Harnam Singh, J.:— The question which has been referred to this Bench for decision is:—

2. Whether the common law rule that a debtor should seek his creditor is applicable in the case of promissory notes and in particular promissory notes payable on demand?” Briefly summarised, the facts leading to this reference are that on the 21st of February, 1947, Piara Singh defendant executed the promissory note in suit at Lahore where both parties resided. On the partition of the Punjab under section 4 of the Indian Independence Act, 1947, parties have migrated to India and the plaintiff is living at Moga Mandi in the Ferozepore District while the defendant is living at Delhi. On the 14th of June, 1948, plaintiff applied to sue in forma pauperis and filed his application in the Court of the Subordinate Judge 1st class at Moga. In those proceedings the defendant urged a preliminary objection that the Court had no jurisdiction to try the case. Relying on the common law rule that the debtor must seek the creditor the trial Court has found that the plaintiff was Page: 101entitled to sue at the place where he resided and the defendant has now come to this Court in revision against that order.

3. In section 20 of the Code of Civil Procedure, hereinafter referred to as the Code, is contained the statement of the law as to the forum in cases of personal actions. In plain English section 20 enacts that the Court gets jurisdiction to try a case if the defendant resides or carries on business or personally works for gain within the local limits of its jurisdiction or the cause of action arises wholly or in part within such local limits.

4. Section 17 of the Code of Civil Procedure, 1882, corresponded to section 20 of the present Code. In section 17 of the old Code there was Explanation III which provided that in a suit arising out of a contract the came of action arose within the meaning of the section at any of the following places, namely:—

(a) the place where the contract was made;

(b) the place where the contract was to be performed or performance thereof completed; and

(c) the place where, in performance of the contract, any money to which the suit relates was expressly or impliedly payable.

5. Indeed Explanation III was added to Section 17 of the Code to make it clear that a suit arising out of contract could be instituted in a Court within the local limits of whose jurisdiction the cause of action arose either wholly or in part. The Explanation gave rise to doubts whether other clashes of suits could be instituted in a Court within the local limits of whose jurisdiction part only of the cause of action arose. In section 20 of the Code it has cow been enacted that all classes of suits can be instituted where the cause of action arises wholly or in part and Explanation III to Section 17 of the Code of 1882 has not been re-enacted in the Code of ???. In Salig Ram v. Chaha Mal5 and Sita Ram v. Ram Chandra 26 P.R 1918 , 114 P.L.R 1918 it was held that although Explanation III to Section 17 of the Code of 1882 has not been re-enacted in the Code of ???, the introduction of the words “wholly or in part” in section 20(c) of the Code has left the existing law unaltered.

6. In considering the question referred to us for decision it has to be borne in mind that the Code is exhaustive on all matters specifically dealt with by it. In other words, the law on matters specifically dealt with by the Code must be ascertained only with reference to the provisions of the Code and the Courts cannot disregard or go outside the letter of the enactment according to its true constructions.

7. Before proceeding with the examination of the question referred to us for decision it is necessary to state the scope of the common law rule about the place of payment of debts. Paragraph 275 of Halsbury's Laws of England. Volume VII, reads:—

“Where no place for performance is specified either expressly or by implication from the nature and terms of the contract and the surrounding circumstances, and the act is one which requires the presence of both parties for completion, the general rule is that the promiser must seek out the promisee and perform the contract wherever he may happen to be. This rule applies not only to contracts for the payment of money, but to all promises for the performance of which the concurrence of the promisee is necessary.”

8. Counsel for the parties conceded in these proceedings that their Page: 102researches did not succeed in finding any English case where the rule stated in paragraph 275 of Halsbury's Laws of England, Volume VII, was applied to negotiable instruments.

9. In Thorn v. City Rice Mills (1889) 40 Ch. D. 357, North, J. said:—

“The proposition made on the part of the plaintiff is that it is the duty of the debtor who has to pay money at a fixed time to find his creditor, provided the latter be in England, and pay him. I do not assent to that statement of the law so broadly put.”

10. Indeed, it appears from footnote (e) to paragraph 275 of Halsbury's Laws of England, Volume VII, Second Edition read with Paragraph 954 of the same book, Volume II, that in England there are special rules on the point before us in regard to negotiable paper.

11. In Williston on Contracts, Volume VI, paragraph 1812, the rule is stated in the following words:—

“There are special rules in regard to negotiable paper, in regard to the transfer of chattels, and in regard to the payment of rent by a tenant of real estate, but apart from such special rule the general principle of common law is that the debtor must seek the creditor and make tender to him wherever be is found; and even without reference to this principle, the creditor's place of residence at the time when the contract was trade will often be deemed by fair implication of fact the place of performance contracted for.”

12. In Daniel on Negotiable Instruments, Volume I, Seventh Edition, page 139, the rule is stated in the following terms:—

“Where no place of payment is expressed in a note, the place of payment is understood to be where the maker resides; and if none be expressed in a bill, where the drawee resides is understood.”

13. From what I have said above it follows that in England and America there are special rules on the point before us in regard to negotiable instruments.

14. In India, the position was examined under Section 17 of the Code of 1882 in Raman Chettiyar v. Gopalachari1. In that case White, C.J, said:—

“I think the Judge only had in mind the ordinary rule that a debtor should follow his creditor. I do not think this general rule can be relied on as controlling the express words of a statute prescribing the conditions which give a Court local jurisdiction. This view would seem to be in accordance with the principle of the decision of the House of Lords in Comber v. Leyland 1898 A.C 525.

15. The other view would involve the proposition that unless the contract or the circumstances in which the contract was made give rise to a contrary implication a creditor may sue in any Court within the local jurisdiction of which he happens to be when his right to sue arises. This seems to me to be quite inconsistent with the express provisions of section 17.”

16. As pointed out by White, C.J, in Raman Chettiyar v. Gopalachari1, Illustration (b) to Section 17 of the Cole of 1882 throws light on the intention of the legislature. Illustration (b) appended to section 20 of the Code is textually identical with illustration (b) to Section 17 of the Code of 1882. Illustration, (b) reads as follows:—

(b) A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at Benares. B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benares, where the cause of action arose. He may also sue them, at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.”

17. Illustration (b) indicates that the common law rule that a debtor must follow his creditor is not applicable to suits on promissory-notes payable on demand. Indeed, if the plaintiff's place of residence gave rise to an implication as to the place where the money to which the suit relates was payable A would be entitled to sue B and C at Simla in the circumstances mentioned in illustration (b).

18. Dealing with the statute law first I am of the opinion that illustration (b) to section 20 shows that in India in a suit on a promissory note the residence of the plaintiff is wholly immaterial in order to determine the place of suing. Raman Chettiyar v. Gopalachari1 was decided on the 21st of January, 1908, whereas the Code of 1908 came into force on the 1st of January, 1909. In case the framers of the Code had intended that a plaintiff, in the absence of a contract to the contrary, should be allowed to sue at his place of residence to recover debts due to him in pursuance of contracts made elsewhere on promissory notes payable on demand, there is no apparent reason why they should not have availed themselves of an opportunity to express that intention in drafting illustration (b) appended to section 20 of the Code in this connection reference may be made to Nadaravan Chettiyar v. Chandratekera9. In that case Sir John Beaumont said:—

“Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without any alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them.”

19. That being the position of law, we are bound to seek the jurisdiction of the Court in these proceedings within the provisions of section 20 of the Code and applying the rule stated in illustration (b) it seems to me that the common law rule about the place of payment of debts does not govern suits based on promissory notes payable on demand.

20. Under the Code of 1908 the question before us came up for consideration in a number of cases decided by the High Courts in India. In Gopikisan Sheonarain v. Jethmal Govardhandas A.I.R 1935 Nag. 144, Subhedar, A.J.C, said:—

“It is contended on behalf of the defendant that the ordinary principle laid down in Ramchandra Tejmal v. Mohan Lal A.I.R 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. This contention is sound. Under section 70, Negotiable Instruments Act (26 of 1881) a promissory note or bill of exchange not made payable as mentioned in sections 68 and 69, mutt be presented for payment at the place of business (if any) or at the usual residence of the Page: 104maker, drawee or acceptor thereof, as the case may be.”

21. In plain English section 70 provides that where the maker, drawee or acceptors has a place of business, presentment of the promissory note or bill of exchange must take place at the place of business of the maker, drawee or acceptor and failing that the presentment may take place at the usual residence of the maker, drawee or acceptor thereof. Clearly, the Legislature itself has declared that payment due under a promissory note, in the absence of contract at the contrary, is ordinarily to be made at the usual place of business of the maker or at his residence, and that being so, I do not think that we are entitled to apply the common law rule about the place of payment to promissory notes or bills of exchange.

22. In considering this very point in Dalsukh Nathmal v. Motilal Balrhand Parwar A.I.R 1938 Nag. 262, Vivian Base, J., said—

“Under Section 78 payment has to be made to the bolder, but, on the other band, under section 81 the person liable has to be ‘called upon by the holder to pay.’ He is also entitled to have the instrument shown to him before he need pay (unless it has been lost) and upon payment to have it delivered to him, or in the case of loss, to be indemnified. Therefore it is clear that the ordinary rule under which the debtor must seek his creditor does not apply in the case of a negotiable instrument.”

23. More recently this very point was examined in Jivatlal Purtapshi v. Lalbhai Fulchand Shah A.I.R 1942 Bom. 251. In that case Sir John Beaumont, C.J, (Somjee, J., concurring) said:—

“That brings me to the really substantial question whether the common law rule, that a debtor must seek out his creditor in order to pay him, applied to negotiable instruments, and it seems curious that there is no binding authority upon that question. The only case which is directly in point to which we have been referred is the case of Srilal Singhania v. Anant Lal Mondal A.I.R 1940 Cal. 443 , 191 I.C 52 , I.L.R (1940) 1 Cal. 323, in which Mr. Justice Lort Williams held, that the common law rule did apply to the case of a promissory-note. In that case the promissory-note did not specify any place of payment. It has not been made within the jurisdiction of the Calcutta Court, but the learned Judge held that the Calcutta Court would have jurisdiction to entertain a suit upon it, because at the time when the suit was instituted the promisee, who had ceased to be the holder of the note, and who had, therefore, no interest in the proceedings, resided in Calcutta. That, to my mind, is not a very convincing reason for the application of the rule. As pointed out by Mr. Justice B.J Wadia in the judgment under appeal, it is very difficult to apply such a rule to the case of a negotiable instrument. The holder may be residing in any part of the country, and the debtor may have no notion where he is, or where to seek him. Where presentment is necessary, the difficulty is solved by the rules laid down in sections 68-70 of the Negotiable Instruments Act, the latter section, which is the residuary section, providing that a promissory note must be presented for payment at the place of business (if any), or at the usual residence, of the maker thereof. No doubt, under the exception to section 64, 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, so that presentment in this case was not necessary in order to charge the defendant. But section 70 does give some indication as to the way in which the maker can be notified of the holder of the note for the time being. In my view, in the Page: 105absence of any authority binding upon this Court, we ought to accept the view, which appealed to the learned Judge that the common law rule about place of payment does not apply to negotiable instruments, and that the plaintiff had no right to demand payment in Bombay.”

24. Counsel for the respondent cities Nanu Mal v. Firm Shibba Mal Nand Kishore A.I.R 1939 Lah. 18 , 40 P.L.R 975 and Srilal Singhania v. Anant Lal Mondal, A.I.R 1940 Cal. 443 , 191 I.C 52 , I.L.R (1940) 1 Cal. 323 for the proposition that the common law rule about the place of payment is applicable to negotiable instruments.

25. In Nanu Mal v. F. Shibba Mal Nand Kishore A.I.R 1939 Lah. 18 , 40 P.L.R 975 it was contended that the pronote was liable to be presented to the debtor at Ambala for payment in accordance with the provisions of section 70, Negotiable Instruments Act, and therefore it should be held that the payment was to be made at Ambala. In deciding that case Bhide, J., said—

“The sole point which requires decision therefore is whether in view of the provisions of section 70, Negotiable Instruments Act, it should be held that the money due on the pronote was payable at Ambala. The learned counsel for the plaintiff had contended on the other hand that no presentment is necessary in the case of pronote when the suit is against the maker of the pronote.”

26. In Nanu Mal v. Firm Shibba Mal Nand Kishore A.I.R 1939 Lah. 18 , 40 P.L.R 975 the affect of section 70 of the Negotiable Instruments Act, 1881, on the application of the common law rule requiring debtor to follow his creditor was not considered. Clearly, Nanu Mal v. Firm Shibba Mal Nand Kishore A.I.R 1939 Lah. 18 , 40 P.L.R 975 does not examine the contentions raised in Gopikishan Sheonarain v. Jethmal Goverdhan das A.I.R 1935 Nag. 144 and Dalsukh Nathmal v. Moti Lal Balchand Parwar A.I.R 1938 Nag. 262. Srilal Singhania v. Anant Lal Mondal A.I.R 1940 Cal. 443 , 191 I.C 52 , I.L.R (1940) 1 Cal. 323, was considered in Jivatlal Purtapshi v. Lalbhai Fulchand Shah A.I.R 1942 Bom. 251 and for reasons given in that judgment it was found that Srilal Singhania v. Anant Lal Mondal A.I.R 1940 Cal. 443 , 191 I.C 52 , I.L.R (1940) 1 Cal. 323 does not lay down correct law on the point.

27. In India, the weight of authority is, therefore, for the view that the common law rule of the debtor following his creditor does not apply to promissory notes and on principle I see no justification to engraft an exception on the rule of law stated in section 20 of the Code.

28. For the foregoing reasons, my answer to the question referred to us for decision is in the negative.

29. No other point arises in civil revision No. 366 of 1948.

30. In the result, I allow the petition for revision, set aside the judgment of the trial Court and remit the case to the trial Court for action under rule 10 of Order VII of the Code of Civil Procedure.

31. Plaintiff-respondent will pay the costs of the defendant-petitioner in both the Courts.

32. Kapur, J.:— I agree and because the point is of some importance I wish to give my reasons. The point which has been referred for decision of the Division Bench by my Lord the Chief Justice is “whether the common law rule that a debtor should seek his creditor is applicable in the case of promissory notes and in particular notes payable on demand?”

33. The facts which have given rise to this petition are that Piara Singh executed a pronote for Rs. 2,000 in favour of Bhagwan Dass on the 27th of February, 1947. This pronote was executed at Lahore and no place of payment is mentioned in this note. After the partition both Bhagwan Dass and Piara Singh came to what is now India and are displaced persons. Bhagwan Dass is residing at Moga and Piara Singh at Delhi. On the 14th Page: 106of June, 1948, Bhagwan Dass instituted a suit for the recovery of Rs. 2180 as principal and interest in the Court of the Subordinate Judge at Moga in the district of Ferozeqore. An objection was taken to the jurisdiction of the Court, but the learned trial Judge held that the English common law rule that the debtor must seek the creditor applies and relying on a judgment of the Calcutta High Court in Srilal Singhania v. Anant Lal Mondal A.I.R 1940 Cal. 443 , 191 I.C 52 , I.L.R (1940) 1 Cal. 323 held that the suit could be tried at Moga where the plaintiff resided and over ruled the objection. Against this order the defendant Piara Singh has come up in revision to this Court and the rule was issued on the 31st of December, 1948, by Achhru Ram, J.

34. The point for determination by the Division Bench is whether the rule of English law that the debtor must seek the creditor and make tender to him wherever he is found applied to negotiable instruments. It may be stated in the very first instance that it was admitted by both counsel that their researches did not succeed in finding any English case which directly applied this rule to negotiable instruments. In Laws of England, Volume VII, at page 195, para. 275 it is stated:—

“Where no place for performance is specified either expressly or by implication from the nature and terms of the contract and the surrounding circumstances, and the act is one which requires the presence of both parties for completion, the general rule is that the promiser must seek out the promisee and perform the contract wherever he may happen to be. This rule applies not only to contracts for the payment of money but to all promises for the performance of which the concurrence of the promisee is necessary.”

35. Note (e) under this quotation seems to show that the place of payment in the case of bills of exchange and promisory notes may be an exception to this rule.

36. It seems that the rule as to the debtor seeking the creditor exists in America but it does not apply to ‘negotiable papers’. The rule in that country as regards promissory notes has been thus stated in Daniel on Negotiable Instruments, Vol. 1, para. 103 at page 103:

“Where no place of payment is expressed in the note the place of payment is understood to be where the maker resides, though at the time a note was given the payee resided and has continued to reside in another state, the place of payment is where the maker resides when the debt was contracted and note was delivered.”

37. In Williston on Contracts, Volume VI, page 5138, para. 1812, a rule is stated in the following words:—

“There are special rules in regard to negotiable paper, in regard to the transfer of chattels, and in regard to the payment of rent by a tenant of real estate, but apart from such special rules the general principle of common law is that the debtor must seek the creditor and make tender to him wherever he is found; and even without reference to this principle, the creditor's place of residence at the time when the contract was made will often be deemed by fair implication of fact the place of performance contracted for.”

38. Even in England there are cases where some limitations were placed on the rule contended for by the plaintiff. In Thorn v. City Rice Mills (1880) 40 Ch. D. 357 at page 359 North, J., observed as follows:—

“The proposition made on the part of the plaintiff is that it is the duty of the debtor who has to pay money at a fixed time to find his creditor, Page: 107provided the latter be in England, and pay him. I do not assent to that statement of the law so broadly put. If it were qualified by the exception I will mention, it would be right.”

39. Whether this rule is of universal application in England in the case of ordinary debts does not seem to be of very great assistance to me in the present case, because I have to determine whether this rule applies to negotiable instruments. Not much assistance can therefore be derived from English sources. As I have said above, the American law seems to exclude the applicability of this rule to negotiable instruments.

40. Taking the law in India there are conflicting authorities as to the applicability of this rule to negotiable instruments. But before I go to these authorities I must refer to section 20 of the Code of Civil Procedure which determines the jurisdiction of the Courts where suits can he filed. Section 20 is as follows:—

“Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction—

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, or

(b) ****

(c) the cause of action, wholly or in part, arises.”

41. I need not quote Explanations I and II, but illustration (b) is of some importance which is:—

42. A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at Benares, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benares, where the cause of action arose. He may also sue them at Calcutta, where D resides or at Delhi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.”

43. As I read this section a suit can be brought where the defendant or defendants reside or carry on business or where the cause of action, wholly or in part, arises. The plaintiff would like me to engraft a fourth sub-clause providing that in the case of debts suits can also be brought at the place where the plaintiff resides. Now, the Civil Procedure Code is a complete Code by itself and must govern suits in regard to procedure. The preamble says “whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of civil judicature.” This would show that the Code is complete by itself and there fere if the argument of the plaintiff were sound an addition would have to be made which we are not entitled to make. In Raman Chettiyar v. Gopalachari1 a similar argument was raised before a Division Bench of that Court and White, C.J, observed when dealing with Section 17 of the Code of Civil Procedure as it then existed and which corresponds to the present section 20:—

“I think the Judge only had in mind the ordinary rule that a debtor should follow his creditor. I do not think this general rule can be relied on as controlling the express orders of a statute prescribing the conditions which give a Court local jurisdiction. This view would seem to be in accordance with the principle of the decision of the House of Lords in Comber v. Leyland 1896 A.C 525. The other view would involve the proposition that unless the contract or the circumstances in which the contract was made Page: 108give rise to a contrary implication a creditor may sue in any Court within the local jurisdiction of which he happens to be when his right to sue arises. This seems to me to be quite inconsistent with the express provisions of section 17.

44. Illustration (b) to the section throws some light on the intention of the legislature. If the plaintiff's place of residence gave rise to an implication as to the place where the money to which the suit relates was payable, A would have been entitled to sue B and C at Simla.”

45. Miller, J., who gave a concurring judgment observed at page 227:—

“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 his 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; they had an excellent opportunity of making this clear in drafting illustration (b) to section 17, and the fact that they did not avail themselves of that opportunity supports, I venture to think, the view which I take of the present case.”

46. The Advocate for the plaintiff respondent sought to distinguish this case by submitting that this case was decided on the old Act as it was and that because Explanation III has now been taken away this case is no longer any authority. I am unable to agree with this argument. Explanation III was as follows:—

“In suits arising out of contract, the cause of action arises within the meaning of this section at any of the following places, namely:—

(1) the place where the contract was made;

(2) the place where the contract was to be performed or performance thereof completed;

(3) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.”

47. In the present Code the words “wholly or in part” had been inserted after the words “cause of action” which makes it clear that the suits may be instituted where the cause of action; wholly or in part, arises; see Salig Ram v. Choha Mal5. Explanation III has been omitted as no longer necessary, but it is nevertheless a correct statement of what is still the law; see Sita Ram v. Ram Chandar 26 P.R 1918 , 114 P.L.R 1918. The effect of the present condition of the Clause (c) of the section in substitution of the old Explanation III is to leave no room for doubt that all classes of suits can be instituted where the cause of action arises wholly or in part. The whole Explanation III has now been omitted but the cases decided thereunder are still good law in cases arising out of contract; see the cases which are given at page 381 of Chitaley's Code of Civil Procedure, Volume I. sub-note 8. No doubt, R.C Mitter, J., in Tasliman Bibi v. Abdul Latif Miva16, which was a case of recovery of prompt dower, has referred to the Madras case, Raman Chettiyar v. Gopalachari1, and has distinguished it by saying:—

“It was held in that case that clause (iii) of the explanation meant that the money was payable according to the terms of the contract, which are expressed or can be inferred on a construction of the language or from the circumstances' and the presumption of law that the payment is to be made at the creditor's residence, on which the cases proceed, in the absence of a contract, cannot be invoked, Explanation III has, however, been omitted from the Civil Procedure Code of 1908.”

48. As I have said before the law has not been changed by the taking away of Explanation III of section 17, because as I read it the words of sub-clause (c) of section 20 really incorporate, though in a clearer form, the law as it was contained in Explanation III of section 17. At page 119 of his Code of Civil Procedure Sir Dinshah Mulla says:—

“The corresponding section of the Code of 1882 merely referred to the place where the cause of action arose. It was not clear whether this meant the whole cause of action or any part of the cause of action. * * * * Third Explanation made it clear that in suits on contracts cause of action meant the whole or any part of the cause of action, but it was still not clear that it meant the same in other suits. In the present Code the words “wholly or in part” have been inserted after the words “cause of action” which makes it plain that all suits may be instituted where the cause of action arises wholly or in part.”

49. I am, therefore, unable to agree with the observation of R.C Mitter, J., that the deletion of Explanation III has really made any difference excepting that now it depends in each case upon the allegations in the plaint in support of the relief claimed as to what forum the plaintiff will have to go to get relief.

50. The existence of illustration (b) in section 20 shows that in India at least in a suit on a promissory note the residence of the plaintiff is wholly immaterial in order to determine the place of suing. According to that illustration, the suit can be brought where the defendants reside or where the note was executed but nowhere is it stated that the place where the plaintiff resides also gives jurisdiction. The legislature must be presumed to know the interpretation which the Madras Court has put on the old Section 17 of the Code, and inspite of that the English rule of debtors seeking the creditor wherever he may be found, or giving to the plaintiff the right to sue at a place where he resides has not been added and no such amendment incorporating this rule has been effected. See Nadaravan Chettiar v. Chandrasekhara9.

51. In Soniram Jeetmull v. R.D Tata & Co., Ltd. A.I.R 1927 P.C 156 , I.L.R 5 Rang. 454 , 54 I.A 65 (P.C) the rule of the debtor seeking the creditor was described by their Lordships of the Privy Council at page 454 as a technical rule of the English Common Law, and it is doubtful whether a technical rule even though it happens to be of English Common Law can be imported into the jurisprudence of India and be engrafted as an additional ground giving jurisdiction to a Court to entertain a suit.

52. In a more recent Madras case Ramalinga Iyer v. Jayalakshmi A.I.R 1941 Mad. 695 the applicability of section 20 of the Code of Civil Procedure to a suit for recovery of maintenance brought by the wife at a place where she was residing was discussed, and it was held that under this section the suit could not be brought as the cause of action did not arise even in part at Palghat where the wife was residing and neither of the defendants were residing or working there. The previous Madras case Raman Chettiyar v. Gopalachari1 was referred to on the point whether the rule that the debtor should seek out his creditor applied to India or not and it was held that that, rule did not apply to India. This later Madras case will have to be referred to again in another connection.

53. Under the Negotiable Instruments Act where presentment is necessary no difficulty arises as to the applicability of this rule because section 64 solves the difficulty. Where a promissory-note is in the body of it made Page: 110payable 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. This is how in Ghaniya Lal v. Karam Chand18, section 64 read with the exception has been interpreted by Sir Shadi Lal, C.J, with whom Bhide J., agreed, but the subsequent sections of the Negotiable Instruments Act give some indication as to the way in which a maker can be notified of the holder of the note for the time being. Sections 68 and 69 deal with presentment for payment of a negotiable instrument payable at a specified place. Section 70 deals with presentment where no exclusive place is specified. It is as follows:—

“A promissory note or bill of exchange not made payable as mentioned in sections 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.”

54. Section 71 of the Act deals with presentment when maker has no known place of business or residence. Other sections of the Negotiable Instruments Act which are of some importance in order to determine whether the English rule applies or not are sections 78 and 81. Section 78 provides for the person to whom payment is to be made and section 81 says:—

“Any person liable to pay, and called upon by the holder thereof to pay, the amount due on a promissory note, bill of exchange or cheque is before payment entitled to have it shown, and is on payment entitled to have it delivered up, to him, or, if the instrument is lost or cannot be produced to be idemnified against any further claim thereon against him.”

55. These sections will indicate that want of presentment may not effect the liability of a maker of a note to pay, yet the holder who may or may not be the original promisee can have payment made to him if he, under section 70 or section 71 of the Act, makes the presentment and under section 81 shows the note to the maker and on payment delivers it to him. As I read the effect of these sections my opinion is that they exclude the applicability of the rule-that the debtor should seek the creditor in the case of negotiable instruments. This was the view taken in two Nagpur cases Gopikishan v. Jethmal A.I.R 1935 Nag. 144 where Subhedar, A.J.C, was of this opinion, and Dalsukh Nathmal v. Motilal Balchand A.I.R 1938 Nag. 262 where Vivan Bose, J., said at page 264:—

“Under section 78 payment has to be made to the holder, but, on the other hand, under section 81 the person liable has to be ‘called upon by the holder to pay’. He is also entitled to have the instrument shown to him before he need pay and upon payment to have it delivered to him. Therefore it is clear that the ordinary rule under which the debtor must seek his creditor does not apply in the case of a negotiable instrument.”

56. In Nanu Mal v. Firm Shibba Mal-Nand Kishore A.I.R 1939 Lah. 18 , 40 P.L.R 975 the argument of section 70 of the Negotiable Instruments Act was raised before Bhide, J. but it was disposed of in the following words:—

“The sole point which repuires decision therefore is whether in view of the provisions of section 70, Negotiable Instruments Act, it should be held that the money due on the pro-note was payable at Ambala. The learned counsel for the plaintiff has contended on the other hand that no presentment is necessary in the case of pro-note when the suit is against the Page: 111maker of the pro-note. This contention appears to be correct and is supported by the decision in Ghaniya Lal v. Karam Chand18 the pro-note in this case not being payable at a specified place.”

57. There are only two more cases which directly deal with the applicability of the English rule to negotiable instruments, a Bombay case and a Calcutta case. In the former Jivatlal Purtapshi v. Lalbhai Fukhand A.I.R 1942 Bom. 251 on a settlement of his accounts at Ahmedabad with the plaintiffs who were carrying on business in Bombay the defendant executed and delivered a promissory note to the plaintiffs at Ahmedabad. The plaintiff demanded the payment of the sum in Bombay and then filed a suit with leave under clause 12 of the Letters Patent alleging that the money was payable in Bombay. Wadia, J., before whom the case was originally tried rejected the argument that under the old rule of English Law of the debtor seeking the creditor did not apply to the case of negotiable instruments. The argument which appealed to the learned Judge was that a negotiable instrument is capable of passing from hand to hand, and if this rule of the Cerumen Law applied, it would follow that though a promissory note was passed in a particular place in favour of the promisee, and there further negotiated, the last endorsee could demand payment from the maker in some out of the way place where he was, and that it would be the duty of the maker to find him in that place in order to pay him. The learned Judge said—

“I do not think that such a result is contemplated in respect of claims under negotiable instruments.”

58. The matter went up in appeal and Beaumont, C.J, with whom Somjee, J., agreed also did not apply the English rule and at page 635 said—

“The holder may be residing in any part of the country, and the debtor may have no notion where he is, or where to seek him. Where presentment is necessary, the difficulty is solved by the rules laid down in sections 68-70 of the Negotiable Instruments Act, the latter section, which is the residuary section, providing that a promissory note must be presented for payment at the place of business (if any), or at the usual residence, of the maker thereof. No doubt, under the exception to section 64, 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, so that presentment in this case was not necessary in order to charge the defendant. But section 70 does give some indication as to the way in which the maker can be notified of the holder of the note for the time being.”

59. The learned Chief Justice then agreed with the view of the trial Judge.

60. The Calcutta case was decided by Lort-Williams, J., in Srilal Singhania v. Anant Lal Mondal A.I.R 1940 Cal. 443 , 191 I.C 52 , I.L.R (1940) 1 Cal. 323. There the promissory note was executed in favour of Jhunjhunwala and was endorsed by him in favour of the plaintiff, Srilal, but no place of payment was specified. It had not been made within the jurisdiction of the Calcutta High Court, but Lort-Williams, J., held that the Calcutta Court would have jurisdiction. He relied on a single Judge judgment of R.C Mitter, J., in Tasliman Bibi v. Abdul Latif16 (supra) and then said—

“In the present case, on the contrary, the promise is to be performed on demand, and therefore section 49 has no application. That was decided in Raman Chettiyar v. Gopalachari1……………….It follows that section 49 having no application to the present case, & fortiori the Common law rule applies, and it being necessary for the debtor to seek out his creditor Page: 112and pay him, in the absence of any agreed place for payment, the place for repayment in the present case was Calcutta.

61. The provisions of the Negotiable Instruments Act which indicate the necessity of presentment to the maker and the showing of the note at his place of business and of delivering the note up to him was not brought to the leaned Judge's notice. Nor can I see how the place of residence of the original promisee Jhunjhunwala who was no longer the holder could give to the Court jurisdiction. The place of endorsement was not relied upon as giving jurisdiction to the Court. I am therefore of the same opinion as my Lord the Chief Justice who made this reference and would prefer the view taken by the Bombay Court to that of the Calcutta Court and would hold that the English rule of debtor seeking the creditor does not apply to negotiable instruments.

62. Several other cases were cited by counsel which really deal with the applicability of this English rule to India in the case of ordinary money debts. It is really not necessary to deal with these cases at any very great length, but I may refer to them just very briefly. In Allahabad there are four cases which were brought to our notice. In Sri Narain v. Jagannath A.I.R 1917 All. 128 this rule was held to apply in the case of a deposit, and it was held that in an ordinary case, especially a case against a Bank or some trader who holds himself out as a person to receive deposits, it does not necessarily follow that a repayment of deposit is to be made at the place of business of the Bank. In the majority of such cases the intention of the parties is that the money should be paid to the depositor wherever he happens to be when he demands repayment. I am, however, not aware of any such rule which would apply to the case of deposits with bankers. In ordinary practice the bankers repay deposits at their own branch where the deposit has been made. Bangali Mal v. Ganga Ram Ashrafi Lal A.I.R 1923 All. 465 was a case of a sale of goods which were to be despatched from Agra and delivery was to be taken at Badaun. The suit for price was brought at Agra and it was held that Agra Court would have jurisdiction as there was an implied agreement that the price would be paid at the place and residence of the seller. This case was followed in Gokul Das…(Plaintiff); v. Nathu…(Defendant).* A.I.R 1926 All. 477, but in this case it was held that there was no evidence to show that the borrowers and the lenders had agreed that repayment would be made only at the borrower's place. Niamatullah, J., in Bhagauti Shukul v. Chandrika Prasad A.I.R 1933 All. 147 applied this rule in the case of a premium collected in respect of a lease, and it was held that the cause of action accrued at the place where the plaintiff resided as from the surrounding circumstances there was an implied promise to pay at that place. These cases in my opinion are not of very great assistance even with regard to the applicability of this rule to ordinary debts.

63. In Bombay Farran, J., applied this rule in Dhunjisha Nusserwanji v. Eforde23, but in that case the learned Judge held that it would be a fair inference to draw from the facts of the case and from the wording of the instrument that the parties intended that payment under it should be made at Surat. If in those circumstances the learned Judge also referred to the English rule that would not import the rule into India. Tyabji, J., in Page: 113Motilal v. Surajmal24 applied this rule in a case where correspondence of the parties showed that the accounts were to be rendered at Bombay. In order to come to this conclusion the learned Judge took into consideration this rule of English law also. Faiz Tyabji, J., in Nathubhai v. Chhabildas A.I.R 1935 Bom. 283 again took this rule as one of the factors into consideration for holding that the contract had to be performed and money paid where the plaintiff resided. I may point out Sir Lawrence Jenkins in Puttappa Manjaya v. Virabhadrappa26 held that the rule did not apply to India, but this opinion of Sir Lawrence Jenkins was not approved of by their Lordships of the Privy Council in Soniram's case A.I.R 1927 P.C 156 , I.L.R 5 Rang. 454 , 54 I.A 65 (P.C).

64. In Calcutta in Tasliman Bibi v. Abdul Latif16 R.C Mitter, J., applied this rule to a case of recovery of prompt dower. It appears to me that the learned Judge felt himself bound by the observations of Lord Sumner in Soniram Jeetmull's case A.I.R 1927 P.C 156 , I.L.R 5 Rang. 454 , 54 I.A 65 (P.C) and for that reason applied the rule. I do not think that the Privy Council have held in so many words that this rule applies to India and I will give my reasons a little later. The other Calcutta case which was a case of negotiable instruments (Srilal Singhania v. Anant Lal A.I.R 1940 Cal. 443 , 191 I.C 52 , I.L.R (1940) 1 Cal. 323) I have already dealt with.

65. In the Punjab besides the judgment of Bhide. J., which I have already discussed Nanu Mal v. Firm Shibba Mal Nand Kishore A.I.R 1939 Lah. 18 , 40 P.L.R 975 there is a judgment of Tek Chand, J., in Fazal Din v. Ghulam Mustafa27 where the learned Judge observed that this rule applied to India and relied upon the Privy Council judgment besides another Lahore case Firm Hardial Bargopal v. Bathal Das28. In this latter case Addison, J., held that ordinarily, if goods are purchased or money is borrowed, the payment for the goods or repayment of the money must be presumed to have been agreed to be made at the place of the residence of the seller or the lender as the case may be, but this was a case of sale of goods and it may be that in the case of sale of goods the ordinary presumption is that the price is to be paid to the seller at his place, but the question of payment of money to the lender was, if I may say so, merely obiter dictum. In an older Lahore case Ram Chand v. John Bartlett 75 P.R 1909 , 99 P.L.R 1909 after referring to the rules of the Supreme Court and relying on Robey v. The Snaffel Mining Co.30 Shah Din, J. observed:—

“It can hardly be disputed that the money thus due to the respondent was payable to him in England, for, according to English law, it is the duty of the debtor to seek out his creditor and pay him wherever he may be, in all cases, where no particular place is named for payment.”

66. All that the learned Judge said was that was the rule in England. The suit was brought on a judgment obtained in England by a Solicitor for moneys due to him for work done by the Solicitor in England for an Indian Client. In that case no doubt the money would be payable in England and the rule may well apply. This case does not seem to be any authority for the proposition that the rule applies also to India.

67. In Madras two other cases besides Raman Chettiyar v. Gopalachari1 Page: 114(Supra) have been brought to our notice which deal with this matter. In Audinarayana v. Lakshminarayana A.I.R 1940 Mad. 588 Varadachariar, J., in a case between a principal and agent held that the rule is not applicable to India for determining the local jurisdiction of particular Courts. In Ramalinga Iyer v. Jayalakshmi A.I.R 1941 Mad. 695 this rule was again held not to be applicable and the observations of Somayya, J., are important. He said at page 697:—

“If the common law rule of England is to be invoked as a mere aid in finding out the place of performance of a contract I have no objection to its being so used and that is the way in which the Judicial Committee used it in Jeetmull's case A.I.R 1927 P.C 156 , I.L.R 5 Rang. 454 , 54 I.A 65 (P.C), but if it is argued that in every case of debtor and creditor, the rule is to be applied without considering either the terms of the contract or the circumstances attending on it or the necessities of the case I hare no hesitation in rejecting the contention. The question whether the common law rule of England is to be applied to a country of vast distances as India has to be considered with care.”

68. The opinion of Leach, C.J, was the same.

69. This brings me to a consideration of judgment of their Lordships of the Privy Council which was strongly pressed to our attention for the purpose of holding that the English rule applies to India. In this case Soniram Jeetmull v. R.D Tata & Co., Ltd., A.I.R 1927 P.C 156 , I.L.R 5 Rang. 454 , 54 I.A 65 (P.C) the observations of Lord Viscount Sumner at page 457 were as follows—

“Their Lordships do not think that in this state of the authorities it is possible to accede to the present contention that section 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 section 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.”

70. Their Lordships referred to Motilal v. Surajmal24, Dhunjisha v. Fforde23 and Puttappa Manjaya v. Virabhadrappa26 and then referred to the judgment of the Board in Bansi Lal Abirchand v. Chulam Mahbub Khan32 where the English rule was not applied for the creditor was in Secundrabad.

71. Jeetmull's case as I understand it means only this. In the first place the terms of the contract are to be looked at and if they do not help, the Court must have regard to the necessities of the case in deciding whether the English rule should apply. As was observed by Varadachariar, J., in Audinarayana Rao's case A.I.R 1940 Mad. 588 it is difficult to read that decision Soniram Jeetmull v. R.D Tata & Co. A.I.R 1927 P.C 156 , I.L.R 5 Rang. 454 , 54 I.A 65 (P.C) as laying down that as a rule of law, the principle that the debtor is bound to seek out his creditor and pay his debt is applicable in this country, even for the purpose of determining the local jurisdiction of particular Court. Their Lordships have taken care to indicate at the end of the judgment that their decision was based upon the inference drawn from the terms of the contract itself or from the necessities of the case.

72. A review of these judgments leads me to the conclusions (1) that the technical rule of the debtor seeking the creditor is not applicable in India Page: 115for the purpose of determining the local jurisdiction of the Courts because that would be engrafting something on to section 20 of the Code of Civil Procedure; (2) in the case of negotiable instruments the Negotiable Instruments Act itself gives indication that the rule would not be applicable because of the provisions contained in sections 68, 69, 70, 78 and 81; and (3) the weight of authority is in favour of not applying this rule in the case of negotiable instruments, for even in cases where Indian Courts have applied this rule to ordinary debts this has mostly been used only as one of the factors to be taken into consideration for determining as to what is the place where the contract implies the performance to be made.

73. I would, therefore, answer that this rule is not applicable to negotiable instruments in India. In the result, this petition for revision succeeds and must be allowed. The rule is made absolute. The petitioner will have his costs in both the Courts.

74. Petition allowed.