IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 WP(C).NO. 25803 OF 2010(O) ------------------------------------------ OS.264/2009 OF SUB COURT,NEYYATTINKARA .................... PETITIONER(S): DEFENDANT ------------------------------------------ USHA KUMARI, D/O.LAKSHMIKUTTY AMMA, AGED 49 YEARS, FLAT NO.44/537, GOVERNMENT QUARTERS KARAMANA.P.O., THYCAUD VILLAGE, TRIVANDRUM. BY ADV. SRI.M.RAMASWAMY PILLAI SRI.K.RADHAKRISHNAN SRI.P.M.JOSEPH RESPONDENT(S): PLAINTIFF ------------------------------------------ JAYAKUMAR, S/O.JOHN ADAM, AGED 60, RESIDING AT KADAVATTARAM, KRISHNAPURAM, NEYYATTINKARA, NEYYATTINKARA THALUK-695 121. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.25803 of 2010 ==================================== Dated this the 09th day of September, 2010 J U D G M E N T Challenging Ext.P6, order as to the jurisdiction of learned Sub Judge, Neyyattinkara to entertain the suit – O.S. No.264 of 2009, defendant has come up with this Writ petition. According to the respondent-plaintiff, petitioner borrowed Rs.85,000/- from him on 14.10.2006 and executed a demand promissory note. In paragraph 4 of the plaint (Ext.P1), respondent stated that cause of action for the suit arose at Neyyattinkara Village within the territorial jurisdiction of the Sub Court, Neyyattinkara. Petitioner in paragraph 8 of the written statement contended that since place of transaction is not mentioned in the plaint the Sub Court, Neyyattinkara has no jurisdiction to entertain the suit. That contention was rejected by the learned Sub Judge vide ext.P6, order which is under challenge. It is contended before me by learned counsel for petitioner that in so far as place of transaction is not mentioned in the plaint, the suit must have been instituted at the place where petitioner-defendant resides. 2. Learned Sub Judge has repelled the contention of petitioner stating that as per the averments in paragraph 4 of W.P(C) No.25803 of 2010 -: 2 :- Ext.P1, plaint cause of action has arisen in Neyyattinkara village which is within the jurisdictional limits of that court. Learned Sub Judge has also referred to Section 20(c) of the Code of Civil Procedure (for short, “the Code”) to state that even if cause of action has arisen only in part within the territorial jurisdiction of his court that has court has jurisdiction to entertain the suit. 3. It is true that the place of transaction is not stated in Ext.P1, plaint. But even if it is assumed that place of transaction is not indicated in the plaint, the principal that “debtor must seek the creditor” should apply. A Division Bench of this Court in Ramasubramoniam v. Ranganathan (1978 KLT 906) has held with reference to Section 49 of the Indian Contract Act, 1872 that even when the contract is silent as to the place of performance implied terms cannot be read and that promisor is obliged to perform the contract at the place where the promisee resides, on the basis of the English Common Law Rule that debtor is bound to seek out the creditor. Reference was also made to Sec.20 of the Code. It was found on that principle that the suit where the promisee is residing is maintainable. That decision was followed by another Division Bench of this Court in Jose Paul v. Jose (AIR 2002 Kerala 397). The Supreme Court in W.P(C) No.25803 of 2010 -: 3 :- Herman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009 [2] KLT 113 - last paragraph) has also held that the English Rule referred to above applies to this Country (at least) in the matter of civil proceedings. Hence even if it is assumed that the place where money is payable is not stated or indicated either in the plaint or even in the promissory note based on which suit has been instituted the rule that “debtor has to seek the creditor” must apply and hence petitioner was bound to perform at the place where the respondent resides. Hence the suit filed in the sub court at Neyyattinkara within the territorial limits of which respondent admittedly resides is perfectly maintainable. Apart from that there is also averment in paragraph 4 of the plaint that cause of action has arisen at Neyyattinkara Village within the jurisdiction of that court. In the circumstances learned Sub Judge is correct in holding that he has jurisdiction to entertain the suit. The Writ Petition is without merit and it is dismissed. THOMAS P. JOSEPH, JUDGE. vsv