K.T. JOSEPH Vs. PARAKH SONS, CALICUT

JUDGEMENT

(1.) THE petitioner is the defendant.Against him the suit was filed by the plaintiff on a contract dated 7 -8 -1968 entered into between them according to which the amounts were paid to the defendant in advance for the supply of timber.The defendant failed to supply timber and so he became liable to the plaintiff for the advance amount received.For a consolidated amount of Rs.56,000/ - postdated cheques were issued by the defendant in favour of the plaintiff drawn on the South Indian Bank,Kottayam.In case timber was supplied in the mean time,it was agreed that the price of the timber so supplied should be adjusted towards the advance amounts agreed to be refunded by the defendant.The agreements were entered into at Cochin and the timber was to be delivered at Ernakulam.The defendant failed to supply the timber and it so happened that the cheques were also dishonoured.It was in these circumstances that the suit(O.S.65/69)was filed by the plaintiff in the Subordinate Judge's Court at Kozhikode for the recovery of the balance amount with interest thereon and for damages for breach of the contract.The defendant contented "inter alia "that the suit is not maintainable in the Subordinate Judge's Court,Kozhikode,since no part of the cause of action arose within the jurisdiction of that Court.Issue No.9,which related to jurisdiction was tried preliminarily and under Order dated 1 -10 -1969,the learned Judge held against the defendant.

(2.) THE matter to be considered for a proper decision of the question of jurisdiction,so far as the present case is concerned is firstly,as to the place where the amount was intended to be repaid.In Hajee Ummer Koya v.Parthasarathi Rice &Oil Mills(1957 KLT 953)Varadaraja Iyengar,J .,held that where a contract is silent as to the place of payment,it is the duty of the debtor to seek out his creditor and pay him.This is the English common Law Rule,which has been held to be not applicable in India as a matter of law,to determine the forum where the suit is to be instituted.This view was taken by the Punjab High Court in Girdhari Lal v.Hardial Khatri(AIR 1960 Punjab 450 ),which was followed by a Division Bench of this Court in Prabhakara Kammath v.Patel.( 1961(2)KLR 309 ).But the question with which we are confronted in the present case can be decided without invoking the aid of the English Common Law Rule of a debtor seeking the creditor.In Motilal Pratabchand v Surajmal Joharmal(1906 ILR 30 Bom.167 ),Mr.Justice Tyabji held that: Where no specific contract exists as to the place where the payment of the debt is to be made,it is clear,it is the duty of the debtor to make the payment where the creditor is." This follows the principle of Dhunjisha Nusserwanji v.A.B.Fforde(1887 ILR II Bom.649 ),where it was held that: "In the absence of stipulation in the contract,itself,the intention of the parties to it was to guide the court in determining the place of its performance. So also in the present case,the place of performance of the contract,viz .,the return of the advance,was not stipulated in the contract.Such being the case,the payment has to be made at the place of the creditor.This principle was enunciated by the Privy Council in Soniram Jeetmull v Tata &Co,( AIR 1927 PC 156 ).There it was observed: "It is quite true the contract does not say where Messrs.Jeetmull are to pay,but it does say,by an implication which is indisputable,that they are to pay Messrs.Tata Sons &Company,and it follows that they must pay where that firm is.Hence one would think that,upon the face of this contract,not indeed in express terms,but by the clearest implication,payment is to be made in Rangoon.In respect of the whole of this business it is not disputed that the business transactions,out of which the outstanding debts arose,took place in Rangoon,and for this purpose the branch of Messrs.Tata Sons &Company there were the Messrs.Tata Sons &Company concerned.It was objected,however,in the High Court of Rangoon that this constituted an importation of a technical rule of the English Common Law into the Jurisprudence of India,namely,the rule that the debtor must seek out the creditor.The simple answer to that would have been that,on the contrary it was a mere implication of the meaning of the parties. On the applicability of S.49 of the Indian Contract Act,the Privy Council further observed: "Then it is said that no place was fixed by the contract or prior to the institution of this suit for the performance of the obligation of payment,and no application has been made by the promiser to the promisee to appoint a reasonable place and therefore there is no place of payment.Consequently,this section,which it is said replaces any rule of law with regard to the obligation of the debtor to seek out the creditor,has not been satisfied,and so there is no part of the contract,which is performable in Rangoon " ;. Under S.49 of the Indian Contract Act: "When a promise is to be performed without application by the promisee and no place is fixed for the performance of it,it is the duty of the promisor to apply to the promisee to appoint a reasonable place for the performance of the promise and to perform it at such place " ;.

(3.) LEARNED counsel pointed out that so far as our courts are concerned the jurisdiction has to be fixed according to S.20 of the C.P.C .,S.20 no doubt,lays down the rule for determining the forum in which action should be brought.S.20(c)which alone is relevant for the present case,would say that territorial jurisdiction is to be determined in relation to the place from where the cause of action wholly or in part arises.This principle is also attracted in the present case,because the plaintiff has claimed handling charges and interest charged by the Bankers for dishonouring the cheque and this would amount to Rs.53/ - in all.The cheques were dishonoured on being presented to the bankers at Calicut and this loss was incurred at Calicut,within the jurisdiction of the Subordinate Judge's Court.Part of the cause of action has thus arisen within the jurisdiction of the said Court.So,viewed in the light of S.20 C.P.C .,also the Court has jurisdiction and the suit has rightly been instituted in the Subordinate Judge's Court at Kozhikode. The order of the learned Subordinate Judge is hence correct and in confirmation of it,this revision petition is dismissed.