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Kishan Prasad And Ors. vs Beni Ram And Ors.

High Court Of Judicature at Allahabad|29 July, 1901


JUDGMENT Burkitt and Chamier, JJ.
1. The appellant obtained against the respondents a decree for the payment of money by instalments, one of the terms of which was that the respondents were to pay Rs. 75 on or before the last day of Sawan in each year, and in case of default, execution might be taken out for the whole amount of the decree. The respondents paid the instalments by due date in 1303 and 1304F., and there is no dispute as to them. The question which we have to decide in this appeal concerns the instalment which was payable on or before the last day of Sawan 1305F. (August 2nd, 1898;. On July 23rd, 1898, the respondents despatched a money-order for Rs. 75 to the address of Jamna Prasad, one of the appellants, who resided in a locality in which, under the rules in force, the Post Office does not pay the amount of a money-order to the payee at his house, but sends notice of the arrival of the money-order, requesting him to attend personally at the Post Office, or send a duly authorized agent to receive payment of the amount. On July 26th, a notice of this kind was sent to Jamna Prasad, who first of all said that he wished the money sent to his house, but afterwards told the Post-master that he would "take the money, after inquiry." He never did take the money, and it was ultimately returned to the respondents, but meanwhile the time within which the instalments had to be paid elapsed.
2. On August 29th, the appellants applied for execution of the decree in respect of the whole sum decreed, alleging that the respondents had failed to pay the instalment for 1035F.
3. The Munsif ordered execution to issue as prayed, but on appeal the Subordinate Judge held that the instalment for 1305F, had been sent to the appellants in time, and that they had improperly refused to accept it.
4. The decree-holders have appealed to this Court. Their Learned Counsel, Mr. Wallaoh, admitted that a valid tender made to one of the three joint decree-holders would be sufficient compliance with the terms of the decree; but he contended that, on the facts found by the lower appellate Court, the respondents had made no valid tender to Jamna Prasad. He also contended that even if a valid tender had been made, the Court executing the decree was bound by the last clause of Section 258, Civil Procedure Code, to disregard the tender, because it had not been certified to the Court as required by that section.
5. Ordinarily, no doubt, a tender of money in payment must be made with an actual production of the amount in cash (or in notes, where notes are legal tender), and if a debtor sends a cheque or bill without any authority or request by the creditor that the amount should be remitted in that manner, the creditor is not bound to accept it in payment. Tender of the amount due at the house of the creditor by a Post Office peon holding a money-order sent by a debtor would undoubtedly be a good tender by the debtor. In the resent case, the creditor would have had to go to the Post Office for the money, and on this account it is said that there was no valid tender. Now it is admitted on the pleadings that the instalments for 1303 and 1304F. were remitted by money-order, and were accepted without objection by the decree-holders. If, when the arrival of the money-order was notified to Jamna Prasad, he had said that he would not accept the money-order, it would, under the rules in force, have been returned at once by the Post Office to the sender, who might then have had time to pay the money into Court, or to the appellants in cash at their door; but by saying that he would take the money after inquiry, he induced the Post Office to refrain from returning the money to the sender, or notifying to him that the money had been refused.
6. We are inclined to think that the receipt by the appellants of the instalments for 1303 and 1304F. by money-order without objection was sufficient authority to the respondents to send subsequent instalments is the same manner; but apart from that it is clear that Jamna Prasad, by his action in delaying the return of the money to the respondents, deliberately deceived them. In the case of Polglass v. Oliver (1831) 37 R.R. 623 a tender was made in country bank notes, which the creditor was not bound to accept. He made no objection on that account, but claimed a larger sum. It was held that he could not subsequently object to the character of the tender, because if lie had objected at once on that ground, it would have given the debtor an opportunity of getting other money and making a valid tender, but by not doing so and claiming a larger sum he had deluded the debtor. There are other decisions to the same effect. The principle on which those cases were decided applies to the present case. Here the appellant, Jamna Prasad, obviously acted in bad faith. If he wished to object to the character of the tender, he should have done so deanitely and at once. He was admittedly acting for all the appellants. Jamna Prasad's action must be held to amount to waiver of the objection which he might have made to the character of the tender, and the appellants are estopped from now getting up any objection to the tender on that ground.
7. We cannot accede to the contention that the Court was bound to disregard the tender because it had not been certified to the Court. Neither the second nor the third clause of Section 258 of the Code of Civil Procedure in terms applies to such a case as this, for no actual payment of money was made which could be certified to the Court; but as tender is, for some purposes, equivalent to payment, it may have been the duty of the respondents to inform the Court of the tender. Assuming that Section 258 applies to such a case as this, we consider that the requirements of the section were sufficiently complied with by the respondents. They had 90 days within which to inform the Court of the tender having been made. They filed a petition well within that time in answer to the appellant's application for execution. In it they stated what had taken place, and asked that the application for execution might be rejected. It is true that they did act ask for the issue of a notice to the appellants, as required by the section, but, in fact, notice was served upon 'the appellants' pleader. If, along with their petition of objections, the respondents had filed a separate application, expressly referring to Section 258, it would obviously have been the duty of the Court to decide, first, whether a valid tender had been made. A finding in the affirmative would have been equivalent' for the purposes of this case to recording a payment as certified. The Court would then have taken up the application for execution, and would have been bound to reject it in persuade of its finding that a valid tender, equivalent to payment, had been made. In the present case there was only one proceeding, but this can make no difference. In our opinion there is nothing in Section 253 which prevented the Court from trying the question whether a valid tender was made, or from giving effect to its finding that a valid tender was made. We dismiss this appeal with costs.
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Kishan Prasad And Ors. vs Beni Ram And Ors.


High Court Of Judicature at Allahabad

29 July, 1901
  • Burkitt
  • Chamier