( 1 ) THIS is a revision by the defendant Union of India through the General managers, Central Railway and Western Railway from the judgment and decree dated December 13, 1971 by the Second Additional District Judge, Gwalior exercising the powers of a Small Court whereby the plaintiff non-petitioner's suit was decreed for Rs. 163. 33 P.

( 2 ) THE plaintiff's case is that nine bundles of tobacco were booked from Pedla railway Station on 20-3-1969 for delivery to the plaintiff at Gwalior Railway station. But all the 9 bundles of tobacco were found damaged when they were unloaded at Gwalior Railway Station. The plaintiff's allegation is that the tobacco was discoloured and had become wot on account of rains and moisture with the result that it became unfit for human consumption. It was pleaded that tobacco had been damaged on account of negligence and misconduct of the defendant Railway and its employees. Consequently, after serving notice under section 80, C. P. C. and Section 78 of the Railways Act the plaintiff filed the present suit for damages assessed at Rs. 504. 58 P. The defendant denied the plaintiff's claim and pleaded that the goods had not been damaged due to negligence and/or misconduct on the part of the Railway and its employees, it was also pleaded that the claim of the plaintiff had been settled fully and finally by payment of Rs. 283. 06 P. The plaintiff examined Shri Onkar Prasad in support of his case whereas the defendant did not produce any evidence. The lower court held that the tobacco was damaged due to the negligence and misconduct on the part of the defendant Railway. Consequently, after giving credit for Rs. 283. 05 P. paid by the defendant, it passed a decree for Rs. 163. 33 P.

( 3 ) THE learned counsel for the petitioner has urged, in the first instance, that, vide certificate Ex. P-1 the defendant had remitted a cheque for Rupees 283. 05 p. in full and final settlement of the plaintiff's claim and, therefore, the plaintiff was not entitled to get any more amount. In support of his contention the learned counsel has relied upon AIR 1963 SC 250.

( 4 ) IT may be observed that the suit was filed on 6-1-1970 and during the pendency of the suit a cheque for Rupees 283. 05 P. was sent under the covering printed letter dated 6-3-1970 (Ex. P-6 ). It is, no doubt, mentioned in the printed letter that the amount of Rs. 283. 05 P. was being sent in full and final settlement of the claim. It is also true that the plaintiff encashed the cheque. P. W. 1 Onkar Prasad has stated that the letter Ex. P-6 and the cheque had been received by him after the institution of the suit and that the cheque had been encashed. He has further stated that even after receipt of Ex. P-6 he never came to know that the cheque had been sent in full and final payment of the claim. Whether this statement of the plaintiff is correct or not, there is no denying the fact, that the plaintiff did not accept it in full satisfaction. Admittedly he has not passed a receipt in full satisfaction. The cheque was encashed but no receipt was sent. On the contrary, even after receiving the cheque the plaintiff prosecuted the suit for the balance of the amount. The defendant has led no evidence to show that the intention of the plaintiff was to accept the cheque in full and final satisfaction of the claim,

( 5 ) IN Basdeo Ram Sarup v. Dil Sukh Rai (AIR 1922 All 461) it was held that the mere fact that the plaintiff retained the cheque and ultimately encashed it, cannot be a conclusive proof in law that the amount was agreed to be accepted on the condition offered. In (1889) 22 QBD 610 it was observed:-" 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