Lord Carson -

The appellant (a bank incorporated under the laws of Holland) as plaintiff brought an action against the respondents as defendants to recover the sum of Rs. 10,382-4-3 as principal and interest due from respondent 1 on a cash credit account and from respondent 2 on a letter of guarantee and as money due from both respondents on a promissory note. By their written statement the respondents alleged that the appellant had failed to give credit for a sum of Rs. 10,000 paid into the said account on 29th December 1914, by one Shammugam Chettiar, an assistant in the employ of respondent 1 from which it was alleged was received by one Ong Eng Tang, a receiving cashier in the employ of the appellant. The only issue raised in the present suit and in this appeal is one of fact, viz., whether respondent 1 paid to the appellant Rs. 10,000, as alleged, in cash on 29th December 1924?

The action was tried by Das, J., in the High Court of Judicature at Rangoon, original civil jurisdiction, who by his judgment dated 9th March 1926, held that respondent 1 firm did not pay the sum of Rs. 10,000 to the appellant on 29th December 1924, as alleged, and he accordingly granted a decree in favour of the appellant, with costs. On appeal from the decree of Das, J., the High Court (appellate civil jurisdiction) came to a different conclusion, allowed the appeal and dismissed the appellant's suit with costs. Hence the present appeal. Now, the question to be determined entirely depends on whether the appellate Court was right in holding that the trial Judge had erred in disbelieving the story told by Shammugam, supported as it was by one Sathappa Chettiar (taken on commission), a clerk in the employment of a Rangoon firm, and one Naina Mohamed Rowther, a Chulia or Mohammedan from the Madras Presidency, and who appears to have been the owner of a rope factory. It is not disputed that there is no entry of the payment alleged in any book of the bank, nor has respondent 1 got any written acknowledgment of the amount having been received. The absence of any such entry or the failure to produce any written acknowledgment is, of course consistent with either view, viz., (1) that the sum in question was never paid to the cashier, or (2) that, having been so paid, it was retained by the cashier or some other member of the staff and converted to his own use, in which case one would not expect to find any record of the transaction in the books of the appellant.

The case, therefore, has to be decided almost if not entirely, on the credibility of the three witnesses named, and the appellate Court very properly recognizes and expresses the difficulty such a case presents of differing from the conclusions of fact arrived at by the trial Judge, who had the witnesses before him, with the exception of Sathappa, whose evidence was taken on commission.

It is not disputed that on 29th December 1924, respondent 1 sent Shammugam their chief assistant, to pay in Rs. 20,000 to the bank. This amount was made up of cheques for Rs. 10,000 and Rs. 10,000 in cash, which consisted of ninetyone-hundred rupee notes and one one-thousand rupee note. Apparently the practice was to enter cheques for paying in and cash in different slip books, which were handed in with the cheques or cash respectively at different counters. As the slip book accompanying a cash payment had to go through several hands before the slip would be detached and the entries on the counterfoil completed, persons who made such payments were in the habit of leaving without receiving back their slip books, and the bank when the entries were completed used to put them in a cupboard, from which their owners took them at their convenience. Now the story of Shammugam as given in evidence is that he went to the receiving cashier, Ong Eng Tang, that before he tendered the notes, and while he was standing with his hand over the notes, over the book, Sathappa arrived with a Rs. 10,000 note and asked the cashier for chang