v. Commr. of Income Tax, Bombay North, Kutch, Saurashtra and Ahmedabad (supra). 21. The facts leading to the decision in Shri Jagdish Mills Ltd. v. Commissioner of Income Tax (supra) were that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay (supra) where it was held as follows: Now, if by an agreement, express or implied, between the creditor and the debtor or by a request--express or implied, by the creditor, the debtor is authorised to pay the debt by a cheque and to send the cheque to the creditor by post, the post office is the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him. In this decision again there was no evidence that there was an express request by the assessee for the cheques being sent by the post. Nonetheless, the Supreme Court held that, in the circumstances of the case, such a request should be implied. Placing reliance on its earlier decision in Shri Jagdish Mills Ltd. v. Commr. of Income Tax, Bombay (supra) the Supreme Court held:-- Having regard to the fact that the assessee was of Indore and the office of the Government of India was at New Delhi, the parties must have intended that the Government would send the cheques to the assessee by post from New Delhi and this inference is supported by the fact that the cheques used to be sent to the assessee by post. In the circumstances there was an implied agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laces, served by post offices and payments have to be by cheques, then in the absence of anything to the contrary, an implied agreement can be culled out authorising the debtor to despatch the cheques through the post office which will be treated as the creditor's agent. This has come to be recognized as payment according to the course of business usage in general . This principle can be extended to the case of payments made through money orders. If the creditor and the debtor reside at two different places so that the debtor cannot reasonably be expected to make cash payments personally or through a messenger, then in the absence of a stipulation to the contrary it may be assumed that the debtor is impliedly authorised to pay his debt through money orders. In such cases deposit of the cash at a postal money order office will be treated as payment to an agent of the creditor made in accordance with the ordinary usages of mankind to borrow the words used by Lord Herschell in Henthorn v. Fraser (1892) 2 Ch D 27. 25. Coining to the facts of the case before us, we find that while the tenant resided in the town of Kanpur, the landlords lived in a village in the interior of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent amounting to ₹ 35 was being sent by money order which the plaintiffs were requested to accept. This letter exhibit A-2 was proved by the defendant. There is no evidence on record to show that at any time the plaintiffs replied to this letter intimating that in case the defendant chose to remit the amount by a money order, he would do so at his own risk if the amount did not reach the plaintiffs within one month of the notice of demand. By their silence, I am inclined to hold, the plaintiffs approved and impliedly authorised the defendant's remitting to them the arrears of rent demanded by means of a money order. That the respondent sent the money order without waiting sufficiently long for a reply from the plaintiffs makes no difference because they in fact never did reply. I am consequently of the opinion that, on the facts and circumstances of the case, the defendant had an implied authority from the plaintiffs to pay the amount to them by means of a money order and as soon as the defendant handed over the amount to the post office, to be remitted by money order, he was discharged of his obligation in that respect. The defendant had no control over the post office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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