TMI Blog1955 (7) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... resented to the proper Court. ( 2. ) In this appeal the only point that lias been Rrgueu has been one of jurisdiction. The defendants have not appeared. The question of jurisdiction arises on these facts. The plaintiffs and defendants are displaced persons from Pakistan and the Joan was advanced by the plaintiffs to the defendants in Pakistan. At the date when the suit was filed, the plaintiffs were residing in Greater Bombay and the defendants were residing at Kolhapur, and the plaintiffs invoked the jurisdiction of the City Civil Court at Bombay on two allegations. One was that subsequent to the advancement of the loan the defendants had agreed to repay the money in Bombay, and the o'her ground was that apart from the agreement the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore strictly Section 49 would have no application. If Section 49 has no application then there is no reason why the common law rule should not apply in India. To the extent that any provision in the Contract Act militates against the common law rule, the common law rule must be deemed to- have been displaced by the statutory provision contained in Section 49. It there is no inconsistency between Section 19 and the common law rule, there is no reason to hold that in a Case like this where there is a luan advanced bv the creditor to the debtor, the contract makes no mention as to where the amount should be repaid 'and tl\e debtor has made no application to the creditor asking him to fix the place ol. performance why the common law rule th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies that the debtor must seek out his creditor. It is from these observations that the learned Principal Judge has come to the conclusion that in no case Can the common law rule be made applicable in India and in all cases the rule o? performance must be determined by the provisions of Section 49. Now the observations of a Judge, even though as eminent as Sir Lawrence Tonkins, should be read,. understand a 'l an predated in the liqlit of the facts the learned Chief Justice was calied upon to determine, and in our opinion these observations must be confined to ihe peculiar nature of the suit which was a suit for accounts and they should not be extended to apply to a simple money suit of the nature before us. ( 5. ) The Privy Council i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lving in the obligation to pay the creditor the further obligation ol finding the creditor so as to pay him. Therefore it is clear that although the Privy Council was reluctant to say that the decision of the Division Bench of the Bombay High Court in 7 Bom LR 993 (A), was erroneous, the Privy Council was at pains to point out that there were two earlier judgments of the Bombay High Court which had taken a contrary view, and also the Privy Council was at pains to point out that the nature of the suit which Sir Lawrence Jenkins was considering was rather of a pecqliar character. Therefore it will be entirely wrong to suggest that the common law rule has not been given effect to by the Bombay High Court or that the judgment in -- 'puttapp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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