1. The plaintiff sues to recover the sum of Rs. 2019-6-0 due in respect of a promissory note executed in favour of one Sbamalram Jhoonjhoonwala on 15th September 1935 and endorsed by him in favour of the plaintiff on 2nd November 1938. On 27th September 1935 the defendant paid a sum of Rs. 50 in respect of the moneys due under the note and this payment was endorsed on the back of the note and signed by the defendant. In his written statement the defendant denied that the promissory note referred to any bona fide transaction or that he had received any money on the basis of the note or that he paid Rs. 50 or any other amount. Further, he pleaded the law of limitation and that the Court had no jurisdiction. This defence seems to me quite hopeless and I do not believe a word of his evidence in the witness box. He said nothing about the case set up in his written statement. He advanced a new and ridiculous story that he had repaid Jhoonjhoonwalla some three years ago out of a considerable sum which he had obtained from the sale of wheat, This payment, according to him, was made in the bazar at Bhagalpur in the presence of a number of witnesses. None of the witnesses have appeared to support his statement for the reason as he admits, that he has not asked any of them to attend this Court to give evidence on his behalf. When he made the payment he did not ask for any receipt, nor obtained any receipt, nor did he recover the promissory note, his only explanation being that he had faith in Jhoonjhoonwalla. It is obvious that his story is a tissue of lies.
2. The only defence which has been urged by learned Counsel on his behalf is that of limitation. The note in suit was the last one of a series, beginning some time in 1931 when Jhoonjhoonwalla made him a loan of Es. 900 and a promissory note was given, which provided for repayment in Bhagalpur. Subsequently, there were other notes which made no such provision, the explanation given by Jhoonjhoonwalla being that when the first note was made he was living regularly in Bhagalpur, but when the renewals were made, he had ceased to live permanently in Bhagalpur and spent most of the year in Calcutta, where he and the members of his joint family occupied rooms and carried on business. In view of these circumstances, he told the defendant that he might have to make payment either in Calcutta or at Benares or some other place where Jhoonjhoonwalla happened to be living. For the same reason, no mention was made in the subsequent promissory notes of any place of payment, The note is addressed to 'Sri Babu Shamalram Jhoonjhoonwalla of Bazar Shoojaganj, Bhagalpur' and the sum covered by the note is repayable on demand.
3. Learned Counsel for the defendant has agreed that because the note is addressed to Jhoonjhoonwalla, of Bazar Shoojaganj, Bhagalpur, it is implied that payment is to be made at Bhagalpur and therefore the note does contain a condition as to the place of payment. I cannot agree with this contention. All the notes were addressed to Jhoonjhoonwalla, of Bazar Shoojaganj, Bhagalpur. The first one contained a specie fie provision that payment was to be made there, but this provision was absent from the subsequent documents. The place of payment is important for this reason. The suit was instituted on 7th November 1938. The note, as I have already said, was made on 15th September 1935, and the payment of Rs. 50 was made on 27th September 1935. Prima facie therefore the period of limitation would expire on 27th September 1935. If therefore counsel's contention on behalf of the defendant is correct the plain, tiff should have sued, or rather, Jhoonjhoonwalla should have sued in the Court at Bhagalpur which was open on 27th September 1935 and both before and after that date. The result would have been that the period of limitation would have run out prior to the transfer to the present plaintiff on 2nd November 1938. But counsel on behalf of the plaintiff contends that the place of payment was in Calcutta, not only because the defendant had agreed with the plaintiff to pay him either in Calcutta or at any other place where Jhunjhunwalla happened to be residing at the time, but because Jhunjhunwalla was living in Calcutta during the months of September, October and November, that is to say, at all material times for the purpose of this part of the argument. Now, the High Court happened to be closed for the vacation on 27th September 1938 and did not open till 7th November 1938; In the meantime, on 2nd November 1938, the endorsement had been made in favour of the present plaintiff and the present suit was instituted on the first day of the reopening of the Court, namely, 7th November 1938. It follows therefore if the place for payment was Calcutta that the suit was instituted within the period of limitation and was in time. It was decided in the case in Tulsiman Bibi v. Abdul Latif : AIR1936Cal97 that:
A suit on a contract can be instituted in the Court which has territorial jurisdiction over the place where the contract has to be performed and that the place of performance must be taken to be the place where the plaintiff is residing, on the principle that when the creditor is residing in the realm, the debtor must follow the creditor and pay him, unless there is a different contract between them, and that Section 49, Contract Act, does not get rid of inferences that should justly be drawn from the terms of the contract itself and the necessities of the case involving in the obligation to pay the creditor the further obligation of finding the creditor so as to pay.
4. The learned Judge, R.C. Mitter J. who decided that case relied upon a judgment of Lord Sumner in Soniram Jeetmul v. R,.D. Tata & Co. Ltd. and certain observations made by that learned Judge throwing some doubts on the observations of Sir Lawrence Jenkins C.J. in Puttappa v. Virabhadrappa (1905) Bom. L.R. 993 the opinion of Sir Lawrence Jenkins being that the provision under Section 49, Contract Act, to the effect that where no place is fixed for the performance of the contract it is the duty of the promisor to apply to the promisee to appoint a reasonable place for performance and performance at that place overrides the rule of the Common law that the debtor must seek out his creditor and pay. In Lord Sumner's opinion this was not the effect of that Section, and R.C. Mitter J. agreed with that view and I see no reason to disagree with him. In the case decided by R.C. Mitter J. the promise was to be performed without application by the promisee, and therefore prima facie Section 49, Contract Act applied, in accordance with the terms of that Section. In the present case, on the contrary, the promise is to be performed on demand, and therefore Section 49 has no application. That was decided in Raman Chettiyar v. Gopalachari (1908) 31 Mad. 223 if any decision was necessary in view of the clear words of the Section. It follows that Section 49 having no application to the present case, a fortiori the Common law rule applies, and it being necessary for the debtor to seek out his creditor and pay him, in the absence of any agreed place for payment, the place for repayment in the present case was Calcutta. Consequently, the endorsement in favour of the present plaintiff was within time and the suit was instituted before the period of limitation had run out. For these reasons I must decide this point against the defendant with the result that there must be judgment for the plaintiff for the amount claimed with costs.