Ramji Gokul vs Hari Lal Jetha

A.N. Sen, J.—This is a suit on a promissory note for the recovery of the sum of Rs. 13,614-6-3 p.

The suit has been contested on behalf of the Defendants only on the ground that this Court has no jurisdiction to try and entertain this suit. Although in the written statement various other defences had been taken, Mr. S. Sinha, learned Advocate for the Defendants, has submitted at the trial that the Defendants are not pressing any of the other defences raised in the written statement and are contesting the suit only on the question of jurisdiction. Mr. Sinha has further stipulated that if it be held that this Court has jurisdiction, a decree for the amount claimed by the Plaintiff in this suit has to follow.

No oral evidence has been adduced on behalf of the parties at the trial. Documentary evidence has been adduced and by consent of the parties the brief of documents has been tendered in the suit and the admitted brief has been marked as Ex. 1.

Before dealing with the respective contentions of the parties it will be convenient to set out the following facts which do not appear to be in dispute and which are clearly established by the materials on record.

(1) The Plaintiff carries on business in Calcutta within the jurisdiction of this Court. The Defendants do not reside or carry on business within the jurisdiction of this Court.

(2) The Defendants had executed a promissory note in favour of the Plaintiff for the sum of Rs. 10,720 on June 2, 1952 (see D.D. 2 at p. 2 of Ex. 1).

(3) On April 9, 1955, the Plaintiff from Calcutta wrote a letter to Harilal Jetha, the Defendant No. 1 at Rajnandgaon, informing him that the sum of Rs. 13,614-6-3 p. had become due and payable by the Defendant on the promissory note dated June 2, 1952 and requested him either to send the said sum or a new promissory note executed by all the Defendants to the address of (1) M.R. Rathod, C/o. Scindia Steam Navigation Co. Ltd., 35, Netaji Subhas Road, Calcutta-1, under registered post. In the said letter the Plaintiff also mentioned that a promissory note for the said sum for the signature of all the four Defendants had already been sent (see D.D. 3 at p. 3 of Ex. 1).

On April 18, 1955, the Plaintiff from Bhagalpur sent a re minder to Harilal Jetha, the Defendant No. 1 at Rajnandgaon and in the said letter the Plaintiff requested the said Defendant that the new promissory note should be duly signed by the four brothers in the same manner in which they had executed the earlier promissory note and should be sent to the address mentioned in the Plaintiff''s letter of April 9, 1955 (see D.D. 4 at p. 5 of Ex. 1).

(4) On May 14, 1955, the Defendant Harilal Jetha from Rajnandgaon wrote a letter to the Plaintiff in Calcutta informing the Plaintiff that as desired in the letter of April 9, 1955, the promissory note duly signed by the four brothers had been sent under registered cover (see D.D. 8 at p. 10 of Ex. 1).

The promissory note referred to in the said letter of May 14 and on which the present suit has been instituted reads as follows:

On demand we Harilal, Dharshi, Bechar and Khimji Jetha of Rajnandgaon, M.P., promise jointly and severally to pay the sum of Rs. 13,614-6-3 p. (rupees thirteen thousand six hundred and fourteen annas six and pies three) to Sri Ramji Gokul of Calcutta with interest @ Rs. 9 per annum for the value received in cash.

Rs. 13,614-6-3 p. Calcutta, Dated, 1-6-55. 1 anna stamp Harilal Jetha Dharshi Jetha 1 anna stamp

1 anna stamp Bechar Jetha Khimji Jetha 1 anna stamp

(see P.D. 1 at p. 12 of Ex. 1).

(5) Demands were made upon the Defendants for payment of the sum mentioned in the promissory note by M/s. Mukherjee and Biswas, Solicitors for the Plaintiff. All such demands were made from Calcutta within the jurisdiction of this Court upon the Defendants at places outside the jurisdiction of this Court.

(See P.D. 2 at p. 13 of Ex. 1),

(See P.D. 3 at p. 15 of Ex. 1),

(See P.D. 4 at p. 17 of Ex. 1),

(See P.D. 5 at p. 19 of Ex. 1).

(6) Some further demands from Calcutta were made on the Defendant No. 2 outside the jurisdiction of this Court (See P F. D.2 at p. 22).

The Plaintiff having failed to obtain payment from the Defendants has brought this action for the recovery of his dues on the promissory note and has instituted this suit in this Court with leave under Clause 12 of the Letters Patent. It may be noted that leave under Clause 12 of the Letters Patent has been obtained from this Court on the basis of the allegations made in para. 1 of the plaint only. The said para. 1 of the plaint reads as follows:

The Plaintiff''s claim is against the Defendants jointly and also against each of them severally as makers of a joint and several promissory note for Rs. 13,614-6-3 p. dated the 1st June, 1955, at Calcutta within the jurisdiction aforesaid payable to the Plaintiff on demand together with interest at 9% per annum. A copy of the said promissory note is annexed herewith and marked with the letter A.

Mr. Sinha, learned Advocate for the Defendants, has submitted that this Court has no jurisdiction to try this suit inasmuch as no part of the cause of action arises within the jurisdiction of this Court and all the Defendants reside and carry on business outside the jurisdiction of this Court. Mr. Sinha contends that the promissory note has been executed outside the jurisdiction of this Court. It is his contention that the promissory note has been signed by all the Defendants at places outside the jurisdiction of this Court and has been delivered to the Plaintiff at Rajnandgaon outside the jurisdiction of this Court. Mr. Sinha has argued that by the letter of April 9, 1955, the Plaintiff had asked the Defendants to send the promissory note duly signed by the Defendants under registered post and the Plaintiff had thereby constituted the post office as the agent of the Plaintiff for the purpose of taking delivery of the promissory note. It is his argument that the post office acted as the agent for the Plaintiff and as soon as the Defendants, pursuant to the instruction of the Plaintiff, delivered the promissory note to the post office, the execution of the promissory note became complete; and the fact that the promissory note was addressed to a place in Calcutta within the jurisdiction of this Court and was received by the Plaintiff in Calcutta is of no consequence. According to Mr. Sinha, the fact of actual delivery to the Plaintiff in Calcutta within the jurisdiction of this Court through post and the fact of actual receipt thereof by the Plaintiff in Calcutta within the jurisdiction do not, in the facts and circumstances of this case, form any part of the cause of action relating to the making or execution of the promissory note in question. In support of the argument that the delivery to the post office at Rajnandgaon of the promissory note at the instance, or under the instruction, of the Plaintiff was proper delivery to the Plaintiff, as the post office had become the agent of the Plaintiff for the purpose of receiving such delivery. Mr. Sinha has referred to the decisions in The Indian Cotton Company Limited Vs. Huri Poonjoo, ; The Commissioner of Income Tax, Bombay South, Bombay Vs. Ogale Glass Works Ltd., Ogale Wadi, and The Special Land Acquisition Officer, Bangalore Vs. T. Adinarayan Setty, .

Mr. Sinha has next submitted that the promissory note in question is not payable to the Plaintiff in Calcutta within the jurisdiction of this Court and jurisdiction of this Court cannot be invoked on this ground. He has contended that the words ''Ramji Gokul of Calcutta'' appearing in the promissory note do not and cannot make the promissory note payable in Calcutta and it is his contention that the said words are merely descriptive of the Plaintiff. Mr. Sinha has further contended that if it was the case of the Plaintiff that there was any implied agreement that the money would be payable in Calcutta, such an agreement should have been specifically pleaded. It is his argument that not only no such case has been made in the plaint, but the case made in para. 2 of the plaint clearly demolishes the case of any implied agreement as to payment in Calcutta. He has contended that the common law principle of the debtor finding out the creditor has no application in the case of any negotiable instrument and the jurisdiction of this Court cannot be invoked on this basis. He has argued that the peculiar character of negotiability of negotiable instruments, debars the applicability of the common law principle and he relies on the decision of the Division Bench of this Court in the case of Jagadish Chandra Sikdar Vs. Sm. Santimoyee Choudhuri, and also to the decision of the Bombay High Court in the case of Jivatlal Purtapshi Vs. Lalbhai Fulchand Shah, . Mr. Sinha has next submitted that demands in the case of an on demand promissory note are not necessary and demands do not and cannot form any part of the cause of action in this suit on the promissory note. In support of this contention Mr. Sinha has referred to the decision of a Division Bench of this Court in the case of Brajendra Kishore Ray Chowdhury v. Hindusthan Co-operative Insurance Society Ld. ILR (1917) Cal. 978. Mr. Sinha has also relied on another Bench decision of this Court in the case of D.N. Shaha and Co. v. The Bengal National Bank Ltd. ILR (1920) Cal. 861.

Mr. Tebriwalla, learned Counsel for the Plaintiff, has submitted that this Court has jurisdiction to try the suit, as part of the cause of action arises within the jurisdiction of this Court and leave under Clause 12 of the Letters Patent has been obtained for the institution of this suit in this Court. Mr. Tebriwalla contends that parts of the cause of action in relation to the execution of the promissory note in suit, namely, delivery thereof to the Plaintiff and acceptance thereof by the Plaintiff, have arisen in Calcutta within the jurisdiction of this Court. Mr. Tebriwalla has argued that the transaction in relation to the promissory note becomes complete only when the promissory note is accepted by the Plaintiff and he relies on the decision in the case of Damji Hirji Vs. Mahomedalli Essabhoy, . It is his argument that the promissory note has been accepted by the Plaintiff in Calcutta within the jurisdiction of this Court.

Mr. Tebriwalla has next contended that part of the cause of action arises within the jurisdiction of this Court as the money due on the promissory note is payable to the Plaintiff in Calcutta within the jurisdiction of this Court. He has argued that as the Plaintiff in the promissory note has been described to be of Calcutta and as the Plaintiff resides and carries on business in Calcutta, within the jurisdiction of this Court, the money on the promissory note must be payable to the Plaintiff in Calcutta within the jurisdiction of this Court.

He has further argued that following the common law principle of the debtor finding out the creditor, the money must be payable to the Plaintiff in Calcutta. It is his contention that the common law rule or principle of the debtor finding out the creditor, applies in the case of negotiable instruments and in support of this contention he has referred to the following decisions:

Bharumal Udhomal v. Sakhawatmal Veshomal AIR 1956 Bom. 3; Nanumal v. Firm Shibba Mai Nandkrihore AIR 1939 Lah. 18; Srilal Singhania Vs. Anant Lal Mondal, . He has also relied on the decision in Indu Rani Bagaria v. Satyendra Chandra Ghosh Moulik Unreported decision of A.N. Ray, J. dated 27.1.60 in Suit No. 1478 of 1958.

Mr. Tebriwalla has also contended that part of cause of action arises within the jurisdiction of this Court as demands for payment have been made from Calcutta within the jurisdiction of this Court. It is his contention that demands form a part of the cause of action and in support of this contention, he relies on the following observations of A.N. Ray, J., in the unreported decision noted above:

Secondly, the promissory note is payable on demand. Demand was made from Calcutta within the jurisdiction of this Court. Demand is part of the cause of action as is the making of the promissory note within the meaning of Clause 12 of the Letters Patent.

Mr. Tebriwalla has finally contended that as the word ''Calcutta'' appears at the bottom of the promissory note, the promissory note has been dated as at Calcutta and the promissory note must be deemed to have been executed in Calcutta for the purpose of jurisdiction and it must be held that this Court has jurisdiction to entertain the suit on such a promissory note. He has referred to and relied on the decision in the case of Meenakshi Ginning and Pressing Company (Ld.) v. Myle Sreeramulu Naidu I.L.R.(1904) Mad. 19; and also to the decision in the case of Damji Hirji v. Mahomedalli Essabhoy Supra.

In the instant case the only ground on which jurisdiction of this Court has been invoked is that part of the cause of action relating to the suit has arisen within the jurisdiction of this Court. It is not in dispute that the Defendants do not reside or carry on business in Calcutta. The question that falls for determination in the present suit is whether any part of the cause of action relating to the suit has arisen within the jurisdiction of this Court. It is to be noted that in this suit leave under Clause 12 of the Letters Patent has been obtained from the Court on the only allegation made in para. 1 of the plaint that the promissory note had been made in Calcutta with in the jurisdiction of this Court; but Mr. Sinha, in my view, rightly concedes that this Court will have jurisdiction to try and entertain the suit, if any part of the cause of action in relation to the suit arises within the jurisdiction of this Court, although leave under Clause 12 might not have been asked and obtained on that basis.

The question that arises for determination in this suit is whether any part of the cause of action relating to the suit has arisen within the jurisdiction of this Court. The only other question that also requires consideration is whether this Court will have juris diction as the word ''Calcutta'' appears on the bottom of the promissory note in question on the footing that the promissory note shall, in any event, be deemed to have been executed in Calcutta for the purpose of jurisdiction of this Court. This suit is on a promissory note. Part of the cause of action will certainly arise, if any part of the cause of action in relation to the execution or the making of the promissory note arises within the jurisdiction of this Court. Signing the promissory note by the drawer and the delivery of the signed promissory note to the payee and acceptance thereof by the payee, are, to my mind, the facts which constitute the execution or making of a promissory note. Mere preparation of a promissory note, that is to say, writing out or the printing or the typing out of a promissory note, does not, in my view, form any part of the cause of action relating to the execution or the making of the promissory note. In any event in the instant case there is no evidence to show that the promissory note had been prepared in Calcutta within the juris diction of this Court. Evidence on record only establishes that the promissory note had been sent for signature of the four Defendants (see D.D. 3 at p. 3 of Ex. 1). On this evidence I cannot hold that the promissory note had been prepared or written out in Calcutta within the jurisdiction of this Court. The preparation or the writing out of the promissory note is a question of fact which has to be established on proper evidence and the Court should not speculate or assume facts.

There is no dispute that the promissory note had been signed by the four Defendants at places outside the jurisdiction of this Court. Mr. Tebriwalla concedes that the promissory note had been signed outside the jurisdiction of this Court and had been despatched from outside the jurisdiction of this Court. In any event, these facts are clearly established by the evidence on record.

I now proceed to consider whether the promissory note had been delivered to the Plaintiff and accepted by him in Calcutta within the jurisdiction of this Court. As already indicated, Mr. Sinha has contended that delivery was complete and the transaction completed, as soon as the Defendants had posted the promissory note at Rajnandgaon in accordance with the instruction of the Plaintiff and Mr. Tebriwalla has contended that the delivery was not complete and the transaction was not concluded till the Plaintiff received and accepted the promissory note in Calcutta within the jurisdiction of this Court. The facts necessary for determination of this question are not in dispute. By the letter dated April 9, 1955, the Plaintiff asked the Defendant Harilal Jetha to send the promissory note in suit to the address of M.R. Rathod, C/o. Scindia Steam Navigation Co. Ltd., 35 Netaji Subhas Road, Calcutta-1, under registered post. The Defendant Harilal Jetha as desired by the Plaintiff had sent the promissory note under registered post. The Plaintiff got the promissory note in Calcutta within the jurisdiction of this Court. In the case of Indian Cotton Company Ltd. v. Hari Poonjoo Supra, the creditor had asked the debtor who was outside Bombay to send the title deeds of immovable properties as the security by post and the debtor sent them accordingly and it was held that on the debtor sending the title deeds by post on creditor''s request, the post office became the agent of the creditor and the transaction though complete u/s 7 of the Contract Act did not create an equitable mortgage as the deposit of title deeds was made outside Bombay. Kania, J., as he then was, observes at pp. 42-43 of the report as follows:

The decisions in (1873) 9 Ch. A. 27, (1910) 2 K.B. 509 and (1886) 3 T.L.R. 182 were relied upon to show that if there was an express or implied authority to send by post, the post office would be the agent of the addressee; if there was no such authority, the post office would be the agent of the sender. Lord Hailsham''s Laws of England, Vol. II, p. 629, also supports that view. The decision in (1898) A.C. 200 also supports the same contention, in respect of delivery of goods. It cannot be disputed that title deeds of an immovable property would fall under the definition of ''goods'', within the meaning of the Contract Act. It remains, therefore, to be considered whether on the correspondence the Plaintiffs had given authority, express or implied, to the Defendant, to send the title deeds by post.

In my opinion, the correspondence indicates clearly that the Plaintiffs asked the Defendants to send the title deeds by post. In the first letter written by them they suggested three alternatives and although the post office is not mentioned expressly in respect of each of them, reading the letter as a whole it is clear that the Plaintiffs had intimated that the Defendants should send the title deeds by post. If so, that is sufficient to make the post office their agent to receive the title deeds on their behalf. Reading the correspondence as a whole in 1931, it seems to me, therefore, that the Plaintiffs having constituted the post office their authorised agent to receive the title deeds and intimated the same to the Defendants, as soon as the Defendants sent the title deeds accordingly, u/s 7, Contract Act, the transaction was complete. The Plaintiffs'' contention that the Defendants could have cancelled the security before the documents were received in Bombay is incorrect because it assumes that the transaction remained incomplete when the title deeds were posted.

The decision was referred to and relied upon by the Supreme Court in the case of Commissioner of income tax, Bombay South, Bombay v. Ogale Glass Works Ltd., Ogale Wadi Supra. The Supreme Court observes at p. 435 of the report:

We may, however, point out that this right of the sender, on which so much stress and importance are laid by the learned Advocate, is by no means an absolute right, for it is left entirely to the authorities to decide whether letter once posted should be returned to the sender. This very narrow and qualified right can hardly be regarded as bringing about a position so different from that prevailing in England as to make the English decisions wholly inapplicable.

It may also be mentioned that inspite of such contention the English decisions have been adopted by the Courts in India, e.g. The Indian Cotton Company Limited Vs. Huri Poonjoo, . It is, however, not necessary to pursue this line of reasoning any further for the principles underlying the English decisions arc clearly consonant with the provisions of the Indian Law. There can be no doubt that as between the sender and the addressee it is the request of the addressee that the cheque be sent by post that makes the post office the agent of the addressee.

After such request the addressee cannot be heard to say that the post office was not his agent....

Reiterating this principle in the case of Commissioner of income tax, Bihar and Orissa v. Patney and Co. Supra, the Supreme Court at p. 1072 has observed:

In the case of payment by cheques sent by post the determination of the place of payment would depend upon the agreement between the parties or the course of conduct of the parties. If it is shown that the creditor authorised the debtor either expressly or impliedly to send a cheque by post the property in the cheque passes to the creditor as soon as it is posted. Therefore, the post office is an agent of the person to whom the cheque is posted if there be an express or implied authority to send it by post.

In the present case the Plaintiff by his letter dated April 9, 1955, expressly requested and authorised the Defendants to send the promissory note by registered post (see D.D. 3 at p. 3 of Ex. 1). The promissory note had been sent under registered cover through post pursuant to such request (see D.D. 8 at p. 10 of Ex. 1). I am, therefore, of the opinion that the Plaintiff constituted post office as his agent to receive delivery of the promissory note and the transaction was complete as soon as the Defendants had posted the promissory note in suit. The post office at Rajnandgaon as the authorised agent of the Plaintiff had accepted delivery of the promissory note. The contention of Mr. Sinha that the transaction was complete as soon as the Defendants had delivered the promissory note to the post office who, as the authorised agent of the Plaintiff, accepted the same, is, to my mind, correct; and the actual receipt of the promissory note by the Plaintiff in Calcutta within the jurisdiction of this Court is immaterial and of no consequence. The receipt of the promissory note by the Plaintiff in Calcutta in the instant case does not, therefore, form any part of the cause of action relating to the execution or the making of the promissory note. The decision in Meenakshi Ginning and Pressing Company (Ld.) v. Myle Sreeramulu Naidu Supra relied on by Mr. Tebriwalla is of no assistance to the Plaintiff in the facts of this case. The proposition laid down therein that the transaction does not become complete until the promissory note signed by the drawer is delivered to the payee and accepted by him, cannot be disputed; but in the facts of this case the promissory note in question signed by the drawers was delivered to the Plaintiff and accepted by the Plaintiff at Rajnandgaon through his agent, the post office.

The next question that requires consideration is whether the promissory note is payable to the Plaintiff in Calcutta within the jurisdiction of this Court and as such whether a part of the cause of action relating to the suit arises in Calcutta within the jurisdiction of this Court. I am of the opinion that the words ''Ramji Gokul of Calcutta'' in the promissory note are merely descriptive of the Plaintiff and the same do not make the promissory note payable in Calcutta within the jurisdiction of this Court. In my view, Mr. Sinha rightly contends that if the Plaintiff wanted to rely on any implied agreement as to payment in Calcutta within the jurisdiction of this Court, the Plaintiff should have specifically pleaded such an agreement in the plaint. Allegations in para. 2 of the plaint and the further fact that in para. 4 or anywhere in the plaint the Plaintiff does not plead that the amount is payable to the Plaintiff in Calcutta within the jurisdiction of this Court, support in my view, Mr. Sinha''s contention that the words ''Ramji Gokul of Calcutta'' in the promissory note do not imply that the promissory note is payable in Calcutta and the said words are words of mere description of the Plaintiff. It is to be noted that similar description of the Defendants also occurs in the promissory note and in the promissory note the Defendants are described as ''of Rajnandgaon''.

The question that next arises is whether the promissory note becomes payable to the Plaintiff in Calcutta within the juris diction of this Court on the common law principle that ''the debtor must find out the creditor''. If this common law principle is applicable in the instant case, the promissory note becomes payable to the Plaintiff in Calcutta within the jurisdiction of this Court and part of the cause of action necessarily arises within the jurisdiction of this Court. I have already noted the cases cited from the Bar on this point. In view of the decision of the Division Bench of this Court in the case of Jagadish Chandra Sikdar v. Santimoyee Choudhuri Supra, I must hold that the common law principle of the debtor seeking out the creditor, has no application in the instant case. I do not propose to discuss the authorities cited at any length, as most of them have been referred to and considered in this Division Bench judgment which is binding on this Court. After a review of the authorities the Division Bench of this Court observed at p. 128 of the report:

For the reasons given above we feel it may not be safe to import the English Common Law Doctrine that (he debtor must seek the creditor and pay him, in suits for recovery of money due on negotiable instruments. In 44 C.W.N. 609 Mr. Justice Lort Williams may have gone too far if his Lordship meant to lay down that in all suits for recovery of money due on promissory note, the Plaintiff was at liberty to file his suit where he himself resided. But in the background of the facts of the case his Lordship had to decide, his judgment was certainly unexceptionable and this was pointed out by Bachawat L, in 95 C.L.J. 64.

So far as the decision by A.N. Ray, J., reported in Borakar Engineering and Foundry Works Vs. State of Bihar, , is concerned, his Lordship was not dealing with a suit on a promissory note.

There is nothing in his judgment to indicate that the doctrine ''debtor must seek the creditor'' applies also to suits on negotiable instruments. As we read the judgment the observation by his Lordship, hereinbefore quoted, was made in the context of the case that he was going to decide and was not intended as statement of a general proposition of law, covering all sorts of suits, including suits on negotiable instruments. In our reading the aforesaid decision does not conflict with the view that we have taken in this case.

We, therefore, are of the opinion that the Court below was in error in assuming jurisdiction to try the suit in the circumstances of the case. Cuttack is certainly one of the places where the suit may be filed, because at that place the promissory note was executed. But no part of the cause of action arose within the jurisdiction of the City Civil Court, Calcutta and the Plaintiff had no right to file her suit there. However reasonable the English Common Law rule may be and whatever may be the principle of justice behind the rule as pointed out by Chagla, C.J., in AIR (1956) Bom, 111, we are not prepared to import that doctrine in suits for recovery of money due on promissory note, for the reasons we have already stated.

It may be noted that this very question had been mooted in this Bench decision which was also concerned with a promissory note. This decision is binding on me. I, therefore, hold that Mr. Sinha is right in his contention that jurisdiction of this Court cannot be invoked on the basis that the promissory note is payable to the Plaintiff in Calcutta within the jurisdiction of this Court because of the common law principle, ''the debtor must seek out the creditor''.

The next question that requires consideration is whether part of the cause of action can be said to have arisen within the jurisdiction of this Court because demands of payment were made from Calcutta within the jurisdiction of this Court. The unreported judgment of A.N. Ray, j. in the case of Indu Rani Bagaria v. Satyendra Chandra Ghosh Moulik Supra to which I have already referred and on which Mr. Tebriwalla strongly relies, undoubtedly, lends support to the contention of Mr. Tebriwalla that demands from part of the cause of action. With due respect to the learned Judge, I cannot pursuade myself to accept this view, because in my opinion, it is the well-settled law that a promissory note payable on demand does not imply that a demand must be made. The words ''on demand'' only mean that the promissory note is payable immediately. As it is unnecessary to make any demand in case of a promissory note payable on demand and a suit ran be instituted without making any demand, demand in my view, cannot and does not form any part of the cause of action in a suit on a promissory note payable on demand. Even though I cannot agree with the view of A.N. Ray, it would have been my duty to follow the same and I would have followed the same, had not there been decisions of Division Benches of this Court, which to my mind, run contrary to the view expressed by A.N. Ray, J. In the case of Brajendra Kishore Ray Chowdhury v. Hindusthan Co-operative Insurance Society Ld. Supra, Sanderson, C.J., presiding over a Division Bench of this Court, observed at p. 989:

It is quite clear that a promissory note, payable on demand, is a present debt and is payable without any demand and the statute begins to run from the date of it.

In the case of D.N. Shaha and Co. v. The Bengal National Bank Ltd., another Bench decision of this Court Supra, Sir Ashutosh Mukherjee at pp. 863-864 has observed:

Mr. Avetoom has contended that the promissory note became payable from the moment of execution and has relied upon the decision in Brajendra Kishore v. Hindusthan Co-operative Insurance Society I.L.R.(1917) Cal. 978. In our opinion, that case is clearly distinguishable. There it was ruled that, for purposes of the law of limitation, a note payable on demand is a present debt and is due and payable at once without demand. As explained in Norton v. Ellam (1837) 2 M. & W. 461 : 46 R.R. 646), Rowe v. Young (1820) 2 B.& B. 165, Maltby v. Murrels (1860) 5 H.& N. 813, no demand is necessary before bringing an action upon a note payable on demand, because its payment is a duty which attaches the moment the loan is given and the note is made. To put the matter differently, the creditor cannot extend the period of limitation by omission to make a demand and time runs against him from the date of the note, on the principle that the cause of action arises instantly on the loan and the contract on the note is in a state of being broken perpetually.

It does not appear from the judgment of A.N. Ray, J., that any of these authorities had been cited before the learned Judge and considered by him. The decisions of the Division Bench of this Court are clearly binding on a single Judge and in my view, the decision of A.N. Ray, J., on this point is one given per incurium and the same need not be followed by me. It is, however, to be noted that the decision of A.N. Ray, J., in that suit on the question of jurisdiction, had rested on various other considerations. I, therefore, uphold the contention of Mr. Sinha that demands do not form any part of the cause of action in the instant case and jurisdiction of this Court cannot be invoked on the basis of the fact that demands for payment had been made from Calcutta within the jurisdiction of this Court.

In the instant case presentment of the promissory note was also not necessary. Presentment, if required and if any, would have been outside the jurisdiction of this Court. No contentions have been raised by Mr. Tebriwalla that the jurisdiction of this Court can be founded on by basis of presentment of the promissory note in the instant case and I, therefore, need not discuss this question any further.

The only question that remains to be considered is whether in view of the fact that the words ''Calcutta, Dated 1-6-65'' appear in the promissory note itself, it can be said that the promissory note must be deemed to have been executed in Calcutta for the purpose of jurisdiction and this Court will have jurisdiction to try and entertain this suit. The contention on behalf of the Plaintiff is that even if the promissory note had in fact and in reality been executed at Rajnandgaon, the same must be deemed to have been in Calcutta for the purpose of jurisdiction, as the promissory note is dated at Calcutta and this Court will have jurisdiction to try the suit.

I shall first deal with the cases cited by Mr. Tebriwalla on this point. In the case of Meenakshi Ginning and Pressing Co. (Ld.) v. Myle Sreeramulu Naidu Supra, the promissory note in suit drawn on behalf of the company was headed Behari. The note had been signed by the two secretaries and treasurers of the company at Bellari and dated at Behari. The note had thereafter been sent to the head office of the company at Tirumangalam in the Madura district, where the same was sealed with the company''s seal and counter-signed by another officer called the ''Agent'' working under the supervision of the Directors at the head office, while secretaries and treasurers stayed in Bellari in the subordinate office in that station. The note was then posted from Tirumangalam and addressed to the official assignee, the payee of the note, at Madras and the note was received by the payee at Madras. A suit had been instituted on the note at Bellari and the District Judge at Bellari had decreed the suit, holding that the Bellari Court had jurisdiction to try the suit. An appeal had been preferred to the Madras High Court and the main question in the appeal was the question of jurisdiction of the Bellari Court to try the suit. In delivering judgment a Division Bench of the Madras High Court observed:

The argument on behalf of the Plaintiff was that the note having been dated at Bellary the contract should be treated as made in Bellary and this seems correct.

Now a statement of the place of execution is, of course, not essential to the validity of a negotiable promissory note, nor are the parties precluded from dating the note at a place different from that at which it is actually made, if, for any purpose of theirs, they consider it necessary to do so. Where, therefore, a negotiable note, as in the present instance, is dated with reference to a specified place and the justice of the case does not necessitate a different conclusion, the parties should be presumed to have agreed to that place being taken to be the place of the contract. In Winter v. Round 1 M.H.C.R. 202 Bittleston, J., was apparently disposed to take the same view. In Tillatson v. Tillatson, it was held that a note dated in one State but made in another is presumed to be payable where dated and is governed by the laws of that State. In other words, the place of the dating was taken as the place of the contract. So, where a bill was drawn by a firm in Philadelphia and dated there but the time of payment and names of drawee and payee had been left blank to be filled in and negotiated by a partner of the firm in London who filled in and negotiated the bill there, the bill was held to be drawn and indorsed in Philadelphia Senning v. Ralston. In the same case it was further held that, though actually negotiated outside Pennsylvania, i.e. in London, the indorsees not having had notice, the bill was a Philadelphia bill so as to entitle the indorsees to the damages allowed by a Pennsylvania statute, on the principle that a contract is binding on the promissor in the sense in which he intended, at the time of making it, that it should be received by the promissee.

The other case cited by Mr. Tebriwalla is the decision of the Bombay High Court in the case of Damji Hirji v. Mahomedalli Essabhoy Supra. This case was concerned with eight hundies drawn on June 23, 1936 and on the top of each hundi was written ''Bombay 23.6.36''. When the hundies had fallen due, six parties agreed to renew the same. Two not having so agreed were paid off by money raised on two hundies given to two other parties. On each of the eight hundies thus issued the words ''Bombay 21.7.37'' were written at the top. The hundies were signed outside Bombay, at Djarangaon. After the signatures were made the hundies were sent to the Defendant''s Mehta at Nagdevi Street and that Mehta delivered the hundies to the payees in Bombay. Thereafter the hundies were indorsed by the payee in favour of the Plaintiff at his residence in Bombay. Plaintiff had instituted the suit in the Bombay High Court on these facts and had contended that the whole of the cause of action had arisen within the jurisdiction of the Bombay High Court. The Plaintiff had also contended that the Defendants carried on business in Bombay. Kania, J. as he then was, who dealt with this case, observed at p. 462 of the report:

The words ''Bombay, 21.7.37'' on the top of each note are also important. In the absence of sufficient ground to disregard it, that statement may be relied upon to show that the parties intended and made the contract contained in the note in Bombay. It was not necessary for the parties to name the place where the contract was made or any place in the note at all. They, however, deliberately chose to name the place and therefore, it is permissible and proper to hold that the parties agreed that the contract was made in Bombay.

The learned Judge had in this decision also referred to and relied on the decision of the Madras High Court in Meenakshi Ginning and Pressing Company (Ld.) v. Myle Sreeramulu Naidu Supra.

These decisions may appear to lend support to the contention of Mr. Tebriwalla that as the word ''Calcutta'' appears on the bottom of the promissory note, the promissory note has been dated as at Calcutta and must be deemed to have been executed in Calcutta for the purpose of jurisdicition of this Court. These decisions, however, to my mind, appear to be clearly distinguishable. In both these decisions, a part of the cause of action relating to execution of the notes in question, had undoubtedly and clearly arisen within the jurisdiction of the Court concerned. In the Madras case Supra, the promissory note had been signed by the secretaries and treasurers at Bellari and had been dated at Bellari also. In this background and in the peculiar facts of the case, the decision of the Court had been arrived at. It is not a case where the promissory note had, in fact, been signed and dated at some other place and the entire cause of action in relation to the execution of the note had arisen elsewhere. It is to be noted that the Court itself in this very decision recognises that it cannot be laid down as a universal proposition of law that a promissory note which is dated with reference to any particular place, must be deemed to have been executed there, whatever may be the facts of the case and has, therefore, observed:

Where, therefore, a negotiable note, as in the present instance, is dated with reference to a specific place and the justice of the case does not necessitate a different conclusion, the parties should be presumed to have agreed to that place being taken to be the place of contract.

In the case of Damji Hirji v. Mahomedalli Essabhoy Supra, there was also no dispute that a part of the cause of action in relation to the execution of the promissory note had arisen in Bombay. The dispute really was whether whole of the cause of action had arisen in Bombay and the Bombay High Court came to the conclusion on the facts of the case that the entire cause of action had arisen in Bombay. In this background and in view of the fact that the words ''Bombay 21.7.37'' appear on the top of each note, in relation to execution of which part of the cause of action had undoubtedly arisen in Bombay, the Bombay High Court relied on the Madras decision and made the observations which I have already quoted. It is to be noted that the Bombay Court does not lay down that as a general proposition of law a promissory note must be deemed to have been made at the place, if any place is mentioned in the note itself, whatever the facts of the case may be. The learned Judge has himself observed:

In the absence of sufficient ground to disregard it, that statement may be relied upon to show that the parties intended and made the contract contained in the note in Bombay.

The decisions in the aforesaid cases and the observations of the learned Judges relied on, should, in my view, be read, understood and appreciated in the light of the facts they were called upon to determine. In my opinion neither of these two decisions supports the broad proposition contended for by Mr. Tebriwalla that, if a promissory note has been dated with reference to a specified place, the promissory note must be deemed to have been executed at that place and the Court at that place will have jurisdiction to try the suit on that basis, whatever the facts of the case may be. Such a proposition, in my opinion, is not tenable, as this will lead to manifestly illogical and absurd results. Jurisdiction of any particular Court can be invoked, only if the necessary conditions which attract the jurisdiction of the Court concerned, are satisfied. Jurisdiction of any Court cannot be invoked because of the mere intention of any party. It is well-settled that jurisdiction of any Court cannot be conferred even by consent or agreement of the parties in a case where the Court does not have any jurisdiction. If this proposition of Mr. Tebriwalla has to be accepted, it would be open to the parties to any contract which is being executed by both of them in one place, to say that the contract shall be deemed to have been made in some other place by dating the contract with reference to such place; and this will undoubtedly have an effect of seeking to confer jurisdiction on such Court which it otherwise would not have. I am of the opinion, that these decisions relied on by Mr. Tebriwalla do not lay down any such proposition and the same do not lay down the proposition that a part of the cause of action in respect of a promissory note which has been dated with reference to a particular place arises in that place for the purpose of jurisdiction of the Court, even though no part of the cause of action has, in fact, arisen at the place, merely on the basis of the intention of the parties.

In a suit on a promissory note this Court will have jurisdiction, if the conditions as to pecuniary limits are satisfied, when

(I) the maker of the note resides or carries on business within the jurisdiction of this Court;

(II) the whole of the cause of action relating to the suit on the note arises within the jurisdiction of this Court; and

(III) part of the cause of action relating to the suit arises within the jurisdiction, provided, leave under Clause 12 of the Letter Patent has been first obtained for the institution of the suit.

Unless the suit satisfies any of the aforesaid conditions, this Court cannot and shall not have any jurisdiction to entertain the same. Jurisdiction of this Court cannot, in my view, be invoked on the basis of mere intention of any of the parties and the parties even by agreement between them cannot confer jurisdiction on this Court in a case where the Court does not have jurisdiction.

For reasons already indicated, none of the conditions which confer jurisdiction on this Court have, in my view, been fulfilled in the instant case.

Even if I had held in the instant case that the promissory note in suit should be deemed to have been executed at Calcutta, as the words ''Calcutta dated 1.6.55'' appear at the bottom of the note, I would not have been in a position to hold that the same must have been done within the jurisdiction of this Court. It is to be noted that this Court does not have jurisdiction over the whole of Calcutta, as it is commonly known; and this Court would have no jurisdiction, unelss it be further presumed that the note had been executed somewhere with in the jurisdiction of this Court. I do not think that any such presumption is warranted; and in any event, there does not appear to be any justifiable material for such presumption.

In the result, the suit fails for want of jurisdiction. I hold that this Court has no jurisdiction to try this suit and I dismiss this suit on this ground. In the facts of this case and as there was no defence in this action to the Plaintiff''s claim on merits, I direct that the parties will pay and bear their own costs of the suit.