MODI, J. - (1.) THIS an appeal by the plaintiff Ramdas against an order of the learned Civil Judge, returning the plaint for presentation to the proper court under O. VII, r. 10 C. P. C.
(2.) THE plaintiff Ramdas, a resident of Jodhpur, placed an order with the defendant firm Laxmichand Kashiram who are sugar agents and carry on business in Delhi for supply of a certain quantity of sugar. It appears that the plaintiff made certain inquiries from the defendant in or about June, 1948, as a result of which the latter replied that it could book the plaintiff's orders if it received an advance money at the rate of Rs. 5/- per bag. THE plaintiff accordingly sent a sum of Rs. 400/- to the defendant firm and asked them to supply 100 bags of sugar. THE plaintiff also stated that he was remitting only Rs. 4/- per bag as advance money instead of Rs. 5/- and pointed out that the defendant firm had accepted smaller advances from other firms. THE plaintiff wrote to the defendant to the above effect on the 15th June, 1948; and sent a subsequent reminder on the 23rd June, 1948. In reply the defendant wrote a letter dated 26th June, 1949 in which it stated that it was arranging execution of the plaintiff's order and pointed out that there was a paucity of wagons and, therefore, there might be delay in the despatch. It hoped, however, that it would be able to arrange despatch at an early date. As it transpired, the defendant failed to execute the order. THE result was that the plaintiff instituted the present suit for recovery of the advance money of Rs. 400- plus Rs. 28/- as interest at the rate of 6% per annum and a further sum of Rs. 10/7/-as incidental charges; the total amount thus coming to Rs. 468/7/ -. THE defendant resisted the suit on a number of grounds with which I am not concerned in the present appeal. THE only ground material for the determination of the present appeal and to which reference must be made was one relating to jurisdiction. THE defendant's contention was that as the entire cause of action had arisen in Delhi, the Jodhpur courts had no jurisdiction to entertain the suit. THE trial court decided this issue in favour of the plaintiff and decreed the entire suit. THE defendant took an appeal from the decision of the learned Munsiff to the learned Civil Judge, Jodhpur, who reversed the finding of the trial court on the point of jurisdiction and ordered the return of the plaint for presentation to the proper court. This is an appeal from the above judgment. It is contended by learned counsel for plaintiff-appellant that the judgment of the lower appellate court on the question of jurisdiction was erroneous and that the contract was made between the parties at Jodhpur and further that a breach thereof had also been committed at Jodhpur. On the other hand it was contended by learned counsel for the respondent that the contract had taken place at Delhi and that, if at all a breach of the contract had occurred, that had also occurred at Delhi and, therefore, the Jodhpur courts had no jurisdiction whatsoever. Now, there is no doubt that the courts at Jodhpur would have jurisdiction to try the present suit if the cause of action either wholly or even partly arose within the jurisdiction of the Jodhpur courts. The question for determination, therefore, is whether any cause of action wholly or partially arose within such jurisdiction. Taking the question of the making of the contract, the trial court came to the conclusion that the contract was made at Jodhpur. It principally relied on a letter of the defendant dated the 12th June 1948. As this letter is short one, I am quoting it in extenso: - "we are in receipt of your post card and in reply have to inform you that we can book your other only when we receive advance money @ Rs. 5/- per bag. In case you want us to book your order we would request you to please remit advance money immediately to enable us to book your order and forward the Despatch Instructions to the mills and arrange for booking of the same. The advance money paid by you will be deducted from the bill when the sugar is despatched. Assuring you of our prompt service always. " The opinion of the trial court was that this letter was an offer by the plaintiff on 15th June, ll948, and that as, the acceptance had taken place at Jodhpur, the contract must be deemed to have been completed there, and, therefore, the place of contract was really Jodhpur and not Delhi. In appeal the learned Civil Judge took a different view and held that the letter cited above was not an offer by itself but was merely an invitation to offer, and that the letter of the plaintiff dated the 15th June, 1948, by which he placed a definite order on the defendant firm was the real offer which had been accepted by the defendant on the 26th June, 1948. This acceptance took place at Delhi and therefore, according to the learned Civil Judge, the contract had been completed at Delhi and not at Jodhpur. Having given my careful consideration to this aspect of the case. I have come to the conclusion that the view of the lower appellate court was right. It may be pointed out that the defendant's letter dated 12. 6. 1948 did not contain the specifications of the order but merely stated that before the defendant could undertake responsibility for execution of the plaintiff's order, the latter must send an advance at the rate of Rs. 5/-per bag. The letter was obviously sent by the defendant in response to certain inquires which had been made by the plaintiff. It was, therefore, more in the nature of an invitation to an offer rather than an offer itself. I am supported in this view by the decision in Ratanlal vs. Harcharanlal (1) (A. I. R. 1947 All, 337.), which is a very near case to the present. The only difference between the present case and the Allahabad case (1), is that there the amount of the advance money had not been specified. But that, in my opinion, does not make any difference. Further, I am of opinion that this letter of the 12th June, 1948; even if it was an offer had really not been accepted by the plaintiff but resulted in a counter offer by him in the sense that the latter wrote to the defendant that he was sending an advance money at the rate Rs. 4/- per bag only instead of Rs. 5/- asked for by the defendant firm. In order that an offer is accepted, it is well settled that the acceptance of the offer must be unqualified and absolute, and inasmuch as in this case the plaintiff came forward with a qualified proposal in reply to that made by the defendant, I have no hesitation in coming to the conclusion that the defendant's letter dated 12th June, 1948, did not amount to an offer which was accepted but resulted in counter offer dated 15th June. 1948. The latter offer was accepted by the defendant on the 26th June, 1948, at Delhi, and, therefore, the contract, in my opinion, was completed at Delhi and not at Jodhpur. In this connection I may refer to sec. 4 of the Indian Contract Act which lays down that the communication of an offer becomes complete when it comes to the knowledge of the person to whom it is made and further that the communication of an acceptance is complete as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor, and as against the acceptor, when it comes to the knowledge of the proposer. In other words, what really concludes the matter is not the place from where the offer is made but the place where the offer is received, and as the counter offer was received in the present case in Delhi, I hold that the contract really was completed at that place. This, however, does not conclude the matter because we have still to sec. whether contract was also to be performed at Delhi or whether in pursuance of the contract, any payments to be made were also to be made there. So far as both these aspects of the case are concerned, there appears to have been no express agreement between the parties. The plaintiff has not mentioned any particulars in these respects in his plaint either. When the plaintiff came into the witness box, however, he made a statement that the delivery of the goods was to be made in Jodhpur. The plaintiff also stated that he had sent the advance through the Jodhpur branch of the Jaipur Bank to the defendant at Delhi. The plaintiff's statement that the intention of the parties was that the delivery of the bags of sugar was to take place at Jodhpur was not subjected to any cross-examination by the defendant. The latter on his side when he came into the witness box deposed that the delivery of the bags was to befor. mills. The defendant also stated that the railway receipt was to be sent through a bank. I may state at once that the mere sending of the advance money from Jodhpur would not be sufficient to give the Jodhpur courts jurisdiction for entertaining the present case; but the matter would certainly stand on a different footing if the goods were intended to be delivered at Jodhpur and the price thereof was also intended to be paid here. I have referred the depositions of the plaintiff and the defendant above which may throw some light on the intention of the parties in this respect. Then there is a letter dated the 1st September, 1948, which was sent by the defendant to the plaintiff and in which it was stated that the goods will be despatched soon, and the related railway receipt will be sent through the bank and that the defendant should take delivery of it on payment to the bank. This letter read with the statement of D. W. 1 Madhusudan defendant clearly shows that the understanding between the parties was that the defendant would send the consignments through the railway in the name of self and further send the railway receipt through a bank, and that the plaintiff would take delivery of the railway receipt from the bank against payment. It is very significant that the consignor was to send the goods in the name of self, and it seems to me to be an irresistible conclusion that the property in the goods would not pass to the plaintiff until and unless he had made the payment to the bank and taken delivery of the railway receipt. My conclusion, therefore, is that it was intended between the parties that the delivery of the bags was to be made at Jodhpur, and further that the payment in respect thereof had also to be made to a bank in Jodhpur. Then and then only the plaintiff would have been in the position to take possession of the goods. If, on the other hand, the intention of the parties should have been that the delivery of the goods or payment in respect of them had both to be made at Delhi, I am inclined to think that they would not have chosen the course of business which they really did. In this view, I am definitely of the opinion that the cause of action in respect of the suit contract partially arose in Jodhpur. See Chiranji Lal vs. Sumer Oil Mills (1) (1952 RLW, 438.) Lakshmipathi Vs. Md. Gani (2) (AIR 1947 Mad. , 83. ). Learned counsel for the respondent strenuously argued that the plaintiff had not stated either that the payment had to be made in Jodhpur, or delivery of the goods was to take place in Jodhpur in his plaint, and, therefore these considerations should really not be relied upon in this appeal. I have given this contention my very careful consideration and have reached the conclusion that it cannot be accepted. So far as the pleadings are concerned, one cannot construe them too strictly, and I am of opinion that the interests of justice cannot be sacrificed on the score of a mere technicality. The plaintiff did mention in his replication that the delivery of the goods was no take place in Jodhpur, and therefore, there is no question of any surprise having been caused to the defendant on this score. It was perfectly open to the latter to have led evidence to the contrary if it so wished. Besides, the conclusion at which I have arrived above is really based on the defendant's own evidence. I have already referred above to the statement of the defendant Madhusudan in which he stated that the course of business to be followed was to make a railway receipt in the name of the defendant itself and send it through a bank in Jodhpur and the plaintiff, was required to make payment to the bank and thereafter take delivery of the railway receipt and the possession of the goods. The same state of affairs is disclosed by the defendant's letter dated 1st September, 1948, to which reference has already been made above. I am accordingly of the opinion that the contention of learned counsel for the defendant respondent there has been any surprise to him on this account is without any force. It was further contended by learned counsel for the defendant that the delivery of the goods was to be given to a common carrier at Delhi, and that the latter would be the agent of the plaintiff under sec. 39 of the Sale of Goods Act. That section provides that where, in pursuance of a contract of sale the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, or delivery of the goods to a wharfinger for safe custody, is prima facie deemed to be a delivery of the goods to the buyer. In my opinion, this section can have no application in the case of consignments which are made by a seller in his own name and in respect of which the railway receipt is sent through a bank to be delivered against payment made to it by a buyer. In such cases, the property in the goods, to my mind, remains in the seller until the railway receipt is endorsed and handed over to the purchaser against payment and delivery to the carrier cannot be deemed to be delivery to the buyer. It must further be pointed out that all that sec. 39 lays down is that delivery of the goods by a seller to a carrier is prima facie delivery of the goods to the buyer. I wish to draw attention to the word "prima facie" used in the section. It seems to me implicit, as the section is worded, that circumstances may exist in a particular case which may prevent such delivery to the buyer. I am clearly of opinion that such circumstances are to be found in the case before me. The seller himself was the consignee and not the buyer. It is difficult also to say that the goods were being transmitted to the buyer. That apart, the buyer was to be entitled to take delivery of the goods only after the railway receipt was endorsed in his favour and such an endorsement would be possible only when the balance of the payment was made to the bank. These circumstances clearly negative the presumption of delivery to the buyer. Reference may be made in support of this view to Ramlal and another vs. Bholanath & another (1) (AIR 1920 All. 6.) and Jagadish Prasad Pannalal vs. Produce Exchange Corporation Ltd. (2) (AIR 1946 Cal. 245. ). I hold therefore that the delivery to the railway by the seller could not operate as delivery to the buyer in the present case and that the delivery to the latter was really intended to be made through the bank at Jodhpur against payment according to the arrangements contemplated between the parties. There is one more argument to which reference must be made and it is this. Learned counsel for the plaintiff appellant further argued that the lower appellate court was not right in returning the plaint to the plaintiff for presentation to the proper court on the ground of jurisdiction unless it came to the conclusion that there was a failure of justice within the meaning of sec. 21 of the Code of Civil Procedure, and that nothing had been shown to that court which would indicate that there was any failure of justice in the present case. Now so far as sec, 21 C. P. C. is concerned, it clearly requires that before an appellate or revisional court allows an objection as to territorial jurisdiction, two conditions must be fulfilled; first, that such objection must have been taken in the court of first instance at the earliest possible opportunity, and in all cases where issues are settled at or before such settlement, and secondly, that there has been a consequent failure of justice. As regards the first condition, it was fulfilled in this case because the defendant had taken objection in his written statement that the Jodhpur court had no jurisdiction. The learned Civil Judge, however, did not apply his mind to the second condition which was equally incumbent upon the defendant to show before the objection as to jurisdiction could be allowed. In fact, the lower appellate court did not apply its mind to this requirement of law at all. It is contended by learned counsel for the respondent that if the point had been raised in the court below or behalf of the appellant, he would have shown that failure of justice had resulted to him on account of Jodhpur court entertaining the present suit. This in my opinion is not a correct way of looking at the matter. It is for the party who wants to oust the jurisdiction of the court to show that a failure of justice resulted in the circumstances of the case. There is nothing on this record to show that such a failure has occurred in the present case. I may add, however, that even if this point were left out of account, the conclusions at which I have arrived at would not be affected because, in my opinion, a part of the cause of action did arise in Jodhpur, as both the delivery in respect of the goods had to be taken and the payment of the price thereof made in Jodhpur. In the result, this appeal must be allowed, the judgment of the learned Civil Judge set aside and the case remanded to him with a direction that he will re-admit the appeal to its original number and dispose of it on the merits. The costs of this appeal shall abide the result. . ;