Straight, J.:— This is an appeal from a decision of the Subordinate Judge of Cawnpore passed on the 11th May, 1881. The plaintiffs-respondents are merchants and bankers carrying on their business in that city, under the style or firm of Bihari Lal, and the defendant-appellant is the proprietor of an indigo concern at Ramgola in the district of Saran in the Presidency of Bengal. On the 22nd November, 1877, some of the plaintiffs and the defendant appear to have met at Sonepur fair also in the Saran district, and there a contract was entered into, by which the plaintiff agreed to deliver to the defendant at Satta Ghat on or before the 15th February, 1878, 500 maunds of indigo-seed at Rs. 9 per maund. The plaintiffs were to allow the defend ant, a commission of five percent, and payment was to, be made by him by approved draft on Cawnpore or Calcutta, at thirty days date from receipt of goods, or by Government currency notes, the 500 maunds were duly delivered and this the defendant does, not deny, but he neither remitted a draft on Cawnpore or Calcutta, nor currency notes, nor did he pay for the same, though he on more than one, occasion promised to do so. The plaintiffs accordingly on the 18th February, 1881, instituted the present suit for the recovery of Rs. 4,275 principal and Rs. 1,492 interest, total Rs. 5,767. The Subordinate Judge decreed the claim in full with costs and future interest, and the defendant now appeals, his first and most substantial plea going to the jurisdiction of the Subordinate Judge of Cawnpore to entertain the suit of the plaintiffs in his Court.
At the hearing I was strongly disposed to favour this contention, having present to my mind numerous English decisions in which it had been ruled that the expression “cause of action,” in connection with the question of jurisdiction, means whole cause of action, that is to say refers not only to the “locas in quo” the breach his taken place, but includes the place where the contract itself was entered into. Upon looking into the authorities however and carefully considering the question, I have come to the conclusion my first impression was erroneous, and that the term cause of action as used in s. 17 of the Procedure Code comprehends material portion of the cause of action. A contract as we know necessarily involves mutual obligations, the failure to perform each and all of which by the parties interested respectively may create a right to sue. In the present instance for example, the plaintiffs were, to deliver the 500 maunds of fresh and clean up-country indigo seed at Satta Ghat, on or before the 15th February, 1878. If they had failed to make such delivery, the defendant might have sued them in the Court of the District in which Satta Ghat is situate, or in Cawnpore where the plaintiffs carry on their business, for damages, for the breach of their contract, or to enforce its specific performance. So if the defendant had refused to accept delivery on the ground of the indigo-seed not being of the quality agreed, the plaintiffs might in their turn have sued him in the same Court for damages for such non-acceptance, or to compel him to perform his contract to accept. But as a matter of fact, neither of these causes of action has in itself arisen, because the plaintiffs did deliver the seed as promised, and so wholly discharged their share of the obligation under the contract, and the defendant partially performed his portion by accepting the delivery. In respect of these two matters, therefore, there was no ground for complaint upon either side, and all that remained was for the defendant to make payment in the manner agreed upon, and this he failed to do. Such failure I think must be taken to constitute the immediate and material cause of action, as being the only substantial incident to the contract remaining under formed. The sole question that remains is, where was payment to be made? Looking to the ordinary course of commercial relations, I think the intention of the parties was that such payment should be made at the plaintiffs' place of business at Cawnpore, and that neither draft nor currency notes having been delivered there, the breach upon which the suit is brought occurred within the jurisdiction of the Subordinate Judge, and he was competent to entertain the claim. In coming to this conclusion I am fortified by two rulings of this Court, one that of a Full Bench— Prem Shook v. Bheekhoo (1);and F.A No. 137 of 1869, Morgan C.J, and Ross, J. (2)—also by Gopikrishna Gossami v. Nilkomul Banerjee (3), and Hills v. Clark (4).
Brodhurst, J.:— The appellant's pleas are not, I think, sustainable. Under the provisions of s. 17, Act X of 1877, it was optional with the plaintiffs to institute the suit either in the Court of the Subordinate Judge at Chapra in the district of Saran, or in the Court of the Subordinate Judge of Cawnpore. They might have sued in the Chapra Court because the defendant was at the time residing in that district, and they might have instituted their suit in the Cawnpore Court because the cause of action arose within the jurisdiction of that Court, owing to the defendant's not having paid, on the stipulated date, the amounts that he undoubtedly was bound to pay to the plaintiffs at Cawnpore, either by an approved draft on that place or on Calcutta or bjr means of Government currency notes.
Admittedly the principal sum claimed has been due since the 17th March, 1878, or for more than four years, and if, as contended by the defendant-appellant, the plaintiffs were compelled under the law to institute the suit in the Court at Chapra, at a distance of more than three hundred miles from their place of business, a great hardship would under the circumstances have been inflicted upon them.