1. This appeal is by the defendant railway against a decree for money passed in favour of the plaintiff-respondent.

2. Two hundred twenty-nine bags of biri tobacco were booked from Desar Road on the G.B.S Railway for Chakradharpur on the then B.N Railway under Risk Note A. On arrival at Chakradharpur 159 bags, out of 229 bags consigned, were found wet, and the total weight of these wet bags of tobacco was found to be 43 maunds 4 seers. The plaintiff, therefore, claimed damages for this amount of damaged tobacco, after deducting what the plaintiff company had been paid by the railway.

3. The suit was contested by the railway, and the main defence, with which we are concerned in the present appeal, is to be found in paragraph 7 of the written statement. It was stated by the defendant that Rs. 4,310/- was paid to the plaintiff after due certification of the rates and strictly without any prejudice to Railway rights; and moreover, the offer was made in full and final settlement of the plaintiffs claim, and the plaintiff, having cashed the cheque in acceptance thereof, was estopped from claiming any more, and, therefore, the plaintiff's suit was liable to be dismissed on this score alone. Mr. M.M Sulaiman, learned Subordinate Judge of Singhbhum, Chaibassa, by his judgment, dated 30-6-1953, negatived the defence, and decreed the plaintiff's suit for the balance. Hence, the present appeal by the defendant Railway.

4. The only point pressed in support of the appeal by Mr. P.K Bose is that the plaintiff was estopped from claiming more than what it had already been paid by the defendant in full and final settlement of the plaintiffs claim, which was unreservedly accepted by it without any protest.

5. The plea of estoppel is based on paragraphs 10 and 11 of the printed letter written by the railway to the plaintiff on 5-3-1951 (Exhibit 1) in reply to the plaintiff's letter dated 27-8-1949, where the railway referred the plaintiff to paragraphs 10 and 11 of this printed letter. Para 10 of exhibit 1 says that the Financial Adviser and Chief Accounts Officer of the Railway was being advised to remit to the plaintiff a sum of Rs. 4,310/-, being the compensation in full and final satisfaction of the plaintiffs claim in connection with the consignment in question, and that the plaintiff might expect payment shortly by cheque. In paragraph 11 of exhibit 1, it was further mentioned that a receipt was being enclosed which might be filled in and signed by the plaintiff & sent to the Cashier, B.N Railway, Kidaerpore to expedite payment. It is, however, mentioned in exhibit 1 at the bottom that this amount of Rs. 4,310/- was the cost of 43 maunds 4 seers of biri tobacco at the rate of Rs. 100/- per maund as per sender's bijak, the copy of which is exhibit 4.

6. The defendant's case is that the plaintiff signed the receipt for Rs. 4,310/- and received the cheque and encashed it, and, thereafter, sent the letter dated 19-3-1951, exhibit 1(a), to the defendant saying that the payment of Rs. 4,310/- by the railway was only a part payment of the plaintiffs claim for Rs. 9,670/5/-, and, therefore, the balance might be sent to the plaintiff.

7. The argument of Mr. Bose is that, when it was definitely stated in paragraph 10 of exhibit 1 by the defendant that Rupees 4,310/- was the compensation in full and final satisfaction of the plaintiffs claim and the plaintiff accepted it without any protest, it was not open to the plaintiff to write the letter exhibit I(a), after encashment of the cheque, informing the railway that was only a part of its whole claim. Further, it was submitted that this letter, exhibit 1(a) will not at all make the defendant liable and it will not enable the plaintiff to get over estoppel in view of the letter of the defendant, exhibit 1.

8. He further submitted that the learned Subordinate Judge is wrong in saying thar exhibit L does not show that the amount was in full and final satisfaction of the claim. This contention of Mr. Bose is certainly correct, because exhibit 1, both the original and the printed, does show that it was mentioned definitely in paragraph 10 that Rs. 4,310/- was the compensation in full and final satisfaction of the plaintiffs claim in connection with the consignment in question.

9. Mr. Salieshwar De, who appears for the plaintiff-respondent, in reply contended that the statement relied upon by Mr. Bose in exhibit II cannot estop the plaintiff, because the Bijak, the copy of which was exhibit 4, on the basis of which the cost of 43 maunds 4 seers of biri tobacco was calculated at the rate of Rs. 100/- per maund, itself showed that the standard rate was Rupees 200/- per maund, and, therefore, it was not open to the defendant to take the lower figure, which did not represent the standard rate and the correct rate, and to say that the plaintiff should accept the lower claim, and not the real and correct claim.

10. On behalf of the defendant, no witness was examined. On behalf of the plaintiff, however, one witness was examined, who was the registered attorney of the plaintiff company; he was P.W 1. He stated that the tobacco in question was purchased at Rs. 200/- per standard maund. His statement is supported by the Bijak, exhibit 4, in which it is mentioned that the sale rate was Rs. 100 per Gujerati maund, which was equivalent to Rs. 200/- per Bengali maund. There is no dispute about this fact. P.W 1, who stated that the tobacco was purchased at Rs. 200/- per standard maund, was not at all cross-examined by the defendant. In these circumstances, on the evidence, as adduced, it must be accepted that the plaintiff purchased the tobacco at the rate of Rs. 200/- per standard maund, which was equivalent to Rs. 100/- per Gujerati maund.

11. It was admitted by learned Counsel for the parties that two maunds Gujerati were equivalent to one maund standard. In these circumstances, the only inference that can be drawn is that the railway took the lower figure deliberately in order to make payment of less compensation, and calculated the price of the damaged quantity of biri tobacco at that rate and paid it to the plaintiff. The plaintiff also, knowing obviously that the calculation had been made at the rate of Gujerati maund, kept quiet, accepted the payment and, after encashing the cheque, made a claim for the balance.

12. In these circumstances, it cannot be said that the defendant was not aware of the true position or that the plaintiff was unaware of it; both the parties were equally conversant with the true state of facts; and, therefore, on the facts of the present case, it is absurd to refer to the doctrine of estoppel and rely on section 115 of the Evidence Act. To a case like the present one, where the truth of the matter is known to both parties, there can be no estoppel, and the principles of section 115 of the Evidence Act do not apply to such a case: Mohori Bibee v. Dhurmodas Ghose, 30 Ind App 114 : ILR 30 Cal 539 (PC). The plea of estoppel raised by Mr. Bose is, therefore, rejected.

13. Mr. Saileshwar De invited my attention to a Bench decision of the Allahabad High Court in Firm Basdeo Ram Sarup v. Firm Dilsukhras Sewak Ram, AIR 1922 All 461, where Stuart and Sulaiman, JJ. on the facts before them, held that the mere fact that the cheque, in that suit, was retained and cashed could not be conclusive proof in law that the amount was agreed to be accepted on the condition offered.

14. I may, in this connection, also refer to the case of Day v. Me Lea, (1889) 22 QBD 610, which was relied upon in the Allahabad case, in which also the position was very much similar. In that case, the plaintiffs were claiming damages and the defendants sent a cheque to them for a sum less than the amount claimed, which cheque the plaintiffs retained. Nevertheless, it was held that this did not amount to full accord and satisfaction of the claim. It was further remarked that:

“If a person sends a sum of money on the terms that it is to be taken, if at all in satisfaction of a larger claim and if the money 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 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. Both on authority and principle therefore it is clear to our minds that the mere fact that the plaintiffs retained the cheque and cashed it cannot be a conclusive proof in law that they had agreed to accept the amount on the condition offered by the defendants.”

15. I am in respectful agreement with the above observations of their Lordships, which, in my opinion, are very apposite here also.

16. Mr. Saileshwar Deo also referred to a Bench decision of the Bombay High Court in Firm Kaluiam Sitaram v. Dominion of India, AIR 1954 Bom 50, in which the distinguished Chief Justice of that Court, Chagla, C.J, with whom his learned colleague, Tendolkar, J, agreed, observed:

“Now, we have often had occasion to say that when the State deals with a citizen it should not ordinarily rely on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent judges, as an honest person.”

The above observation of Chagla, C.J, to my mind, applies with equal force to the present case also, and I respectfully agree to the same.

17. In the instant) case, turning away from law and looking to the equities of the case, there can be no doubt that the railway administration was liable & was bound to pay the entire claim of the plaintiff, but it tried to evade payment, relying on technicalities in law. In the words of the distinguished Chief Justice of the Calcutta High Court. Sir George Rankin, in Chandra Nath v. Nabadwip Chandra, 35 Cal WN 9 : (AIR 1931 Cal 476), it appears to me to be “merely piling unreason upon technicality” to hold in the circumstances of this case that it is open to the defendant, on the ground of estoppel, to object to the jurisdiction of the Court to pass a decree in favour of the plaintiff for the unpaid claim.

18. Even if this plea of estoppel were tenable here, I would have declined to push the doctrine so far as that.

19. For these reasons, I find that, neither in law nor in equity, the defendant is entitled to resist the claim of the plaintiff, and, therefore. I hold that the plaintiff's suit has rightly been decreed.

20. In the result, the appeal fails and is dismissed with costs.

AC/G.M.J

21. Appeal dismissed.