Deposit by cheque is valid.

This appeal arises out of an auction of the property, the subject-matter of this appeal, held on 12th September, 1965. The suit was filed by respondents 1 to 4 for the administration of the estate of one Abdul Hameed who died on 1st July, 1963. Pending the suit the plaintiffs and the mortgagees of some of the properties belonging to the estate of Abdul Hameed applied to this Court for the sale of the Maharaja Talkies, which is the property involved in the present appeal. This was ordered on 26th April, 1965, and Murray and Company, Madras, the auctioneers, were appointed Commissioners for the purpose. This auction was subject to confirmation by Court. Pursuant to the order of the Court the auction was held on 12th September, 1965, and the property was sold to the 9th respondent for seven lakhs of rupees, he being the highest bidder. It may be mentioned here that pursuant to the terms of sale the 9th respondent deposited Rs. 5,000 in cash and passed a cheque for Rs. 1,70,000.

It is convenient to extract here the condition relating to the deposit by the highest bidder.

“Condition No. 5.-The highest bidder shall pay into the hands of the auctioneers, immediately after the lot is knocked down a deposit of Rs. 25 per centum on the highest bid amount and shall sign a copy of the conditions of sale acknowledging the bid and shall pay the residue of the purchase money to the auctioneers, within fifteen days from the date of confirmation of sale.”

The auctioneers, who were satisfied with the solvency of the highest bidder, accepted the cheque and immediately submitted a report to the Court setting out these facts and requesting the Court to accept the bid.

Before this bid was accepted by the Court the application, giving rise to this appeal, was filed by defendants 3, 4 and 5 who have 9/24 share in the estate alleging inter alia that the acceptance of cheque as deposit was contrary to the conditions of sale and that this facility was not made available to other prospective bidders.

In support of this application three other persons filed affidavits suggesting that this was a facility afforded only to the 9th respondent and that if the other bidders had been given the same facility they would have given higher bids. The learned Judge, disbelieving the story set up in the affidavits of third parties that they would have been willing to offer higher bids if they were permitted to make the deposit in cheques, came to the conclusion that the deposit by cheque complied with condition No. 3, dismissed the petition of the appellants and later on he seems to have accepted the bid as per condition No. 1 of the conditions of sale which says:

“The property is sold pursuant to the order of Court and the highest bid is subject to acceptance by Court. No person shall advance a less sum at each bidding than shall be named by the Auctioneers.”

It is this conclusion of the learned Judge that is assailed before us.

It is urged by Mr. Ramaswami in support of this appeal that the issue of a cheque did not amount to deposit within the contemplation of condition No. 3. He says that condition No. 3 envisages payment in cash and it was not competent for the auctioneers to accept anything other than cash in coin or in currency. As supporting this proposition he cited the decision in Williams v. Evans1. We do not think that this ruling advances the case of the appellants in any way. On the other hand it furnishes an answer to the argument advanced by Mr. Ramaswami. In that case Blackburn, J., ruled that the payment was made to the auctioneer by a bill of exchange after his authority for receiving the money on behalf of the owner of the property was revoked. It was for that reason it was held there that the payment to the auctioneer did not discharge the purchaser. Said the learned Judge (at page 354):

“If the bill had become due and been paid before the authority of the auctioneer to receive payment had been revoked, it would have amounted to much th