RAMASUBRAMONIAM v. RANGANATHAN — 1978 DIGILAW 241 (KER)

Judgment :- 1. An important question arises for decision in this appeal. The facts of the ease are few and simple. The plaintiff in O.S. 118 of 1973 on the file of the Subordinate Judge's Court of Palghat is the appellant. The suit was one for recovery of amount due under a pronote executed by the defendant in favour of the plaintiff. The execution of the pronote was admitted. But the contention of the defendant was that the suit ought not to be entertained by the court at Palghat as the defendant was a permanent resident of Madras at the time of the institution of the suit and the execution of the note was also at Madras. The pronote executed by him was sent by him to the plaintiff through post. The defendant also raised a contention that the pronote was not supported by consideration. The court below has, by the judgment under appeal, directed return of the plaint to the plaintiff for presentation to the proper court, holding that the court at Palghat had no jurisdiction to entertain the suit. The court also found that the pronote was not supported by consideration except to the extent of Rs. 3275/-. In this Civil Miscellaneous Appeal the plaintiff challenges the direction returning the plaint for presentation to the proper court. There is also a case urged by the appellant that in any view the court below which had refused to entertain the suit in that court should not have gone into the question of consideration for the pronote as it has done. 2. The resort by the plaintiff to the Subordinate Court of Palghat is sought to be justified on the ground that part of the cause of action did arise at Palghat. That is because, according to the plaintiff, the place of performance was Palghat. In support, reliance is placed on what is said to be the doctrine of the obligation of the debtor to seek out his creditor to make payment. This rule, it is said, is applicable to this country. That is a controversial question on which differing views are held by the High Courts in India. There is another equally controversial point. In support, reliance is placed on what is said to be the doctrine of the obligation of the debtor to seek out his creditor to make payment. This rule, it is said, is applicable to this country. That is a controversial question on which differing views are held by the High Courts in India. There is another equally controversial point. Assuming that toe rule of the obligation of the debtor to seek out his creditor to make payment applies to this country, the further question would be whether this rule could be extended to negotiable instruments. There again the views held by the Courts in India are not uniform. 3. The place of suing is determined in this country on the basis of the provision in S.20 of the Code of Civil Procedure, 1908. S.20(c) enables a suit to be instituted where the cause of action whole or in part arises. In the case of a contract which obliges the promisor to make payment to the promisee the cause of action would be non-payment and that would arise at the place where the promisor is bound to perform his obligation. If the contract expresses a place of performance no difficulty would arise as obligation fur performance must be found to be at that place. If, under the terms of the contract, the place of performance is not specifically stipulated, but an implied term as to such place can be read the cause of action would arise at such place. Though implied it is still a term of the contract and that would govern the obligation to perform. Where the contract is silent, in the sence that there is neither express nor implied term as to the place of performance, S.49 of the Indian Contract Act would arise for application. That Section reads thus: "49. Though implied it is still a term of the contract and that would govern the obligation to perform. Where the contract is silent, in the sence that there is neither express nor implied term as to the place of performance, S.49 of the Indian Contract Act would arise for application. That Section reads thus: "49. When a promise is to be performed without application by the promisee, and no place is fixed for the performance of it, it is the duty of the promisor to apply to the promisee to appoint a reasonable place for the performance of the promise, and to perform it at such place." It is open to the promisor to apply to the promisee to fix a place of performance and if such place if fixed pursuant to such application the obligation would be to perform at that place and the cause of action would arise at that place. If the contract is silent as to the place of performance and an implied term as to the place of performance cannot be read from the contract and there is no application by the promisor to the promisee as contemplated by S.49 of the Indian Contract Act, could it be said that there is an obligation on the promisor to perform at the place where the promisee resides on the basis of the English common law rule that a debtor is bound to seek out the creditor? That, in essence, is one of the two questions which calls for decision here. 4. The English Common law rule of the obligation of the debtor to seek out his creditor to make payment has been recognised for long. Though it is not easy to ascertain the origin of the rule that the promisor is to seek out the promisee it appears to be of ancient origin in England. Sir Thomas Little-ton who was one of the judges of the Court of Common Pleas in the reign of Edward IV bad his treatise on Estates and Tenures published in the year 1481, the year in which he died. The commentary on his work by Sir Edward Coke, Lord Chief Justice of the Court of King's Bench in the reign of James I was published nearly 150 years afterwards. The commentary on his work by Sir Edward Coke, Lord Chief Justice of the Court of King's Bench in the reign of James I was published nearly 150 years afterwards. The work has survived many generations and despite the development of the law during the five centuries that followed, the statement of law by Sir Thomas Littleton remains authoritative and highly relevant. That gives a brief but precise insight into the state of English law of the 15th century. In the Readable Edition of Coke upon Littleton (1830) by Thomas Coventry, in S.340, the following reference is made to the obligation of the mortgagee to pay: "Also upon such case of a feoffinent in mortgage, a question has been demanded in what place the feoffor is bound to tender the money to the feoffee at the day appointed & e. And some have said, upon the land so h olden in mortgage, because the condition is depending upon the land. And they have said that if the feoffor be upon the land there ready to pay the money to the feoffee at the day set, and the feoffeer be not there, then the feoffor is quit and excused of the payment of the money, for it was no default in him. But it seems to some that the law is contrary, and that there was default in him; for that he is found to seek the feoffee if be be in any other place within the realm of England. 5. In Walton v. Mascall, a case decided in 1844 and reported in 153 E.R page 188 this rule was noticed thus: "Now, it is clear that a request for the payment of a debt is quite immaterial, unless the parties to the contract have stipulated that it shall be made; if they have not, the law requires no notice or request; but the debtor is bound to find out the creditor and pay him the debt when due. But no request or presentment is necessary to charge the acceptor of a bill or the marker of a note; he is bound to pay it at maturity, and to find out the holder for that purpose." 6. In a case which arose from Rangoon, it was contended before the Privy Council in Soniram Jeetmull v. Tata & Co., AIR. 1927 PC. In a case which arose from Rangoon, it was contended before the Privy Council in Soniram Jeetmull v. Tata & Co., AIR. 1927 PC. 156 that the English common law rule was not law in India and that is so particularly in view of S.49 of the Indian Contract Act. In support of this reference was made to certain observations of Sir Lawrence Jenkins in Puttappa Manjaya v. Virabhad-rappa, (1905) 7 Bom. L, R.93. In that case Sir Lawrence Jenkins had said thus: "This argument rests upon the assumption that the Common Law rule applies that a debtor must seek out his creditor. We think, however, in India the rule as to the place of performance, whether it be payment or any other mode of performance, is to be determined by S.49 of the Contract Act; and applying that section to the facts of this case, we think, it is impossible to bold that the payment was to be made within the limits of the jurisdiction of the Sirsi Court, for no such application has been made or place fixed as S.49 prescribes. Therefore we are of opinion that the Sirsi Court had no jurisdiction." If this was the statement of a principle that in all cases of debtor and creditor relationship the English Common law rule of the obligation of the debtor to seek his creditor was inapplicable the Privy Council was not prepared to agree with such a broad statement of the rule. It was noticed that the Division Bench of the Bombay High Court ob whose behalf Sir Lawrence Jenkins spoke had omitted to notice the earlier authorities of the same Court in Dhunjisha Nusserwanji v A B forde, (1887) 11 Bom. 694 and Motilal Pratabchand v. Surajmal Joharmal, (1906) 30 Bom. 167 In the latter case which followed the principle stated in Ihunjisha Nusserwanji v. A. B. Fforde,11 Bom. 649, Justice Tyabji held thus: "Where no specific contract exists as to the place where the payment of the debt is to be made, it is clear, it is the duty of the debtor to make the payment where the creditor is." The Privy Council noticed that from the judgment in Puttappa's case it did not appear what the contract in that case precisely was and also noticed that the suit was one to recover the balance that might be found due on taking accounts. The facts of that case were found to differ from the facts of the case before the Privy Council, which was one for payment of money agreed as due upon the failure of the defendant to satisfy debts payable by the plaintiff. 7. It may also be noticed that on the facts of the case before it the Privy Council was of the view that the terms of the contract indicated a clear implication that payment was to be made at Rangoon and therefore the simple answer would have been that payment at Rangoon was a mere implication of the meaning of the parties. Despite this it was argued that S.49 of the Indian Contract Act would rule out any such construction Considering the plea that S.49 'Replaces any rule of law with regard to the obligation of the debtor to seek out the creditor" the Privy Council expressed the view that this Section would apply only when the promisor made an application and if he bad made an application in the present case it was certain that Rangoon would be fixed as the place of performance. The fact that the promisor did not perform his statutory duty to make an application cannot, it was said, place him at an advantage. The plea that S 49 of the Indian Contract Act replaces the common law rule is a principle accepted by the decisions of the Indian Courts did not appeal to the Council. Their Lordships concluded thus: "Their Lordships do not think that in this state of the authorities it is possible to accede to the present contention that S.49 of the Indian 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. The rule in S.49 is one which it was intended should apply both to the delivery of goods and to the payment of money, to which obviously different considerations apply from those applying in a case like the present, where the question is one of jurisdiction, and their Lordships are satisfied that an intention is shown in the contract that payment should be made in Rangoon. Accordingly, part of the contract was performable in Rangoon so as to satisfy S 49 of the Indian Contract Act, and there was jurisdiction to entertain the suit." 8. A Division Bench of the Bombay High Court had again occasion to consider Puttappa's case in the context of the decision of the Privy Council is Sonfram Jeetmull v. Tata & Co, AIR. 1927 P.C.156. That was in Bharumal v. Sakhawatmal AIR. 1956 Bom 111. The parties to that case were, at the time they entered into the suit transaction, residents in Pakistan and both of them moved later to India The plaintiffs took up their residence within the jurisdiction of the City Civil Court of Bombay and the defendants were residing outside such jurisdiction. The suit filed at Bombay was lost by the plaintiffs, the court finding that the City Civil Court had no jurisdiction to try the suit. A Division Bench of the Bombay High Court reversed this decision holding that by reason of the residence of the plaintiffs at Bombay the suit could be entertained by the court, for, the obligation of the defendants to pay involved a further obligation to find out the plaintiffs and make payment. Chief Justice Chagla, speaking for the Bench felt that if the question was one of disagreement with the earlier Division Bench in Puttappa's case reference might have to be made to a larger Bench. But Puttappa's case was distinguished and this was said to be justified by the observations of the Privy Council in Soniram's case. 9. We are persuaded to take the view that the rule of the obligation of the debtor having to seek out a creditor is a rule which may, in appropriate cases, be read from the terms of the contract itself or from the necessities of the case Of course this obligation would not arise if the contract provides, expressly or impliedly, the place of payment as a place other than the residence of the creditor if the promisor applies to the promisee to fix the place of payment and such place is fixed We however propose to examine this question further because a Division Bench of this Court in the decision in Prabhakara Kamath v. Patel, 1961 KLT. 695 is said to have taken a contrary view. 10. 695 is said to have taken a contrary view. 10. We may, at the outset, notice that the Division Bench of this Court has not taken note of the decision of the Privy Council in Soniram's case. We notice that the Division Bench merely purport d to follow the decisions of the Punjab High Court in Piyara Singh v Bhagwan Das, AIR. 1951 Punj. 33, Niranjan Singh v. Jagjit Singh, AIR. 1955 Punj. 128, Firm Hiralal v. Baij Nath, AIR. 1960 Punj 450 and also of the Madras High Court in G. Venkitesha v. M/s. Kamalapat, AIR. 1957 Mad. 201 without any independent discussion of the question and without noticing the opposite view held by the Courts The cases to which reference has been made, it may be said, express the view of one school of thought, a view which had not found favour with many other High Courts including this Court. 11. The decision of this court in Ummar Koya v. S. P. Rice & Oil Mills, 1957 KLT 953 was evidently not brought to the notice of the Division Bench which decided Prabhakara Kammath's case Varadaraja Iyengar J., who decided Ummer Koya's case, noticing the decision of the Privy Council in Soniram's case, applied the English Common Law rule to the case before him, treating that rule as applicable to this country. Ummer Koya's case has been noticed by another learned judge of this Court in a decision rendered prior to the decision of the Division Bench. This was in S M. Kadirsa Rowther v. Shanmugha, (AIR. 1960 Ker.188). Raman Nayar J., as he then was, held that the English Common law rule of debtor having to seek out the creditor did not apply to the facts of the case before him. That was because, as pointed out by the learned judge, the rule cannot apply when the obligation to be discharged is not the obligation to fulfil a promise, express or implied, but is different as for example, the liability arising out of breach of contract or out of tort or agency. The learned judge further said thus: "Where the obligation is to pay money, the rule applies only when the relationship is strictly that of debtor and creditor." The learned judge has also evidently understood the decision in Soniram Jeetmull v. Tata & Co., AIR. 1927 P. C. 156 as not laying down any different rule. The learned judge further said thus: "Where the obligation is to pay money, the rule applies only when the relationship is strictly that of debtor and creditor." The learned judge has also evidently understood the decision in Soniram Jeetmull v. Tata & Co., AIR. 1927 P. C. 156 as not laying down any different rule. This precedent of this Court should necessarily have been brought to the notice of the learned judges of the Division Bench in Prabhakar Kamath's case. But that was not done. We may also notice the decision of a single judge of this Court in Joseph v. M/s. Parakh sons, 1971 KLJ. 593. That decision recognised the rule that payment has to be made at the place of the creditor and the cause of action also arises at the place of the residence of the creditor. 12. The only decisions the Division Bench noticed, as stated earlier, were those of the Punjab High Court and the decision of the Madras High Court reported in G. Venkitesha v. Kamalapat, AIR 1957 Madras 201. The view taken by many other High Courts in India, including this Court was consistent with the view expressed by the Privy Council. We proceed to examine how far the decisions of the Punjab High Court and the Madras High Court adverted to by the Division Bench should persuade us to agree with the view expressed therein. We need only advert to the later Full Bench decision of the Punjab High Court in Firm Hiralal v Bai) Nath, AIR. 1960 Punjab 450. Their Lordships referred to the decision in Soniram Jeetmul v. Tata & Co., AIR. 1927 P. C. 156, and, after quoting the said decision, observed thus, in Para.5 of the Judgment. "It is thus clear that it was found on the evidence that there was an implied agreement between the parties that the money would be paid at Rangoon and not that the Privy Council approved of the application of any rule of English Law to India. "It is thus clear that it was found on the evidence that there was an implied agreement between the parties that the money would be paid at Rangoon and not that the Privy Council approved of the application of any rule of English Law to India. The Privy Council referred to the decision of Sir Lawrence Jeokins in 7 Bombay L. R.993 and then went on to refer to some other decisions of that Court, which were not in accord with it, but it does not appear that they disapproved of the view taken by Sir Lawrence Jenkins that a rule of English Law cannot just be imported into the Indian Contract Act." With great respect, we feel we cannot agree. No doubt it was found in the case before the Privy Council that there was an implied agreement between the parties, but nevertheless the Privy Council proceeded to notice the contention urged before it as to the applicability of the English Common Law rule to India. The view expressed by Sir Lawrence Jenkins suggesting that the rule of the obligation of the debtor to seek out the creditor was not applicable to India was not approved. The Privy Council did not agree with that view; on the other hand, the Privy Council indicated, as rightly observed by the High Court of Bombay in Bharumal v. Sakhwatmal AIR 1956 Bom 111, the applicability of the rule to India. It was argued before the Privy Council that the earlier Privy Council decision reported in Bansilal Abirchand v. Ghulam Mahbub Khan, AIR. 1925 PC. 290 bad not recognised this rule as applicable to India, but, the Privy Council did not agree with this, but pointed out that Bansilal's case was one where the case was one where the creditor was outside the realm and therefore in accordance with the English rule there was no scope for its application. 13. The decision of the Madras High Court in G. Venkitesha v M/s Kamalapat, AIR. 1957 Mad. 201 referred to by the Division Bench of this Court also does not appear to exclude the applicability of the English rule to this country. 13. The decision of the Madras High Court in G. Venkitesha v M/s Kamalapat, AIR. 1957 Mad. 201 referred to by the Division Bench of this Court also does not appear to exclude the applicability of the English rule to this country. That appears to be what is suggested by the following passage in the said decision: "There has been a pronounced disinclination on the part of the Indian Courts to apply to this country unreservedly the English Common Law that a debtor should find and pay his creditor and that generally speaking the place of payment has to be determined independently of any such general maxim with reference to the terms of the contract, the circumstances attending on it, the necessities of the case and having regard also to the statutory provision contained in the Code of Civil Procedure and in S.49 of the Contract Act." ' 14. Despite what we have said here we would have, in fairness to the learned judges of the Division Bench of this Court, with whom, with great respect, we find it difficult to agree, felt persuaded to refer this question to a larger Bench But, we find that this may not be necessary because the statement of the case by the Division Bench makes it quite evident that the discussion of the question of applicability or the English Common Law rule was only obiter. In Para.3 of the judgment the Division Bench found that the lower court had correctly held that the place of making the contract and the place for making the payment under the contract were all outside the jurisdiction of the Court and no part of the cause of action arose within its jurisdiction. Despite this it was argued before the Division Bench that the correspondence which led to the contract, as far as the plaintiff was concerned was from Mattancherry within the jurisdiction of the Court of the Subordinate Judge, Cochin. If no part of the cause of action arose within the jurisdiction of the Cochin Court as categorically found in that case it needs no argument to hold that the suit was not maintainable in that Court. The question of application of the Common Law rule would arise only to determine whether any part of the cause of action arose within the jurisdiction of the court in which the suit was filed. The question of application of the Common Law rule would arise only to determine whether any part of the cause of action arose within the jurisdiction of the court in which the suit was filed. In the face of the finding that no part of the cause of action so arose within the jurisdiction of the Cochin Court any further discussion on the applicability of the rule of debtor seeking out the creditor would be only obiter. 15. That S.20 of the Code of Civil Procedure must govern the question of determining the jurisdiction of the Court to entertain a suit admits of no doubt. Therefore, determination of the place where the cause of action arises is relevant. In a contract in which the promisor is under an obligation to pay money the non-payment would be the cause of action and the cause of action would necessarily arise at the place where payment is to be made. If the parties agree to make the payment at a specified place payment must be at that place. The agreement may be express or implied. Whether it is implied will depend upon the terms of the contract and the attendant circumstances. S.49 of the Indian Contract Act would have no application in a case where there is an agreement express or implied as to the place of payment. That Section will have no application also where the promisor makes no application to the promisee for fixing the place of payment If S.49 applies there will be no scope for importing any rule which would operate to nullify its operation. Therefore, the question of determining the place of payment would arise only in cases where S.49 does not apply either because the parties have agreed as to the place of payment or because though the parties have not so agreed the promisor has made no application to the promisee to fix the place of payment. In such a case the place of payment could be determined, as observed by the Privy Council in Soniram's case, with reference to the terms of the contract, the attendant circumstances and the necessities of the case. It is in making such a proper determination that the Court is entitled to take notice of the rule of the obligation of the debtor to seek out his creditor. It is in making such a proper determination that the Court is entitled to take notice of the rule of the obligation of the debtor to seek out his creditor. It is not a rule of law but is a rule of evidence, and if it is so understood there is no scope for the conflicting views. That it is not a rule of law is evident from the fact that it is not of universal application irrespective of the circumstances of each case. The nature of the contract, the circumstances in which the parties are placed and the requirements of the case may indicate the absence of an obligation on the part of the debtor to seek out the creditor. In a case where the creditor is living outside the realm there is no such obligation. This is a rule of the English Common Law which has been noticed by the Indian Courts. It has quite often been urged before courts as a reason in support of the inapplicability of the English Common Law rule, that any rule obliging a debtor to find out the whereabouts of the creditor would be unreasonable, onerous and unbusiness like in many situations. A firm or business house with offices at several places may enter into transactions with the members of the public which may result in the role of debtor on their part and it would not be natural to expect such firm or business bouse to seek out each one of their customers who may happen to be their creditors for making payment. The answer is simple. Such a situation may negative any requirement of the debtor having to seek out the creditor. In the case of a Bank receiving deposits from customers from time to time, though the relationship with the customers is one of debtor-creditor the Bank is not expected to go out in search of its customers for making payment on the maturity of deposits. The case of the Government usually making payment at Treasuries is also a similar instance. In the very nature of things it may not be proper to assume that there is any obligation on the part of the Government to seek out those to whom money is to be paid in order to effect such payment. The case of the Government usually making payment at Treasuries is also a similar instance. In the very nature of things it may not be proper to assume that there is any obligation on the part of the Government to seek out those to whom money is to be paid in order to effect such payment. The case of employers regularly paying the emoluments of their employees at a specified place is another instance. They cannot be expected to make payment at the place of residence of the employees. To state as a rule of law that in all instances the obligation to pay arises at the place where the creditor lives may not be correct. The rule must be taken to be only a rule of evidence, one which takes note of the necessities of the case. It is to be applied with due regard to all attendant circumstances. It is evident that if the rule is to be understood in this manner neither the view that in every case irrespective of the facts, payment is to be made where the creditor resides nor the view that in no instance such an a obligation would arise by reason of the residence of the creditor in a particular place could be said to be correct. 16. A Division Bench of the Patna High Court in M/s. Johri Mull v. Hira Lal, AIR 1961 Patna 198 has understood the Privy Council decision in the manner we have done. The Division Bench said thus: "But the Privy Council decision is relevant in the present case for the purpose of showing that the court must look into the terras of the contract itself and into the circumstances and the nature of the contract, in order to draw any inference as to where the parties intended that the money was to be paid. That is the view expressed by Varadachariar J. in Audinarayana Rao v. Lakshminarayana Rao, AIR 1940 Mad 588 with regard to the ratio decidendi of the Privy Council case " A Division Bench of the Allahabad High Court in Manohar Oil Mills v. Bhawani Pin, AIR. 1971 All. 326 has also understood the rule in the Privy Council Case as a rule of evidence and not a rule of law. 1971 All. 326 has also understood the rule in the Privy Council Case as a rule of evidence and not a rule of law. At Para.4 of the report the Division Bench said thus: "In our opinion the rule embodied by the Privy Council in the case of Soniram Jeet-mul, AIR. 1927 P. C 156 (supra) is a rule of evidence and not a rule of law. The facts of the case in Soniram Jeetmul AIR. 1927 P.C.156 are almost identical with the facts in the present case. We take the decision of the Privy Council to mean that in the absence of anything to the contrary the parties to a contract of payment of money by a debtor to his creditor will be deemed to have intended that payment be made by the debtor to the creditor at the latter's place of business The Privy Council did not lay down that the common law principle that the debtor must seek the creditor was as such applicable to India. At the same time the Privy Council recorded the opinion that in case it was not possible to come to a conclusion whether payment was to be made at any particular place it was perfectly legitimate for the court to infer from the circumstances that the creditor can run business at a certain place and that in the absence of anything to the contrary payment would be made by the debtor to the creditor at his place of business. Referring to the rule of the English Common law and the argument that the said rule should not be imported into the jurisprudence of India it was observed about the middle of the second column at page 157 of the report that the simple answer to the said argument was that "on the contrary it was a mere implication of the meaning of the parties." We construe this to mean that though the rule that the debtor must seek the creditor is not applicable to India as a rule of law, the inference flowing from the wisdom of that rule is that in the absence of any agreement as to the place of payment the courts will be entitled to decide the controversy on the view that the parties implied that payment will be made by the debtor at the place where the creditor was carrying on his business." 17. It is interesting to notice that some of the decisions which apparently held against the application of the common law rule to India are, in essence, in line with the views Expressed by us here. We have adverted earlier to the decision of the Full Bench of the Punjab High Court reported in Firm Hiralal v. Baij Nath, AIR. 1960 Punjab 450 followed by this court in Prabhakara Kamath's case as laying down the rule of inapplicability of the English doctrine to India. But the observations of the Full Bench by way of conclusion in Para.10 of its judgment substantially accords with what we have expressed here as our view. The Court said thus: "The true position to my mind is that in each case it must be found as a matter of fact whether money was agreed, either expressly or impliedly to be paid at a particular place if a suit for its recovery is to be brought at the place. To find this fact the court is entitled to take into consideration the contract and every circumstance attending that contract including the ordinary residence of the creditor, the nature of the transaction itself, the circumstances in which it was made and various other factors and, if the Court can find as a fact that payment was to be made at a particular place, then, of course, a suit for its recovery would lie there, but not otherwise." 18. We have referred to the view expressed by the Bombay High Court in Bharumal v. Sakhawatmal, AIR 1956 Bombay 111. While the learned judges have rightly said that the application of English rule to India has not been ruled out by the Privy Council and the view observed by Sir Lawrence Jenkins has not been endorsed if they purported to lay down that the English Common Law rule is a rule of law there will be difficulty in accepting such a view as we have pointed out here. 19. The Gujarat High Court in the decision in Shobasingh & Sons v. S.1. Foundry, AIR. 1968 Guj. 276 followed the above said Bombay case. The Calcutta High Court has all along recognised the English rule and we are afraid that the view expressed by the Calcutta High Court is the extreme view, that of treating the rule as a rule of law. Foundry, AIR. 1968 Guj. 276 followed the above said Bombay case. The Calcutta High Court has all along recognised the English rule and we are afraid that the view expressed by the Calcutta High Court is the extreme view, that of treating the rule as a rule of law. Though it is not said so the application of the rule to the facts of the case before the learned judges in State of Punjab v. A. K. Raha, AIR 1964 Cal. 418 indicates this. The defendant in that case was the State of Punjab. The plaintiff, a limited company having its Head Office at Calcutta, undertook to construct for the defendant, the State of Punjab, a broad-gauge railway tunnel on the Bhakra Nangal Canal Railway. The tender for the work was submitted by the plaintiff, it was accepted and the work was commenced. It was the amount due as security and the balance amount said to be due for the work that was claimed by the plaintiff in the suit. The defendant, the State of Punjab, was functioning outside the limits of Calcutta Court when the suit was filed. Nevertheless it was found that there was an implied contract to pay at the place of business of the plaintiff. If the decision had merely rested on this there would have been no question of applying the English rule. But, alternatively, it was contended that the rule of obligation of the debtor to seek out the creditor would apply and that rule was, without anything more, to apply to the facts of the case. Same was the approach in the decision in S. P.C. Engineering Co v. Union of India, (AIR. 1966 Cal. 259). The question of jurisdiction arose in that case. The contention was that the State of Punjab was under an obligation to pay the contractors's dues at Calcutta where the plaintiff had its place of business, and hence a part of the cause of action arose within the jurisdiction of the Calcutta Court. The case was that, there being no place of payment expressly indicated in the contract, the contractor's dues were payable, by necessary implication, at the contractor's place of business and the general rule that where no place of payment is specified in the contract, either expressly or impliedly, the debtor must seek out the creditor and pay at the creditor's place will arise for application. Following the decision in State of Punjab v. A. K. Raha, (AIR. 1964 Cal 41S), the Court accepted the plea. Mallick J. further said in that case thus: "I consider the rule to be universal in its application based, as it is. on justice and equity It is emphatically not a technical rule of English law, wrongly made applicable to India. It is a beneficent rule, inflexible and is of universal application." With great respect we find it difficult to concur with the statement of the law by the learned judge in this form. We have indicated elsewhere in this judgment the scope of the application of the rule and the contours of its operation. 20. The other equally important question we are called upon to consider is whether the rule, to the extent we have recognised it here, has application in the case of an obligation to pay under a promissory note. This question has arisen because it is contended for the respondent here that at any rate the rule cannot be invoked in a case where the obligation arises out of a negotiable instrument. The provisions of the Indian Contract Act are referred to in this context. 21. There has been considerable controversy in this country on the question of applying the rule of debtor's obligation to seek out the creditor to negotiable instruments. In the country of its origin no distinction seems to have been noticed between an ordinary case of debtor and creditor relationship and the case of such relationship under a negotiable instrument One of the early statements of the English common law rule is to be found in Eider's case (1893)1 L R., P.D.,136 where it was stated that when no place of payment is specified, either expressly or by implication, the debtor must seek his creditor and pay where his creditor is. Walton v. Mascall 153 ER. 188 to which we have already adverted was a case of an obligation to pay under a pronote. Walton v. Mascall 153 ER. 188 to which we have already adverted was a case of an obligation to pay under a pronote. It is in the context of such an obligation that Pollock C.B. said thus: "Now, it is clear that a request for the payment of a debt is quite immaterial, unless the parties to the contract have stipulated that it shall be made; if they have not, the law requires no notice or request; but the debtor is bound to find out the creditor and pay him the debt when due" The case in Bryant v. Withers, 105 ER. 327 where again this rule was reiterated was a case of negotiable instrument. 22. Though the case was argued at length before us quite ably by counsel Sri. Balasubramoniam appearing for the appellant and we were well assisted also by Sri. Narayanan, learned counsel appearing for the respondent, counsel have not brought to our notice any decision of any English Court laying down as a rule of law that the principle of the obligation of the debtor to seek out the creditor will not be applicable to the case of negotiable instruments. 23. Some of the Indian cases have pointed out -that in the case of Negotiable Instruments place of payment has to be determined in accordance with the provisions of the Negotiable Instruments Act and if so advertence to the English Common Law rule would be out of place. S.49 of the Indian Contract Act is, as we have indicated, a provision enabling a promisor to seek the fixing of the place of payment. But in the case of a Negotiable Instrument the provisions of the Negotiable Instruments Act, 1881, if they are contrary to the provisions of the Contract Act, must prevail over the latter S.64 of the Negotiable Instruments Act prescribes the requirement of presentment of pro-notes, bills of exchange and cheques in order to make the other parties thereto liable thereon. S 65 prescribes the time for presentment and S.66 deals with the date of presentment. S.67 deals with presentment for payment of promissory note payable in instalments and S.68 deals with presentment for payment of instrument payable at specified place and not elsewhere. S.69 deals with instruments payable at specified place and S.70 deals with presentment where no exclusive place is specified. We will confine our consideration to the case of a pronote. S.67 deals with presentment for payment of promissory note payable in instalments and S.68 deals with presentment for payment of instrument payable at specified place and not elsewhere. S.69 deals with instruments payable at specified place and S.70 deals with presentment where no exclusive place is specified. We will confine our consideration to the case of a pronote. Where no place of payment if fixed in a pronote S.70 applies and that provides that it must be presented for payment at the place of business, if any, or at the usual residence of the maker, drawee or acceptor thereof, as the case may be. That Section runs thus: 70. Presentment where no exclusive place specified: A promissory note or bill of exchange, not made payable as mentioned in S.68 and 69, must be presented for payment at the place of business (if any), or at the usual residence, of the maker, drawee or acceptor thereof, as the case may be." There is an exception to S.64 of the Act and since that is relevant for our purpose it will be advantageous to extract S.64 with the exception. That reads thus: "64. Presentment for payment Promissory notes, bills of exchange and cheques must be presented for payment to the maker, acceptor or drawee thereof respectively, by or on behalf of the holder as hereinafter provided. In default of such presentment, the other parties thereto are not liable thereon to such holder. Where authorised by agreement or usage, a presentment through the post office by means of a registered letter is sufficient. Exception: Where a promissory note is payable on demand and is not payable at a specified place, no presentment is necessary in order to charge the maker thereof." It is evident from the provisions adverted to that in the case of a pronote, just as in the case of bills of exchange or cheques, presentment is necessary with the exception that in the case of pronote payable on demand and not payable at a specified place no presentment is necessary to charge the maker. The place of presentment indicated in S.70 would apply necessarily only to a case where presentment is contemplated. The place of presentment indicated in S.70 would apply necessarily only to a case where presentment is contemplated. If presentment is not a requirement even without such presentment the claim would be valid and such a case is one contemplated by the exception in S.64, namely, where a maker of a pronote is sought to be charged on a pronote payable on demand and not payable at a specified place. Therefore whatever may be said in the case of a pronote other than that falling within the exception and also a case where anyone other than the maker is charged the position is different when the maker alone is charged in respect of the pronote falling within the exception. If the place of presentment is specified the obligation to pay arises at that place on such presentment. But where even without such presentment the maker of a pronote could be made liable on a pronote it must be found that place of payment is not determined by the provisions of the Negotiable Instruments Act, There is, therefore, no reason to derogate from the rule of the debtor having to seek out the creditor as a rule of evidence to determine the obligations under the contract. The case before us is one of a pronote payable on demand. No place of payment is specified. Therefore in such a case there should be no objection to take notice of the rule of obligation of the debtor to seek out the creditor for payment. 24. Now we will notice the cases decided by the Indian Courts to see how far the approach made by us here is in line with those cases. But before we do so we may notice that the provision in the exception to S 64 is consistent with the English law on this point. In Chitty on Contracts, 24th Edition at page 812, Para.1707, the learned author observes thus: "If the bill or note is payable on demand, or at sight, the liability of the acceptor or maker arises on the date of issue of the instrument, for no demand is necessary to establish liability in the case of a present debt. In Chitty on Contracts, 24th Edition at page 812, Para.1707, the learned author observes thus: "If the bill or note is payable on demand, or at sight, the liability of the acceptor or maker arises on the date of issue of the instrument, for no demand is necessary to establish liability in the case of a present debt. "The law is quite settled that, with regard to a promissory note payable on demand, no demand is necessary before bringing an action; and indeed the Statute of Limitations begins to run from the making of the note."' S. 87(1) of the English Bills of Exchange Act, 1882 contains a provision similar to the provision in exception to S.64 of the Negotiable Instruments Act. S.87 of the Bills of Exchange Act reads thus: "87(1) Where a promissory note is in the body of it made payable at a particular place, it must be presented for payment at that place in order to render the maker liable. In any other case, presentment for payment is not necessary in order to render the maker liable (2) Presentment for payment is necessary in order to render the indorser of a note liable. (3) Where a note is in the body of it made payable at a particular place, presentment at that place is necessary in order to render an indorser liable; but when a place of payment is indicated by way of memorandum only, presentment at that place is sufficient to render the indorser liable; but a presentment to the maker elsewhere, if sufficient in other respects, shall also suffice." In Chalmers on Bills of Exchange, 13th Edition at pages 279 and 280 certain illustrations to sub-section (1) of S.87 are given. Illustration 1 may be noticed here. That reads thus: "A note is made payable to C or order on demand. The bolder can sue the maker without proving any presentment or demand." Reference is made in the footnote to Walton v. Mascall,153 ER. 188, Norton v. Ellam,150 ER 839 and Maltby v. Murrells,157 ER. 1405. Reference may also be made here to S.52(1) of the Bills of Exchange Act, 1882 which provides that when a bill is accepted generally presentment for payment is not necessary in order to render the acceptor liable. 188, Norton v. Ellam,150 ER 839 and Maltby v. Murrells,157 ER. 1405. Reference may also be made here to S.52(1) of the Bills of Exchange Act, 1882 which provides that when a bill is accepted generally presentment for payment is not necessary in order to render the acceptor liable. The following passage in the commentary to sub-section (1) of S.52 would be of interest: "The justification for this sub-section is that at common law the debtor as a general rule, must seek out his creditor to pay him. The practical importance of the rule is that the acceptor cannot avail himself of any informality in the presentment" Though S.52 (1) applies to Bills of Exchange by reason of S.89 (1) the provision applies with necessary modification to pronote with the qualifications indicated in sub-sections (2) and (3) of S.89 of the Bills of Exchange Act. That is evidently the reason for Walton v. Mascall,153 E. R.188, a case of pronote being cited in the footnote to the commentary on S 51 (1). In Norton v. Ellam, seen reported in Meeson & Welsby's Reports Vol. 2,461, a case decided in 1837, the question was whether in the case of a pronote which was payable on demand with lawful interest the Statute of limitation ran from the date of note or from the time of demand. Dealing with this question Park, B. said thus: "Where money is lent, simply, it is not denied that the statute begins to run from the time of lending. Then is there any difference where it is payable with interest? It is quite clear that a promissory note, payable on demand, is a present debt, and is payable without any demand, and the statute begins to run from the date of it. Then the stipulation for compensation in the shape of interest makes no difference, except that thereby the debt is continually increasing de die in diem. It is quite different from the case of a note payable at sight, because there, by the terms of the contract, it must be shown before action is brought " (Incidentally we may notice that under Indian law a pronote payable at sight means on demand This is by reason of S.21 of the Negotiable Instruments Act). 25. Now we will turn to the Indian Cases. In Gopikishan v. Jethmal (AIR. 25. Now we will turn to the Indian Cases. In Gopikishan v. Jethmal (AIR. 1945 Nagpur 144 the court said that the ordinary principle laid down by that court in Ramachandra v. Mohanlal, (AIR. 1930 Nag. 207) that in the absence of any specific agreement as to the place where the payment of a debt is to be made, it is the duty of the debtor to make the payment where the creditor resides, or where his place of business is, is not applicable to negotiable instruments. The only argument indicated in support of this was that under S.70 of the Negotiable Instruments Act a promissory note or bill of exchange not made payable as mentioned in S.68 and 69 must be presented for payment at the place of business (if any) or at the usual residence, of the maker, drawee or acceptor thereof. If it was a case to which the exception to S.64 did apply that has not been noticed. Though the view taken in Firm Dalsukh Nathmal v. Motilal, AIR. 1938 Nag 262 is the same, no reason which calls for an answer is indicated therein. In Srilal Singhania v. Anant Lal, AIR. 1940 Cal. 443 Lord-Williams J. observed that S.49 of the Contract Act had no application to that case since the promise under the promissory note was to perform on demand. The learned judge further observed thus; "It follows that S.49 having no application to the present case, a fortiori the common law rule applies, and it being necessary for the debtor to seek out his creditor and pay him, in the absence of any agreed place for payment, the place for repayment in the present case was Calcutta." 26. The case in Roman Chettiyar v. Gopalachari, ILR. 31 Mad. 223 has been cited quite often by courts in India in support of the view that the English rule is inapplicable to India. In that case the court was considering the question whether the pronote payable on demand could be sued on within the jurisdiction of the court where the plaintiff was residing. 31 Mad. 223 has been cited quite often by courts in India in support of the view that the English rule is inapplicable to India. In that case the court was considering the question whether the pronote payable on demand could be sued on within the jurisdiction of the court where the plaintiff was residing. We must notice that the place of suing was not to be determined in accordance with S.20 of the Code of Civil Procedure of 1898, but according to S.17 of the Code of Civil Procedure then in force Under Explanation.3 to that Section one of the places at which cause of action would arise within the meaning of that Section was the place where, in performance of the Contract, any money was expressly or impliedly payable. It was found on the facts of that case that money was not expressly or impliedly payable at the place of residence of the plaintiff. Having found so it was rightly held that the court within whose jurisdiction the plaintiff resided could not entertain the suit. Sir Arnold White C. J., in his concurring judgment, observed that it was a case where place of payment was not specified expressly or by implication and it seemed therefore to follow that sub-section (iii) of Explanation III did not apply. If the case did not fall within the Explanation there is no further scope for an enquiry as to any other rule as to place of payment. The learned judge added that if the framers of the Code had intended that a plaintiff should, in the absence of a contract to the contrary, be allowed to sue at bis place of residence to recover debts due to him in pursuance of contracts made elsewhere, there is no apparent reason why they should not have said so and they had an excellent opportunity of making this clear in drafting illustration (b) to S.17, and the fact that they did not avail themselves of that opportunity, it was said, supports the view taken by the learned Judge. There, we are at raid, the learned judge has, with great respect, missed to notice that the rule that a debtor is expected to seek out his creditor is not a rule of law applicable in all cases and in all circumstances and therefore no such rule could have been stated in the Code. 27. There, we are at raid, the learned judge has, with great respect, missed to notice that the rule that a debtor is expected to seek out his creditor is not a rule of law applicable in all cases and in all circumstances and therefore no such rule could have been stated in the Code. 27. A Division Bench of the Bombay High Court in Jivatlal v. Lalbhai, AIR. 1942 Bom 251 felt that the common law rule would not apply to the case of a pronote. To support this view Beaumount C J. indicated certain reasons. The main reason was that since a negotiable instrument is one which may pass from hand to hand, if the rule of common law is applied, it would follow that though a promissory note was executed at a particular place, when it is negotiated, the last endorsee could demand payment from the maker in some out of the way place where he was, and then it would be the duty of the maker to find him in that place in order to pay him. This, the learned judge seems to feel, is not reasonable. The simple answer to this is that even otherwise at such a place a suit could be filed, for, under S.20 of the Code of Civil Procedure a suit could be instituted where any part of the cause of action arises and cause of action for a suit on a pronote arises also at the place of endorsement, for, the endorsement is part of the cause of action. This question has been considered by this court in Bharathi Amma v Abdul Azees,1970 K.L.T. 50 so much so we do not wish to go into it again. Consistent with that view, apart from applying any rule of obligation of debtor to find his creditor a suit could be filed by an endorsee at the place of endorsement which would cause equal hardship to the debtor. But that is inevitable the law being what it is. Moreover, we have to notice that it it only in the case of pronote payable on demand and not at a specified place that such a situation would arise. Beaumount C. J. further noticed the absence of any authority binding upon the court. 28. But that is inevitable the law being what it is. Moreover, we have to notice that it it only in the case of pronote payable on demand and not at a specified place that such a situation would arise. Beaumount C. J. further noticed the absence of any authority binding upon the court. 28. The view we have taken here in this judgment has been taken by the Lahore High Court in Nanu Mal v. Firm Shibba Mal Nand Kishore, AIR. 1939 Lahore 18. Bhide J., accepted the contention that no presentment was necessary in the case of a pronote when the suit was against the maker of the pronote. The learned judge said thus: "This contention appears to be correct and is supported by the decision in 10 Lah.755, the pronote in this case not being payable at a specified place." 29.Laxminarayan v. Sultan Jehan Begum, AIR 1951 Hyderabad 132, a Division Bench of that court, following its earlier decisions, held thus: "in my opinion, when it has been held by our High Court in the two cases referred to above that the principle is applicable even to the Negotiable Instruments there is no ground for differing from that opinion which has been held since a longtime by our High Court." This decision was, no doubt, not approved by a later Full Bench in 5. Eshwarayya v. Devi Singh, AIR. 1953 Hyd. 289. 30. We may also notice a decision of the Madhya Bharath High Court in J.N. Sahni v. Madhya Bharat State. AIR. 1954 M.B. 184. The argument of the learned Advocate General before the court was thus noticed in the Full Bench decision: "The learned Advocate General contended that in as much as the presentment of such a note is not necessary in order to charge the maker, the question of its presentment cannot arise and that, therefore, the rule laid down in S.70 can have no applicability to a promissory note of the type mentioned in the Exception to S.64." In answering this, the Full Bench said thus: "The argument proceeds on the assumption that if the presentment of the promissory note is not necessary to charge the maker thereof, it is, therefore, not necessary to present the note to maker at all and even if payment is desired. That appears to me to be a non-sequitur. That appears to me to be a non-sequitur. I am not prepared to accept the wide meaning which the learned Advocate General sought to give to the Exception. From the fact that the presentment of the promissory note is not necessary in order to charge the maker thereof, it does not follow that if the holder desires payment he need not present the note to the maker and that be must wait until the maker seeks him out." With great respect to the learned judges we are afraid that this statement of the law goes contrary to the Section and to what learned commentators have said on the similar provision of the English law on the scope of presentment in regard to a pronote. The learned judge, speaking for the Full Bench, further went on to say thus: "In my judgment in the case of a promissory note payable on demand which does not specify the place of payment though the presentment of the note is not necessary in order to make the maker of the note liable thereon, yet if the holder desires payment he must make the presentment under S.70 or 71 of the Act. To put in another form such a promissory note is payable at the place of business or at the usual residence of the maker." This, it appears to us, would not be justified in view of the Exception to S.64 of the Negotiable Instruments Act. 31. We have already indicated our reasons as to why in a suit against the maker of a pronote which falls within the Exception to S.64 the rule of a debtor seeking out a creditor for payment may have application in the same manner and to the same extent as in the simple case of a creditor and debtor. Coming to the facts of the case here we find that the plaintiff who is a resident of Palghat with whom the defendant was admittedly having money dealings and had been borrowing money from time to time took the promissory note from the defendant in the course of such transactions. The dealings by the defendant with the plaintiff started in 1966 and there were, even according to the defendant, a series of borrowings from time to time, as if the plaintiff was a money lender. The dealings by the defendant with the plaintiff started in 1966 and there were, even according to the defendant, a series of borrowings from time to time, as if the plaintiff was a money lender. In the very nature of things, therefore, the defendant would have been expected to pay the plaintiff at Palghat where the latter resides. If so, the suit filed within the jurisdiction of the Palghat Court is competent We set aside the order of the learned Subordinate Judge and direct the learned judge to take the suit on file and proceed with it according to law. In the circumstances parties will suffer costs. Allowed.