Judgment :- 1. This revision is by the plaintiff whose suit, filed as a Small Cause for return of advance paid in connection with a contract of sale of goods, was dismissed by the court below. 2. The plaintiff and the defendant are both merchants, the former trading in Calicut and the latter in Penugonda in Andhra. They entered into a contract on 22-12-1954, for the purchase and sale of two waggon loads (500 bags) of Basangi Soiled Rice and A. K. R. first quality F. O. R. Nidadavole at the rate of Rs. 27-4-0 per bag of 164 lbs. The terms of the contract were embodied in sale and Bought Notes exchanged. The plaintiff paid the defendant a sum of Rs. 500 calculated at the rate of one rupee per bag as advance under the contract and the defendant undertook to book the goods by 31-12-54, the cancellation of the contract or the extension of the time thereafter being reserved exclusively for the option of the plaintiff. As the defendant did not carry out his obligation to book the goods within the time agreed, the plaintiff issued notice on 3-3-1955 terminating the contract and calling for the return of the advance and filed this suit soon after on 12-4-1955, before the Court of Small Causes at Kozhikode within whose jurisdiction "the goods are deliverable by rail and the balance price is to be paid". The defendant contested the suit on the merits and also on the technical plea that the Court of Kozhikode had no jurisdiction to entertain the suit. In the result the court below found that it was the defendant who committed the breach and therefore should fail but he had nevertheless to win in the suit since his technical plea prevailed. On this latter aspect the court found in conformity with the defendant's contentions, that the contract had been entered into at Penugonda, advance amounts had been paid from there, the sale and bought notes were also exchanged from there. Further there was no merit in the plaintiff's reply that the place of delivery of goods was at Calicut, payment was to be made there and there was a creditor and debtor relationship between the parties and it was for the debtor to find out the creditor who was admittedly living in Calicut. Further there was no merit in the plaintiff's reply that the place of delivery of goods was at Calicut, payment was to be made there and there was a creditor and debtor relationship between the parties and it was for the debtor to find out the creditor who was admittedly living in Calicut. The court below accordingly dismissed the suit and hence this revision by the plaintiff, as above said. 3. The defendant has not appeared before this court to contest; The only question therefore that arises for determination is whether the court below had jurisdiction to entertain the suit. Now under S.20 (c) of the Civil P. C. every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. The question then is whether the cause of action in this case arose within the jurisdiction of the District Munsiff at Kozhikode, at least in part. A cause of action has been defined as constituting every fact which it is necessary for the plaintiff to prove in order to support his right to the judgment of the court. In the Code of 1882 we had Explanation III to the section which ran as follows: "Explanation III. In suits arising out of contract, the cause of action arises within the meaning of this section at any of the following places, namely: (1) the place where the contract was made; (2) the place where the contract was to be performed or performance thereof completed; (3) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable": It is nevertheless a correct statement of what the law is. Therefore the performance of a contract is part of the cause of action and a suit in respect of breach can always be filed at the place where the contract should have been performed or its performance completed. Learned Counsel for the plaintiff-revision¬petitioner urges in this connection that the words "F.O. R. Nidadavole" in the contract of sale was indicative only of the process by which the price was fixed and the mention of Calicut as the destination of the waggons must he taken to mean that the place of delivery was Calicut. Learned Counsel for the plaintiff-revision¬petitioner urges in this connection that the words "F.O. R. Nidadavole" in the contract of sale was indicative only of the process by which the price was fixed and the mention of Calicut as the destination of the waggons must he taken to mean that the place of delivery was Calicut. The view of the court below, that the use of the words was meant to imply that the liability of the defendant must cease after the goods were placed in the waggon at Nadadavole to be transported to Calicut, it was submitted, was not correct. But as observed by Pollock and Mulla in their Commentary on the Indian Sale of Goods and Partnership Acts at page 180 of the 2nd edition, while dealing with F. O. B. contract. "This is a contract for the sale of goods to be delivered free on board a ship. The buyer therefore must name a ship upon which they are to be delivered and the seller must put them safely on board, pay the charge of doing so and for the buyer's protection give possession of them to the ship only upon the terms of a reasonable and ordinary bill of lading or other contract of carriage. There the contractual liability of the seller as seller ceases and the delivery to the buyer is complete as far as he is concerned. The goods are then at the risk of the buyer, he is responsible for the freight, and subject to the seller reserving the right of disposal, the property passes to the buyer; and even if, as sometimes happens, the goods are not specific or ascertained when put on board as when they are part of a larger quantity the price being payable against the bill of lading, they are still at the risk of the buyer and he has an insurable interest in them, and must pay the price on presentment of the bill of lading even if the goods have been lost". and they refer in support, to Wimble Sons & Co. v. Rosenberg (1913) 3 K. B. 743, 756, 757 and other cases. Applying this rule to a case of F. O. R. contract, the duty of the seller stops with the delivery of the goods free on board the rails. and they refer in support, to Wimble Sons & Co. v. Rosenberg (1913) 3 K. B. 743, 756, 757 and other cases. Applying this rule to a case of F. O. R. contract, the duty of the seller stops with the delivery of the goods free on board the rails. So it has been held that in the case of a contract F. O. B. Bombay the place of performance is Bombay. See Benaim & Co. v. Debono,1924 A. C. 514 referred to in Mulla's Civil Procedure Code, 12th edition, page 122. 4. Learned Counsel then developed a subsidiary argument that whatever may be the place of delivery, the buyer cannot in the absence of a previous examination be said to have accepted the goods unless and until he had a reasonable opportunity to examine the goods for the purpose of ascertaining whether they are in conformity with the contract. That is to say, the mere fact that the buyer had taken delivery did not amount to an acceptance before the purchaser had an opportunity to inspect the goods. The seller cannot therefore in the absence of the agreement claim that his tender of delivery was complete if it is not made in such circumstances that the buyer has had a reasonable opportunity of examining the goods to ascertain whether the thing tendered really was what it purported to be. Learned counsel said that there could not have been any inspection possible at Nidadavole and therefore the goods can be said to be properly tendered at Calicut where alone reasonable facilities for inspection could be had. The argument is attractive, but it is difficult to accept it, in view of the special term T. O. R.' here which must be taken to imply an agreement between the parties to the contrary for this purpose. And we cannot also forget the finding of fact entered by the Court below that the plaintiff's agent, had under the contract to receive the Railway receipt on payment of all the balance amount at Nidadavole. Reference may be made in this connection to Battepati v. Calcutta Glass & Silicate Works, A. I. R.1949 Mad. 145, which was concerned with the question of jurisdiction in a case where goods were agreed to be supplied at particular rate F. O. R. Calcutta. Reference may be made in this connection to Battepati v. Calcutta Glass & Silicate Works, A. I. R.1949 Mad. 145, which was concerned with the question of jurisdiction in a case where goods were agreed to be supplied at particular rate F. O. R. Calcutta. It was part of the agreement there, that the agent of the purchaser would pay at Calcutta not less than 25% of the price leaving the balance to be collected by the seller, through bank at" Madras on the security of the Railway receipt. It was held that the legal effect was to provide the passing of the property from the seller to the buyer at the time when the goods were delivered to the plaintiff's agent against payment of not less than 25% of the price. Thereafter the relationship between the parties ceased to be that of seller and purchaser and became converted into that of creditor and debtor. In this case, as we saw, there was no question of payment of portion even at Calicut. 5. It was lastly argued that on breach of the contract by the defendant a debtor and creditor relationship arose between the defendant and the plaintiff in the matter of return of the advance of Rs. 500 and the suit could therefore be filed at Calicut which was the place of residence of the plaintiff. This argument is in my judgment correct. The court below thought that this question concerned only the place of payment under, the contract and relied upon Raman Chettiyar v. Gopalachari I. L. R.31 Mad. 223, which held: "The rule of general law that where a contract is silent as to the place of payment it is the duty of the debtor to seek out his creditor and pay him does not control the express provisions of S.17, explanation III of the Code of Civil Procedure and cannot be applied in determining where, for the purpose of the section, the cause of action has arisen The place where the cause of action arises under S.17, explanation III, is the place where money is payable, expressly or impliedly, under the general rule of law". But the moment the agreement was broken by the defendant as found by the court below, there was either failure of consideration or there arose an equity in favour of the plaintiff which impliedly made the retention of the sum of Rs. 500 a debt due by the defendant to the plaintiff. The relationship between the parties was then equated to the position of creditor and debtor. S.49, Contract Act which deals with the place fixed for the performance of the promise provides that it is the duty of the debtor to apply to the creditor to appoint a reasonable place for the performance of the promise and to perform it at such place. If the debtor fails to apply, then as pointed out by the Judicial Committee of the Privy Council in Soniram Jeetmul V. R. D. Tata & Co. A. I. R.1927 P.. C. 156, the law that would apply would be the law in England on the principle that the debtor must find his creditor. Their lordships observed: "It is not possible to accede to the present contention that S.49, Contract Act gets rid of inferences that should justly be drawn from the terms of the contract itself or from the necessities of the case, involving in the obligation to pay the creditor the further obligation of finding the creditor so as to pay him". So it was held in Champakalal v. Nectar Tea (70, A. I. R.1933 Bom.179. "Where a person agrees to employ another as his agent and moneys are paid by the agent as a deposit the moment the agreement is broken there is either failure of consideration'or there is an equity in favour of the agent which impliedly makes the retention of the sum of the deposit a debt due from the employer, to the agent. The rule that the debtor must find his creditor applies and the agent can bring a suit where he resides". In the case admittedly there is no indication in the contract or otherwise of the intention of the parties where on breach of the agreement, the deposit had to be returned. But the plaintiff, issued notice calling upon the defendant to return the sum of Rs. 500 appointing Calicut as the place of performance of the contract. In the case admittedly there is no indication in the contract or otherwise of the intention of the parties where on breach of the agreement, the deposit had to be returned. But the plaintiff, issued notice calling upon the defendant to return the sum of Rs. 500 appointing Calicut as the place of performance of the contract. Even assuming that he appointed no place it is difficult to conceive that residing at Calicut he would fix Penugonda as the place of performance for the return of Rs. 500. It follows, therefore, that it is the duty of the defendant to return the sum of Rs. 500/- to the plaintiff at Calicut and the suit filed at Calicut was perfectly maintainable there. 6. As the court below had definitely held that the plaintiff was entitled to claim refund of the advance paid in view to the breach of contract committed by the defendant, and disallowed the claim because in its opinion it had no jurisdiction to entertain the suit, the suit has to be necessarily decreed by this court without more. I therefore set aside the judgment and decree of the court below and grant a decree in favour of the plaintiff for the realisation of the plaint amount from the defendant as prayed for. The plaintiff will get his costs of this court and the court below from the defendant. Allowed.