9911796707
TMI Blog1931 (9) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... served upon the defendant and that the plaintiffs are entitled to payment of the said sum, and (b) that the defendant may be ordered to pay to the plaintiffs the sum of two lacs of rupees or such other sum as may be found due by them to the said Shankarrao. 2. In his written statement the appellant alleged that he carried on business at Indore and Bombay and that he resided in Indore and was a subject of the Indore State. He then set out certain notices and orders given and made by the authorities of the Indore State and he alleged that Shankarrao had, prior to April 17, 1924, seen the appellant at Indore and agreed that the balance to the credit of Shankarrao in the books of the appellant's Bombay firm should be transferred to the Indore books. The appellant then submitted that the notices and orders of the Indore State therein-before referred to were acts of State such as were sufficient in law to discharge liability of the appellant to Shankarrao. This last allegation was added by way of amendment on November 10, and issue No. 4 was founded on such amendment. 3. In the Court below the trial seems to have proceeded very largely upon the allegation of fact made by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lord Justice Atkin (as he then was) in New York Life Insurance Co. v. Public Trustee [1924] 2 Ch. 101. He says this (p. 119) :- A debt, or a chose in action, as a matter of fact, in not a matter of which you can predicate position; nevertheless, for a great many purposes it has to be ascertained where a debt or chose in action is situated, and certain rules have been laid down in this country which have been derived from the practice of the ecclesiastical authorities in granting administration, because the jurisdiction of the ecclesiastical authorities was limited territorially. The ordinary had only a jurisdiction within a particular territory, and the question whether be should issue letters of administration depended upon whether or not assets were to be found within his jurisdiction, and the test in respect of simple contracts was : Where was the debtor residing ? Now, one knows that, ordinarily speaking, according to our law, a debtor has to seek out his creditor and pay him ; but it seems plain that the reason why the residence of the debtor was adopted as that which determined where the debt was situate was because it was in that place where the debtor was that the credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbay. This was the view which appealed to the learned Judge. But in our view having regard to the facts that the appellant was the sole proprietor both of his Indore and his Bombay businesses, that the head office was in Indore, and that Shankarrao and the appellant both resided in Indore, there is no ground for supposing that the parties impliedly contracted that the money should only be paid in Bombay. The evidence of the appellant in his re-examination was that Shankarrao made payments at Indore in respect of the Bombay firm and that payments to Shankerrao in respect of the Bombay business before May 1924 were sometimes made at Indore, though he no doubt says in cross-examination that Shankarrao's transactions with Bombay firm were entered in Bombay books and could not be transferred to Indore books. As against this the defendant's Bombay munim says that Shankarrao's account could be transferred without his consent. It seems to us that there is no reason in this case for departing from the general rule that the local situation of a debt is the residence of the debtor. Mr. Coltman has argued strenuously that this question of the situs of the debt was not really consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this balance should be recovered from the appellant and deposited in the Huzur Treasury pending orders as to its ultimate disposal. The Prime Minister also directed that the only outstanding transaction between the appellant and Shankarrao which was in linseed should be closed. On May 2, the Inspector General of Police wrote to the appellant requiring him to remit the amount to the Huzur Treasury. Further documents between May 6 and 10 show that the outstanding account in linseed was closed at a loss, and that it was ascertained that there was due from the appellant's Bombay firm to Shankarrao in the name of Mrs. Shankarrao a sum of ₹ 80,000 odd and that this sum also the appellant was directed to pay to the treasury. The appellant asked for a year in which to pay the amount and on May 15 there is a letter Ex. C 10 from the appellant to the Inspector General of Police stating that a sum of ₹ 1,98,487 156 (which represented the amounts due to Shankarrao and Mrs. Shankarrao before referred to less the loss on the linseed account) had been credited in the Indore shop books to the account of the Maharajah Holkar and the letter then said:- I shall pay the amount withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6] 2 K.B. 26. We held that that point was not open to the appellant. We think generally that such a point should be taken in execution proceedings and not in a substantive action such as this. It appears, however, that for some unexplained reason the summons upon which the order of September 25, 1924, (Ex. C), was made was not served on the appellant, and this fact might have justified him in raising the point in this action. But the point was not pleaded, no issue was raised upon it, and it is not even included in the grounds of appeal. We thought that it would be unfair to the plaintiffs to allow this point to be taken by amendment because if any such issue had been raised it is quite possible that questions would have been put to the Prime Minister of Indore with a view to show that there is no danger of the debt being paid twice over. It is in evidence that the appellant has not been required to make any payment of the principal or interest in respect of this debt for more than seven years, and it is quite possible that the explanation is that the authorities at Indore, if the result of our decision had been, in effect, though not in form, to show that their claim to the moneys ..... X X X X Extracts X X X X X X X X Extracts X X X X
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