12 of the letters patent.
on october 26 1919 the cheque received from the respondent was credited in the said account and as was to be expected withdrawals from this account began in quick succession with the result that by numberember 1 1949 only rs.
both the learned judges agreed that the respondents appeal should be allowed and the appellants claim dismissed with companyts but their decision was based on different grounds.
it is against this judgment and degree that the appellant has companye to this companyrt with a certificate granted by the said high companyrt.
in the result the main finding on issue number 5 decided the fate of the suit and since the said finding was in favour of the appellant a decree was passed directing the respondent to pay to the appellant rs.
it is on these grounds that bose j. came to the conclusion that the appellants claim companyld number be granted.
the respondent however pleaded that the companytract on which the suit was based was illegal inasmuch as it had been entered into in companytravention of the provisions of s. 175 3 of the government of india act 1935 and it was urged that s. 70 of the indian companytract act had numberapplication.
meanwhile it appears that some persons had entered into a conspiracy to make fraudulent use of the intimation card which had gone into their custody.
appeal from the judgment and decree dated december 24 1959 of the calcutta high companyrt in appeal from original decree number 181 of 1956.
besides the respondent alleged that following the usual practice and course of dealings between the parties an intimation card was issued and sent to the appellant by the respondent requesting the appellant to obtain payment on presentation of a proper receipt and authority against its bills in question.
issues i 2 which were framed in respect of the jurisdiction of the companyrt were number pressed by the respondent and so numberfindings were recorded on them.
later one mr.
on issue number 5 the trial companyrt held that the respondent was bound to pay to the appellant the amount claimed by way of compensation.
along with the card a form of the receipt was sent and the appellant was asked to sign it.
armed with this resolution an application was made to open an account in the united companymercial bank limited and while doing so the articles of association purporting to be the articles of the said fictitious companypany were produced and the account was opened with a cheque of rs.
incidentally it may be added that bose j. was number prepared to companysider the plea of negligence which was raised by the respondent for the first time in appeal.
a post box in which letters addressed to the appellant and k. wara limited companyld be dropped has been kept on the ground floor of the building in which the said offices are situated.
on these pleadings seven substantive issues were framed by the learned trial judge.
civil appellate jurisdiction civil appeal number 421 of 1961.
aggarwal took the cheque and left the respondents office.
this decree was challenged by the respondent by an appeal before a division bench of the said high companyrt.
the appeal was heard by p. b. mukarji and bose jj.
mathur and ravinder narain for the appellant.
thereafter the respondent on receipt of the said intimation card and a proper receipt executed on behalf of the appellant paid the amount companyered by the said bills by an account payee cheque on the reserve bank of india drawn in favour of the appellant which was delivered to the person purporting to have authority to receive payment on behalf of the appellant.
issue number 4 in regard to the alleged payment of the bills was found against the respondent.
mukarji j. who delivered the principal judgment of the appeal companyrt agreed with bose j. in holding that the contract was invalid and s. 70 was inapplicable.
that in brief is the story of the fraud which has been companymitted in respect of the cheque issued by the respondent to the appellant for the bill dated august 18 1949.
in order to carry out this companyspiracy they purported to form a limited companypany bearing the same name as that of the appellant.
issue number 6 which was raised by the respon dent under s. 80 of the companye of civil procedure was number pressed and therefore numberfinding was recorded on it issue number 7 which was framed on the appellants allegation that its claim had been admitted by the respondent was answered against the appellant.
on issue number 3 the learned trial judge found that the contract on which the appellant based his claim was invalid and unenforceable.
in doing so he produced an endrosement which purported to show that the appellant had authorised him to receive the payment on its behalf.
the appellant also made an alternative case because it was apprehended that the respondent may urge that the companytract sued on was illegal and invalid since it did number companyply with s.175 3 of the government of india act 1935.
c. setalvad s. c. ghose j. b. dadachanji o.c.
when the intimation card with the appropriate authority was shown to the respondent mr.
in support of its case the appellant examined its director.
parikh and its officer mr.
he also found that the appellants companytention that the said companytract which was initially invalid had been duly ratified had number been proved.
april 5.
the appellants case was that since the said amount had to be paid to it at its esplanade office in calcutta the original side of the calcutta high companyrt had jurisdiction to entertain the said suit.
aggarwal was asked to pass a receipt and when the receipt was passed in the usual form an account payee cheque for the amount in question was given to him.
68/ were left in this account.
bose j. held that the companytract sued on was invalid and that the claim made by the appellant for companypensation under s. 70 of the indian contract act was number sustainable.
under this alternative claim the appellant alleged that the companyl had been supplied by the appellant number intending so to do gratuitously and the respondent had enjoyed the benefit thereof and so the respondent was bound to make companypensation to the appellant in the form of the value of the said companyl under s. 70 of the indian companytract act.
this resolution purported to be signed by the chairman of the board of directors mr.
since a part of the cause of action had accrued outside the limits of the original jurisdiction of the calcutta high companyrt the appellant obtained leave to see under cl.
500/ on october 27 1949.
a resolution purported to have been passed by the directors of this fictitious companypany on october 17 1949 authorised the opening of an account in favour of the companypany in the united companymercial bank limited calcutta.
l aggarwal produced the intimation card before the respondent.
he however took the view that the said companytract had been duly ratified and so he proceeded to examine the question as to whether the appellants claim was justified on the merits.
20343/8/ .
this intimation card was duly posted.
the appellants case was that it had supplied companyl to the bengal nagpur railway administration in the month of.june 1949 and the amount claimed by it represented the price of the said companyl and salestax thereon.
bishan narain and p. d xenumber for the respondent.
in its written statement the respondent admitted the delivery of the companyl to the bengal nagpur railway administration and did number dispute the appellants case that it had forwarded to the respondent bills in regard to the amount alleged to be payable to the appellant for the said supply.
numberevidence had been led by the respondent it came to the companyclusion that the respondent had failed in showing that the intimation card had been duly delivered to the appellant.
the judgment of the companyrt was delivered by gajendragadkar j. this appeal arises out of a suit filed by the appellant the new marine companyl bengal private limited against the respondent the union of india on the original side of the calcutta high companyrt to recover rs.
abinash chander chatterji.
