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Muhammad Esuff Rowther Vs. M. Hateem and Co. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai
Decided On
Reported inAIR1934Mad581; 153Ind.Cas.111
AppellantMuhammad Esuff Rowther
RespondentM. Hateem and Co.
Cases ReferredSoniram Jeethmull v. R.D. Tata
Excerpt:
- - 8. on the same line of reasoning it may well be said in the present case that applying section 49, contract act, the place of performance was in tiruvarur......to him by v.p.p. (2) whether the court had no jurisdiction to try the suit. on the first point the learned district munsif found in favour of the plaintiff. he bays on a consideration of the contention:i find that the v.p.p. has been rightly refused and the plaintiff is entitled to a decree as prayed for. (para. 9 of the judgment.)2. but he was not given a decree as the learned district munsif found on the second point that the court had no jurisdiction to try the suit. this matter is dealt with very briefly by the learned district munsif in para. 10 of his judgment. in that paragraph he says that it appears from ex. 2 that the plaintiff sent the rs. 50 by means of a hundi. the learned counsel for the petitioner says that this is a mistake and that the records of the case do not show.....
Judgment:
ORDER

Madhavan Nair, J.

1. The plaintiff is the petitioner. This Civil Revision Petition arises out of a suit instituted by the plaintiff for recovery of Rs. 50 said to be the advance sent by him to the defendant firm with respect to certain goods ordered by him. The plaintiff's case is that he had given orders to the defendant firm not to send the goods per V.P.P. but that in as much as the defendant sent the goods per V.P.P. in contravention of his order, he refused to receive the goods and that he is now en-titled to the refund of the Rs. 50 advanced by him. The other contention raised by the plaintiff need not be referred to for purposes of this Revision Petition. The defendant denied having received any intimation from the plaintiff before they sent the goods that the goods were not to be sent by V.P.P. The defendant also contended that the Court had no jurisdiction to try the suit since the cause of action arose at Madras and not within the jurisdiction of the trial Court, namely, the District Munsif's Court of Tiruvarur. With reference to those contentions two important points arose for determination in the lower Court : (1) Whether the plaintiff was right in refusing to take delivery of the goods, the receipt for which was sent to him by V.P.P. (2) Whether the Court had no jurisdiction to try the suit. On the first point the learned District Munsif found in favour of the plaintiff. He Bays on a consideration of the contention:

I find that the V.P.P. has been rightly refused and the plaintiff is entitled to a decree as prayed for. (para. 9 of the judgment.)

2. But he was not given a decree as the learned District Munsif found on the second point that the Court had no jurisdiction to try the suit. This matter is dealt with very briefly by the learned District Munsif in para. 10 of his judgment. In that paragraph he says that it appears from Ex. 2 that the plaintiff sent the Rs. 50 by means of a Hundi. The learned Counsel for the petitioner says that this is a mistake and that the records of the case do not show that it was by a Hundi that the sum was sent. From the papers filed in the case by the petitioner in the lower Court it would appear that the money was sent insured and Ex. 2 which refers to the despatch of money, says : 'We have sent enclosed herewith Rs. 50 only.' This corroborates the statement of the counsel that the learned District Munsif is not correct when he says that the money was sent by means of a hundi. After stating that the money was sent by a hundi the learned District Munsif says:

We must take it that the money was paid at Madras and the contract was completed on payment of the said advance....

3. His opinion on this point apparently is that the contract was entered into at Madras. It is argued that this conclusion of the learned District Munsif is wrong because the offer to send the goods is accepted by Ex. 2 at Vijayapuram within the jurisdiction of the Tiruvarur Court. In Kamisetti Subbiah v. Katha Venkatawamy (1904) 27 Mad. 355 it is stated:

Under the Contract Act, where the proposal and acceptance are made by letters, the contract Is made at the time when and at the place where the letter of acceptance is posted.

4. Exhibit 2 was posted at Vijayapuram. It would follow from this that the contract was made in Vijayapuram. Another -circumstance having a bearing on the question of jurisdiction is also referred to by the learned District Munsif in this paragraph. He first states, that the goods had to be 'consigned to this place' thereby meaning Tiruvarur. Then he says:

In as much as the defendant never consented to give credit to the plaintiff, and as a matter of fact had sent the goods receipt only by V.P.P. it must be taken that the performance of the contract was intended by the parties to take place only in Madras.

5. This conclusion of the learned District Munsif is obviously wrong. There is an exact decision bearing on the point in Ram Lal v. Bhola Nath 1920 All. 6. In that case, the plain-tiffs at a place called Kasganj ordered certain goods from the defendants at Delhi. By mutual consent the goods were despatched by V.P.P. As the parcel received by the plaintiff was found to contain only clay they sued the defendants and brought their suit at Kasganj. The main contention was whether the cause of action arose at Kasganj where the suit was filed. In support of the contention that the cause of action did not arise in Kasganj it was argued that since the articles were sent per V.P. from Delhi it must be assumed that the cause of action arose at Delhi, that is, the performance of the contract should be considered to have taken place at Delhi. This argument was overruled by the learned Judges. They held that in spite of the fact that the goods were sent per V.P.P. the cause of action arose, in part, at any rate, in Kasganj and the suit was rightly brought there. In the present case the learned District Munsif would have concluded that the performance of the contract was intended to be within the jurisdiction of the Tiruvarur Court but for the fact that the goods were sent per V.P.P. Having regard to the decision just quoted I must hold that the contract was intended to be performed at the place of business which is within the jurisdiction of the District Munsif's Court of Tiruvarur. It follows from the above considerations that in the present case the contract was completed at the place of his business which is within the jurisdiction of the Tiruvarur Court and the parties intended that the performance was to be there. Under Section 20, Civil P.C..every suit shall be instituted in a Court within the local limits of whose jurisdiction Clause (c) the cause of action wholly or in part arises.

6. In Expl. 3 which appears in the corresponding section of the Code of 1882 it is stated that

in suits arising out of a contract the cause of action arises within the meaning of this section at any of the following places : (1) the place where the contract was made; (2) the place where the contract was to be performed or the performance thereof completed; (3) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.

7. This explanation is omitted in the present Section (20), but it cannot be disputed that it represents the correct law with regard to the question where the cause of action arises in suits arising out of a contract. I have already held that in the present case the contract was made within the jurisdiction of the Tiruvarur, District Munsif's Court. I have also held that the place where the contract was to be performed or the performance thereof, completed was at the same place. It would therefore follow that the Court of the District Munsif of Tiruvarur where the suit was filed has jurisdiction to dispose of this case. In support of the above conclusion the learned Counsel for the petitioner has drawn my attention also to a decision in Champaklal Mohan Lal v. Nactor Tea Co. 1933 Bom. 179, where in somewhat similar circumstances a suit was instituted for the recovery of a deposit under breach of a contract. On the facts the learned Judge held that the performance of the contract was intended to take place at Surat within the jurisdiction of the Subordinate Judge's Court at Surat where the suit was filed. In support of the conclusion that the cause of action arose at Surat be also relied on another circumstance, namely, that owing to the breach of contract the amount which the plaintiff was seeking to recover became a debt received by defendant 1 in that case. Then he points out that

Section 49. Contract Act, deals with the place of performance, and the principle laid down there is that where no place is fixed for the performance of the promise, it is the duty of the debtor to apply to the creditor to appoint a reasonable place for the performance of the promise and to perform it at such a place. If the debtor fails to apply, then as pointed out by the Judicial Committee of the Privy Council in Soniram Jeethmull v. R.D. Tata & Co. 1927 P.C. 156, the law that would apply would be the law in England on the principle that the debtor must find his creditor.

8. On the same line of reasoning it may well be said in the present case that applying Section 49, Contract Act, the place of performance was in Tiruvarur. On all the above grounds I hold that the lower Court had jurisdiction to try the case. If the lower Court had jurisdiction the District Munsif was prepared to give the plaintiff a decree as already stated (para. 9 of his judgment). Setting aside the decision of the lower Court therefore I would hold that the plaintiff is entitled to get the return of the Rs. 50 -claimed by him with interest at 6 per cent, from date of suit with costs throughout.


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