Jagat Narayan, C.J.
1. This is a revision application by the defendants against an order of the Additional Munsif, Jaipur City, holding that he has jurisdiction to try the suit.
2. Defendant No. 1 is a firm carrying on business of commission agency at Poona and defendant No. 2 is a partner of the firm. The plaintiff is a firm carrying on business at Jaipur.
3. The plaintiff sent 151 bags of gram to the defendant-firm on 2-5-1970 from Jaipur by Rail for sale in its commission agency. It also sent 151 bags of gram-dal' on 19- 5-1970 from Khairtal (Alwar District) for the same purpose. Instructions were issued by the plaintiff from time to time as to the rate at which the gram and the gram-dal was to be sold. One allegation of the plaintiff is that the defendant-firm sold the gram and the gram-dal against its instructions and below the market rate and thereby caused loss to it. The defendant-firm received 800 Kg. gram-dal short from the railway and compromised the claim for Rs. 652.80, when the claim should have been for Rs. 996,00 at Rs. 122.00 per quintal, without consulting the plaintiff. The plaintiff thereby suffered a further loss of Rs. 343.20 The defendant sent three accounts to the plaintiff at Jaipur as follows:
C 6/2 dated 24-7-1970C 6/3 dated 30-10-1970C 6/4 dated 26-5-1971
There were arithmetical mistakes in calculation in these accounts. The cartage, brokerage, godown rent and insurance charges debited to the plaintiff were excessive. The interest debited was also excessive by Rs. 511 00. Out of 119 bags only 118 were shown to have been sold in one parcha of account and the price of 1 bag amounting to Rs. 122 00 had not been accounted for. According to final settlement of accounts sent by the defendant to the plaintiff, a sum of RSection 2,080.00 was payable by the plaintiff to the defendant. But, because the defendant committed breach of contract in several respects referred above, a sum of Rs. 1,126.65. was actually payable after adjusting damages for breach of contract. To this, a sum of Rs. 23/- was added as interest and the present suit was instituted in the court at Jaipur for recovery of RSection 1,149.65.
4. The defendant filed an application that the court at Jaipur had no jurisdiction to try the suit. The trial Court, however, held on the basis of the decision of this Court in Firm Bilasrai Mannalal v. Firm Purshottam Dass Sanwaldas and Anr. that when the transactions about which the parties had entered into a contract had come to an end the relationship of debtor and creditor was created between them in respect of the amount remaining due from one pan to the other. In the absence of any agreement as to where the amount was payable the principle that the debtor must seek the creditor becomes applicable, and the suit was triable by the Jaipur court.
5. Against the above decision, the present revision application has been filed by the defendant.
6. Having heard the learned Counsel for the parties, I am of the opinion that the decision in Firm Bilasrai Mannalal v. Firm Purshottam Das is applicable to the present case and the suit is triable by the court at Jaipur.
7. The defendant relied on some decisions of other courts in which a contrary view was taken but these decisions have, in my opinion, failed to consider the effect of the decision of their Lordships of the Privy Council in Soniram Jeetmull v. R.D. Tata and Company Ltd. AIR 1927 PC 166. In that case, the appellants were sued in Rangoon by R.D Tata and Company Ltd. who had a business branch there, for payment of sums of money, due upon the failure of constituents to satisfy debts due to the latter, which sums the defendants had undertaken to make good to them, but the defendants, who carried on business in Calcutta, contended that they could not be sued for this money in Rangoon. The transactions between these parties were a continuation of dealings which had existed for a number of years before the present plaintiffs became an incorporated company and had been carried on under a memorandum dated the 10th December, 1911, and signed in Calcutta. It is C1.2 of that contract that expressed Messrs. Jeetmull's obligation to pay in the present case, and it said that Messrs Jeetmul were to make good any undisputed claims that Messrs. Tata & Company might lose owing to the failure or suspension of payment of constituents. Accordingly, one point only arose, namely, whether the part of this contract relating to payment was performable by Messrs Jeetmul in Rangoon. If it was, there was jurisdiction in the Court to entertain the suit and the objection of the appellants was rightly overruled.
8. Their Lordships observed:
The point, at first sight, appears to be exceedingly short. It is true the contract does not say where Messrs. Jeetmull are to pay, but it does say, by an implication which is indisputable, that they are to pay Messrs Tata Sons & Company, and it follows that they must pay where that firm is Hence one would think that, upon the face of this contract, not indeed in express terms, but by the clearest implication, payment is to be made in Rangoon. In respect of the whole of this business it is not disputed that the business transactions, out of which the outstanding debts arose, took place in Rangoon, and for this purpose the branch of Messrs. Tata Sons & Company their were Messrs. Tata Sons & Company concerned. It was objected, however, in the High Court of Rangoon, that this constituted an importation of technical rule of the English Common Law into the jurisprudence of India, namely, the rule that the debtor must seek out the creditor. The simple answer to that would have been that, on the contrary it was a mere implication of the meaning of the contract of the parties. The appellants, however, rely upon Section 49 to the Indian Contract Act, which is in these terms:
When a promise is to be performed without application by the promisee and no place is fixed for the performance of it is the duty of the promisor to apply to the promisee to appoint a reasonable place for the performance of the promise and to perform it at such place.Then it is said that no place was fixed by the contract or prior to the institution of this suit for the performance of the obligation of payment, and no application has been made by the promisor to the promisee to appoint a reasonable place and therefore there is no place of payment. Consequently, this section, which, it is said, replaces any rule of law with regard to the obligation of the debtor to seek out the creditor, has not been satisfied, and so there is no part of the contract, which is performable in Rangoon. The submission seems a strange one. It is quite certain that, if the application had been made, the place appointed would have been Rangoon, and all would then have been well for the plaintiff. Also it is plain that section makes it the duty of the promisor to apply for the appointment of a reasonable place a duty which in this case the promisor has entirely disregarded. It is not easy to reconcile with the ordinary rules of law a construction which enables the promisor to better his position under his contract by neglecting to perform a statutory duty imposed upon him with regard to its performance.
After discussing some Indian decisions their Lordships observed:
Their Lordships do not think that in this state of the authorities it is possible to accede to the present contention that Section 49 of the Indian Contract Act gets rid of inferences, that should justly be drawn from the terms of the contract itself or from the necessities of the case, involving in the obligation to pay the creditor the further obligation of finding the creditor so as to pay him. The rule in Section 49 is one which it was intended should apply both to the delivery of goods and to the payment of money, to which obviously different considerations apply from those applying in a case like the present, where the question is one of jurisdiction, and their Lordships are satisfied that an intention is shown in the contract that payment should be made in Rangoon. Accordingly, part of the contract was perform able in Rangoon so as to satisfy Section 49 of the Indian Contract Act, and there was jurisdiction to entertain the suit.
9. On the analogy of the above reasoning it is quite certain that if the defendant bad applied to the plaintiff to nominate the place for payment he would have asked it to make payment to it at Jaipur. It can thus be inferred that the intention in the contract was that payment should be made at Jaipur. As according to the plaint allegations a sum is payable to the plaintiff by the defendant, part of the contract is perform able at Jaipur. The suit is thus triable by the court at Jaipur.
10. The decision of the court below is accordingly correct and the it vision application is dismissed without any order as to costs.