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High Court Of Delhi
L.N.GUPTA - Appellant
Versus
TARA MANI - Respondent
Decided On : 05/09/1983
A pronote was executed in favor of the respondent by the petitioner at Bangalore. It was payable on demand "at Bangalore or any part of India". The respondent a resident of Delhi, made a demand from Delhi for the payment. On the failure of the petitioner to pay, the respondent filed a suit for recovery in Delhi. The question that arose for consideration was whether the court at Delhi had the jurisdiction to try the suit. The District Judge held that court was competent to try the suit since the agreement provided that the payment could be made anywhere in India, and since the payment could be demanded at Delhi, a suit could also be filed at Delhi. Dismissing the revision against the order of the District Judge.
Held:
1. The common law rule that the debtor should find the creditor and pay the debts where the creditor resides, applies in India in fit cases, and this is one of those cases.
2. The moneys were payable on demand "at Bangalore or at any part of India". Any place in India is apparently an indeterminate place. it amounts to a place not specified. No presentment is necessary under the law as the suit was against the maker of the pronote. The place of payment has, thereforee, got to be ascertained. If the payee chooses to exclude Bangalore, the other alternative place will be a place appointed by mutual agreement and if not, then, by the creditor. Since the respondent lived at Delhi and demand notice was sent by her from Delhi, it is clear that the money was to be paid to her at Delhi, which is confirmed by the discreet silence on the part of the defendants. The exception to Section 64 of the Negotiable Instruments Act makes it clear that the place of presentment in such a case will not determine the place of payment. Since the pronote was not endorsed and the payee was the original creditor, the rule that the debtor must find the creditor is applicable to promissory noted payable on demand in which the place of payment is not specified or where alternative places are mentioned.
( 1 ) THE respondent plaintiff Tara Mani, a widow living in D-II/160, Kaka Nagar, New Delhi, filed a suit in Delhi against the petitioners defendants on the basis of a pronote which was made and delivered on 9-6-1978 in Bangalore in her favour by the petitioners defendants payable on demand at Bangalore or any part of India . In New Delhi she was living with her relative and attorney B. S. Gupta. On 12-3-1981 B. S. Gupta wrote from New Delhi to the petitioners to remit the amount due to her within 30 days. On 11-5-1981 her advocate upon instructions from Smt. Tara Mani by a notice called upon the petitioners to pay the amount due within seven days. Since no payment was forthcoming, the present suit was filed on 28-5-1981.
( 2 ) UPON an objection, a preliminary issue was framed whether the Delhi court had any jurisdiction. The learned Additional District Judge was of the view that the defendants agreed to make payment on demand at any part of India. So, if payment could be demanded in Delhi in terms of the contract, suit could also lie at Delhi. The choice was left with the plaintiff on the basis of the contract between the parties and the defendants cannot now contend that the suit could be instituted only in Bangalore. By his order of 26-11-1982, the learned Judge decided the issue in favour of the plaintiff. Hence, this petition.
( 3 ) UPON hearing the counsel, I am of the view that the petition ought to be dismissed.
( 4 ) UNDER Section 20, Cl. (c), Civil Procedure Code. , a suit can be filed in a court in whose jurisdiction the cause of action, wholly or in part arises. Place of performance in full or in part of a contract and, therefore, the place of payment or of part payment will give rise to a cause of action in that place. Such place can be specified at the time of making the contract, may be appointed later on, or may be implied. Indian Contract Act, 1872, Sections 47, 48 and 49 deal with the place of performance. So far as the stipulated place is concerned, there should ordinarily be no problem. But where the contract is silent about the place, and (i) the promisee is not required to indicate the place, the place of performance shall be the place at which the promise ought to be performed, or the promisor must ask the promisee for a reasonable place, and (2) where the promisee is required to specify the place, at the place appointed by him, provided such place is a proper place. Now, there may arise situations in which the promisee is not required to specify the place or if required does not so specify the place, or if the place so specified is neither reasonable nor proper, then the court may be called upon to look for loci solutionis, that is the proper place of performance. This the court can do by taking into consideration all the relevant factors.
( 5 ) IN England, in a situation of this kind one of the basic rules has been that the creditor should seek the debtor, worked out in practice, it means that the debtor should make payment at the place where at the relevant time the creditor lives, carries on business or works tor gains as the case may be. Mr. Gopal Narain for the respondent urged that this rule is as well applicable to the case under consideration.
( 6 ) IN 1481 in his Estates and Tenures, Sir Thomas Littleton observed "the feoffor is bound to seek the feoffee, if he be then in any other place within the realm of England". According to Sheppard s Touchstone, "when an obligation is to pay a sum of money, do any like transitory thing to the obligee on a day certain, but no place is set down, it must be done to the person of the obligee wheresoever he be, and for this purpose, the obligor must at his peril seek out the obligee if he be intra qua-luor maria (infra regnum Angliae) but if he be not within the kingdom, he is not bound to seek him, and yet the condition is not broken. And if the thing to be done be either local, i. e. such a thing as must be done in or at a place certain, as
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