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PETITIONER: KAPUR CHAND GODHA

       Vs.

RESPONDENT: MIR NAWAB HIMAYATALIKHAN AZAMJAH

DATE OF JUDGMENT: 12/04/1962

BENCH: DAS, S.K. BENCH: DAS, S.K. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1963 AIR  250            1963 SCR  (2) 168

ACT:  Contract--Province accepting performance from third  person in  full  satisfaction  of claim--If can  sue  promisor  for balance--Indian Contract Act, 1872 (9 of 1872), ss. 41,  63, illustration (c).

HEADNOTE: In  January  1937 one M & Co. sold and  delivered  jewellery valued at about 13 lakhs to the respondent Prince of  Berar. The  Prince  acknowledged  in writing the  purchase  of  the jewellery   and  the  price  thereof  and   passed   various acknowledgments in respect of the debts due and the last  of such acknowledgments was made for sum of Rs. 27,79,000.   In April  1948,  the appellants presented their bill  and  were informed  in  January, 1949, that the Nizam had  passed  the bill.  In February, 1949, when Hyderabad was under  military occupation, a Committee was set up by the Military  Governor to  scrutinise  all  debts of the Prince of  Berar  and  his younger brother.  The claim of the appellants was considered by  the  Committee which recommended  that  the appellants should be paid a sum of Rs. 20 lakhs in full satisfaction of their  claim.   The appellants were paid the sum of  Rs.  20 lakhs  in two instalments.  The appellants tried to  pass  a receipt  when they received the second instalment  reserving their  right to recover the balance under the  pronote  from the 169 Prince  of Berar.  The relevant authorities refused to  make payment on the said receipt.  Thereupon the appellants  dis- charged  all the previous pronotes and on each one  of  them recorded a satisfaction of the full amount.  The  appellants thereafter  sued  the  respondent for the  recovery  of  the balance of the monies due to them on the pronote.  The trial court  decreed  the  suit on the ground that  there  was  no accord  and  satisfaction when the  plaintiff  received  the second  cheque from the Accountant General,  Hyderabad.   In appeal  by the respondent the Appellate Court set aside  the decree  holding that the appellants had accepted the sum  of Rs.  20 lakhs in full satisfaction of their claim  and  duly discharged   the   promisory   notes   by   endorsing   full satisfaction thereon.

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The  appellants  came up to the Supreme Court in  appeal  by certificate granted by the High Court. Held,  that  when payment is accepted on  the  condition  on which it is offered, it is not open to the person  receiving the payment to say, either in fact or in law, that they have accepeted the money but not the condition. A promisee accepting performance of the promise from a third person, can not afterwards enforce it against the promiser. In  the  present  case  the  appellants  had  given  a  full discharge  when they received the second instalment; and  as they accepted the money in full satisfaction of their claim, they  were  not  entitled  to sue  the  respondent  for  the balance. Obiter : When a statute clearly covers the case it is hardly necessary to refer to a decision.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 52 of 60. Appeal from the judgment and decree dated April 15, 1958, of the Bombay High Court in Appeal’ No. 25 of 1957. B.   R. L. lyengar, for the appellants. M.   C. Setalvad, Attorney General of India, S.   R.  Vakil, K. H. Bhabha, J. B. Dadachanji, O. C.  Mathur  and  Ravindra Narain, for the respondent, 170 1962.  April 12.  The Judgment of the Court was delivered by S.   K.  DAS, J.-This is an appeal on a certificate  granted by  the  High Court of Bombay under s. 110 of  the  Code  of Civil  Procedure,  and  arises  put  of  a  suit  which  the appellants  had brought for recovery of Rs. 9,99,940/-  with interest and cost from Mir Nawab Himayatalikban Azamjah, who was then known as the Prince of Berar, being the eldest  son of  the Nizam of Hyderabad.  The circumstances in which  the appeal has arisen are these. On  or  about January 31, 1937 Baboo Mull and Co.  sold  and delivered to the Prince of Berar in Bombay various  articles of   jewellery  the  aggregate  value  of  which   was   Rs. 13,20,750/-.   Lala  Kapurchand  Godha, who  was  the  first plaintiff  in  the  action  and  Lala  Heeralal  Godha,  the original second plaintiff, carried on business in  jewellery in  partnership  with their father and one Lala  Baboo  Mull (since deceased) in the name and style of Baboo Mull and Co. It is not disputed that the appellants now before us own the entire  interest  in  the Subject matter  of  the  suit  and instead  of  using the name of Baboo Mull and Co.  we  shall same the appellants as the persons who sold the jewellery to the  Prince of Berar on January 31, 1937.  A  writing  dated January  31,  1937  was executed by  the  Prince  Of  Berar, respondent before us, by which be declared and  acknowledged having purchased the jewellery specified in a schedule  from the’  appellants at the aggregate price of Rs.  13,20,750/-. In that writing (Ex.  A) the respondent stated: "I  promise  on behalf of myself and  my  heirs,  executors, administrators and successors to pay to you or to your order at my option and leisure at your abovementioned 171 address the said sum of rupees thirteen lacs twenty thousand seven  hundred and fifty only together with simple  interest thereon @ 10% ten per cent. per annum.  " It is not disputed that the jewellery was in fact  delivered by  the appellants to the respondent, and after January  31, 1937  the  respondent  passed  various  acknowledgements  in respect  of the debt due at the time of the passing  of  the

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respective acknowledgments.  These documents consisted of an acknowledgement of liability and a promise to pay on  behalf of the respondent and the last of such acknowledgments was passed  on February 15/16, 1948.  By that time the  debt  of Rs.13,20,  750/-with ten per cent. interest thereon had  in- oreased  to about Rs.27,79,000/-. By that last document  the respondent  admitted  his liability for the  amount  of  Rs. 27,79,078-2-0  and promised to pay the amount, again at  his option  and  leisure.   On April 30,  1948,  the  appellants presented their bill and some time in January, 1949, one  of the appellants had an interview with the respondent and  was told  that  the  Nizam had passed the bill.   In  1949  when Hyderabad  was  under military occupation after  the  Police Action,  a Committee was set up on February 8, 1949, by  the Military  Governor  known as the  Princes  Debts  Settlement Committee.   The report of this Committee shows that it  was set up in accordance with a resolution made by the  Military Governor  in order to scrutinize all debts of the Prince  of Berar  and his younger brother.  On February 19,  1949,  the appellants  presented  a petition to the  Military  Governor with  regard  to their claim and asked for  payment  of  the amount due to them or in the at ternative for the return  of the  jewellery.  The claim of the appellants was  considered by the Committee in para  11 of their report.  The Committee recommended that the appellants should                             172 be  paid a sum of Rs. 20 lacs in full satisfaction of  their claim.   The  Committee  further stated that  they  did  not recommend  the  return  of the jewellery.  It  may  be  here stated that the Committee consisted of two persons,  namely, Zaheruddin Ahmed, who was the Controller of Accounts to  the Nizam and A. N. Shah, a member of the Indian Civil  Service. It may also be stated that the report of the Committee shows that it made a reduction of about ten per cent.  In the case of  all  suppliers of goods to the two Princes  because  the Committee  thought that in most of the cases  the  suppliers inflated  the  price  for the supply of  goods  to  the  two Princes.   The  Committee also thought that  the  reasonable rate  of  interest  would be six per cent. in  the  case  of creditors who had to wait for a number of years for  payment of  their  dues.   On  September 27, 1949,  a  sum  of  Rs.1 1,25,000/-was  paid to the appellants.  At that  time  there was  a  dispute going on as to whether the  appellants  were entitled  to  the  entire amount of Rs.20 lacs  or  to  only 9/16th  share  there. of. That dispute having  been  finally settled in favour of the appellant-, the appellants received a  second  payment of Rs.8,75,000/- on  February  14,  1950. This  amount  along  with the earlier  amount  paid  to  the appellants  came  to  the total of  Rs.20  lacs.  which  the Committee  had recommended should be paid to the  appellants in full satisfaction of their claim. On February 14,  1950, a  receipt  was  passed by the appellants  for  the  sum  of Rs.8,75,000/(Ex.   C) and this receipt ran in the  following terms:               "Received  from the  Controller  General  of               Accounts and Audit, Hyderabad Government,  the               sum  of Rs.8,75,000/- (Rupees eight  lacs  and               seventy-five thousand) only in full and  final               payment  of the balance of rupees twenty  lacs               allowed  by  the Government in respect  of  my               claims  under  the pronote dated  15  February               1948 passed by the Prince               173               of  Berar in my fovour, reserving  however  my               right to recover the balance amount due to  me

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             under  the  said pronote from  the  Prince  of               Berar." The  relevant authorities refused, however, to make  payment on the receipt Ex.  C in which the appellants reserved their right  to recover the balance amount due from the Prince  of Berar.    Thereupon,  the  appellants  discharged  all   the previous  promotes  and  on  each one  of  them  recorded  a satisfaction  of full payment.  We may refer to the last  of them, namely, the one dated February 15/16, 1948.  This  was for  a sum of Rs.27,79,078-2-0 and on this document  Kapurch and Godha, one of the appellants recorded "received  payment in full". Then,  on  August 14, 1950, the  appellants  served  through their  solicitors a notice on the respondent asking  him  to make  payment of the balance of Rs.9,99,940/- with  interest at ten per cent.  The respondent not having paid the  amount a suit was instituted on February 5, 1951, in the High Court of Bombay for recovery of the amount. The  suit was tried by Coyajee, J. The principal  issue  for trial  was issue No. 6, namely, whether the  appellants  had accepted  payment  of Rs. 20 lacs in  full  satisfaction  of their  claim against the respondent and surrendered all  the writings  duly discharged and there was absolute release  of the  debt  as stated in paras. 7, 8 and 11 of  the  written- statement.   On a consideration of the oral and  documentary evidence  given in the case and relying particularly on  Ex. C,  Coyajee, J. came to the conclusion that  the  appellants did not take the sum of Rs. 20 lacs in full satisfaction  of their claim.  The learned Judge said               "Ordinarily, a plaintiff would have been in  a               most difficult and unenviable position to               174               enforce this claim after having endorsed those               documents namely Ex.  No. 1 as payment in full               satisfaction.  But evidently "payment in  full               satisfaction" there meant full satisfaction as               regards  the liability of the Hyderabad  State               and  that  would naturally be the  meaning  if               taken  in  conjunction with Ex.  C  where,  he               reserved liberty to proceed personally against               the Prince of Berar.  I have therefore come to               the  conclusion on the main issue in the  suit               namely,   that   there  was  no   accord   and               satisfaction  when the plaintiff received  the               second  cheque from the Accountant-General  of               Hyderabad State." Then  there was an appeal by the respondent which was  heard by  the appellate court (Chagla, C. J. and Mody, J.) By  its judgment dated April 15,1958, the appellate court came to  a contrary conclusion and held that on the evidence, oral  and documentary,  given in the case it was  clearly  established that the appellants accepted the sum of Rs. 20 lacs in  full satisfaction   of  their  claim  and  duly  discharged   the promissory  notes  by endorsing full  satisfaction  thereon; therefore,  s. 63 of the Indian Contract Act, 1872,  applied and  the suit of the appellants was liable to be  dismissed. It  accordingly  allowed the appeal and dismissed  the  suit with costs. In  the appeal before us Mr. B. R. L. Iyengar  appearing  on behalf  of the appellants has very strongly  contended  that the view of Coyajee, J. is the correct view on the  evidence given  in  the  case.   He  has  emphasised  two  points  in connection therewith: (1) the crucial question is-what  does the  evidence  show as to the intention of the  creditor  in accepting Rs. 20 lacs? and ’2) what is the effect of Ex.  C,

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a receipt executed contemporaneously with the payment of the second instalment of Rs. 8, 75,000 ? Mr. Iyengar has  argued that the appellate                             175 court  did  not attach sufficient importance  to  these  two points  and the conclusion which it reached is vitiated  for that  reason.  As the judgment of the appellate court  is  a judgment in reversal and the question raised are essentially questions  of fact on which there are conflicting  findings, we  allowed counsel for the parties to place before  us  the relevant  evidence along with the pleadings of the  parties. Two  of the witnesses whose evidence appears to be  decisive of  the  questions raised were, Putta Madhava  Rao  who  was examined  on behalf of the appellants and Kapurchand  Godha, one  of  the  appellants.   Putta Madhava  Rao  was  at  the relevant time, Assistant Accountant-General,.  Hyderabad and he  was  present  before  the Committee  on  more  than  one occasion  when the claim of the appellants  was  considered. Before  Coyajee,  J.  a  question  was  raised  whether  the statements of this witness as to what transpired before  the Committee were admissible in evidence, when none of the  two members  of  the  Committee  was  called  for   examination. Madhava  Rao  was  undoubtedly competent to  prove  what  he himself heard or saw if such hearing or seeing was a fact in issue,  and  we  consider it unnecessary  to  determine  the further question as to whether be was competent to prove the statements alleged to have been made by one or other of  the two  members  of  the Committee.  Therefore,   we  confine ourselves  to  the  statements of Madhava  Rao  as  to  what happened  before  him.   Madhava Rao said  that  before  the Committee  the appellants insisted on payment of their  full claim,  but the Committee decided that the  appellants  must take  Rs.  20 lacs in full satisfaction of their  claim;  on this Kaparchand Godha protested and said that he would  have to  reserve  his  right  for  the  balance.   The  Committee thereupon  made  it  clear that  they  could  not  recommend payment  of  anything more, because a  specific  amount  for distribution had been allotted to them.  The reference to "a specific 176 amount" was to a sum of rupees two crores earmarked for  the liquidation  of the debts of the two ’Princes out of a  fund known as Sarf-e-Khan.  What happened after the Committee had made  its  recommendation  is  very  important.   The  first instalment of Rs. 11,25,000/-was paid on September 27, 1949. At  that time a dispute was going on about the share of  the appellants  to the money.  The receipt which was passed  for the  payment  of  Rs. 11,25,000/- is  marked  Ex.   B.  That receipt  does not show whether the appellants had agreed  to accept Rs. 20 lacs in full satisfaction of their claim.   As to the second instalment of Rs.,8,75,000/- which was paid on February 14, 1950, Madhava Rao give the following  evidence. He  said that when Ex.  C was brought to him  by  Kapurchand Godha,  the witness told the latter that he could  not  make payment  against  that  receipt  as  the  receipt   recited, reservation of the right of the appellants for the  balance. The  witness took the document, Ex.  C, to Zaheruddin  Ahmed who  was  the  Accountant General  then.   Zaheruddin  Ahmed suggested that the claimant should endorse full satisfaction and  payment of all the promissory notes and then  only  the payment would be made.  The witness then said:               "Thereupon  I obtained these endorsements  (on               the   promissory   notes)   from   Kapurchand.               Kapurchand  whilst endorsing  these  documents               protested  that he had been forced to  endorse

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             these  and he was not at all satisfied.   This               happened on the 14th of February, 1950." We may here state that no plea was raised by the  appellants to the effect that the endorsements on the promissory  notes had  been  obtained  by coercion, and no  issue  was  struck between the parties as to the endorsements on the promissory notes having been obtained by coercion.  That                             177 being  the  position, what is the effect  of  Madhava  Rao’s evidence  ?   The clear effect is that the  authorities  who were  paying  the  money in discharge of  the  debt  of  the respondent made it clear that they would pay the money  only if  a  full  satisfaction  of the claim  was  given  by  the appellants.   The  appellants after  some  initial  protests agreed  and  duly  discharged all the  promissory  notes  by endorsing  thereon  full  payment  and  satisfaction.    The question of coercion was introduced as and by way of  after- thought.   Two facts seem to be clearly established  by  the evidence  of  Madhava  Rao.  One  is  that  the  authorities refused   to   pay  the  second   instalment   unless   full satisfaction  of the claim was endorsed in  accordance  with the recommendation of the Committee; the second is that  the appellants  did record full payment in satisfaction  of  the promissory  notes  before they received the  money.  In  our opinion,  these twofactsclearly established the  case of the  respondent  that  the  appellants  had  given  a   full discharge when they received the second instalment.  Indeed, the evidence of Madhava Rao is supported by the evidence  of Kapurchand  Godha.   Kapurchand  Godha  said  that  when  he presented  the  receipt, Ex.  C, to Madhava Rao  the  latter said  that  he would not accept the receipt  in  that  form. Madhava Rao then took Kapurchand to the  Accountant-General. Kapurchand was asked to produce the promissory notes and was told  that  unless the promissory notes were  endorsed  with full  satisfaction, no payment would be  made.   Kapurechand then said               "I  was told that unless I signed the  receipt               for full payment, no cheque would be issued to               me.  Thereupon I endorsed the receipt for full               payment.   By  that  I mean  I  was  asked  to               endorse full payment on the vouchers and I did               so.  I protested and said that as I was  asked               to endorse full payment, I               178               was  doing so despite the fact that I was  not               receiving full payment.  Thereafter I    signed               the  receipt as the vouchers-and  handed  ever               the documents to the Accountant-General." This evidence is in accord with the evidence of Madhava  Rao and again establishes that appellants when they received the second and the last instalment of Rs. 8,75,000/-gave a  full discharge of their claim and the plea of coercion was  later introduced as and by way of an after-thought. There  was some difference of evidence as to whether Ex.   C bore the signature of Kapurchand when it was first presented to Madbava Rao or whether the signature was later put on it. With  that difference we are not now concerned.  Nor are  we concerned  with  certain  minor  discrepancies  between  the evidence  of  the  two witnesses  referred  to  above.   The substantial  result of the evidence of the two witnesses  to whom   we  have  referred  is  that   whatever,   reluctance Kapurchand  might have had in accepting Rs. 20 lacs in  full satification  of the claim of the appellants, he  ultimately agreed to do so, Not; only did he agree, but he actually en- dorsed  full satisfaction and payment on all the  promissory

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notes  and  thereafter  be receive  payment  of  the  second instalment  of  Rs.  8,75,000/which  along  with  the  first instalment of Rs. 11,25,000/-made up the sum of Rs. 20 lacs. On  these facts which are established by the evidence  given on behalf of the appellants themselves, the only  conclusion is  that  there was full satisfaction of the  claim  of  the appellants. The  legal  position  is clear enough.  Section  63  of  the Indian Contract Act reads  :               "Every  promisee may dispense with  or  remit,               wholly  or  in part, the  performance  of  the               promise  made to him, or may extend  the  time               for such performance or may accept                                    179               instead of it any satisfaction which he thinks               fit."               Illustration (c) to the section says                "A  owes  B 5000 rupees.  C pays  to  B  1000               rupees, and B accepts them in satisfaction  of               his claim on A. This Payment is a discharge of               the whole claim.,, It seems to us that this case is completely covered by s. 63 and   illustration  (c)  thereof.   The  appellants   having accepted  payment in full satisfaction of their  claim,  are not  now entitled to sue the respondent for the balance.   A reference  may ’also be made in this connection to s. 41  of the  Contract  Act  under  which  when  a  promisee  accepts performance  of the promise from a third person.  he  cannot afterwards  enforce it against the promiser.  There is  some English authority to the effect that discharge of a contract by  a  third  person  is effectual  only  if  authorised  or ratified by the debtor.  ID India, however, the words of  s. 41 of the Contract Act leave no room for doubt, and when the appellants  have accepted performance of the promise from  a third person, they cannot afterwards enforce it against  the promisor, namely, the respondent. When a statute clearly covers a case, it is hardly necessary to  refer  to  decisions.   In  deference  however,  to  the arguments advanced on behalf of the appellants, we refer  to the two decisions on which learned counsel for the appellant has  relied.  One is the decision in Day v. Mc Lea (1).   In that case the plaintiffs made a claim against the defendants for  a sum of money as damages for breach of  contract;  the defendants  sent a cheque for a less amount stating that  it was in full payment of all demands.  The plaintiffs kept the cheque stating they did so on account and brought an  action for (1)  (1899) 32 Q. B. D. 610-613. 180 the  balance of their claim.  It was held that keeping,  the cheque was not as a matter of law conclusive that there  was an accord and satisfaction of the claim ; but that it was  a question  of fact on what terms the cheque was kept.  We  do not  think  that  that  decision  is  of  any  help  to  the appellants As Lord Justice Bowen said in Day v. Mc Lea (1) :               "If a person sends a sum of money on the terms               that  it is to be taken, if at all, in  satis-               faction  of a larger claim ; and if the  money         X       X is  kept, it is a question of fact as  to  the               terms  upon which it is so kept.   Accord  and               satisfaction  imply an agreement to  take  the               money in satisfaction of the claim in  respect               of which it; is sent.  If accord is a question               of  agreement there must be either  two  minds

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             agreeing  or one of the two persons acting  in               such  a way as to induce the other  to  think.               that the money is taken in satisfaction of the               claim, and to cause him to act upon that view.               In either case it is a question of fact." We  have  already referred to the facts  which  are  clearly established  by  the  evidence in this  case.   Those  facts clearly  established  that the appellants  took  the  second instalment in full satisfaction of their claim.  The  second decision  relied  on on behalf of the  appellants  Neuchatel Asphalte Co. Ltd. v. Barnett (2) also proceded on a  similar ground.   In  that case the claim of the  plaintiff  company amounted  to pound 259, but the defendant raised some  minor question  which  might reduce it by E14 or  pound  15.   The defendant  then  sent a cheque for pound 125 and  stated  in covering  letter that this sum was "on account" pending  the receipt  of the plaintiffs reply to outstanding  queries  in connection  with  the  work  done.   Some  time  later   the defendant enclosed a further cheque for pound 75 and on  the back of the (1) (1899) 32 Q.D. D.610, 613. (2) [1957] 1 All.  R.R. 362. 181 cheque  was endorsed ,in full and final settlement  of  the account".  The cheque was accepted by the plaintiff company, which later sued for the balance of the amount of the claim. It was held that having regard to the-correspondence and the surrounding  circumstances,  there was no intention  on  the part of the plaintiff company to accept the cheque for pound 75  in full satisfaction of the plaintiff’s  claim,  because the  words  "in full and final settlement  of  the  account" typed  on the back of the cheque were inconsistent with  the main  object and intention of the transaction,  particularly since  (a)  the  covering letter  sent  by  this  defendants plainly  imported that the cheque was sent only  on  account and riot in full and final settlement, and (b) it could  not reasonably  be  supposed  that. in  the  circumstances,  the plaintiff  company had agreed to a reduction of  the  amount claimed.   The  facts  of the case before  us  are  entirely different.   The appellants were clearly  and  unambiguously told  that  unless they gave a full  satisfaction  of  their claim,  they would not be paid the amount.   The  appellants were  left in no doubt as to the condition on which  payment would be made to them.  The appellants clearly accepted  the condition  and  recorded full satisfaction on all  the  pro- missory notes.  It is now impossible to accept the ’position that  the  appellants  reserved  their  right  to  sue   the respondent  for  the balance of the  amount.   In  Hirachand Punam  chand v. Temple (1) the father of a debtor  wrote  to the  creditor offering an amount less than that of the  debt in  full  settlement of the debt and enclosing a  draft  for that amount.  The creditor cashed and retained the  proceeds of  the draft and afterwards brought an action  against  the debtor  for the balance of the debt.  It was held  that  the creditor must be takan to have accepted the amount  received by him on the terms upon which it was offered and  therefore he could not (1)  [1911]2 K. B. 330. 182 maintain  the  action.  The case was  considered  under  the English law and it was observed that assuming that there was no accord and satisfaction in the strict sense of the law in England, it could still be held that the creditor had ceased really to beholder of the negotiable instrument on which  he sued.   With  the niceties of English law in the  matter  of

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accord and satisfaction we are not concerned.  The  position in  the present case is that the appellants must have  known that they could receive the second instalment and retain the first instalment by accepting the condition on which the sum of  Rs. 20 lacs was offered to them, namely that  they  must record  a full satisfaction of their claim.   They  accepted the money on the condition on which it was offered and it is not now open to them to Jay, either in fact or in law,  that they accepted the money but not the condition. For these reasons we are satisfied that the appellate  court was  right  in  the view which  it  took.   Therefore,  thus appeal- fails and is dismissed with costs. Appeal dismissed.                             183