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 outest 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 dependent 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 constituents 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.
4. A careful perusal of the plaintiff's witnesses has satisfied me that it is not an accurate description of what they have said. The net result of that evidence correctly read is that primarily the place of payment is the place where the constituent resides, which in the present case is Bombay, but that the payment should be made in any other place, if the constituent has chosen to give directions to that effect.
5. [After discussing the evidence given by different witnesses, his Lordship continued].
6. Upon the whole, then, I have arrived at the conclusion that the weight of the evidence is in support of the custom set up by the plaintiff. Batty, J. would, I think, have come to the same conclusion if he had not misapprehended the evidence of several of the witnesses.
7. But it was argued that an inference to the contrary must be drawn from certain circumstances, namely, the hundyaman system and loss of interest on hundis in transit. I do not think that it is a necessary inference from those circumstances that they are inconsistent with the custom set up by the plaintiff. It must be remembered that the transaction we have to deal with is one between a principal and his agent. Where the latter has to remit to the former moneys which he has collected for the principal he is certainly entitled to charge all the expenses he has to incur in collecting and sending. The evidence shows that hundyaman is charged on that account as part of the contract. It is but reasonable that if the custom is that an up-country agent should pay to his principal in Bombay moneys collected by the former on the latter's account, the agent ought to debit the principal with charges incurred in remitting the moneys to Bombay : and that the principal should lose interest during transit. That is also the conclusion come to by Batty, J., at the page 114 where he remarks: 'The evidence in this case shows that he undertakes to send such profits not as a debt due from himself but as proceeds realized by him on the constituent's charges, and custom recognises that he is entitled to such charges as an agent as under Section 217 of the Contract Act for expenses properly incurred by him in conducting such business.' If then these are the terms of the contract, we do not see how they affect the material question as regards the custom set up by the plaintiff. The learned Advocate-General has, however, sought to bring this case within the principle of Gomher v. Leyland 30 B. 167 : 6 Bom. L.R. 1038. He has argued that what the evidence establishes is that the up-country pakka adatya has to remit the money to his constituent in Bombay and when he has remitted the money by means of a hundi, then his obligation is at an end. No doubt some of the witnesses have spoken of remittance but they were not asked whether they understood payment and remittance as synonymous expressions. It is merely speculating to suppose that they so understood, especially when we find that most of the witnesses have distinctly stated that the up-country adaiya's liability ceases not when he has simply remitted the money, but when the money in cash is received by the constituent. One of the witnesses examined by the defendant, viz., Ramanand, says (page 56) that the constituent will not give credit to the adatya merely because the latter has sent a hundi for moneys due; credit will be given after the constituent has cashed and received actual payment. The effect of the evidence is to prove that the pakka adatya's liability ceases when hard cash has come into the hands of his constituent. That circumstance distinguishes the present case from Comber's Case (1898) A.C. 524 : 67 L.J.Q.B. 884 : 79 L.T. 180.
8. For these reasons, I think, the decree of the Court below must be reversed and as the learned Judge in that Court disposed of the suit on a preliminary point, we must remand it for trial on the merits. Plaintiff must bear the costs of the previous hearing of the appeal and have the costs of the present appeal heard before us and the costs of the issues tried in the Court below.
9. I agree with my learned colleague in the order he has proposed. but in deference to the arguments we have heard I think it is desirable to state my views as briefly as possible.
10. The only question before us is whether the money payable under this contract is payable in Bombay so that the cause of action may be said to have arisen in part within the jurisdiction.
11. Now it seems to me that this case is one which depends entirely upon its own evidence. What does the evidence show? Does it show that the money is payable in Bombay or does it show only that the money is payable where the principal, the creditor, elects to be paid? In my opinion, it shows that the money is payable in Bombay with a discretion to the principal to select some other place for payment if he chooses to do so. [His Lordship discussed the evidence of several witnesses and continued]:
12. Then it is said that inference is displaced by the circumstance that admittedly it is the principal who has to bear the charges on account of remittance and of exchange, this latter item including the item of interest. But I Cannot take that view. The principal's liability for these charges, if it stood alone, would, no doubt, be some indication that payment was to be made at Akola, though the indication would be faint inasmuch as the Agent's authority to deduct these charges may be referred to Section 217 of the Contract Act. But, however, that may be, in my opinion, the best answer to the argument is this, that the evidence must be considered as a whole and, so considered, it shows that by the ordinary mercantile usage attached to this form of contract, the contract embodies both stipulations, first, that the money should be payable in Bombay, and secondly, that the Agent should be entitled to deduct these charges. I can see no reason why these two stipulations should not co-exist in the same contract if the parties are minded to combine them. And on the evidence in this case I find that that is precisely what the plaintiff and the defendant elected to do. That, in my opinion, is the contract which they made. Some assistance to the respondent was sought to be obtained from the use of the phrase 'Akola chalan,' but the word chalan' means no more than currency and the Akola currency is admittedly the British currency. That being so, it seems to me that the only distinction sought to be introduced was the distinction between the British currency of Akola and the currency of the neighbouring Native State which, borders upon Akola. It may be desirable just to notice the case of Ramam Chettiyar v. Gopalachari 31 M. 223 though it has not been cited to us. That case is distinguishable inasmuch as there the only fact in the plaintiff's favour was that he resided at Kumbakonam, and there was no evidence that the debt was payable at Kumbakonam.
13. For these reasons. I agree in the order proposed by my learned colleague.