Bachawat, J. - (1.) This is an appeal by the defendant State of Punjab against a decree directing an enquiry as to the amount due and payable to the plaintiff Company in respect of their claim as mentioned in paras. 6, 7 and 8 of the plaint.
(2.) Under paragraph 6 of the plaint the plaintiffs claimed a sum of Rs. 31,949-12 as. on account of excess deductions from running bills and under paragraphs 7 and 8 of the plaint they claimed a sum of Rs. 3,35,211-12 as. on account of the price of work done, refund of security deposit and damages as in the schedule to the plaint. The claim for damages as mentioned hereafter has been abandoned and given up before us. The plaintiff's claim as it stands now is for the refund of the security deposit and for the price of work done under the contract between them and the defendant. Under the contract the plaintiffs undertook to construct for the defendant a broad guage Railway tunnel on the Bhakra Nangal Canal Railway. The contract was between the plaintiffs, a limited company having then its registered office at D5, Clive Buildings in the town of Calcutta and the Punjab Government having then its Head Quarters at Simla. The tender was submitted by the plaintiffs to the Superintending Engineer, First Bhakra Civil Circle, Ellersley, Simla-E. The acceptance of the tender was sanctioned by the Chief Engineer. Irrigation Works, East Punjab Simla. The contract was signed on behalf of the plaintiff Company under the authority of the resolution of their Board of Directors passed at their registered office at Calcutta. Part of the Security deposit, namely a sum of Rs. 5,000/- was deposited in cash by the plaintiff company with the Subdivisional Officer, Left Bank Tunnel Subdivision at Barmula and the balance of the deposit, i.e., a sum of Rs. 20,000/. was deposited by them with the Punjab National Bank Rupar Branch. The work of construction of the tunnel on the Nangal Bhakra Railway was done under the supervision of the Executive Engineer, Tunnelling Division, Nangal Township P. O. Nangal Nikku Hoshiarpur. During the progress of the work the plaintiff Company had a temporary office at Nangal Nikku. The work was practically completed on or about the 4th of March 1949 but the last stone was removed on or about the 9th April 1949. According to the certificate of the Subdivisional Officer Railways Tunnel Subdivision the work was completed on the 9th April 1949. The contract required the plaintiff Company to submit their bills to the Executive Engineer-in-Charge of the works. During the progress of the work running bills for work done were submitted to the Executive Engineer and payments were received by the plaintiff Company at its temporary office at Nangal by cheques. Under the contract the plaintiffs were entitled to receive monthly payments against the running bills which were to be treated as advances against the final payment. Considering that the plaintiff Company would maintain a temporary office at Nangal during the progress of the works and considering also that the payments under the running bills were made by way of advances to meet the running disbursements on the spot, a term may well be implied in the contract that the payments under the running bills could be made by the defendant to the plaintiff at its temporary office at Nangal. The contract required the plaintiffs to submit their final bill to the executive engineer in charge within one month of the date fixed for completion of the work. The contract also provided that the certificate of completion shall not be given and the work shall not Reconsidered to be complete until the contractor shall have removed from the premises on which the work shall be executed all scaffolding, surplus materials and rubbish and cleaned off the dirt from all wood work, doors, windows, wells, floors and other parts of any building in upon or about which the work is to be executed or of which he may have had possession for the purpose of the execution thereof. In view of this clause in the contract, the work was not considered to have been completed until the 9th April 1949 when the last stone was removed from the site. After the conclusion of the work, the plaintiff Company could not also maintain their temporary establishment at the site of the work at Nangal and had to bring to Calcutta all their accounts and measurements relating to the construction work. The final bill to the Executive Engineer was sent by the plaintiff Company from their registered office at Calcutta on or about the 15th March 1949. Then and at all material times previously the plaintiffs had their registered office at D5, Clive Buildings, Calcutta. The correspondence suggests that the registered office of the plaintiffs was shifted from D5, Clive Buildings, Calcutta to premises No. 22, Canning Street, Calcutta in or about October, 1949. In spite of demands the defendant failed and neglected to pay any portion of the plaintiff's claim. The plaintiffs contend that they are entitled to payment of their final bill at Calcutta whereas the defendant claims that the bill was payable to the plaintiff in the Punjab.
(3.) The case made in the plaint is that inasmuch as the contract contained no provision as to the place where the final payments under the contract were to be made, it was the duty of the defendant to make such payment at the registered office of the plaintiffs at Calcutta. Before Mallick J., the plaintiffs contended that there was no provision in the contract as to the place of payment of the final bill, whereas, the defendant contended that the final bill was payable by the defendant at one of its Treasuries in the Punjab. Mallick, J. held the final bill including the security deposit was not payable either expressly or impliedly in the Punjabi and there being no place of payment agreed to, the money was payable at the plaintiffs' Calcutta office either under Section 49 of the Indian Contract Act or in accordance with the common law rule that the debtor must seek the creditor and make the payment at the creditor's place. Both parties have repeated their respective contentions before us, and additionally the plaintiffs have contended that if we are to hold that the contract fixes the place of payment of the final bill by necessary implication, we should find that the con-tract by necessary implication provided for payment of the final bill at the plaintiffs' registered office at Calcutta.;