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Mahaluxmi Bank Ltd. Vs. Chotanagpur Industrial and Commercial Association - Court Judgment

LegalCrystal Citation
SubjectBanking;Commercial
CourtKolkata High Court
Decided On
Case NumberSuit No. 1996 of 1951
Judge
Reported inAIR1955Cal413
ActsCode of Civil Procedure (CPC) , 1908 - Section 20; ;Contract Act, 1872 - Section 49
AppellantMahaluxmi Bank Ltd.
RespondentChotanagpur Industrial and Commercial Association
Appellant AdvocateA.K. Sen (Jr.), Adv.
Respondent AdvocateSatya Sachi Mukherjee, Adv.
DispositionSuit dismissed
Cases ReferredRex v. Lovitt
Excerpt:
- .....due to the plaintiff bank in respect of an overdraft account which the defendant had with the ranchi branch of the plaintiff bank. the defendant executed in favour of the plaintiff bank a promissory note dated 14-8-1948 and a letter of lien by way of security. in or about the month of october. 1949, the ranchi branch of the plaintiff bank was closed and the books and papers of that branch of the plaintiff bank were transferred to its head office at no. 135, canning street, calcutta.2. by letter dated 20-2-1951, sent from calcutta, mr. h.n. sen, attorney for the plaintiff bank demanded from the defendant repayment of the said loan either to the plaintiff bank or to him as its attorney.3. by its reply dated 26-2-1951, the defendant repudiated the claim entirely.4. the suit was.....
Judgment:

Bachawat, J.

1. This is a suit for recovery of the monies due to the plaintiff bank in respect of an overdraft account which the defendant had with the Ranchi branch of the plaintiff bank. The defendant executed in favour of the plaintiff bank a promissory note dated 14-8-1948 and a letter of lien by way of security. In or about the month of October. 1949, the Ranchi branch of the plaintiff bank was closed and the books and papers of that branch of the plaintiff bank were transferred to its Head Office at No. 135, Canning Street, Calcutta.

2. By letter dated 20-2-1951, sent from Calcutta, Mr. H.N. Sen, attorney for the plaintiff bank demanded from the defendant repayment of the said loan either to the plaintiff bank or to him as its attorney.

3. By its reply dated 26-2-1951, the defendant repudiated the claim entirely.

4. The suit was instituted on 9-5-1951.

5. By consent, the issue as to jurisdiction was tried as a preliminary issue.

6. Before the overdraft account was opened, the defendant applied to the Ranchi Office plaintiff bank for the grant of overdraft facilities. I am not satisfied that the application was addressed to the Head Office. The original application has not been produced. I am not also satisfied that Mr. D.P. Sen Gupta, a director of the defendant came to the Head Office or that he procured the sanction for overdraft by the Head Office at Calcutta. This case was not made by the plaintiff bank on the first day of the trial. There is evidence to show that the Ranchi branch obtained sanction of the Head Office for the grant of overdraft facilities to the defendant. The defendant had nothing to do with this sanction which was purely a matter of internal arrangement between the Ranchi branch and the Head Office. Both the offer and acceptance relating to the overdraft arrangement were made at Ranchi. The inter-departmental sanction of the overdraft by the Head Office at Calcutta is no part of the cause of action.

7. The plaintiff's counsel contends that the defendant must seek its creditor and pay the plaintiff at its registered office at Calcutta and therefore, the Court has jurisdiction.

8. In -- 'In re Eider,', 1893 P. 119 at p. 136 '(A), Bowen, L. J. stated. :

'The general rule is that where no place of payment is specified, either expressly, or by implication, the debtor must seek his creditor. In --'Haldane v. Johnson', (1853) 8 Exch. 689 (B), it was held that a covenant for payment of rent where no particular place of payment is mentioned, is analogous to a covenant to pay a sum of money in gross on a day certain, in which case it is incumbent upon the covenantor to seek out the person to be paid and pay or tender him the money.'

9. This rule should he applied with caution in this country, sec -- 'Ramalinga Iyer v. Jayalakshmi : AIR1941Mad695 .

10. The obligation to pay involves the obligation to find the creditor and to pay him at the place where he is when the money is payable where ho other place for payment is fixed by the contract either expressly or by implication.

11. Thus in the absence of an express or implied term to the contrary the prompt dower ought to be paid to the wife at the place where she resides when the dower is demanded -- 'Sm. Tulsiman Bibi v. Abdul Latif Mia : AIR1936Cal97 and principal and interest under a debenture ought to be paid at the place where the debenture holder is when the money is payable under the debenture. -- Towler v. Midland Electric Corporation', (1917) 1 Ch 656 at p. 661 (E). In such cases the application of the general rule is necessary in order to preserve the obligation to pay, because if the debtor is not bound to pay anywhere, the creditor has got a right which can never be enforced, see -- 'Drexel v. Drexel', (1916 1 Ch 251 at p. 261 (F)).

12. In -- 'Soniram Jeetmull v. R. D. Tata & Co. Ltd. , the defendant carrying on business in Calcutta undertook to make good and pay to the plaintiff company certain moneys due to the plaintiff in respect of dealings had by the Rangoon branch of the plaintiff with its constituents in the event of loss due to failure or suspension of payment of the constituents. The Judicial Committee held that by necessary implication of the contract to pay the plaintiff the defendant was under the obligation to pay at Rangoon where the plaintiff had a branch office and was to be found for the purposes of payment. Section 49, Contract Act imposes a statutory duty upon the debtor to apply to the creditor to appoint a reasonable place for payment and to make the payment at such place where the promise to pay is to be performed without application by the creditor and no place is fixed for payment. In the above case Lord Sumner observed that where the debtor has not performed his statutory duty the section does not

'get 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 Judicial Committee held Rangoon to be the place for payment though the creditor had only a branch office at Rangoon.

13. The place of residence of the creditor on the date of the institution of the suit cannot be regarded as the place for payment where some other place for payment is fixed by the contract either expressly or by implication, see -- 'Sailendra Nath Mookherjee v. Ram Sundar Ghosh', 16 Cal LJ 279 at p. 281 (H); -- 'Riley v. Holland (William) & Sons Ltd.', (1911) 1 KB 1029 at p. 1031 (I). The Court cannot blindly apply the general rule and ignore the just implications to be drawn from the proved facts and circumstances of the case.

14. In -- 'Srilal Singhania v. Anant Lal : AIR1940Cal443 , when the promissory note was renewed the creditor who had his residence at Bhagalpur lived mostly at Calcutta and ho told the debtor that payment might have to be made either at Calcutta or at Bhagalpur or at such other place where he happened to be living. Lort-Williams, J. held that the money was payable on demand and that at the material time when the money was payable the creditor was residing at Calcutta and that the circumstance applying the general rule the place of payment was Calcutta. The facts of that case are entirely distinguishable.

15. In this case the overdraft account was opened, maintained and operated upon at the defendant's office at Ranchi. The loans were advanced at Ranchi and on the dates of the advances the plaintiff had a branch office and the defendant had its registered office at Ranchi. Each loan was repayable without previous demand as soon as it was made. The obligation to repay was in the eye of the law broken and the cause of action arose instantly on the loan -- 'Norton v. Ellam', (1837) 2 M & W 461 K.: Quite clearly the appointed place for repayment was Ranchi where the creditor had its branch office and where the overdraft account was maintained. As a matter of fact all repayments were made at Ranchi and were credited to the defendant in its overdraft account at Ranchi.

16. In the case of current account it is well settled that the obligation of the banker to repay arises on demand and is limited to the office where the account is kept, see -- 'Clare & Co, v. Dresdner Bank', (1915) 2 KB 576 (L) and -- 'Joachirason v. Swiss Bank Corporation', (1921) 3 KB 110 at pp. 126, 129-30 (M). Though a loan by the bank on an overdraft account is repayable without demand, in my opinion the loan is repayable at the office where the overdraft account is maintained and the state of accounts can be ascertained. The bank is under no obligation to accept payment at any office other than the office where the overdraft account is kept and to which the payment is to be credited. It is well settled that though branch offices are agencies of one and the same bank, they are distinct trading bodies for certain purposes. 'Rex v. Lovitt, 1912 AC 212 at p. 219 (N).

17. The term as to repayment at Ranchi is implicit in the banking transaction of the loans on the overdraft account. The implication also arises from the course of dealings between the parties.

18. The application of the general rule to the facts of this case also indicated Ranchi as the place for repayment. In applying the general rule regard must be had to the proper place at the time when the money is payable. On the several dates when the loans were repayable the defendant was under an obligation to seek the plaintiff at Ranchi where the plaintiff had its branch office and where the overdraft account was maintained. The breach of the obligation to repay took place at Ranchi. The subsequent closure of the Ranchi office does not shift the venue of the breach.

19. I therefore find that by clear implication the place of repayment according to contract is Ranchi and not Calcutta.

20. In my opinion no part of the cause of action arose within the jurisdiction of this court and accordingly this court has no jurisdiction to try this suit.

21. The result is to be regretted because a large sum of money is due to the plaintiff and the defendant's counsel in course of the trial admitted that he challenged only a few small items in the accounts.

22. The plaintiff bank instituted and conducted this suit in this court in good faith though it has been unable to prove its case by reason of the fact that its affairs are at present in great disorder.

23. The suit is dismissed on the preliminary ground that this court has no jurisdiction to try the suit.

24. The suit is dismissed with costs.


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