TMI Blog1935 (2) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... e this mill will be referred to as the N mill. It was managed by one Ba Maw, under the general supervision of the Bank's branch manager at Bogale, one Pya Cho. 2. Paddy traders are, not unnaturally, desirous of anticipating to some extent the realization of the value of the produce which they bring to be milled; and in order to do so they obtain advances from the Bank on the security of the produce, the advances being repaid when the produce is sold as rice. The procedure was as follows: When a trader desired an advance on the security of his produce, the mill owner or his manager would fill in a printed form (called war. rant of goods) showing the amount of paddy held on behalf of the trader and its value. The warrant of goods recites (anticipatively) that the Bank has granted to the trader an advance, and contains undertakings to hold the produce, with the consent of the trader (who had to sign the document), on behalf of the Bank as security for the advance; not to deliver up possession of the produce except under the written directions of the Bank; and to affix labels on or near the produce so as to identify it as the Bank's security. On receipt of this warrant the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se two documents were handed to E. D. Patel, the agent of the Japanese company, by their vendor, Saw Kai, and that thereupon the Japanese company paid to Saw Kai the amount shown on the invoice. This document has written on it the words and figures Checked and paid. R. D. Patel.: 30.4.30. 6. A further block of 350 bags was the subject-matter of a similar delivery order and invoice dated respectively 1st and 2nd May, 1930, payment of the invoice price (Rs. 4,155-3-0) being made to Saw Kai on the latter date. The final block of 150 bags was the subject-matter of a similar delivery order and invoice dated 10th May 1930, payment of the invoice price (Rs. 1,780-13-0) being made to Saw Kai on 11th May 1930. 7. Saw Kai, having received the money, absconded without having paid, off the Bank's security, with the result that Ba Maw received no authority from Pya Oho to release the 1,200 bags of rice. On 26th May 1930, Ba Maw wrote Patel a letter refusing to deliver the rice. On the 5th June the Bank telegraphed to the Japanese, company that as Saw Kai had not cleared his produce loan, they could not deliver. This was followed by a letter of the same date, asserting their security ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng delivery according to the delivery orders without any claim being made by the Bank. Finally, in para. 8 it is pleaded that the Bank's claim to security had been waived, or that the Bank were estopped from asserting the claim, the representation alleged to ground the estoppel being thus defined: that on payment of the several sums aggregating ₹ 14,246-6-6, delivery of the 1,200 bags in suit would be given. 12. Patel in his evidence had a very different story to tell. According to him, Ba Maw, on behalf of the Bank, guaranteed the due performance of all contracts entered into with the Japanese company by traders whose paddy was milled at the N. Mill : Ba Maw was to countersign the trader's contract because if the contract was not fulfilled by the trader, he would fulfil the contract . He added that he would not have entered into the contract with Saw Kai if Ba Maw had not guaranteed its due performance. He gave no evidence of any such verbal representation by Ba Maw as to delivery as is referred to in paras. 7 and 8 of the plaint, or of any such contract or waiver as are alleged in paras. 5, 6 and 8 of the plaint. Although some of the other witnesses for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bound by and estopped from denying the truth of the representations-made to the plaintiffs by Ba Maw. The learned Judge having established the-first limb of the double estoppel, then, dealt with its second limb. This part of the judgment is crucial, and as their Lordships read it, it depends entirely upon the meaning and effect of the letters O. K. which Ba Maw placed upon the delivery orders. Cunliffe, J., holds that they amount to a statement that there will be no insistence upon any check on delivery, and he then proceeds thus: In this connexion the only check... was the operation of the lien, the effect of which is waived by the letters O. K. In other words, I take the view that the second part of the estoppel consists of an estoppel of a principal by the waiver of his agent, in this case the estoppel of Dawson's Bank by the waiver of Ba Maw. 16. These words, which are the true foundation of the judgment, disclose, in their Lordships' opinion, a confusion of thought upon the subjects of estoppel and waiver. The question of estoppel is governed by Section 115, Evidence Act, which for the present purpose seems to their Lordships not to differ from the law in Engl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the letters O.K. on the delivery orders. 18. Without some assistance in the way of evidence their Lordships might have found themselves in a difficulty, and all the more so since the origin of this commercial barbarism (which, according to the Oxford Dictionary, was already in use as far back as 1847) is variously assigned in different works of authority. The general view seems to be that the letters hail from the United States and represent a spelling, humorous or uneducated, of the words ' All correct. Another view is that they represent the Choctaw word okeh, which signifies So be it. 19. The evidence in this case as to the meaning of the letters O. K. is sometimes confused with the witness's contention as to what Ba Maw intended them to denote. Thus Patel says; The works O. K. were put to indicate that payment had been made... and that he was bound to make the delivery mentioned in the delivery order. He added later: I think the meaning of the letters O. K. is 'all correct,' because these letters are in general use. The initials O. K. are in general use by all sorts of people, and it is not limited to any trade. 20. Prabhulal, one of the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might or might not be enforceable in contract. The words O. K. must mean that the actual delivery of the goods would not be opposed, and that the Bank would waive their lien upon the goods so that the purchaser could obtain delivery, 23. that is the High Court's statement of the plaintiffs' contention : and in his judgment, Cunliffe, J., states that the letters O. K. imply that there will be no insistence upon any check on delivery. 24. But the difficulties of the plaintiffs cm this appeal do not end there. There is complete absence of any evidence that Patel, when he paid the money to Saw Kai, relied upon the presence of the letters O. K. on the delivery orders or bills, and this is an essential element in establishing the plaintiffs' plea of estoppel. Indeed, it is difficult to see how Patel could have given any such evidence, for his contention throughout was that the Bank, through Ba Maw, had guaranteed the due fulfilment by the traders of all their contracts with the plaintiffs; and if that were so, there could be no reason for Patel to place any reliance upon the letters O. K., whatever that meaning, in parting with the purchase money. According to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4th January 1933, a memorandum of appeal was presented by the plaintiffs and an application was made by them praying that the cause title might be amended. This was acceded to by an order of the High Court, and the title of the proceedings on the hearing of the appeal disclosed the Japanese company as appellants against the Bank by their secretary, Hugh Dawson, as sole respondents: in other words, an appeal by the plaintiffs from a decree in a suit to which the Bank were not parties, is brought by the plaintiffs against the Bank as sole respondents. The decree made by the High Court on the hearing of the appeal is thus entitled: 27. NIPPON MENKWA KABTJSHIK A KAISHA (The Japan Cotton Trading Co., Ltd.) Incorporated in Japan, 654, 'Merchant Street, Rangoon, represented by their Mapager Mt. T. Saito ... ... ... Appellant (Plaintiff). v. DAWSON BANK LTD., a public company incorporated under the Indian Companies Act having its Head Office at Pyapon by its Secretary High Dawson ... ... Respondents (defendants 2 and 3). 28. By its operative part it provides for a decree against the respondents defendants 2 and 3 for a large sum; it further orders the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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