ORDER
S.K. Choudhuri, J.
1. The defendant has filed thus revision against the order dated 9-4-1977 passed by the Subordinate Judge, Samastipur in money suit No. 137 of 1974 holding that the court has got territorial jurisdiction to try the suit.
2. In order to appreciate the point it is necessary to state the relevant facts from the plaint. The plaintiff opposite party is a registered firm dealing in wholesale grain business at Siliguri in the district of Darjeeling. The defendant is also a registered firm dealing in similar business at Sona Mandi in the district of Sangrur in the State of Punjab. A contract between the plaintiff
and the defendant was entered into in October, 1974, through a middle man of Siliguri whereby the defendant contracted to supply about 1400 bags of maize, by local purchase to the plaintiff. It is also the plaintiff’s case that under the terms of contract after making purchase the defendant would despatch “goods to Barauni railway station on the North Eastern Railway and the relative R/R and hundi were to be sent to the Punjab National Bank, Waini drawn against M/s. Malik Singh Amrik Singh of Waini who had been appointed as a commission” agent of the plaintiff for getting the supply of the said goods on behalf of the plaintiff after honouring the hundis drawn by the defendant against the goods and relative R/Rs and hundis were to be taken delivery of from the said Bank on payment of the bill.” It is also stated that M/s. Malik Singh Amrik Singh as commission agent of the plaintiff had to retire the hundi as settled between the plaintiff and the said firm and after sale of the goods in Waini they were to submit accounts to the plaintiff. These facts were fully known to the defendant who had agreed to carry out the same.
According to the case of the plaintiff the defendant purchased 394 bags of maize and despatched from Dhuri railway station to Barauni under two consignments and further despatched 1030 bags of maize from Nova to Barouni junction under four consignments. It is said that the aforesaid consignments covering 500 bags despatched from Nova along with two hundis were sent to Waini Punjab National Bank which were honoured and there is no dispute in relation to these two transactions. Two wagons covering 394 bags despatched from Dhuri reached the destination station, namely Barouni junction on 29-10-1974 and 30-10-1974 and the remaining two wagons carrying 530 bags of maize booked from Nova reached Barouni junction on 4-11-1974 and 5-11-1974 for which the plaintiff had already received a bijak but the relative hundi and the R/Rs were not sent to the Punjab National Bank, Waini as per contractual term. Accordingly the defendant was requested to send the indemnity bond for taking delivery as the consignments were lying at Barouni junction as heavy demurrage was to be paid due to the fault of the defendant and directed the defendant’s representative to take a draft: for the amount under the hundi.
It is stated that the plaintiff did not get any response. Thereafter the plaintiff sent one Foujdar Sah an agent and representative of M/s. Malik Singh Amrik Singh but the defendant did not take any step. In other words they sent a telegram that the hundis have been sent to the State Bank of India, Barouni by mistake instead of sending to the Punjab National Bank, Waini and the plaintiff was directed to take delivery of the hundis and R/R from the State Bank of India at Barouni. According to the case of the plaintiff on receipt of the telegram by the plaintiff on 8-11-1974 at 7 p. m. at Siliguri the plaintiff enquired at Barouni and learnt that the hundis and R/R have already been returned to the defendant on 7-11-1974.
The further case of the plaintiff is that in connection with the consignments of the two wagons containing 530 bags despatched from Nova reached Barouni junction on 5-11-1974 and the relative R/R and hundis were sent to the State Bank of India, Parbhanga against the term of the contract under which they should have been sent to the Punjab National Bank at Waini.
Under the aforesaid circumstances the remaining goods under the contract wore not delivered to the plaintiff or his agent due to wilful mistake and default on the part of the defendant inasmuch as hundi and R/R were not went to the Punjab National Bank at Waini and failure to do so was a clear violation of the terms of contract. According to the case of the plaintiff a sum of Rupees 15,000/- was paid by the plaintiff as advance which finds mention in the bijak supplied to the plaintiff and the said amount was to be deducted while drawing the hundi and it is learnt that the said amount had been deducted by the defendant while drawing the latter hundis but the hundis were not retired nor the consignments delivered due to breach of contract committed by the defendant. Hence the plaintiff is liable for recovery of the aforesaid amount of Rs. 15,000/- from the defendant besides interest by way of damages from 15-10-1974. The cause of action arose when the contract was entered into and the samp is mentioned in para. 15 of the plaint which is in these terms.”
“That the cause of action arose to the plaintiff in the month of Oct., 1974 when the contract was entered into and from Oct. to Nov., 1974 by the breach of con-
tract by the defendants and on 30-11-1974 the date of notice and as the amount was payable by retiring the Hundi at Waini P. S. Tejpur, a part of the cause of action arose within the jurisdiction of the court and hence the suit is being filed.”
The plaintiff claimed a sum of Rupees 15,390 payable by the defendant as principal with interest by way of damages as also the cost incurred in correspondence, telegram and notice, on account of which has been shown under the heading ‘Accounts’. With the aforesaid allegations the plaintiff has filed the present suit in the court of the Subordinate Judge, Samastipur.
3. After notice of the suit the defendant appeared but before any written statement was filed, the defendant challenged the territorial jurisdiction of the court by filing a petition. In that petition it has been stated that the suit is beyond pecuniary jurisdiction of the court. In that petition it has been alleged that on perusal of the plaint it is clear that the suit is beyond the territorial jurisdiction of the court and the plaintiff should have filed the suit in the Punjab court. The plaintiff filed a rejoinder to the aforesaid application asserting that the suit could be tried where it has been filed.
4. The court below after hearing the parties on this preliminary point held by the impugned order that the Court has got territorial jurisdiction to try the suit and accordingly rejected the defendant’s petition. It has taken the view that cause of action also arose at a place where in performance of the contract any money was payable. According to the court below therefore, as the cause of action arose at Waini the suit is triable by Samastipur court.
5. Mr. S. C. Ghose, learned counsel appearing in support of this application contended that the view taken by the court below to the effect that part of the cause of action arose at Waini within the jurisdiction of Samstipur court is erroneous as nothing was done at Waini. According to the learned counsel if the hundis and R/Rs would have been sent to the Punjab National Bank, Waini and taken delivery of by the plaintiff then only it could be said that a part of the contract was performed at Waini and therefore Samastipur court has jurisdiction. Mr. Rajeswar Dayal, learned . counsel, appearing for the plaintiff-opposite party on the other hand sup-
ported the impugned order by contending that a part of the cause of action arose at Waini as in pursuance of the contract, hundis and the railway receipts were to be taken delivery from the Punjab National Bank at Waini. According to the learned counsel if there was any omission on the part of the defendant in sending the hundis and the R/Rs to the place agreed upon under the contract it would amount to a breach of a part of the contract giving rise to a cause of action.
6. Mr. Ghose in support of his contention relied upon a single Judge decision of the Rajasthan High Court in the case of Firm Shah Chandanmal Fatehraj v. Hazari Lal (AIR 1962 Raj 122). He did not in fact rely upon the main decision in the case but referred to para. 21 only where one aspect of the case was considered. In that paragraph it has been stated that the said suit was primarily for recovery of Rs. 1500/- as advance in respect of some transactions which did not take place. It has been held that such advance being a debt could be recovered at the suitor’s place and in support of this proposition several decisions have been referred to in that paragraph. In this reported case the plaintiff was a resident of Baran and the defendant was carrying on business at Merta. The plaintiff placed orders with the defendant for one wagon of wheat to be booked at Bangalore and accordingly hundi was drawn, by the defendant for advance of Rupees 1500/-. The said hundi was honoured through the bank by the plaintiff at Baran. The defendant sent the goods from Banglore and sent the bilti and hundi through the bank at Baran without adjusting the advance. It appears that this advance was not refunded to the plaintiff in spite of demands. Hence the suit for its realisation was filed at Baran. The trial court held that it had no jurisdiction to try the suit as no part of the cause of action arose at Baran. This decision was reversed by the lower appellate court. In revision before the High Court reliance was placed upon a decision in Charanji Lal v. Sumer Oil Mills (AIR 1953 Raj 134) for the proposition that a part of the cause of action arose where payment was to be made for obtaining R/R. I would better quote from para. 9 at p. 125 where this decision has been referred.
“……a contract was entered into between the parties at Udaipur for the
supply of Til seeds to the plaintiff who resided at Kishungarh within the jurisdiction of the Jaipur court. The defendant carried on business at Ratlam. The defendant was to load the Til in a wagon at Ratlam and was to obtain a railway receipt which was to be sent to the plaintiff at Kishungarh through a bank and was to be delivered to him upon payment of the price of the Til as well as other charges. It was held that a part of the cause of action arose at Kishungarh inasmuch as the railway receipt which alone would have entitled the plaintiff to take delivery of the goods was to be delivered at Kishungarh.”
After considering the argument and the decision relied upon in that case it has been held that court at Baran had jurisdiction to try the suit. I fail to understand as to how this case helps the argument of Mr. Ghose. Para 21 relied upon by Mr. Ghose only shows that the advance should also be considered as paid and therefore the suit could be filed at the place of. the plaintiff where he resided. In the case under consideration the plaintiff was also resident of Baran where R/R was to be sent through the Bank and therefore from that angle also it has been held that the court at Baran had jurisdiction to try the suit.
7. It cannot be disputed that the suit like the present one could be filed where the part of the cause of action arose within the meaning of Section 20 (c) of the C. P. C. It is well settled that cause of action means every fact which it is material for the plaintiff to prove in order to obtain a judgment in his I favour. It also cannot be disputed that in relation to a contract cause of action arises at a place where the contract was made or place where the contract was to be performed or the performance thereof completed or at a place where, in performance of the contract any money to which the suit relates was expressly or impliedly payable. It has been pointed out in a Bench decision of this Court in Kodo Minerals Steatite Mine and Mill Owners v. Rohtas Industries Ltd. (AIR 1954 Pat 147) relying upon a previous Bench decision of this Court in Arthur Butler & Co. Ltd. v. District Board of Gaya (AIR 1947 Pat 134) that explanation 3 of Section 20, C. P. C. incorporated the aforesaid tests to find out as to where the cause of action arose in relation to contract. It has further
been pointed out that though the said explanation stood deleted by the amendment those tests are still good tests in relation to the contract to find out where the cause of action arose.
In the present case under consideration I have stated the allegations made in the plaint which clearly show that the hundis and R/Rs were to be sent to the Punjab National Bank at Waini within the jurisdiction of Samasttpur court under the contract and the plaintiff was to take delivery of the goods only after honouring them after payment to the aforesaid bank. I have also pointed out above that the amount of advance of Rs. 15,000/- which was paid by the plaintiff had been deducted by the defendant while drawing the latter hundis but they were not retired nor the consignment delivered due to the breach of contract committed by the; defendant.
Therefore, it is clear that if there would not have been any omission on the part of the defendant in sending the Hundis and the R/R to the Bank contracted upon, the plaintiff would have got adjustment of the same by honouring the hundis and the R/R at the bank at Waini. In my opinion, therefore, the aforesaid omission gave rise to a cause of action as it would amount to a breach of the part of the contract.
8. I may discuss here a Bench decision of the Mysore High Court in Shimoga Oil Mills v. Radhakrishna Oil Mills Kadiri (AIR 1952 Mys 111). In that case the defendant (of that case) agreed to supply certain bags of ground nut seeds for which the plaintiff of that suit paid an advance of Rs. 3000/- but the defendant did not supply the goods in spite of repeated demands. The plaintiff therefore cancelled the order and asked for refund of the advance with interest reserving his right to sue for damages later on. The suit was accordingly filed at Shimoga court. One of the defence that was taken was that Shimoga court had no jurisdiction as no part of the cause of action arose within its jurisdiction. The Trial Court held that the said court had no jurisdiction. In appeal before Mysore High Court it was pointed out that the R/R had to be delivered at Shimoga after despatch of the goods to that place. It has, therefore, been held that it can be said that the performance could not be completed until R/R was tendered at Shimoga. It
has also been said that he could validly complain that he had not received such R/R and therefore treat the omission as a breach of a part of the contract and infringement of right affording him a cause of action. Notice was also taken of a case in Hanuman Pd. Pragdas v. Nanjappa Chetty and Sons (AIR 1949 Mad 858). In relation to that case I will do better if I read what has been stated by the Mysore High Court which runs thus:
“There is another case reported in the same volume at page 858 which fully supports the plaintiff and whose facts are almost identical with the present case. In that case the plaintiff, a firm at Madras, booked orders for some goods from the defendants who were the manufacturers at Mirzapore. The contract was for despatch of goods F. O. R. Mirzapore at earliest booking day and the railway receipt to be negotiated through the Bharat Bank Limited. The defendants failed to despatch the goods and the plaintiffs cancelled the contract and sued for damages in Madras. It was held on an objection regarding jurisdiction that as the parties had agreed that the railway receipt ehould be sent to the Bharat Bank, which in the context could only mean the Bharat Bank at Madras, against payment by the defendant the court at Madras had undoubted jurisdiction to try the suit. To a similar effect are cases in Venkatachalam v. Rajaballi, AIR 1935 Mad 663 (FB), Lakshmipathi v. Mahomed Ghani, AIR 1947 Mad 83 and Ramlal v. Bhola Nath, ILR 42 All 619: AIR 1920 All 6 where it has been held that the Court of the place where payment of the price is to be made has also jurisdiction to try a suit arising out of a contract”.
It has therefore been held in the Mysore case that Shimoga court had jurisdiction to try the suit.
9. Thus it is clear that the view
I have taken above is supported by the decisions I have discussed above. No decision taking a contrary view was placed before me either of our own High Court or of any other High Court. It has been contended by the learned counsel for opposite party that the petitioner not having filed a written statement and having been allowed to raise objection as to the territorial jurisdiction before such written statement could be filed now cannot be allowed to file written statement as the provision of
O. VIII Rule 1 (1) stands amended by the amending Act No. 104 of 1976. He pointed out that under the amended Act a mandatory duty has been cast upon the defendant to file a written statement at or before the first hearing or within such time as the court may permit. It is not for me to say one way or the other. If this objection is tenable and the opposite party is advised he may take up this point at the proper stage in the court below.
10. In view of the discussion made above I hold that there is no merit in this application and it is accordingly dismissed with costs. Hearing fee is assessed at Rs. 100/-.