MANOHAR OIL MILLS Vs. BHAWANI DIN BHAGWAN DIN

JUDGEMENT

(1.) THIS revision, under Section 115, Civil Procedure Code is before us in consequences of an order of reference by brother Asthana by reason of the fact that brother Asthana was of the opinion that there was controversy on the question whe ther the English common law principle that the debtor must seek the creditor was ap plicable to India. After hearing learned counsel for the parties at some length we are of opinion that it is not necessary for us to record any opinion on the question whether the said principle, as a pure principle of law, is or is not applicable in India, because, for the purposes of this revision it does riot appear necessary to do so. In our opinion this revision must fail for the reasons which follow.

(2.) IN order to appreciate the con troversy the necessary facts may now be set forward. The plaintiff is a firm carrying on business at Kalpi in the district of Jalaun, whereas the principal defendant is a firm carrying on business at Allahabad. There is no controversy that transactions by way of sale of goods by the plaintiff to the defen dant had taken place and moneys were due from the defendant to the plaintiff. Ac counts were gone into between the parties at Allahabad and a deed acknowledging liabi lity to pay some amount, which as a result of accounting was found due to the plaintiff from the defendant, was also executed at Allahabad. The said deed was silent in re gard to the place where the amount men tioned therein was to be paid by the defen dant to the plaintiff. This settlement of accounts took place some time in 1964. In 1967 the plaintiff instituted a suit in the Court of Civil Judge, Orai, claiming the amount found to have been due as a result of the settlement ar rived at in 1964 after giving credit to cer tain amounts, which, according to the plain tiff, had meanwhile been paid by the defen dant to the plaintiff, together with some amount as damages and interest. The suit was contested and one of the pleas raised on defendant's behalf was that the Court of Kalpi had no jurisdiction. The first issue framed by the learned Civil Judge ran as fol lows:

(3.) AT the hearing before us the learned counsel for the defendant-applicant referred to a number of cases including the Full Bench decision of the Punjab High Court referred to above. Similarly learned counsel for the plaintiff opposite party also referred to some cases other than those mentioned in the order recorded by brother Asthana. We do not, however, consi der it necessary to refer to all the cases cited on behalf of one party or the other. In our opinion the rule embodied by the Privy Council in the case of Soniram Jeet mal, AIR 1927 PC 156 (supra) is a rule of evidence and not a rule of law. The facts of the case in Soniram Jeetmal, AIR 1927 PC 156 are almost identical with the facts in the present case. We take the decision of the Privy Council to mean that in the absence of anything to the contrary the parties to a contract of payment of money by a debtor to his creditor will be deemed to have in tended that payment be made by the debtor to the creditor at the latter's place of busi ness. The Privy Council did not lay down that the common law principle that the deb tor must seek the creditor was as such ap plicable to India. At the same time the Privy Council recorded the opinion that in case it was not possible to come to a con clusion whether payment was to be made at any particular place it was perfectly legiti mate for the court to infer from the cir cumstances that the creditor can run busi ness at a certain place and that in the ab sence of anything to the contrary payment would be made by the debtor to the creditor at his place of business. Referring to the rule of the English Common law and the argu ment that the said rule should not be im ported into the jurisprudence of India it was observed about the middle of the second column at page 157 of the report that the simple answer to the said argument was that "on the contrary it was a mere impli cation of the meaning of the parries". We construe this to mean that though the rule that the debtor must seek the creditor is not applicable to India as a rule of law, the inference flowing from the wisdom of that rule is that in the absence of any agreement as to the place of payment the courts will be entitled to decide the controversy on the view that the parties implied that payment will be made by the debtor at the place where the creditor was carrying on his busi ness. The Full Bench decision of the Punjab High Court in the case of Heeralal Girdharilal, AIR 1960 Punj 450 (supra) does not appear to go beyond laving down the propo sition that the English Common Law rule that the debtor must seek the creditor does not apply to India as a rule of law and, in our opinion, the finding recorded by the learned Civil Judge that the Court of Orai had jurisdiction to entertain the suit does not in any manner run counter to the prin ciple laid down by the Punjab High Court. It is true that the consensus of authorities appear to be that the Common Law rule is not applicable to India is such but it is equally true that the aforesaid rule has been commonly taken cognizance of as a factor to be taken into consideration for determin ing the place where, according to the inten tion of the parties, the debtor was to pay to the creditor. No case has been cited before us in which the correctness of the decision of the Privy Council has been doubted.