Acceptance of a conditional tender of payment, made in full and final settlement of a debt, does not constitute accord and satisfaction if the creditor accepts the payment without prejudice to his balance claim.

( 1 ) IN the Court of Small Causes, Calcutta, the plaintiff, who is the petitioner before us, brought a suit against the defendant opposite party claiming Rs. 1974-12-9, being the balance of price of 142 mdst 20srs. of coriander seeds, sold by the former to the latter.

( 2 ) THERE is no dispute that the defendant contracted to buy from the plaintiff 300 bags of coriander seeds, each bag weighing 1 md 10 srs; out of that the plaintiff sold and delivered to the defendant 142 mds. 20 srs. of coriander seeds, in 114 bags. There is also no dispute that the price agreed upon was Rs. 29/6/-per maund. For the quantity delivered, the agreed price would come upto Rs. 4173-11-6. Out of the same, the defendant paid to the plaintiff Rs. 2435-0-9, on December 20, 1955, leaving a balance of Rs. 1738-10-9. Adding interest on the unpaid price and sales tax, the plaintiff laid his claim at Rs. 1974-12-9.

( 3 ) THE defence was that the sum of R. 2435-0-9 had been tendered by the defendant to the plaintiff in full and final settlement of all the dues and the plaintiff accepted the same as such and was, there-lore, not entitled to claim more.

( 4 ) THE trial Judge upheld the contention of the defendant and dismissed the suit. The plaintiff applied for new trial, under Section 38 of the Presidency Small Cause Courts Act, to set aside the judgment and to enter another and a different judgment, but the application failed.

( 5 ) AGAINST the order dismissing his application for new trial the plaintiff moved this Court and obtained this Rule. When the Rule came up for hearing before P. N, Mookerjee, J. , His Lordship referred the matter to a Division Bench because it appeared to him that the case involved "a substantial question of law of sufficient importance. "

( 6 ) THE point for our consideration is whether the manner of tender of Rs. 2435-0-9 by the defendant and the acceptance of the same by the plain-tiff amounted to accord and satisfaction of the entirety of the defendant's liability for payment.

( 7 ) THE reason which weighed with the Court below in dismissing the plaintiff's claim is set out below: (a) "the rule of law, as held in Bowen v. Owen as reported in (1847) 11 QB 130 lays down that a tender is valid if it implies merely that the party offers a given sum as being of that he admits to foe due: but if it implies also, if the other party takes the money, he is required to admit that no more is due, the tender is conditional and insufficient. In the latter case the principal has the option of refusing to accept that tender being conditional. This rule was followed by Their Lordships of the Calcutta High Court in the ruling reported in Digambar Das v. Harendra Narain, 14 Gal WN 617, at p. 625. Their Lordships held that it is well settled that though a tender of a smaller amount than that of which an indivisible and entire claim consists may be invalid as a tender, there is nothing to prevent the creditor from accepting the amount tendered in part payment and his doing so will not preclude him from afterwards claiming the residue of his accounts, always provided that the debtor did not make it a condition of his tender that it be accepted in discharge of the whole. " (b) "we agree with the learned trial Judge that the plaintiff having accepted the tender made under the terms laid down in the letter, Ext. I (d) dated 20/12/55 that the defendants were tendering the said sum in full and final settlement of all dues of the plaintiff in respect of the sowda of 300 hags of coriander seeds after deducting Rs. 1694/8/6 due to the inferior quality of the seeds supplied, the plaintiff, cannot be allowed to say that he accepted the same free of these terms nor can the plaintiff be allowed to lay down his own terms as he did by his letter dated 23/12/55, vide Ext. I (f ). We hold that the plaintiffs claim has been fully discharged by his acceptance of the aforesaid conditional tender. "

( 8 ) BEFORE we examine the reason's given by th