Debangsu Basak, J.

The claim of the plaintiff was on account of value of short delivery of materials in terms of a consignment agreement. The defendant denied liability and made a counter claim.

The parties negotiated and entered into a contract whereby the plaintiff appointed the defendant as a consignment agent with regard to the iron and steel materials of the plaintiff. By and under the said contract, materials would be dispatched by the plaintiff from Jamshedpur to New Gauhati Railway station. The defendant would post their men at New Bongaigaon Railway station to look after and tranship the materials from Broad gauge to Meter gauge and would ensure safe delivery at the ultimate destination. In the event the defendant received short delivery, the defendant would lodge claims with the Railway authorities. Any shortage in respect of which the defendant did not lodge claim with the Railway authorities was on account of the defendant.

According to the plaintiff, there were short deliveries. The defendant did not lodge complaints or claims with the Railway authorities. The defendant, therefore, became liable to make good the value of the short delivery.

The defendant contested the suit. The defendant contended that, this Court did not have territorial jurisdiction to try the suit inasmuch as no cause of action arose within the territorial jurisdiction of this Court. The defendant was carrying on business at Gauhati outside the territorial jurisdiction of this Court. The weighing machine at the New Bongaigaon Railway station was not functioning most of the time. The plaintiff was aware of the situation. In spite thereof the plaintiff extended the validity period of the contract. The defendant suggested that, the plaintiff waived their right. The defendant made a counter claim on account of unpaid bills.

Nine issues were framed for the trial of the suit. Documents were disclosed and marked exhibits. Witnesses were examined and cross-examined.

Since the witness of the defendant was last examined, the Counsel for the defendant commenced his submissions first. Mr. Swarnendu Ghosh learned Advocate for the defendant, took the point of lack of territorial jurisdiction first. He placed various paragraphs of the plaint and the 3 letters exchanged between the parties being Exhibits ‘A’, ‘B’ and ‘C’ and contended that, no part of the cause of action of the suit arose within the territorial jurisdiction of this Court. The plaint described the defendant to be carrying on business outside jurisdiction. The letter dated August 7, 1975 written by the defendant being Exhibit ‘A’ was received by the defendant at Gauhati outside jurisdiction. Exhibit ‘B’ being the letter dated October 15, 1975 was written by the plaintiff to the defendant outside jurisdiction. Exhibit ‘C’ was the letter dated October 20, 1975 written by the defendant from outside jurisdiction. The contract was performed outside jurisdiction. Breach, if any, was occasioned outside jurisdiction. The security deposit was made by a bank draft. Its encashment within jurisdiction would not vest the Court with jurisdiction.

It was contended that, the offer made by the plaintiff was confirmed by the defendant from outside jurisdiction. Reliance was placed on All India Reporter 1998 Gujarat page 46 (Oil and Natural Gas Commission, Dehradun & Ors. v. Modern Construction & Company, Mansa) for the proposition that, in case of communication of acceptance by a telegram, the place of the contract was the place where the telegram started its journey.

It was next contended that, the contract was performed wholly outside jurisdiction. Reliance was placed on All India Reporter 1989 Supreme Court page 1239 (A.B.C. Laminart Pvt. Ltd. & Anr. v. A. P. Agencies, Salem) in support of the proposition that, a suit in respect of the breach of which was complained of could be filed at the place where the contract was required to be performed or its performance completed.

According to the d