The only question of jurisdiction which arises in this petition under S. 115 of the Code of Civil Procedure is whether the Small Cause Court, Madras, had jurisdiction to try this suit. Both the trial Judge and the Full Bench held that the Court had jurisdiction.
In brief, the contract was one for the supply of onions to the agent of the first defendant at Calcutta. The price was to be paid at Madras. The defendants refused to accept delivery at Calcutta; and so the plaintiff filed the suit with which we are concerned. The Courts below held that since part of the cause of action arose in Madras, namely the payment of the price, the Court at Madras had jurisdiction.
It is argued that although the suit on the contract lay at Madras, it did not follow that a suit on a breach of this contract would also arise there. The learned Advocate for the petitioner first referred me to certain passages in Mulla's Commentary; but the learned commentator does not suggest that when a suit on a contract lies at a particular place because part of the performance was to be there, a suit for a breach of the contract might not lie there. For example, we find under the head “Cause of action in suits on contracts”. “In a suit for damages for breach of contract the cause of action consists of the making of the contract and of its breach; so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred.”
This passage therefore suggests, what I believe to be a general rule with few if any exceptions, that a suit for a breach of contract can be filed at any place where the contract should have been performed in whole or in part. Lower down under the same heading, we find another passage which makes the matter even clearer:
“The performance of a contract is part of the cause of action and a suit in respect of breach can always be filed at the place where the contract should have been performed or its performance completed. The usual case is that of a contract for sale of goods and a suit on such a contract may be filed at the place where the goods were deliverable or the price payable.”
Two cases have been cited in which it is suggested that a contrary conclusion has been arrived at. Although in Gaekwar Baroda State Railway v. Habib Ulla (1), the price for the goods had to be paid at Baroda, yet the learned Judges held that the suit on the breach of contract could be filed only at Agra; but the special circumstances that led to that conclusion was that when the defendant failed to take delivery of the goods, the plaintiff sent him a notice calling upon him to take delivery of the goods and pay the price to his agent or at Agra (the place at which the goods were to be taken delivery of). The plaintiff therefore relieved the defendant of his obligation to pay for the goods at Baroda and permitted him to pay the price at Agra, the place at which he was to take delivery of the goods. The other case relied upon is a Bench decision of this Court in Kamisetti Subbiah v. Kathavenkataswami (2). There, the defendant was the commission agent of the plaintiff living at Madras. The plaintiff was residing at Kurnool. He brought a suit for damages against the defendant, alleging that the defendant had sold some of his goods at inadequate price. The learned Judges pointed out that the suit was one for negligence and misconduct and was either one in tort or, if on contract, it was of a tortious nature. Since the suit was based on misconduct, and the misconduct had been in Madras, the whole cause of action arose there and the suit was not maintainable at Kurnool. This decision might have been of some value to the plaintiff had this matter not been finally set at rest in Venkatachalam Pillai v. Sajun (3), a decision of a Full Bench of this Court. That was a case somewhat similar to the present one, except that there the suit was by the person to whom the goods were sent. He sought to recover damages on account of short fall and inferiority of quality of the goods sold to him by the plaintiff. The learned Judges held that since it appeared that the goods were to be paid for at Tuticorin a part of the cause of action arose at Tuticorin, and that therefore a suit for a breach of the contract could be filed in that place. The only criticism that can be made of that decision is that the matter of jurisdiction was not very fully discussed. The learned Judges seemed to assume that if a suit on a contract could be filed at a place because the payment was to be made there, it followed that a suit for breach of contract could be filed in the same place for the same reason. That is what the learned commentators have said in the passages referred to above. Somewhat similar passages are to be found in Chitale and Annaji Rao.
I have no doubt that the lower Courts were right in holding that they had jurisdiction to try the suit.
The petition is dismissed with costs.
N.R.R