KEDARMAL BHURMAL Vs. SURAJMAL GOVINDRAM

JUDGEMENT

(1.) The question in this case is whether the custom set up by the plaintiff is proved. The learned Judge in the Court below has held the custom not proved upon the ground that according to the witnesses both for the plaintiff and the defendant what is proved is that the constituent should be paid the money due to him by his pakka adatia at the place where he so desires. The learned Judge has also held that as the plaintiff had not given any directions on that point, no part of the cause of action arose within the jurisdiction of this Court and therefore the suit did not lie.

(2.) Now it is to be observed at the outset that the learned Judge has to some extent misapprehended most of the evidence on the custom set up by the plaintiff. The version he has given of some of the evidence is plainly different from what the witnesses have actually said. The effect of the evidence of the witnesses both of the plaintiff and the defendant is summarized by Batty J. as follows:-" The result of the evidence seems to be (1) that as plaintiff admits no place of payment was fixed by the term of the contract: (2) that the place of payment was fixed by custom; (3) that while plaintiff asserts that according to custom the constituent's place of business was the place of payment, most of his witnesses admit that where correspondence is silent on the point, payment must be made either where the constituent is or at any other place to which he may direct remittance to be sent: and that this is not a matter of courtsey or favour but a rule of business : (4) that the constituent always has to bear the loss or to take the benefit of exchange (5) the Adatya's liability for interest ceases with the despatch of the hundi."

(3.) That is the way Mr. Justice Batty reads the evidence of most of the witnesses for the plaintiff.