In a bilticut transaction, the place of payment is the place where the buyer resides and the suit for recovery of advance money can be instituted at the place where the buyer resides.

JAGAT NARAYAN, J.

( 1 ) THIS is a revision application by the defendants against an appellate order of the senior Civil Judge, Baran, holding that the Court of Munsif Baran has jurisdiction to try the suit.

( 2 ) HAZARI Lal plaintiff is a resident of Baran. Bhanwarlal and Mishrimal defendants carry on business at Merta under the name aad style Shah Chandanmal Fatehraj. The plaintiff placed a "bilticut" order with the defendants for the purchase of a wagon load of wheat to be booked for Bangalore. The defendants asked the plaintiff to send an advance and drew a Hundi Ex. 12 on him for a sum of Rs. 1500/ -. This Hundi was presented for payment to the plaintiff through a bank at baran on 4-8-54 and was duly honoured. The defendants consigned a wagon lead of wheat for Bangalore and sent the railway receipt with Beejak Ex. 9 and Hundi ex. 13 for Rs. 7,750/- the full price of the wheat at "bilticut rate, drawn on the plaintiff to the latter through the bank at Baran. By then the defendants had not received intimation about the payment on the earlier Hundi. It was however noted on the Beejak that if the sum of Rs. 1500/- had already been paid then it would be accounted for in the next transaction. It may be mentioned here that the plaintiff had placed a further order for the despatch of wheat with the defendants by then. Hundi Ex. 13 was presented to the plaintiff for payment at Baran on 9-8-54 through the bank and was duly honoured by him. The second order for despatch of wheat was cancelled by the plaintiff. Thereafter he sent his man to Merta to get the money. These facts are admitted. What happened after that is disputed.

( 3 ) THE plaintiffs case is that in Beejak Ex. 9 the following excess charges were made by the defendants: (1) Rs 86 10 0 in the price. (2) Rs 4 13 6 charged as Dharmada which was not recoverable on the transaction. (3) Rs 76 14 3 charged as agency commission which was not recoverable on the transaction. He asked the defendants to return the above amounts together with the sum ot rs. 1500/- which had been paid as advance, but they did not return the money in spite of several demands by letters and telegrams. The plaintiff also sent his man twice to Merta to get the money, but the defendants did not make the payment. He then instituted the present suit at Baran on 17-9-54 for the recovery of the above amounts together with a sum of Rs. 84-0-6 as the expenses of the man who went to Merta to bring the money and Rs. 2-15-0 spent on sending telegram to recover the money.

( 4 ) THE suit was contested by the defendants. Their case was that Dharmada and agency commission were payable, that they had already purchased wheat on the second order of the plaintiff, that they incurred loss on account of the order being cancelled and that they arrived at a settlement with the representative of the plaintiff who came to Merta under which it was agreed that a sum of Rs. 150/would be paid as loss by the plaintiff to the defendants. The defendants drew a cheque for Rs. 1350/- on 20-9-54 after the suit had been filed and sent it to the plaintiff. The defendants also took a plea that the court at Baran could not try the suit.

( 5 ) THE learned Munsif held that he did not have jurisdiction to try the suit as no part of the cause of action arose at Baran. He distinguished the decision of this court in Charanjilal v. Sumer Oil Mills, 1952 Raj LW 436: (AIR 1953 Raj 134) on the ground that there was no term in the contract in the present case that the railway receipt would be sent to the plaintiff at Baran. He also relied on some rulings in which it was held that a suit against a commission agent could only be instituted in a Court exercising jurisdiction at the place where he carries on business. Against this decision the plaintiff filed an appeal. The appellate court reversed the decision of the trial court relying on the following decisions of this court: kishan Lal v. Bhanwarlal, 1951 Raj LW 439: (AIR 1952 Raj 81); 1952