1. This was a suit to recover from the defendant Rs. 2,000 on taking accounts in respect of the sale of 162 bales of cotton sent by the plaintiff to the defendant for disposal between April 18, 1920, and April 5, 1921. The plaintiff resides at Warangaon in the Bhusawal Taluka and sent the goods from Warangaon to Bombay to the defendant who was his Pakka Adatya. There was no allegation in the plaint that a part of the cause of action arose within the jurisdiction of the Bhusawal Court. The allegation in the plaint was that the plaintiff asked the defendant to settle the accounts with the plaintiff, and the defendant refused to send the statement of accounts to the plaintiff at Warangaon, and therefore the cause of action arose at Warangaon within the jurisdiction of the Bhusawal Court. The learned Subordinate Judge held that the Bhusawal Court had no jurisdiction to entertain the suit and returned the plaint to the plaintiff for presentation to the proper Court. An appeal was filed against this order to the District Court, and the learned District Judge also came to the conclusion that the Bhusawal Court had no jurisdiction to entertain the suit and dismissed the appeal. The plaintiff has filed this application for revision.
2. A preliminary point is taken on behalf of the opponent that this Court has no jurisdiction to interfere under Section 115 of the Civil Procedure Code with the decision of the lower appellate Court on the ground that there was only a mistake of law, if 1928 any, committed by the lower appellate Court and reliance is placed on the decision in the case of Balakrishna Udayar v. Vasudeva Ayyar I.L.R (1917) Mad. 793: 19 Bom. L.R. 715. The question of law in this case involves a question of jurisdiction and we have power to interfere under Section 115 of the Civil Procedure Code. See Vishvanath Govind Deshmane v. Rambhat (1890) .15 Bom. 148.
3. It is urged on behalf of the applicant that part of the cause of action arose within the jurisdiction of the Bhusawal Court because the goods were sent from Warangaon, and reliance is placed on Clause (c) of Section 20 of the Civil Procedure Code and also on ill. (a) to that section.
4. The plaintiff in this case sues for an account of the transactions with the defendant as Pakka Adatya, and the jurisdiction will have to be determined by the question as to the place, firstly, where the contract of agency was entred into, secondly, where the contract of agency was to be performed or the performance, thereof completed, and thirdly, where in performance of the contract any money to which the suit relates was expressly or impliedly payable. This would follow from expln. III to Section 17 in the Civil Procedure Code of 1882. That explanation is now dropped as being unnecessary on account of the wide words of Clause (c) of Section 20. The defendant is a Pakka Adatya corresponding, as held in Tika Ram v. Daulat Ram I.L.R (1924) All. 465, to what is known in England as del credere agent, that is to say, an agent or factor who, being entrusted with the goods of his principal to dispose of to the best advantage, is in lawful possession of them with a general power to deal with them without reference to his principal, but guaranteeing the solvency of the sub-purchasers, and while entitled to charge against his principal his expenses, and entitled also to an indemnity from his principal against all losses resulting from carrying out his duty, is under an obligation to pay to his principal the amount due after the accounts have been properly settled. In the present case there is no evidence as to where the contract of agency was entered into. There is no doubt that the contract was to be performed or the performance thereof was to be completed in Bombay. There is also no clear evidence as to where any money was expressly or impliedly payable in performance of the contract of agency. The plaintiff did not produce the correspondence by which the terms of the contract of agency were settled. The plaintiff deposes that the defendant undertook to make payments at Warangaon, but the lower appellate Court is not prepared to accept the bare word of the plaintiff on this point. It is, therefore, clear that in the plaint no allegation was made that part of the cause of action arose within the jurisdiction of the Bhusawal taluka. It is clear also from the evidence that it is not proved that the payment of money was to be made at Warangaon.
5. The question, therefore, is whether the sending of the goods from Warangaon constitutes a part of the cause of action so as to give jurisdiction to the Bhusawal Court. Illustration (a) to Section 20 of the Civil Procedure Code refers to a contract which is completed in Calcutta, and, therefore, clearly the cause of action arises partly within the jurisdiction of the Calcutta Court. In the present case, there is no evidence as to the place where the contract of agency took place and sending of goods is, in our opinion, not a material part of the cause of action according to the decision in Kessowji Damodar Jairam v. Luckmidas Ladha I.L.R (1889) Bom. 404. In Comber v. Leyland  A.C. 524 where goods were sent to the defendant abroad for sale and the proceeds were to be remitted to England by bills, but he sold the goods and kept the proceeds, it was held that since the contract could all be performed abroad, no writ could be issued abroad either for breach of contract or for money had and received. The principal point in determining the question of jurisdiction would be to ascertain the place where the contract of agency was entered into, or where the contract was to be performed, or where the money in performance of the contract was to be paid. Reference has been made to the decision in the case of Kedarmal v. Surajmal I.L.R (1908) Bom. 364.c 10 Bom. L.R. 1230 but that was a case where the constituent resided in Bombay and the Pakka Adatya resided outside Bombay, and the question turned upon the evidence of custom which showed that the money in performance of the contract of agency was to be paid to a constituent in Bombay. That case has no application to the present case where the constituent is not in Bombay but is outside Bombay. We, however, prefer to follow the view taken in Tika Ram v. Daulat Ram (1924) 46 All. 465. where it was held that unless the contract clearly indicated the contrary, the accounting and the payment by an agent of this kind, namely Pakka Adatya agent, must necessarily be done at the place where all the business is transacted. This view was followed in the case of Ram Das-Uttam Chand v. Dhanpat-Diwan Chand (1925) I.L.R. 6 Lah. 153 where it was held that the cause of action in a suit for accounts against an agent arises at the place where the contract of agency was made, or where it was to be performed, and where the refusal to account took place. Reference was made to the case of Motilal v. Surajmal I.L.R(1904) 30 Bom. 1675 it was held that the common law ule applied in the ordinary case of buyer and seller and the ordinary case of principal and agent but not to a commission agent whose business it is to buy and sell goods on behalf of any person willing to employ him as such. The case of Motilal v. Surajmal has been discussed by the Privy Council in Soniram Jeetmull v. Tata & Co. : (1927)29BOMLR1027 I may refer in this connection to the decision of Sir Lawrence Jenkins in Puttappa v. Virabhadrappa (1905) 7 Bom. L.R. 993 According to the decision in Kanji v. Bhagvandas (1904) 7 Bom. L.R. 57, confirmed on appeal in Bhagwandas v. Kanji (1905) I.L.R. 30 Bom. 205. S.C. 7 Bom. L.R. 611 the Pakka Adatya undertakes or guarantees to find goods for cash or cash for goods or to pay the differences. The accounting and payment by an agent of this character in absence of custom or agreement to the contrary would necessarily be done at the place where the Pakka Adatya's business is transacted. In the present case, therefore, there is no evidence as to the place where the contract of agency was made, and it is obvious that the contract of agency was to be performed in Bombay, and the plaintiff's case that the payment was to be made at Warangaon is not believed by the lower Courts. It, therefore, follows that neither the whole nor part of the cause of action arose within the jurisdiction of the Bhusawal Court, and both the lower Courts were right in holding that the Bhusawal Court had no jurisdiction.
6. We, therefore, discharge the rule with costs.
7. I agree.