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Present: Ennis A.C.J. and De Sampayo J.
FERNANDO v. ARUNASALAM PILLAI.
416—D. G. Qalle, 14,948.
Jurisdiction—Agent in India—Action by principal for balance due.
The defendant, aresidentof Negapatam,when temporarilyresi-
dent at Galle, entered into an agreement with plaintiff, a resident of Galle,that when he returned to India he would be plaintiff's agent for sendinghim goods.
In pursuance of this agreement, the plaintiff remitted varioussums to India, andin thisaction he claimedthe balance (Rs.805)
due to him.
Held, that the District Court of Galle had jurisdiction. Underthe English law adebtor must seek out hiscreditor and payhim,
unless there is anything in the contract to the contrary.
The English lawappliesbecause this isa contract of agency,
and the action arises on the obligation of the contract.
rJ1HE facts are set out in the judgment.
Hayley, for the appellant.
No appearance for the respondent.
May 9, 1919. Ennis A.C.J.—
This was an action for the recovery of Rb. 805, the balance of sumsgiven to the defendant for the purchase of rice. The plaintiff is aresident of Galle, and the defendant resides in Negapatam in India.The learned Judge has found that the defendant, when temporarilyin Galle about March, 1916, entered into an agreement with theplaintiff that when he returned to India and resumed business hewould be the plaintiff’s agent for sending him goods at a salaryof Rs. 100 a month. In pursuance of this agreement, the plaintiffremitted sums to India, and he claims that the balance of Rs. 805has not been spent in the purchase of goods, and is due to him. Thedefendant filed answer challenging the jurisdiction of the Court,and further saying that he had paid a sum in full in settlement.When the case came on for hearing, counsel for the defendantsubmitted that he was prepared to press only one issue, namely, thejurisdiction of the Court. I find it difficult to follow whether thiswas meant as an abandonment of the other issues in the case, orwhether it merely means that he was in a position to argue thepreliminary issue of law. It appears that at the time the defendanthimself was in India. In the circumstances I would take it as being
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the argument on the preliminary issue of law only, and on this pointthe learned Judge finds in favour of the defendant. The plaintiffappeals.
For the purpose of jurisdiction, section 9 of the Civil ProcedureCode provides that an action may be instituted in the Court in whichthe cause of action arises, and it is the principle of English law thata debtor must seek out his creditor and pay him, unless there is any-thing in the contract to the contrary. This principle was followedin the case of Dias v. Constantine.1 There is not that I cur see anyreason for disregarding that principle in the present cute, and, in thecircumstances, I consider that the appeal should be allowed, as it wasthe duly of the defendant to pay to the plaintiff any sum whichmight be due. The English law applies because this is a contractof agency, and file action arises on the obligation of the contract.
I would set aside the decree and send the case back. If, in fact,the position was that the defendant abandoned the other issues,the District Judge can enter judgment for the plaintiff. If, on theother hand, there was no intention to abandon the other issues, thecase will proceed on those issues. The appellant is entitled to thecosts of appeal.
De Sampavo J.—I agree.
FERNANDO v. ARUNASALAM PILLAI