The English Common Law rule, that the debtor must seek out the creditor and pay him, does not apply to negotiable instruments.

( 1 ) THIS rule is directed against an order passed by the Third Bench of the City Civil Court, Calcutta, deciding an issue as to territorial jurisdiction of the Court against the defendant

( 2 ) THE defendant, Jagdish Chandra Sikdar and his sister Nanibala Kundu used to carry on business in partnership at Cuttack, under the name and style of Messrs. Graduate Friends. Jagdish Chandra's daughter was married to the plaintiffs son. Dispute arose between the parties above named, inter alia, over certain sums of money payable to the plaintiff out of the partnership business. The disputes were referred to arbitration and under the Award the plaintiff became entitled to receive a sum of Rs. 2500/- by way of principal and interest.

( 3 ) ACCORDING to the plaintiff, the defendant Jagdish Chandra Sikdar executed a promissory note for a sum of Rs. 2300/- in favour of the plaintiff, on October 1, 1936. The said promissory note, the plaintiff alleged, was executed in Calcutta within the jurisdiction of the City Civil Court. The defendant did not pay the amount due under the promissory note and thereupon the plaintiff, Santimoyee Devi, instituted a suit in the City Civil Court against him claiming a sum of Rs. 3012-5-9, inclusive of principal and interest due on the promissory note. The defendant contested the suit and his defence, inter alia, was:- (a) the adjustment between the parties was made at the residence of Sri L. K. Das Gupta, Advocate, at Cuttack. (b) The writing in question, alleged to be a promissory note, was also executed at the house of the said L. K. Das Gupta at Cuttack and not in Calcutta, as untruly alleged. (c) the defendant resides and carries on business at Cuttack and as such no part of the cause of action arose in Calcutta or within the jurisdiction of the City Civil Court, Calcutta. On the pleadings there was a preliminary issue raised, namely:-"has the court jurisdiction to try this suit?"

( 4 ) ON the evidence the court below came to the following conclusions:- (a) "i am satisfied that the adjustment on the basis of accounting was really done at Cuttack by the Arbitrator and that the present disputed document was also executed at Cuttack. " (b) "it is also admitted that the defendant resides and carries on business at Cuttack. " (c) "the contents of the document satisfy the definition of promissory note, as given in Section 4 of the Negotiable Instruments Act. "

( 5 ) BEFORE the trial court it was contended that when there was no place of payment mentioned in the document, the English Common Law rule, that the debtor must seek out the creditor and pay him, enabled the plaintiff, who was herself resident of Calcutta, to bring a suit on the document in Calcutta. Relying on a decision of this Court reported in Srilal Singham'a v. Anantalal Mandal, 44 Cal WN 609 : ILR (1940) 1 Cal 323 : (AIR 1940 Cal 443), the trial court answered the issue as to jurisdiction in the affirmative, though not without reluctance.

( 6 ) THE observation in 44 Cal WN 609 : (AIR 1940 Cal 443) relied on by the court below is set out hereinbelow:-"it was decided in the case of Tulsiman Bibi v. Abdul Latif Miya, ILR 63 Cal 726 : 40 Cal WN 392 : (AIR 1936 Cal 97) that: 'a suit on a contract can be instituted in the court which has territorial jurisdiction over the place where the contract has to be performed and that the place of performance must be taken to be the place where the plaintiff is residing on the principle that when the creditor is residing in the realm, the debtor must follow the creditor and pay him, unless there is a different contract between them, and that Section 49 of the Indian Contract Act does not get rid of inferences that should justly be drawn from the terms of the contract itself and the necessities of the case involving in the obligation to pay the creditor the further obligation of finding the creditor so as to pay. "the learned Judge, R. C. Mitter, J. , who decided that case, relied upon a judg