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Vasudeva Mudaliar Vs. M.A. Velappa Nadar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad297; 45Ind.Cas.401
AppellantVasudeva Mudaliar
RespondentM.A. Velappa Nadar
Cases ReferredFollowing Kamalammal v. Peeru Meera Levvai Rowthen
Excerpt:
contract act (ix of 1872), sections 62, 63, 73 - contract--novation--debt, agreement for payment of, at new place--cause of action--jurisdiction--civil procedure code (act v of 1908), section 21, applicability of--interest act (xxxii of 1839)--money due on accounts--interest, claim for, as damages, in absence of agreement, legality of. - - section 99 (corresponding to old section 578) uses the negative words, that no decree shall be reversed on account of irregularities not affecting the jurisdiction of the court,'but this cannot, i think, override the plain language of section 21 that even when the question is one affecting the jurisdiction, failure of justice must be shown to justify the, interference of an appellate court......as follows. the 1st defendant obtained rs. 2,500 at palladam within the jurisdiction of the district munsif's court of tirnpur in the coimbatore district (1st defendant also residing in that district) promising to supply cotton to the 2nd defendant at palladam itself. the 2nd defendant had a partner (plaintiff) living at virudupatti within the jurisdiction of the district munsif's court of satur in the ramnad district. the 2nd defendant's duty was to advance partnership moneys to customers and receive cotton at palladam from the customers to whom advances had been made and to send on the cotton to virudupatti. towards the rs. 2,500 advanced, the 1st defendant gave 6 pothies of cotton worth rs. 525 at palladam, but the 6 pothies were returned to him at palladam itself as he himself.....
Judgment:

Sadasiva Aiyar, J.

1. The facts are shortly as follows. The 1st defendant obtained Rs. 2,500 at Palladam within the jurisdiction of the District Munsif's Court of Tirnpur in the Coimbatore District (1st defendant also residing in that district) promising to supply cotton to the 2nd defendant at Palladam itself. The 2nd defendant had a partner (plaintiff) living at Virudupatti within the jurisdiction of the District Munsif's Court of Satur in the Ramnad District. The 2nd defendant's duty was to advance partnership moneys to customers and receive cotton at Palladam from the customers to whom advances had been made and to send on the cotton to Virudupatti. Towards the Rs. 2,500 advanced, the 1st defendant gave 6 pothies of cotton worth Rs. 525 at Palladam, but the 6 pothies were returned to him at Palladam itself as he himself promised to send it on direct to Virudupatti instead of 2nd defendant sending it on to Virudupatti.

2. This was on 10th October 1910. A sum of Rs. 1-15-6 besides this Rs. 2,500 seems also to have been due by 1st defendant to the plaintiff's firm.

3. The 1st defendant did not send the 6 pothies to Virudupatti nor did he supply cotton for the remaining Rs. 1,975. So he owed Rs. 2,501-15-6 on accounts to the partnership firm, out of which he paid to the 2nd defendant Rs. 501-15-6 sometime afterwards and owed a balance of Rs. 2,000 in April 1911.

4. The plaintiff and-the 1st defendant met at Virudupatti on 14th April 1911, looked into accounts and found Rs. 2,000 due by the 1st defendant to the firm of the plaintiff and the 2nd defendant. The 1st defendant then promised to pay the Rs. 2,000 to the plaintiff at Virudupatti through the 1st defendant's customer P.W. No. 2. The suit was brought in the Satur District Munsif's Court on this promise made on 14th April 1911 by the 1st defendant to pay at Virndupatti the Rs. 2,000. A preliminary question of jurisdiction was raised by Mr. Venkatarama Sastriar arguing for the 1st defendant (appellant). The argument was that, because the contract as first entered into was to supply cotton to the 2nd defendant at Palladam, the cause of action arose at Palladam within the jurisdiction of the District Munsif's Court of Tirnpur in October 1910 and that therefore no new cause of action could arise at Viruduppati merely by reason of the subsequent promise made at Virudupatti to pay the sum of Rs.2,000 due under the contract at Virudupatti and hence the Satur District Munsif's Court had no jurisdiction. Reliance is placed for this contention on Bunseedhur v. Government of Bengal and Seshagiri Row v. Nawab Askur Jung Aftal Dowlah Mushral Mulk, 17 M.L.J. 304. The case of Bunseedhur v. Government of Bengal, 14 M.I.A. 86 : 2 Suth. P.C.J. 448 : 2 Sar. P.C.J. 689 was decided in 1871 before the Indian Contract Act came into force. As regards Seshagiri Row v. Nawab Askur Jung Aftal Dowlah Mushral Mul 17 M.L.J. 304, the Indian Government Act, Section 62, has not been referred to in that case. The facts there were that according to the original contract payment was to be made by the defendant living in Hyderabad for work done at Hyderabad for the defendant by the plaintiff. The plaintiff alleged that after the work had been done, the defendant agreed to pay in Madras the remuneration due to the plaintiff. A great mass of witnesses whom the Court would have had to examine in that case were residents of Hyderabad and the balance of convenience was in favour of the suit being tried in Hyderabad. Moore, J., dismised the application under Article 12 of the Letters Patent for leave to institute a suit in the Madras High Court Original Side on account of the above reasons of convenience. The learned Chief Justice and Miller, J., while upholding the order of Moore, J., on that ground also added the dictum that there was no consideration for the promise to pay in Madras, that there was, therefore, no new legal contract to pay at Madras in substitution of the original contract and hence no part of the cause of action arose within the jurisdiction. As I said, Contract Act, Section 62, is not referred to in the judgment. That section says: 'if the parties to a contract agree to substitute a new contract for it, of to rescind or alter it, the original contract need not be performed.' Of course this section is subject to the provision of the Indian Evidence Act (Section 92) forbidding the admission of oral evidence to contradict or vary written agreements but where the original contract and the subsequent contract are both oral, I do not see that Section 62 of the Contract Act requires any further consideration for the validity of the substituted contract than the putting an end to the obligation under the original contract. It has been held that under Section 63 of the same Contract Act no consideration is necessary for extending the time for performance or for accepting any satisfaction by the promisee, though under the English Law the question of consideration comes in respect of the matters mentioned in Section 63 of the Indian Contract Act (see Leake on Contract, pages 623-24). If there is a new oral contract to have the place of performance changed, I think, it falls under Section 62 and no independent consideration is necessary to validate the same. I, therefore, respectfully dissent from the dictum in Seshagiri Row v. Nawab Askur Jung Aftal Dowlah Mushral Mulk 17 M.L.J. 304, the decision in which can be supported on the other grounds mentioned in it. The English case of Baird v. Bell (1898) A.C. 420 is irrelevant, as we are governed, by the Statute Law enacted in the Indian Contract Act. In the above view it is unnecessary for me to consider whether the new Section 21 in the Civil Procedure Code of 1908 cures the defect of territorial jurisdiction assuming such a defect to exist. I might, however, shortly state that the argument of Mr. Venkatarama Sastriar that Section 21 only applies to cases referred to in Section 18, Clause 2, is not acceptable to me as at present advised. Section 21 follows Sections 16 to 20, of which Sections 16, 17, 19 and 20 refer to territorial causes of action generally. There in also an observation in Sethrucherla Rama Chhaddra v. Maharaja of Jeypore 34 Ind. Cas. 411: (1916) 1 M.W.N. 354 upholding my above view. Section 99 (corresponding to old Section 578) uses the negative words, 'that no decree shall be reversed on account of irregularities not affecting the jurisdiction of the Court,' but this cannot, I think, override the plain language of Section 21 that even when the question is one affecting the jurisdiction, failure of justice must be shown to justify the, interference of an Appellate Court. However, as I said, it is unnecessary for me to express a final opinion on this point in this case.

5. The next question argued for the appellant was that the defendant was not afforded sufficient opportunity to adduce all his evidence in respect of the discharge by payment to the 2nd defendant, and though there is an affidavit in support of this contention, it is met by a counter-affidavit on the respondent's side. This contention is, therefore, also rejected. On the question of interest the case of Hamira Bibi v. Zubaida Bibi 36 Ind. Cas. 87; (1916) 2 M.W.N. 551 : 21 C.W.N. 1 : 18 Bom. L.R. 999 : 20 M.L.T. 505 quoted for the respondent was a case of dower-debt governed by Muhammadan Law and the equitable principles recognised in the Muhammadan Law were applied by the Privy Council on the question of awarding compensation in the shape of interest. I, therefore, agree with my learned brother that the claim for interest should be disallowed and that in other respects the appeal should be dismissed with costs.

6. Phillips, J.--The agreement set out in the plaint has been found by the learned Subordinate Judge to be true and is as follows: It was found that the 1st defendant owed the firm in which plaintiff and 2nd defendant were partners Rs. 1,976-15-6 and had also to supply 6 pothies of cotton. It was then agreed that 1st defendant's total liability should be Rs. 2,500. Plaintiff accepted 1st defendant's contention that he had paid Rs. 500 to 2nd defendant and it was then agreed that the 1st defendant should pay the balance: of Rs. 2,000 by sending cotton to Virudupatti to be sold by plaintiff's 2nd witness, who should then pay plaintiff Rs. 2,000. It appears to me that this was a new agreement entered into between 1st defendant and plaintiff on behalf of his firm, and was in supersession of the old agreement between the parties, and was not a mere promise to pay a debt at a place other than that mentioned in the original agreement. In this view the decision in Seshagiri Row v. Nawab Askur Jung Aftal Dowlah Mushral Mulk 17 M.L.J. 304 is inapplicable to this case, nor is it necessary to decide whether Section 21, Civil Procedure Code, is applicable as the District Munsif had jurisdiction to try the suit. After considering the affidavits now filed, I do not think that any evidence was shut out by the District Munsif and consequently 1st defendant is not entitled to adduce further evidence.

7. On the question of interest, I do not think the Subordinate Judge is right. No interest can be claimed tinder the Interest Act and it was held in Kamalammal v. Peeru Meera Levvai Rowthen 7 M.L. 3. 263 : 7 Ind. Deo. 341 that interest in such cases cannot be claimed by way of damages under Section 73 of the Contract Act.

8. In Hamira Bibi v. Zubaida Bibi (1916) 2 M.W.N. 551 : 14 A.L.J. 1055, 21 C.W.N. 1 : 18 Bom. L.R. 999 : 20 M.L.T. 505: 25 C.L.J. 517interest was allowed by way of damages on equitable considerations in that case in which the circumstances were peculiar, and I do not think that the Judicial Committee intended to dissent from their prior decision in Ganesh Bakhsh v. Harihar Bakhsh 81 I.A. 116: 14 M.L.J. 190 where it was held that the Interest Act applied, when it was not a case of damages for breach of contract. Following Kamalammal v. Peeru Meera Levvai Rowthen 7 M.L. 3. 263 : 7 Ind. Deo. 341 I disallow the claim for interest till date of suit, but, in other respects, the appeal is dismissed with costs.


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