JUDGMENT : ( 1. ) THIS is a plaintiffs appeal and is directed against an order passed by the First Additional District Judge, Bilaspur, who held that the suit instituted by the plaintiff-appellant was not triable at Bilaspur. The plaint was consequently returned by him for presentation to the proper Court. ( 2. ) THE only question in this appeal is whether the Additional District judge, Bilaspur had jurisdiction to entertain and decide the suit instituted by the plaintiff-appellant. ( 3. ) THE plaintiff was appointed by the first defendant company, Messrs. Poisons Limited, as a Laboratory Assistant at Anand (Gujrat) in September 1945 on a salary of Rs. 100 per month. According to the plaintiff, the contract of service was completed when he posted a letter accepting the appointment on 14th September 1945, at Bilaspur. I shall revert to this controversy later. The plaintiff, admittedly, joined as a Laboratory Assistant in October 1945 at Anand (Gujrat ). Thereafter, on 3rd July 1950 he was promoted to the post of Junior Assistant Superintendent on a salary of Rs. 250 per month. In that capacity he was transferred to the companys branch at Patna from 1st January 1952 in the grade of Rs. 250-20-500. The plaintiff continued in service till 3rd September 1964 at Patna, on which date his services were terminated on the ground of misconduct. The plaintiff claims that the termination of his employment was wrongful and, therefore, he is entitled to the sums detailed in paragraph 33 of the plaint which are as under : The plaintiff also claims interest on the aforesaid amount of Rs. 37,473 and thus the total amount claimed in the suit works out to Rs. 40,671. The plaintiff further claims rendition of accounts of provident fund. ( 4. ) THE defendants state that no part of the cause of action arose at bilaspur and, therefore, the Court at Bilaspur had no jurisdiction. The trial court, as already stated, accepted the defendants plea and the plaint was ordered to be returned. ( 5. ) THE learned counsel for the plaintiff-appellant has argued before me that the contract of service came into existence on 14th September 1945 when the plaintiff posted at Bilaspur the letter of acceptance, which is marked as exh. P-3 and, therefore, a part of the cause of action arose at Bilaspur. ( 5. ) THE learned counsel for the plaintiff-appellant has argued before me that the contract of service came into existence on 14th September 1945 when the plaintiff posted at Bilaspur the letter of acceptance, which is marked as exh. P-3 and, therefore, a part of the cause of action arose at Bilaspur. He has also argued that the provident fund was in any case a debt which was payable to the plaintiff at Bilaspur, which is his place of residence, on the principle that the debtor must follow the creditor. On these two grounds it is argued by the learned counsel that the order passed by the Court below is erroneous. ( 6. ) I will first take up the argument about the making of the contract. ( 7. ) THE argument of the learned counsel that the contract was made at bilaspur by dropping a letter of acceptance, has to be examined first on facts, because, the defendants deny and do not accept the existence of any letter like exh. P-3 or Exh. P-4, produced by the plaintiff. The correspondence between the parties started on 24th August 1945 when the defendant-company sent a letter exh. P-1. In that letter, the company wrote that they were prepared to offer the plaintiff the post of Laboratory Assistant on a salary of Rs. 75 per month plus dearness allowance. They also mentioned that unfurnished accommodation will be provided. The last portion of this letter reads : "please let us know if you are prepared to accept the post if offered to you, and if you are agreeable, please make an application in your own handwriting and send us copies of the testimonials etc. also please give us at least one good reference. " In reply to this letter, it appears that the plaintiff wrote that he wanted a starting salary of Rs. 100 per month. He also wanted a scale of pay and some assurance for future prospects. The reply of the plaintiff is not on record, but its sense can be gathered from the companys second letter Exh. P-2 bearing the date 12th September 1945. In this letter, the company wrote that they were agreeable to give the plaintiff a starting salary of Rs. 100 per month plus dearness allowance and free unfurnished accommodation. The reply of the plaintiff is not on record, but its sense can be gathered from the companys second letter Exh. P-2 bearing the date 12th September 1945. In this letter, the company wrote that they were agreeable to give the plaintiff a starting salary of Rs. 100 per month plus dearness allowance and free unfurnished accommodation. They, however, showed their inability to give any scale of pay and any assurance for future prospects. The last portion of this letter is important. It reads: "if you are agreeable to join on the above terms, please report as early as possible at our Poison Model Dairy, Anand (B. B. and C. I. Railway ). Please let us know on receipt of this letter the date by which you will join, as we cannot keep the appointment open indefinitely. " I shall revert to this letter later in this order. In answer to this letter, the plaintiff claims that he wrote a letter Exh. P-3 bearing the date 14th September 1945. In this letter, according to the plaintiff, he wrote that he accepted the proposal contained in the companys letter dated 12th September 1945, and that he was intending to start after handing over the charge by 5th September 1945 (a mistake for 5th October 1945 ). The companys case is that this letter exh. P-3 is a fictitious letter and was never sent by the plaintiff. According to them, some letter was no doubt sent on 14th September, but that was a letter inquiring as to what the company proposed to do on the question of employing the plaintiff and was sent in ignorance of and before receiving the companys letter dated 12th September 1945. The plaintiff further asserts that he sent a letter Exh. P-4 in which he again said that he accepted the proposal made in the companys letter of 12th September 1945. This letter is also denied by the company. Reference may now be made to the letter Exh. P-5, which was sent by the company to the plaintiff on 17th September 1945. This letter was from anand. The letter is a brief one and reads : "i have received your letter dated the 14th instant and beg to point out that our head Office has communicated with you per their letter GEN/jdk/fem of September the 12th. By now we hope this letter has reached you. This letter was from anand. The letter is a brief one and reads : "i have received your letter dated the 14th instant and beg to point out that our head Office has communicated with you per their letter GEN/jdk/fem of September the 12th. By now we hope this letter has reached you. " The plaintiff also sent a letter Exh. D-1 dated 27th September 1945 from nagpur to the companys Dairy Farm, Anand, which is as follows : "i received a letter from Bombay about my appointment and joining at Anand. I hereby inform you that 1 am at present in Government service. I hope I may be relieved in the first week of the next month and I think I may start from my place on 5th October 1945. " The plaintiff reached Baroda on 8th October and dropped a post-card (Exh. D-2) to the Superintendent of the defendants Dairy at Anand intimating that he was reaching Anand by 9th October. By Exh. D-3 the plaintiff reported for duty at Anand on 9th October 1945. I have already said that letters Exhs. P-3 and P-4 have not been accepted by the defendant company. The company examined Boman Sha Framji (D. W. 1), who is Controller of Purchase and Finance in the service of the company. His salary is Rs. 2,625 per month. He stated that he was required to find out a letter written by the plaintiff dated 14th September 1945, but on search of the papers in the files, he was not able to trace any such letter. An affidavit was filed by Rustamji Hormusji Variava, who is the Superintendent of the companys Dairy at Anand. In this affidavit, it was stated that even on a thorough search the letter dated 14th September 1945 could not be traced. From the correspondence, to which I have already referred, it appears to me that a letter bearing the date 14th September 1945 was no doubt sent to the defendants, but that letter is not Exh. P-3. In this connection, I accept the statement of Boman Sha Cama (D. W. 1) and the affidavit of Rustamji Hormusji that the original letter dated 14th September 1945 is not traceable. I am not prepared to accede to the contention that the defendant-company is deliberately not producing that letter, and that these two responsible officers of the company have spoken a lie. I am not prepared to accede to the contention that the defendant-company is deliberately not producing that letter, and that these two responsible officers of the company have spoken a lie. My conclusion is that the letter somehow is not traceable and no presumption can be drawn against the company for its non-production. The plaintiffs case that Exh. P-3 is the letter which he sent on 14th September 1915, appears to be entirely false in the context of Exh. P-5 and Exh. D-1. It appears that the letter, which the plaintiff sent on 14th September which was acknowledged in Exh. P-5 by the company, was written in ignorance of the companys letter dated 12th September 1945 (Exh. P-2) and in the letter of 14th September the plaintiff had merely inquired as to what had been decided by the company regarding the offer of giving him employment. It was in this context that the Superintendent of the companys Dairy farm, Anand, wrote in Exh. P-5 that the companys decision had already been communicated to the plaintiff by their letter of the I2th instant. The words "by now we hope this letter has reached you" which find place in the letter exh. P-5, clearly go to show that the plaintiffs letter of 14th September 1945 was written in ignorance of the companys letter of 12th September. The plaintiffs letter of 14th September, therefore, did not carry and in fact could not have carried a communication to the effect that he accepted the companys proposal contained in their letter of the 12th September 1945. Similarly, exh. D-1, which is a letter of 27th September 1945 posted from Nagpur, also shows that this was the only letter which the plaintiff wrote after receiving the companys letter of 12th September 1945. In this letter he mentioned the fact of receiving a letter from Bombay about his appointment (which could be no other letter except Exh. P-5), and said that he would be joining at Anand in the first week of October. Having considered the plaintiffs evidence and the correspondence produced in the case, I am of opinion that the two letters exhs. P-3 and P-4 produced by the plaintiff are spurious ones and they are not true copies of the letters sent by him and Exh. D-1 is the only letter that the plaintiff sent after receiving Exh. P-2. Having considered the plaintiffs evidence and the correspondence produced in the case, I am of opinion that the two letters exhs. P-3 and P-4 produced by the plaintiff are spurious ones and they are not true copies of the letters sent by him and Exh. D-1 is the only letter that the plaintiff sent after receiving Exh. P-2. Thus, even if the companys letter dated 12th September 1945 (Exh. P-2) was a proposal which could be accepted by posting a letter of acceptance, that proposal was accepted by the plaintiff by posting Exh. D-1 from Nagpur. In this view of the matter, the contract was made at Nagpur and not at Bilaspur. ( 8. ) HOWEVER, my construction of the letter Exh. P-2 is that the offer contained in it could not be accepted by posting a letter of acceptance. It was not such an offer of appointment which could be accepted simply by saying "i accept the offer". The only manner of acceptance prescribed by that letter was to report as early as possible at the companys Dairy, Anand. The words in the letter Exh. P-2-"if you are agreeable to join on the above terms, please report as early as possible at our Poison Model Dairy, Anand"-required the doing of an act on the part of the plaintiff for completion of the contract. The contract of service did not come into existence until the plaintiff in performance of the act required of him by the letter reported at Anand. That position was further clear from the subsequent paragraph of the same letter in which the company wrote-"please let us know by which date you will join, as we cannot keep the appointment open indefinitely". This again went to show that the appointment was not made till the plaintiff joined at Anand, and upto that stage there was merely an open proposal to appoint. The nature of the companys offer in this case was of the type contemplated by section 8 of the Contract Act. It was a proposal necessitating performance of a condition of the proposal before the proposal could be said to be accepted The proposal was that if the plaintiff would report for duty within a reasonable time, he would be appointed to the post of Laboratory Assistant on the terms mentioned in the letter. It was a proposal necessitating performance of a condition of the proposal before the proposal could be said to be accepted The proposal was that if the plaintiff would report for duty within a reasonable time, he would be appointed to the post of Laboratory Assistant on the terms mentioned in the letter. This proposal, as already stated, required that the plaintiff should actually go and report at Anand for accepting the proposal. The contract, therefore, in this case was made at Anand where the plaintiff in performance of the condition of the proposal went and reported for duty. By this act, the proposal was accepted and a contract of service came into existence. From this point of view, even if it be accepted that the plaintiff had sent letters exhs. P-3 and P- 4, it cannot be held that any contract came into existence at bilaspur. A proposal which required an act for acceptance could not be accepted simply by dropping letters of acceptance. As already stated, the proposal contained in Exh. P-2 was accepted when the plaintiff leached Anand and reported for duty and it was at that stage and at Anand that the contract was made. ( 9. ) AS regards the previous letter Exh. P-1, it was merely an invitation for offer on certain terms. The plaintiff did not make an offer on the terms mentioned in Exh. P-1. In the offer made by him, it appears, he wanted a salary of Rs. 100 and also a scale of pay and assurance for future prospects. That again was not accepted by the company and the company offered him a salary of Rs. 100 p. m. plus dearness allowance etc. but no scale of pay and no assurance for future prospects (Exh. P-2 ). ( 10. ) THUS, the contract did not come into existence at any stage prior to the plaintiffs going and reporting for employment at the companys Dairy at Anand. ( 11. ) THERE is another way of looking at the matter. After the plaintiff was initially appointed as Laboratory Assistant he was admittedly promoted to the post of Junior Assistant Superintendent on a higher scale of pay. It was in this capacity that the plaintiff was transferred in 1952 in the grade of 250-20-500 to Patna Branch of the companys establishment. ) THERE is another way of looking at the matter. After the plaintiff was initially appointed as Laboratory Assistant he was admittedly promoted to the post of Junior Assistant Superintendent on a higher scale of pay. It was in this capacity that the plaintiff was transferred in 1952 in the grade of 250-20-500 to Patna Branch of the companys establishment. The termination of the plaintiffs employment was from the post of Assistant Superintendent from 3rd September, 1964. If it be accepted that a contract of appointment to the post of Laboratory Assistant was made at Bilaspur, it cannot be held that that contract continued to subsist even after the plaintiff was appointed to a higher post on a higher salary. From the moment the company appointed the plaintiff as Junior Assistant Superintendent, which was entirely a different post from the post of Laboratory Assistant and which carried higher emoluments, it must be held that by mutual consent a new contract of service came into effect which completely replaced and substituted the old contract of service relating to the post of Laboratory Assistant. It must be noticed that the plaintiffs appointment as Junior Assistant Superintendent was not something which was done in performance of the original contract of employment. I have already mentioned that the plaintiff was given no assurance for any future promotion. In this back ground, the making of appointment to the post of junior Assistant Superintendent and acceptance of the same by the plaintiff resulted into a new contract discharging the old one. The plaintiff, after he became Junior Assistant Superintendent, could not at the same time continue as Laboratory Assistant. The nature of the work of both the posts and their salaries were different. In the circumstances, the continuance of the old contract relating to the post of Laboratory Assistant was entirely inconsistent with the plaintiffs employment as Junior Assistant Superintendent and, therefore, the earlier contract must be taken to have been discharged. A contract of service is like any other contract and can be discharged by the parties by mutual consent. One of the modes of discharge of such contract is, when a new contract is entered into with respect to a new post on new terms, although the parlies remain the same. A contract of service is like any other contract and can be discharged by the parties by mutual consent. One of the modes of discharge of such contract is, when a new contract is entered into with respect to a new post on new terms, although the parlies remain the same. As an example of application of this principle, reference may be made to Patmore v. Colburn, (149 0 ER 996) which was followed in recent years in S. W. Strange Ltd. v. Mann (1962 1 WLR 629, at p. 637 ). Another example is furnished by the case of Mailing Union v. Graham (1870 0 LRC P 201 ). Following this principle, it must be held that the contract of employment as a Laboratory Assistant, even if made at Bilaspur, came to an end in 1950 when the plaintiff was appointed to a higher post on a higher salary. The termination of employment in 1964 did not relate to the original contract of employment, for that contract had already been discharged. The termination related to the new contract of service which had come into effect in 1950 when the plaintiff was promoted. i his appointment to the higher post was made at Anand and the new contract came into existence there. It was this contract which was terminated in 1964 and not the old contract of 1945. I have already quoted from paragraph 33 of the plaint all the emoluments which the plaintiff claims in the suit. I will take up the claim relating to bonus, gratuity and provident fund later. All that I need say here is that none of the items mentioned in paragraph 33 can be related to the contract of employment which was entered into in 1945 and it is not that contract which the plaintiff is enforcing by this suit. The contract that is really being enforced is the subsequent one by which the plaintiff was appointed Junior Assistant superintendent or Assistant Superintendent in 1950. As already stated, the previous contract had been discharged and no question could arise of its termination in 1964. ( 12. ) COMING to the question of bonus, it must be noticed that bonus is claimed for the year 1963. As already stated, the previous contract had been discharged and no question could arise of its termination in 1964. ( 12. ) COMING to the question of bonus, it must be noticed that bonus is claimed for the year 1963. This claim for bonus is based on a Bonus Scheme which was brought into effect by a settlement arrived at between the defendant company and their employees on 4th July 1964. Reference to this scheme and settlement is made in paragraph 10 of the plaint. It is mentioned in that paragraph that the settlement was made on 4th July, 1964 and it was agreed in that settlement to pay to the employees for the year 1963 5/12th of the earned basic wages as bonus. In my opinion, on this averment, the bonus claimed for the year 1963 cannot be related to the contract made in 1945. ( 13. ) AS regards gratuity, the claim for it is based on a Gratuity Scheme which was extended by the company to their employees in 1963. Averment to that effect is made in paragraph 9 of the plaint. Thus, the claim for gratuity cannot also be related to the contract of employment made in 1945. ( 14. ) AS regards the provident fund, it is stated in paragraph 8 of the plaint that the plaintiff joined the Provident Fund Scheme and the amount of his contribution used to be deducted from his pay from time to time. Simply by accepting an appointment under the company a person does not become entitled to the benefit of the provident fund scheme. The rules relating to the provident Fund Scheme applicable to the companys employees were supplied to me by the learned counsel for the respondents and I have taken them on record with the consent of the learned counsel for the plaintiff appellant. For becoming a member, a declaration in a prescribed form is made and it is only thereafter that an employee becomes a member. The amounts deducted from the wages of the employees who become members and contributions of the company, together with interest, constitute the Fund, which vests in trustees. The trustees hold the Fund for benefit of the members and the amount due to a member is payable at the time of termination of his employment. The amounts deducted from the wages of the employees who become members and contributions of the company, together with interest, constitute the Fund, which vests in trustees. The trustees hold the Fund for benefit of the members and the amount due to a member is payable at the time of termination of his employment. Thus, even by accepting the employment under the company at Bilaspur it cannot be held that the plaintiff became a member of the Provident Fund at Bilaspur. He became a member of the Fund when presumably at Anand he signed a declaration to become a member and showed his willingness to get certain part of his wages deducted from time to time as his contribution to the Fund. Thus, the agreement making the plaintiff member of the Fund cannot be said to have been made at Bilaspur. That agreement was made at Anand or at such place where for the first time the plaintiff signed the declaration required by the rules for becoming a member. ( 15. ) AS a result of the aforesaid discussion, it cannot be said that claim for wages, bonus, gratuity, provident fund or any other claim made in paragraph 33 relates to or pertains to the contract of service, which according to the plaintiff was entered into at the time of his appointment as Laboratory assistant. Even that contract was not made at Bilaspur. Assuming, however, that the contract of service as Laboratory Assistant was made at Bilaspur, that fact cannot confer any jurisdiction on the Court at Bilaspur, as the claim laid in the suit does not really pertain to that contract. ( 16. ) NOW I will take up the second part of the argument of the learned counsel for the appellant which is based on the common law rule that the debtor must seek the creditor for performance of the promise. The common law rule that the debtor must seek the creditor in order to pay at his place of business or residence, applies only when there is no express or implied contract determining the place of payment. It is somewhat doubtful as to how far the common law rule applies in India in view of section 49 of the Contract Act. Assuming, however, that the rule applies, it cannot certainly apply to cases where the place of performance is expressly or impliedly indicated by the contract. It is somewhat doubtful as to how far the common law rule applies in India in view of section 49 of the Contract Act. Assuming, however, that the rule applies, it cannot certainly apply to cases where the place of performance is expressly or impliedly indicated by the contract. Where an employer has a number of employees, who are paid regularly on the first or any other fixed date their monthly emoluments at the employers office, there is an implied contract that the place of payment is the employers office and to such a situation the common law rule that the debtor must seek the creditor has no application. In Riley v. William Holland and Sons Limited (1911 1 KB 1029, at p. 1031)it was held by Cozens-Hardy M. R. that although as a general principle a debtor ought to go to his creditor and pay him, it is quite clear that this principle has no application to large employers of labour, who have a regular pay day and a regular pay office. Having regard to the nature of employment under the defendant company, which has a number of employees, it must be inferred that the place of payment under the contract of employment was the place where the employee was in service. It must also be inferred that all benefits payable, in addition to the salary, at the time of termination of service were also payable at the place where the service terminated. In that view of the matter, all the benefits claimed in paragraph 33 of the plaint were payable to the plaintiff at Patna where he was serving at the time when his employment was terminated by the company. But, even assuming that there was no express or implied place of payment and, therefore, the common law rule applies, the position does not improve in favour of the plaintiff. The common law rule is stated in Chitty on Contracts (Vol. 1), 23rd Edition, as follows: "place of payment.- Where the place of payment is specified by the contract, the debtor must tender payment at that place in order to discharge his obligation. The common law rule is stated in Chitty on Contracts (Vol. 1), 23rd Edition, as follows: "place of payment.- Where the place of payment is specified by the contract, the debtor must tender payment at that place in order to discharge his obligation. Where no place of payment is expressly or impliedly specified by the contract, the general rule is that it is the debtors duty to seek the creditor in order to pay him at his place of business or residence, if it is in England; but the rule is not applicable to large employers of labour who maintain a regular pay-day and pay office. The place for payment of a debt is the business place or residence of the creditor at the date when the debt was contracted unless there is evidence of a contrary intention. If the contract specifies alternative places for payment, it is the duty of the party entitled to select the place to notify the other party; if it is for the creditor to select, there is no default in payment until he notifies the debtor which place of payment he selects. " (p. 552.)The place for payment, according to the above statement of the law, which i accept as correctly stating the common law rule, is the business place or residence of the creditor at the date when the debt was contracted unless there is evidence of a contrary intention. The emoluments claimed in paragraph 33 of the plaint, if they are taken as debts, were contracted either when the plaintiff resided at Anand or at Patna. Thus, on the basis of that rule, these amounts were payable at these places only. The common law rule is not that the debtor must make payment at the place where the plaintiff is residing at the time of instituting the suit. By applying that rule, no jurisdiction is conferred on the Court at Bilaspur. ( 17. ) FOR the foregoing reasons, I am of opinion that the learned Additional District Judge rightly held that he had no jurisdiction to entertain the suit filed by the plaintiff. ( 18. ) THE appeal, therefore, fails and is dismissed. There will be no order as to costs of the appeal. Appeal dismissed.