SAILENDRA NATH MOOKERJEE Vs. RAM SUNDAR GHOSH

JUDGEMENT

(1.) We are invited in this Rule to set aside a decree of a Court of Small Causes on the ground that it was made without jurisdiction. The plaintiffs sued to recover money due on a hat chita alleged to have been executed in their favour by the defendants on the 29th January 1910. Monetary transactions between the parties and their predecessors appear to have been of considerable standing. The original hat-chita was granted in favour of the father of the plaintiffs. In that hat-chita, the parties were described as residents of Shibloon (within the jurisdiction of the Court of Katwa), and in the hat-chita on which the suit is brought the creditors are similarly described as residents of Shibloon. The money is alleged to have been advanced at Shibloon; the parties, at the time of the loan, were residents of that place where their ancestral housesare situated. Prima facie, therefore, the Court at Katwa has jurisdiction to take cognizance of the matter, under Section 20 Clause (c) of the Code of Civil Procedure, 1908. The plaintiffs, however, assert that they are entitled to maintain the suit in the Burdwan Court, because the cause of action arose within the jurisdiction of that Court. One of the plaintiffs now resides in Burdwan and practices there as a Pleader, and it was sought to be proved in the Court below that there was an agreement for payment of the money at Burdwan. The Small Cause Court Judge, however, has not expressly found that there was such an agreement although he has noticed this allegation on the part of the plaintiffs. In the plaint itself, it is not asserted that at the time of the loan the parties agreed that the money should be re-paid, not where it was advanced but at Burdwan where one of the creditors resided. In the notice of demand sent on the 15th January 1912, there is no allegation of such an agreement between the parties. Under these circumstances, it is fairly clear that the plaintiffs have failed to establish that the Burdwan Court has jurisdiction.

(2.) The case before us is very much stronger than that of Raman Chettiyar v. Gopalachari 31 M. 223 : 4 M.L.T. 97. There, a promissory-note payable on demand was made at Tanjore and no place was fixed expressly or impliedly for payment, The creditor, however, resided at Kumbakonam and he commenced the suit within the jurisdiction of the Court at Kumbakonam. It was held that the suit was not maintainable at Kumbakonam. Sir Arnold White, C.J., pointed out that, under these circumstances, looking at the contract and at the facts which existed at the time the contract was made, the contract must be taken to have been intended to be performed within the jurisdiction of the Court at Tanjore see the judgment of Cotton, L.J., in Reynolds v. Coleman 36 Ch.D. 453 : 56 L.J.Ch. 903 : 57 L.T. 588 : 35 W.R. 813 and of Lindley, L.J., in Rein v. Stein (1892) 1 Q.B. 753 : 66 L.T. 469 : 61 L.J.Q.B. 401. In the case before us, it must be borne in mind that when the amount was originally advanced, the contract was with the father of the plaintiffs and there is no suggestion that he ever resided at Burdwan; there is no presumption, therefore, that there was any agreement to re-pay the loan at Burdwan. The fact that in the notice of demand, the debtors were called upon to pay the money at Burdwan does not plainly affect their position. The money was presumably re- payable at Shibloon where at was advanced and where both the parties resided at the time of the transaction; that presumption has not been rebutted by the plaintiffs by proof of an agreement to the contrary. Section 49 of the Indian Contract Act is of no avail to the plaintiffs, because as pointed out by Sir Arnold White, C.J., in Raman Chettiar v. Gopalachari 31 M. 223 : 4 M.L.T. 97, that section does not apply where, as here, the money is payable on demand and not without application by the promise." Section 50 also is of no assistance as it merely lays down the elementary rule that a promisor is discharged from liability if he performs the promise in a manner or at a time prescribed or sanctioned by the promise.

(3.) It is worthy of note that the objection as to jurisdiction taken in the Court below and re- iterated here is of substance and not of form, because if the suit is tried at Katwa, it will be tried as a regular Civil suit by a Munsif and an appeal on the facts will lie to the District Judge, whereas if it is heard at Burdwan, it is summarily tried as a Small Cause Court suit. Under these circumstances, we are of opinion that the Rule must be made absolute, the decree of the Small Cause Court Judge discharged, and that Court directed to return the plaint to the plaintiffs for presentation to the proper Court. The petitioners are entitled to the costs of this Rule. We assess the hearing fee at one gold mohur.