RAMASUBRAMONIAM Vs. RANGANATHAN

JUDGEMENT

(1.) An important question arises for decision in this appeal. The facts of the ease are few and simple. The plaintiff in O.S. 118 of 1973 on the file of the Subordinate Judge's Court of Palghat is the appellant. The suit was one for recovery of amount due under a pronote executed by the defendant in favour of the plaintiff. The execution of the pronote was admitted. But the contention of the defendant was that the suit ought not to be entertained by the court at Palghat as the defendant was a permanent resident of Madras at the time of the institution of the suit and the execution of the note was also at Madras. The pronote executed by him was sent by him to the plaintiff through post. The defendant also raised a contention that the pronote was not supported by consideration. The court below has, by the judgment under appeal, directed return of the plaint to the plaintiff for presentation to the proper court, holding that the court at Palghat had no jurisdiction to entertain the suit. The court also found that the pronote was not supported by consideration except to the extent of Rs. 3275/-. In this Civil Miscellaneous Appeal the plaintiff challenges the direction returning the plaint for presentation to the proper court. There is also a case urged by the appellant that in any view the court below which had refused to entertain the suit in that court should not have gone into the question of consideration for the pronote as it has done.

(2.) The resort by the plaintiff to the Subordinate Court of Palghat is sought to be justified on the ground that part of the cause of action did arise at Palghat. That is because, according to the plaintiff, the place of performance was Palghat. In support, reliance is placed on what is said to be the doctrine of the obligation of the debtor to seek out his creditor to make payment. This rule, it is said, is applicable to this country. That is a controversial question on which differing views are held by the High Courts in India. There is another equally controversial point. Assuming that toe rule of the obligation of the debtor to seek out his creditor to make payment applies to this country, the further question would be whether this rule could be extended to negotiable instruments. There again the views held by the Courts in India are not uniform.

(3.) The place of suing is determined in this country on the basis of the provision in S.20 of the Code of Civil Procedure, 1908. S.20(c) enables a suit to be instituted where the cause of action whole or in part arises. In the case of a contract which obliges the promisor to make payment to the promisee the cause of action would be non payment and that would arise at the place where the promisor is bound to perform his obligation. If the contract expresses a place of performance no difficulty would arise as obligation fur performance must be found to be at that place. If, under the terms of the contract, the place of performance is not specifically stipulated, but an implied term as to such place can be read the cause of action would arise at such place. Though implied it is still a term of the contract and that would govern the obligation to perform. Where the contract is silent, in the sense that there is neither express nor implied term as to the place of performance, S.49 of the Indian Contract Act would arise for application. That Section reads thus: