1. This appeal is preferred against the judgment of learned VII-Assistant City Civil Judge at Madras passed in O.S No. 1046 of 1985, dated 31-8-1987. The plaintiff is the appellant herein.
2. The plaint averments are summarised as follows:
The defendant had business dealings with the plaintiff and in respect of the amount due under the goods sold and delivered, the defendant executed as on demand promissory note for Rs. 33,751.75. dated 12-12-1980 in favour of the plaintiff and forwarded the same to the plaintiff at Madras by their covering letter, dated 15-12-1980, promissing to repay the said sum of Rs. 33,751.75 at Madras, on demand, together with interest thereon at 18% per annum. The defendant did not make any payment either towards principal or towards interest and the plaintiff sent a notice to the defendant, dated 3-3-1982 through their Advocate demanding immediate payment of the dues. After the receipt of the said notice, the defendant made a part payment of Rs. 5,000/- on 13-8-1983 by way of cheque and it was encashed by the plaintiff. The plaintiff is entitled to interest on the amount due on the promissory note at the rate of 18% per annum from 12-12-1980. the date of the promissory note. There is thus due and payable by the defendant the sum of Rs. 33,751.75 as principal and the sum of Rs. 22,276/- as interest together totalling to Rs. 56027.75 After giving credit to the sum of Rs. 5,000/-, there is a sum of Rs. 51,027.75 due and outstanding from the defendant which they have failed and neglected to pay in spite of repeated demands and reminders and by Advocate's notice, dated 11-5-1984. The suit is filed under Order 37, Rule 1 of C.P.C The cause of action for the suit arose on 12-12-1980 on which date the promissory note was executed, on 13-8-1983 on which date the defendant made a part payment and subsequently and it arose at Madras at which place the promissory note was delivered to the plaintiff's registered office and at which place the defendant promised to pay the amount due together with interest. The suit is not barred by limitation since the defendant made a part payment on 13-8-1983. The plaintiff prays for a decree against the defendant for a sum of Rs. 51,027.75 together with future interest on the principal amount at 18% per annum from the date of the plaint till the date of realisation.
3. The defendant in the written statement contended as follows:
This Court has no jurisdiction to entertain the suit for no part of cause of action has or had arisen within the jurisdiction of this Court and each and every cause of action or part thereof had arisen only in Goa. It is true that the defendant had dealings with the plaintiff and had executed the promissory note. But, the allegation that the promissory note was forwarded to the plaintiff at Madras promising to pay at Madras is denied. No such promise to pay at Madras was made. The suit promissory note was executed at Goa and the defendant is residing at Margao, Goa and all the transactions for which the suit promissory note was executed were also entered into and concluded at Goa and therefore this Court has no jurisdiction and the suit is liable to be dismissed. The amount claimed in the suit is also not correct. As on the date of written statement, the entire principal has been paid and no amount is due towards principal. That apart, the defendant has paid another sum of Rs. 5,000/- over and above Rs. 5,000/- mentioned in the plaint which the plaintiff had not given credit to. The plaintiff is bound to give credit to that sum. The defendant is not liable to pay any interest since entire amount has been paid. The rate of interest claimed in the plaint is excessive. The defendant is not liable for the suit claim.
4. The trial Court framed five issues and on a consideration of the matter came to the conclusion that the Court in Goa alone has jurisdiction to try the suit and the Court at Madras has no jurisdiction, the defendant had paid the entire amount and the plaintiff is not entitled for the suit claim and dismissed the suit with costs. Aggrieved by the same, the plaintiff has preferred the present appeal. In this judgment, the parties are described as arrayed in the suit.
5. The main point for consideration in this appeal is as to whether the civil Court at Madras has jurisdiction to try the suit.
6. Ex. A-1 is the suit promissory note, dated 12-12-1980. The defendant admits that they had business dealings with the plaintiff and in respect of the amount due under the goods sold and delivered, the defendant had executed Ex. A-1 promissory note, dated 12-12-1980, in favour of the plaintiff at Goa and sent the same with covering letter Ex. A-1, dated 15-12-1980, by Registered Post to the plaintiff at Madras. According to the plaintiff, the defendant did not make any payment either towards principal or interest and the plaintiff sent notice, dated 3-3-1982, through their Advocate demanding payment and the defendant, after receipt of the said notice, made a part payment of Rs. 5,000/- on 13-8-1983 by way of cheque and it was encashed by the plaintiff. The plaintiff has not filed any document in support of the above averment. The further case of the plaintiff is that they demanded payment from the defendant by their Advocate's notice, dated 11-5-1984. Ex. A-3 is the copy of the above notice and Ex. A-4 is the postal acknowledgment card evidencing the receipt of the notice by the defendant. The plaintiff seeks to recover from the defendant the balance outstanding payable under Ex. A-1 promissory note in this suit.
7. The defendant contends that Ex. A-1 promissory note was executed at Goa and the defendant is residing at Margao, Goa and all the transactions for which the suit promissory note was executed were also entered into and concluded at Goa and each and every cause of action or part thereof with regard to suit promissory note had arisen only in Goa and the Court at Madras has no jurisdiction to entertain the suit for no part of cause of action has or had arisen within the jurisdiction of the Madras Court. The learned counsel for the respondent Mr. Maninarayanan contends that Ex. A-1 promissory note was made by the defendant at Goa and there was no recital promising to pay the sum at Madras in Ex. A-1 and the same was sent with Ex. A-2 covering letter, dated 15-12-1980, by registered post to the plaintiff's address at Madras and the delivery of the promissory note as stipulated under Section 46 of the Negotiable Instruments Act was completed by delivery in the post office at Goa and hence the Court at Goa alone has jurisdiction to try the suit. For appreciation of this contention, the recital in Ex. A-1 promissory note is relevant and it is extracted as under:
“ON DEMAND, we M/s. EMCO Goa Private Limited, promise to pay M/s. M.R.F Limited, 827 Anna Road, Madras 600 002 the sum of Rs. 33,751.75 (Rupees thirty three thousand seven hundred fifty one and paise seventy five only) together with interest thereon @ 18% per annum for value received.”
8. A reading of the above shows that there was no promise to pay the sum at Madras by the defendant in Ex. A-1. The text of Ex. A-2 covering letter is also relevant and it is extracted.
“As per the discussion you Shri Rui Coelho had with our Managing Director, we are enclosing a promissory note dated 12-12-80 in your favour for Rs. 33,751.75, being the balance amount payable to you as on 30-6-80. Kindly acknowledge receipt.”
9. Even in Ex. A-2 covering letter, the defendant has not promised to pay the amount payable under Ex. A-1 promissory note at Madras to the plaintiff.
10. The plaintiff's averment with regard to cause of action for the suit in the plaint assumes importance and it is extracted as under.
“The cause of action for the suit arose on 12-12-1980 on which date the promissory note was executed on 13-8-1983 on which date the defendant made a part payment and subsequently and it arose at Madras within corporation Division No. 70 at which place the promissory note was delivered to the plaintiff's Registered Office and at which place, the defendant promised to repay the amount due together with interest.”
11. The plaintiff alleges the date of execution of Ex. A-1 promissory note as the first cause of action which arose for the suit. Admittedly, Ex. A-1 promissory note was executed on 12-12-1980 by the defendant at Goa. The next cause of action alleged by the plaintiff is on 13-8-1983 on which date the defendant made a part payment. The plaintiff did not adduce any evidence to show that the defendant made a part payment on 13-8-1983. The next cause of action alleged in the plaint is that the promissory note was delivered to the plaintiff's registered office at Madras and at, which place the defendant promised to repay the amount due together with interest. As already seen, the defendant did not make any promise to pay the amount due on Ex. A-1 promissory note at Madras.
12. The question is whether Ex. A-1 promissory note was delivered at Madras as contended by the plaintiff. Section 46 of the Negotiable Instruments Act stipulates that the making, acceptance or indorsement of a promissory note is completed by delivery, actual or constructive. The learned counsel for the appellant/plaintiff contends that Ex. A-1 promissory note was executed at Goa and the delivery was at Madras and hence part of the cause of action arises at both the places and he relies on a Division Bench judgment of this Court in Arunachalam Chettiar v. Murugappa Chettiar, reported in AIR 1956 Madras 629, wherein it is held as follows (Para 3):
“We are, therefore, of opinion that Ex. A-1 is nothing but a promissory note. If that is so, if a note is executed at one place and delivered at another or is made payable at another place, part of the cause of action arises at each one of those places and the suit may be filed at any place at the option of the plaintiff. There is abundant authority both Indian and English for the above proposition.”
13. In the present case, the question is as to whether Ex. A-1 promissory note was delivered at Madras. The learned counsel for the respondent contends that Ex. A-1 promissory note is dated with reference to Goa and the parties should be presumed to have agreed to that place being taken to be the place of the contract and he relies on the judgment of the Division Bench of this Court in Meenakshi Ginning and Pressing Company (Ltd.) v. Myle Sreeramulu Naidu, reported in ILR (1905) 28 Madras 19, wherein it is held as follows:
“It is therefore clear that the promissory note was a contract binding upon the Company and the only question for determination is whether the Bellary Court had jurisdiction to try the suit. And that Court must be held to have had jurisdiction under the provisions of Section 17, explanations II and III of the Code of Civil Procedure, if, as contended for the plaintiff, the contract should be taken to have been made in Bellary. As a matter of fact the signatures of the Secretaries and Treasurers were affixed to the note at Bellary. However, the note was thereupon sent to Tirumangalam and, after being countersigned by the agent and the seal affixed to it, it was posted there, addressed to the Official Assignee, who received it in Madras. It was urged for the Company that as the contract by the note became complete only when it was posted in Tirumangalam that was the place where the contract was made. The argument on behalf of the plaintiff was that the note having been dated at Bellary the contract should be treated as made in Bellary, and this seems correct.
Now a statement of the place of execution is, of course, not essential to the validity of a negotiable promissory note, nor are the parties precluded from dating the note at a place different from that at which it is actually made, if for any purpose of theirs, they consider it necessary to do so. Where, therefore, a negotiable note, as in the present instance, is dated with reference to a specified place and the justice of the case does not necessitate a different conclusion, the parties should be presumed to have agreed to that place being taken to be the place of the contract.”
14. In the present case, Ex. A-1 promissory note was executed at Goa and the contract should be treated as made in that place. The learned counsel for the respondent further contends that the moment when Ex. A-1 promissory note was delivered in the post office at Goa addressed to the plaintiff, the delivery is completed since the post office is the agent of the plaintiff to whom the promissory note is posted by reason of implied authority to send it by post and he relies on two decisions of the Apex Court in this regard, which are extracted below.
(1) Commissioner of Income-tax, Bihar and Orissa v. Patney and Co., AIR 1959 SC 1070. The Supreme Court has held as follows:
“Where there is an express request by the creditor (assessee) that the amount be paid to him by cheques to be sent by post and they are so sent there is no doubt that the payment will be taken to be at the place where the cheque or cheques are posted. In the case of payment by cheque sent by post the determination of the place of payment will depend upon the agreement between the parties or the course of conduct of the parties. If it is shown that the creditor authorised the debtor either expressly or impliedly to send a cheque by post the property in the cheque passes to the creditor as soon as it is posted. Therefore the post office is an agent of the person to whom the cheque is posted if there be an express or implied authority to send it by post.”
(2) Shri Jagdish Mills Ltd. by its Successor Shri Ambica Mills Ltd. v. The Commissioner of Income-tax, Bombay North, Kutch and Saurashtra, AIR 1959 SC 1160. In this case, the apex Court has held as follows (Para 14):
“Where, however, on the facts and circumstances of the case an implied request by the creditor to send the cheque by post can be spelt out, the post office would be constituted the agent of the addressee for the purposes of receiving such payment. The authority in support of this proposition is to be found in Norman v. Rickets, (1886) 3 TLR 182.”
15. In both the above cited cases, the Supreme Court has held that on request, express or implied, by the creditor to send the cheque by post, the post office would be constituted as the agent of the addressee for the purpose of receiving such payment and the property in the cheque passes to the creditor as soon as it is posted. In the present case, Ex. A-2 covering letter clearly states that as per the discussion of the plaintiff's representative with the Managing Director of the defendant, the defendant was enclosing Ex. A-1 promissory note in favour of the plaintiff. Hence, an express request by the creditor, namely, the plaintiff, to send the promissory note by post can be spelt out. In such circumstances, the delivery of the promissory note, as contemplated under Section 46 of the Negotiable Instruments Act, is completed by delivery in the post office at Goa, which is the agent of the plaintiff. Hence, the cause of action in entirety had arisen only in Goa. Since no part of cause of action had arisen within the jurisdiction of the civil Court at Madras, it has no jurisdiction to entertain the suit as rightly held by the trial Court.
16. In view of the conclusion on this main point, it is no necessary to discuss further in the matter.
17. In the result, the appeal fails and the same is dismissed. There will be no order as to costs.
18. Appeal dismissed.