BHARUMAL UDHOMAL Vs. SAKHAWATMAL VESHOMAL

JUDGEMENT

(1.) THE plaintiffs, filed this suit from which this appeal arises to recover a sum of Rs. 4,700 which they alleged they had lent and advanced to the defendants. The learned Principal Judge who tried this suit held on merits in favour of the plaintiffs. He held that the loan had been proved and that the defendants were liable to repay that amount but he non-suited the plaintiffs on the ground that the City Civil Court in Bombay had no jurisdiction to try the suit and therefore he ordered that the plaint should be returned to the plaintiffs to be presented to the proper Court.

(2.) IN this appeal the only point that lias been Rrgueu has been one of jurisdiction. The defendants have not appeared. The question of jurisdiction arises on these facts. The plaintiffs and defendants are displaced persons from Pakistan and the Joan was advanced by the plaintiffs to the defendants in Pakistan. At the date when the suit was filed, the plaintiffs were residing in Greater Bombay and the defendants were residing at Kolhapur, and the plaintiffs invoked the jurisdiction of the City Civil Court at Bombay on two allegations. One was that subsequent to the advancement of the loan the defendants had agreed to repay the money in Bombay, and the o'her ground was that apart from the agreement there was an obligation under common law upon the defendants to seek out their creditors, the plaintiffs, ?nd to repay the amount, and as the plaintiffs were in Bombay the moneys had to be repaid in Bombay. With regard to the first ground the Principal Judge disbelieved the evidence of the plaintiffs, and Mr. Ram Kirshna for the appellants has not troubled us with regard to that finding; he accepts that finding. But with regard to the second, the learned Principal Judge following a decision of tills Court in --'puttappa v. Virabhadrappa', 7 Bom LR 9913 (A), came to the-conclusion that the common law ruie that a debtor must seek out his creditor and repay the amount due to him where the creditor is docs not apply here. He took' the same view as in -- 'puttappa v. Virabadrappa (A)' that Section 49, Contract Act, did not make it possible for the Courts in India to apply the common law rule. It is necessary to examine the correctness of this decision.

(3.) NOW, apart from authorities, when we turn to Section 49 what is required is that the promisor has to apply to the promisee to appoint a reasonable place for the performance of the promise and the promisor has to perform his promise at such place. Therefore, strictly, Section 49 only comes into operation when there is an application by the promisor to the promisee. In this case it is not suggested that the promi-soi made any application to the promisee for the performance of the contract in suit and therefore strictly Section 49 would have no application. If Section 49 has no application then there is no reason why the common law rule should not apply in India. To the extent that any provision in the Contract Act militates against the common law rule, the common law rule must be deemed to- have been displaced by the statutory provision contained in Section 49. It there is no inconsistency between Section 19 and the common law rule, there is no reason to hold that in a Case like this where there is a luan advanced bv the creditor to the debtor, the contract makes no mention as to where the amount should be repaid 'and tl\e debtor has made no application to the creditor asking him to fix the place ol. performance why the common law rule that the debtor should find out his creditor should not apply. The common law rule is a reasonable rule and lit is in conformity with justice and equity because it recognises the obligation of the debtor to pay his debt and that obligation can only be discharged by the debtor going to his creditor and repaying the amount, and the common law rule imposes this obligation only when there is no express contract to the contrary. But whatever ouv view of Section 49 may be, if the view taken by the Division Bench. that the common law rule has been displaced by Section 49 we would be bound by it.