Mohamed Beza Busheri and Co., Bombay vs Tharanath Shet

Joseph, J.—The only point arising for decision in this Civil Revision Petition by the defendant is whether the Court below has jurisdiction to entertain the suit. The suit was for recovery of a sum of Rs. 3,387-12-3 and interest alleged to be due to the plaintiff from the defendant. The plaintiff, a merchant carrying on business at Mattancherry within the jurisdiction of the lower court used to send products to the defendant for sale at Bombay on a commission basis and the amount sued for is the sum due to him after deducting commission as per account rendered. After the sale of each consignment, the defendant used to send a Sale Note and the last of these shows a sum of Rs. 3,387-12-3 due to the plaintiff. The defendant contended inter alia that no part of the cause of action arose within the jurisdiction of the Court in which the suit was instituted and that the Court had no jurisdiction to try the suit. The issue relating to this contention was tried on a preliminary issue and the learned Judge held that the Court had jurisdiction. The defendant has therefore come up in Revision. Shri Rama Iyer, Learned Counsel for the petitioner, contended that the only suit possible in a case of this nature was one for settlement of accounts. It was further contended that in a suit of that nature, there was no scope for this application of the principles of English law that the debtor should seek the creditor. Koka Audinarayana Rao Naidu Vs. Bhavaraju Lakshminarayana Rao, , Tika Ram v. Daulat Ram ( AIR 1924 All. 530) and some other decisions were relied on by him in support of the latter contention. In my opinion there is no scope for applying these decisions to the facts of this case. The suit as framed is one on account stated and not for settlement of accounts. The plaint claim is based on the Sales Notes sent by the defendant. The defendant has a contention that certain amounts in respect of transactions between the plaintiff and Vallabidas Ranji and Co. have to be deducted from the balance shown in the last Sale Note. A special agreement in this behalf is also pleaded by the defendant. This cannot affect the question of jurisdiction at all. It may be that the plaintiff may fail if the defendant proves that accounts relating to the transactions between himself and the plaintiff have yet to be settled. If the suit had been one for settlement of accounts I would unhesitatingly have upheld the defendant''s contention but on the materials available, it is not possible to treat the suit as one for such relief.

There is another aspect also to be considered. The plaintiff examined himself and proved Ext. P. 4, a letter sent by the defendant to the plaintiff at Cochin, wherein the defendant undertook liability to pay the amount claimed in the suit at Cochin. Performance of the contract includes payment of the amount due after deducting commission from the amount realised by the sale. Thus part of the cause of action arose within the jurisdiction of the Court below and the Court was therefore competent to entertain the suit.

Learned Counsel for the petitioner urged that the observation in the order of the learned judge that there was no dispute between the parties as to the amount due to the plaintiff might conclude the petitioner at a later stage of the suit. It is made clear that this observation is not intended to and will not operate as a bar to the defendant proving his contentions on the merits. In the result, the Civil Revision Petition is dismissed with costs.