1. This revision, under Section 115, Civil Procedure Code is before us in consequences of an order of reference by brother Asthana by reason of the fact that brother Asthana was of the opinion that there was controversy on the question whether the English common law principle that the debtor must seek the creditor was applicable to India. After hearing learned counsel for the parties at some length we are of opinion that it is not necessary for us to record any opinion on the question whether the said principle, as a pure principle of law, is or is not applicable in India, because, for the purposes of this revision it does not appear necessary to do so. In our opinion this revision must fail for the reasons which follow.
2. In order to appreciate the controversy the necessary facts may now be set forward. The plaintiff is a firm carrying on business at Kalpi in the district of Jalaun,whereas the principal defendant is a firm carrying on business at Allahabad. There is no controversy that transactions by way of sale of goods by the plaintiff to the defendant had taken place and moneys were due from the defendant to the plaintiff. Accounts were gone into between the parries at Allahabad and a deed acknowledging liability to pay some amount, which as a result of accounting was found due to the plaintiff from the defendant, was also executed at Allahabad. The said deed was silent in regard to the place where the amount mentioned therein was to be paid by the defendant to the plaintiff.
This settlement of accounts took place some time in 1964. In 1967 the plaintiff instituted a suit in the Court of Civil Judge, Orai, claiming the amount found to have been due as a result of the settlement arrived at in 1964 after giving credit to certain amounts, which, according to the plaintiff, had meanwhile been paid by the defendant to the plaintiff, together with some amount as damages and interest. The suit was contested and one of the pleas raised on defendant's behalf was that the Court of Kalpi had no jurisdiction. The first issue framed by the learned Civil Judge ran as follows:
'Has the court jurisdiction to try thesuit ?'
Evidence bearing on the above issue was recorded by the court and after hearing learned counsel for the parties the learned Civil Judge recorded his finding on the issue relating to jurisdiction, the finding being that the Court at Orai had jurisdiction to try the suit. There is no controversy that the document incorporating the settlement of account which had been drawn up in 1964 contained no indication as to where payment of the amount stated therein as having been found due was to be made. On a consideration of the material before him the learned Civil Judge came to the conclusion that on the material before him he was unable to record a finding either that the money was agreed upon to be paid at Allahabad or that it was agreed upon to be paid at Kalpi.
Notwithstanding the aforesaid finding, the learned Civil Judge had to answer the issue as to whether the Court at Orai had jurisdiction to try the suit. The order recorded by the learned Civil Judge shows that reliance was placed by him on the English common law principle that the debtor must seek his creditor and reference was made by him to the decision recorded by the Calcutta High Court in the case of Section P. Consolidated Engineering Co. v. Union of India : AIR1966Cal259 in support of the view that the aforesaid principle was of universal application. Thus, relying on the said rule, the learned Civil Judge recorded the finding that he had jurisdiction to entertain the suit
3. At the hearing of the revision before brother Asthana, reference on plaintiffs behalf appears to have been made to two cases, viz., Soniram Jeetmal v. R. D. Tata and Sunderlal v. Jainarain : AIR1955All669 , whereas reference on behalf of the defendant was made to the decision of a Full Bench of the Punjab High Court in Heeralal Cirdharilal v. Barjnath Hardayal Khatri .
4. At the hearing before us the learned counsel for the defendant-applicant referred to a number of cases including the Full Bench decision of the Punjab High Court referred to above. Similarly learned counsel for the plaintiff opposite party also referred to some cases other than those mentioned in the order recorded by brother Asthana. We do not, however, consider it necessary to refer to all the cases cited on behalf of one party or the other. In our opinion the rule embodied by the Privy Council in the case of Soniram Jeetmal is a rule of evidence and not a rule of law. The facts of the case in Soniram Jeetmal, AIR 1927 PC 158 are almost identical with the facts in the present case. We take the decision of the Privy Council to mean that in the absence of anything to the contrary the parties to a contract of payment of money by a debtor to his creditor will be deemed to have intended that payment be made by the debtor to the creditor at the latter's place of business. The Privy Council did not lay clown that the common law principle that the debtor must seek the creditor was as such applicable to India. At the same time the Privy Council recorded the opinion that in case it was not possible to come to a conclusion whether payment was to be made at any particular place it was perfectly legitimate for the court to infer from the circumstances that the creditor can run business at a certain place and that in the absence of anything to the contrary payment would be made by the debtor to the creditor at his place of business. Referring to the rule of the English Common law and the argument that the said rule should not be imported into the jurisprudence of India it was observed about the middle of the second column at page 157 of the report that the simple answer to the said argument was that 'on the contrary it was a mere implication of the meaning of the parties'. We construe this to mean that though the rule that the debtor must seek the creditor is not applicable to India as a rule of law, the inference flowing from the wisdom of that rule is that in the absence of any agreement as to the place of payment the courts will be entitled to decide the controversy on the view that the parties implied that payment will be made by the debtor at the place where the creditor was carrying on his business.
The Full Bench decision of the Punjab High Court in the case of Heeralal Girdharilal does not appear to go beyond laying down the proposition that the English Common Law rule that the debtor must seek the creditor does not apply to India as a rule of law and, in our opinion, the finding recorded by the learned Civil Judge that the Court of Oral had jurisdiction to entertain the suit does not in any manner run counter to the principle laid down by the Punjab High Court. It is true that the concensus of authorities appear to be that the Common Law rule is not applicable to India as such but it is equally true that the aforesaid rule has been commonly taken cognizance of as a factor to be taken into consideration for determining the place where, according to the intention of the parties, the debtor was to pay to the creditor. No case has been cited before us in which the correctness of the decision of the Privy Council has been doubted.
5. In Halsbury's Laws of England, the relevant position has been stated as follows:
'Where no place for performance is specified either expressly or by implication from the nature and terms of the contract and the surrounding circumstances, and the act is one which requires the presence of both parties for completion, the general rule is that the promisor must seek out the promisee and perform the contract wherever he may happen to be. This rule applies not only to contracts for the payment of money but to all promises for the performance of which the concurrence of the promisee is necessary.'
(Vide para 288 (at page 168) of Volume VIII of the Third Edition of Halsbury's Laws of England.)
We are of opinion that, in the circumstances of the present case, the reasonable inference that could be drawn is that payment was to be made to the plaintiff at Kalpi where the plaintiff carried on his business and could give a discharge for the money or where he would have an agent who could give such a discharge. The case will thus be covered by Clause (c) of Section 20 of the Code of Civil Procedure and the Court at Oral will have jurisdiction to entertain the present suit.
6. For the reasons given above, there is no force in the revision and it is accordingly dismissed with costs. The stay order is vacated and the record is directed to be sent back to the court concerned without delay.