SRI NARAIN Vs. JAGANNATH

JUDGEMENT

(1.) WE have come to the conclusion that this decision cannot stand as it is at present, and there being an important question of jurisdiction raised, we ought to interfere even in revision. The question whether any part of the cause of action arose in the Court of Cawnpore depends entirely upon the place where, under the contract, either by express agreement or by the intention of the parties, repayment was to be made. Both parties have set up an express contract. That alleged by the plaintiff alone has been considered and has been dealt with, as would appear, rather in the light of what was decided by the Bikaneer Court. It is by no means clear that the previous judgment of that Court was admissible. It is not desirable to say more about the facts than this that in an ordinary case, especially a case against a Bank or some trader who holds himself out as a person to receive deposits, it would not necessarily follow that a re-payment of the deposit was to be made at the place of business of the Bank. In the majority of such oases the intention of the parties is obviously that the money should be paid to the depositor wherever he happened to be when he demanded re-payment. In deciding the question of jurisdiction it may be that the Court will also decide the merits. That cannot be helped, but if in deciding the merits, it comes to the conclusion that the payment was to be made at Bikaneer, then obviously it must give effect to that decision and decide that there is no jurisdiction in itself to determine the suit. In onsidering the somewhat nice question which appears to arise, the Court must not lose sight of the fact that the sale of the jewellery and the deposit of the money was made by the deceased woman after, and possibly in consequence of, her husband s death; it was done in the company of her father with whom she had come to Bikaneer and shortly before her return to Cawnpore to her parents house and further, it is suggested by the defendant, in consequence of a dispute with her mother-in-law. It will further not lose sight of the fact that it was a continuing contract, and that there was a liability on the part of the defendant riot only to re-pay the money deposited but until re-payment was demanded, to make periodical payment of interest. These circumstances of course all have their place in the consideration of the real question where payment was to be made if no express provision on the subject was made, and the Court will no doubt further have regard to the fact that the ordinary Rule is that the debtor must seek his creditor to pay him and that, as a general rule, people do not make express stipulations upon the subject when they are making arrangements of this kind, because the question of suing for the deposit is far from their minds. WE, therefore, remand the whole case to the Court of first instance through the lower Appellate Court to be restored to its original number on the record and to be tried according to law. Costs in all Courts to abide the result.