SONIRAM JEETMULL Vs. R. D. TATA AND COMPANY LIMITED

JUDGEMENT

(1.) THIS is an appeal by special leave from the High Court of Rangoon, which affirmed a decision of the Court below, overruling an objection to the jurisdiction taken by the appellants. It was imposed upon the parties, as a term of the special leave, that the pleadings between the partiea, the judgments and the order of the Court in India should be the sole material for this argument. The appellants were sued in Rangoon by R.D. Tata & Company, Limited, who have a business branch there, for payment of sums of money, due upon the failure of constituents to satisfy debts due to Messrs. Tata, Sons & Company, which sums the defendants had undertaken to make good to them. Judgment had been obtained, and there was no dispute about the amount or validity of these debts or about their being due from the original debtors, but Messrs. Jeetmull, who carry on business in Calcutta, contend that they cannot be sued for this money in Rangoon. The transactions between these parties were a continuation of dealings which had existed for a number of years before the present plaintiffs became an incorporated company and had been carried on under a memorandum dated the 10th December 1911, and signed in Calcutta. It is Clause 2 of that contract that expresses Messrs. Jeetmull's obligation its pay in the present case, and it says that Messrs. Jeetmul are to 'make good any undisputed claims that Messrs. Tata & Company might lose owing to the failure or suspension of payment of constituents. Accordingly, one point only arises, namely, whether the part of this contract relating to payment was per formable by Messrs. Jeetmul in Ran goon. If it was, there was jurisdiction in the Court to entertain the suit and the objection of the appellants was rightly overruled.

(2.) THE point, at first sight, appears to be exceedingly short. It is quite true the contract does not say where Messrs. Jeet mull are to pay, but it does say, by an implication which is indisputable, that that they are to pay Messrs, Tata, Sons & Company, and it follows that they must pay where that firm is. Henca one would think that, upon the face of this contract, not indeed in express terms, but by the clearest implication, payment is to be made in Rangoon. In respect of the whole of this business it is not disputed that the business transactions, out of which the outstanding debts arose, took place in Rangoon, and for this purpose the branch of Messrs. Tata, Sons & Company there were the Messrs. Tata, Sons & Company concerned. It was objected, however, in the High Court of Rangoon, that this constituted an importation of a technical rule of the English Common Law into the jurisprudence of India, namely, the rule that the debtor must seek out the creditor. The simple answer to that would have been that, on the contrary it was a mere implication of the meaning of the parties. The appellants, however, rely upon Section 49 of the Indian Contract Act, which is in these terms: When a promise is to be performed without application by the promisee and no place is fixed for the performance of it, it is the duty of the promisor to apply to the promisee to appoint a reasonable place for the performance of the promise and to perform it at such place.

(3.) THIS follows the principle of Dhunjisha Nusserwanji v. A.B. Fforde [1887] 11 Bom. 649, where it was held that In the absence of stipulation in the contract itself, the intention of the parties to it was to guide the Court in determining the place of its performance,