B. S. RAIKOTE, J.

( 1 ) THIS is an appeal preferred against the judgment and decree dated 7-12-1983 passed in O. S. No. 87 of 1981 on the file of Subordinate Judge, kothagudem. The appellants are the defendants. Hereafter, the parties would be referred to as plaintiff and defendants as per the ranking assigned to them in the Court below.

( 2 ) THE plaintiff-respondent filed a suit for recovery of an amount of Rs. 17,434/- from the defendants. According to the case of the plaintiff, an amount of Rs. 16,200/- was deposited with the defendants vide Demand Draft no. 539627, dated 20-1-1981, payable at State Bank of India, Kota, towards security deposit as per the negotiations between the plaintiff and the defendants for the supply of sleepers by the plaintiff to the defendants, as per the tender notification issued by the defendants. According to the case of the plaintiff, the contract was not concluded as per the tender offered by the plaintiff and as such the plaintiff was entitled for refund of rs. 16,200/- with interest, which comes to Rs. 17,434/ -. The plaintiff gave a legal notice dated 17-12-1980, but the defendants failed to refund the same, therefore, he filed the suit. By filing the written statement, the defendants denied the case of the plaintiff. If is further contended by the defendants that the tender was submitted by M/s. Dayal Wood Works and as per the request of M/s. Dayal Wood Works, the defendants sent a copy of general conditions of the contract and also a copy of technical specifications for the sleepers along with their letter dated 11-5-1980 and in pursuance of the same, M/s. Dayal wood Works submitted their quotation by registered post dated 10-5-1980 and after considering the offer made by M/s. Dayal Wood Works, the superintending Engineer of the defendants sent a telegram and asked m/s. Dayal Wood Works to depute their representative for negotiations with two per cent security deposits and accordingly the said M/s. Dayal Wood works sent their representative Sri G. K. Agarwal on 24-6-1980 to Kota and after discussions, Sri G. K. Agarwal as Managing Partner of M/s. Dayal Wood works agreed in writing the terms and conditions with regard to supply of 6,000 wooden sleepers, and after the conclusion of the contract, rs. 16,200/- was deposited as security on 24-6-1980 by M/s. Dayal Wood works. It is further stated in the written statement that it was agreed between the parties that the rate per sleeper would be at Rs. 134-56 Ps. They stated that it was further agreed that the price quoted in the letter of the defendants dated 10-5-1980 shall remain firm. But after sending the purchase order on 19-7-1980, the defendants sent a letter dated 20-7-1980 refusing to accept the purchase order stating that terms in the purchase order are entirely different than what were agreed upon between the parties. But they further stated in the written statement that there was no substantial variation in the terms agreed upon in the purchase order, however, the plaintiff has chosen to file a suit for refund of Rs. 16,200/- and absolutely there is no cause of action for the plaintiff. They also contended that as per the contract for supply entered into between the parties, only the Court at Jaipur/kota, Rajasthan has jurisdiction, but not the Court at Kothagudem. They further stated that it is only the plaintiff - firm, which failed to supply the wooden sleepers as per the agreed terms and in view of that, it is the defendants who have suffered a sum of Rs. 2,40,027/- and defendants are entitled for the same along with interest at 12 per cent per annum, and costs of Rs. 3,000/- and accordingly, they prayed for the dismissal of the suit.

( 3 ) ON the above pleadings of the parties, the Court below framed the following issues:- (1) Whether the described contract in the, plaint with D-3 remained unconcluded and if so the plaintiff is entitled for the refund of rs. 16,200/- (2) Whether a valid tender was presented by the plaintiff to the defendants on 1-5-1980 and whether plaintiff deposited the alleged money of Rs. 16,200/- (3) What was the part played by the Managing Partner of M/s. Dayal wood Works and what is its effect on the suit claim (4) Whether the purchase order was different regarding terms etc. , from what was offered by the plaintiff (5) Whether the plaintiff has privity of contract with the defendants (6) Whether this Court has territorial jurisdiction (7) Whether defendants are entitled for costs of Rs. 3,000/- under section 35-A of C. P. C. (8) Relief. Additional issue framed on 18-4-1983:- whether there is an arbitration clause in the agreement between the parties and if so whether the suit is not maintainable

( 4 ) WITH reference to these issues, the plaintiff examined P. W. I and got marked certain documents vide Exs. A-1 to A-20 and on the side of the defendants D. Ws. l and 2 were examined and they also got marked certain documents Exs. B-1 to B-17.

( 5 ) IN view of the fact that the defendants admitted the deposit of Rs. 16. 200/-, the Court below found that consideration of second part of issue mo. 2 would not arise in the case. It held that in view of the amendment of the plaint, showing M/s. Dayal Wood Works represented by its partner g. K. Agarwal, issue Nos. 3 and 5 also would not arise for consideration. On the first part of issue No. 2, it held that valid tender was presented by the plaintiff to the defendants on 1-5-1980. On material issues. e. , on issue Nos. 1 and 4, the Court below held that the contract was not concluded between the parties. Taking up the issue No. 7, it held that defendants were not entitled to costs of Rs. 3,000/- from the plaintiff. On issue No. 6, the Court had already decided that it had territorial jurisdiction, vide order of the Court dated 29-7-1982. On additional issue No. 9 it held that since there was no concluded contract, the arbitration clause could not be invoked by the defendants and as such the suit was maintainable. In view of the findings on the above issues, the Court below granted a decree for Rs. 18,200/- with costs and further interest at 6 per cent per annum. Being aggrieved by the said judgment and decree, as I have already stated above, it is the defendants who have come up before this Court in appeal.

( 6 ) THE learned Counsel for the appellants-defendants strenuously contended that the Court below was in error in holding that the contract between the plaintiff and defendants was not concluded. He submitted that in fact the contract stood concluded between the parties. He further submitted that in view of the arbitration clause found in the contract and also in view of the fact that the contract was concluded at Kota in Rajasthan the Court at Kothagudem has no jurisdiction to entertain the suit and in view of one of the terms of contract, the amount of Rs. 16,200/- deposited by the plaintiff vide Demand Draft dated 20-1-1981 stands forfeited by the defendants and accordingly he submitted that the Court below is in error in decreeing the suit. On the other hand, the learned Counsel appearing for the respondent- plaintiff contended that even after Ex. B-1 given by the plaintiff, the purchase order stipulated new terms, which the plaintiff did not accept and in this view of the fact, the contract was not concluded. He further submitted that since the contract was not concluded, the defendants cannot invoke arbitration clause. He further submitted that the defendants were invited for negotiations by sending letter to the defendants, which was received by the defendants at Kothagudem and also in view of the fact that the plaintiff in fact obtained demand Draft at Kothagudem, which was sent to Kota and accordingly, the court at Kothagudem has jurisdiction to entertain the suit and the suit has been rightly decreed. Therefore, there are no merits in the appeal and the same is liable to be dismissed.

( 7 ) HAVING regard to the controversy in question and also from the arguments of both the sides, I must note few admitted facts of the case. It is admitted that the plaintiff did deposit an amount of Rs. 16,200/- vide Demand Draft no. 539627 dated 20-1-1981 towards security deposit. Now the points for my consideration would be whether the plaintiff is entitled for the refund of the same and whether the Court at Kothagudem has jurisdiction to entertain the suit. Consequently it is to be seen whether the judgment and decree of the court below are liable to be sustained or not.

( 8 ) P. W. I, who is the Managing Partner of the Plaintiff-firm stated thatdefendant No. 3 called for tenders for supply of Sal Wood Sleepers and accordingly he requested Defendant No. 3 to send the tender schedule and he sent the tender schedule by post to Kothagudem. He also stated that a telegram was sent to P. W. I to participate in the negotiations for settlement of commercial terms and conditions at Kota and Ex. A-1 is the telegram dated 14-6-1980 and accordingly P. W. I participated in the discussion at Kota and he handed over a letter dated 24-6-1980 as per Ex. B-1 confirming the minutes and discussion. He also stated that in Ex. B-1 there is reference of Demand draft dated 20-1-1981 for Rs. 16,200/ -. He deposed that thereafter he received a purchase order by post from defendant No. 1 and Ex. A-2 is the purchase order dated 19-7-1980 and this purchase order was not in conformity with the negotiated terms and conditions offered as per Ex. B-1 and also their original offer dated 10-5-1980. Then P. W. I sent a letter Ex. A-3 by registered post dated 28-7-1980 refusing to accept the purchase order. He also deposed that in view of Clause 28 of the purchase order, it is stated that the acceptance of the detailed purchase order should be conveyed to the Superintending Engineer within a period of seven days from the date of receipt of the purchase order and in case no communication is received within that seven days, it would be presumed that the supplier (the plaintiff) accepts the order in toto, including all the terms and conditions stipulated therein. He stated that since the plaintiff sent Ex. A-3 refusing to accept the purchase order, the contract was not concluded. He stated that in Ex. A-3 itself that plaintiff requested the defendants to refund the deposited amount and thereafter he also got issued a legal notice vide Ex. A-6, and Exs. A-7 to A-9 are the postal acknowledgements in respect of notices served on Defendant Nos. l to 3. On the basis of this evidence, it is argued on behalf of the plaintiff that the contract was not concluded. But the learned Counsel for the appellants-defendants contended that in view of Ex. B-1, the acceptance letter of the plaintiff, the contract stands concluded. He also invited my attention to the booklet, which contains "general Conditions of Contract for Supply, Supervision and Erection of equipments", which is marked in the case as Ex. B-5. Before I proceed to consider the relevant clauses in Ex. B-5,1 have to note here itself the relevant clauses in Ex. B-1, (which is the acceptance letter given by the plaintiff dated 24-6-1980) and Ex. A-2 purchase order dated 19-7-1980, in order to find out whether the contract stands concluded between the parties. In paragraph 14 in Ex. B-1 it is stated that "agreement will be executed on receipt of your detailed purchase order. " It is an admitted fact that the agreement was not executed between the parties yet. Paragraph 28 of the purchase order reads as under:- "28. 00 Acceptance of Order: the acceptance of this detailed purchase order shall be conveyed to the superintending Engineer (TP-II) KTP, RSEB, Kota within a period of seven days of the date of receipt of this order. In case no communication is received within the above specified period, it will be presumed that the supplier accepts the order in toto including all the terms and conditions stipulated therein. " from Clause 28 of Ex. A-2 it is clear that an option was given to the plaintiff to accept the purchase order within a period of seven days of the date of receipt of the purchase order and in case if no communication is received within the said period, it would be presumed that the supplier (now the plaintiff) accepts the order in toto, including all the terms and conditions stipulated therein. It is also not in dispute that within the prescribed period of seven days only, the plaintiff sent a letter dated 28-7-1980 vide Ex. A-3 refusing to accept the purchase order. It was also pointed out in Ex. A-3, that number of terms and conditions were added in the purchase order, which were not agreed upon by the plaintiff during negotiations. The plaintiff stated in Ex. A-3 that the plaintiff was not ready to accept the clauses other than the ones stipulated in the letter sent by the plaintiff. From going through Ex. A-3 it is clear that the plaintiff pointed out number of terms and conditions for the first time inserted in purchase order, which were not agreed upon between the parties, vide paragraphs 1 to 12 in Ex. A-3 the plaintiff pointed out number of such terms and conditions, which were not agreed upon between the parties and accordingly the plaintiff refused to accept the purchase order. The learned counsel for the plaintiff submitted that in view of these circumstances, the plaintiff did not accept the purchase order and as such the contract remains unconcluded. The fact that the purchase order contained new terms and conditions is not disputed by the Counsel for the defendants-appellants. Hence, I find that there is substance in the argument of the learned Counsel for the respondent. Clause 2. 03 of the terms and conditions provides that in order to secure/assure due fulfilment of the contract, successful tenderer on receipt of a preliminary acceptance letter/detailed order shall furnish within the period specified, a security deposit equivalent to two per cent of the accepted tender value in cash/crossed bank draft with the payee, as stated in purchase order and the same security deposit shall be refunded after three months of completion of the entire supplies to the satisfaction of the purchaser. From this it follows that the payment of the security deposit at two per cent by the Demand Draft in question dated 20-1-1981, was immediately after the preliminary acceptance of the tender by the purchaser. If that is so, the contention of the learned Counsel for the defendants that the deposit in question was made in pursuance of the contract entered into between the parties, therefore, that would be one of the factors to hold that the contract stands concluded, cannot be accepted. The security deposit is to be made for completing the contract. From the material on record it is clear that after ex. B-1 was submitted by the plaintiff, there was no preliminary acceptance letter from the defendants in terms of Clause 2. 03 of the General conditions. In other words after Ex. B-1 was given by the plaintiff, the defendants did not issue any formal acceptance letter to the plaintiff but they only sent the purchase order vide Ex. A-1 with an option to the plaintiff under Clause 28, as stated above, to communicate their acceptance within a period of seven days and in case no communication is received within seven days, it would be presumed that the supplier accepted the order in toto, including all the terms and conditions stipulated therein. As I have noted above, vide ex. A-3, the supplier refused to accept the purchase order, stating all the instances regarding the variations in the terms and conditions that were not agreed upon between the parties. From this it follows that the contract was not concluded between the plaintiff and the defendants, regarding the supply of sleepers by the plaintiff to the defendants. Moreover, under Ex. A-3 the plaintiff not only refused to accept the purchase order, but he also requested for the refund of the earnest amount in question. Having regard to the evidence of P. W. I and the above clauses in the General Conditions of the contract, the court below rightly held that the contract was not concluded between the parties. However, the learned Counsel for the defendants contended that as per Clause 1. 01. 10 of Ex. B-5, the contract shall be deemed to have been concluded. From the reading of the said clause it is clear that the said clause simply stated that contract shall mean and include the documents such as invitation of tender, instructions to tenderers, tender form including schedule of prices, earnest money bond, etc. , and also the agreement to be entered into under Clause 1. 05 of the General Conditions. I hereby extract the said clause 1. 05 as under:- "contract Documents and Agreement:- (1. 05. 1) The order placed under this specification shall be governed by the terms and conditions as incorporated in this section of the specification, and as given in the purchase order and its Annexure (s ). The terms and conditions as specified in this section if differ from the terms as indicated in the purchase order and its annexure (s) the letter (sic. latter) shall prevail. This contract shall for all purposes be construed according to the laws of India and subject to jurisdiction of Jaipur Courts only. For the due fulfilment of the contract, the supplier shall execute an agreement in triplicate in the prescribed form (to be obtained from the purchaser) on non-Judicial Stamp paper worth Rs. 2. 25/- or as per the stamp duty applicable of Government of Rajas than. Such agreement shall be executed and signed by the competent authority of the supplier on each page thereof. The original copy is only to be executed on the Stamp paper. The remaining two copies may be executed on simple paper. Such complete agreement form along with the contract documents shall be required to be returned to the purchaser within a period of 15 days from the receipt of the order duly signed on each page. One copy of the executed agreement duly signed by the purchaser shall be sent to the supplier for his reference. The contract documents shall mean and include the following: (1) Contract agreement. (2) Purchase order and its annexures. (3) Terms and conditions (Section-A) of the specification. " (emphasis supplied) from the reading of the above clause it is clear that the contract documents mean and include contract agreement, the terms and conditions as incorporated in the purchase order and general conditions specified. It further provides that if there are any new terms and conditions given in the purchase order, the latter shall prevail. From this it follows that the purchase order is a final document to be sent by the purchaser and to be accepted by the supplier, since the purchase order may contain new terms and conditions. It also provides that for the due fulfilment of the contract, the supplier shall execute an agreement document in triplicate in the prescribed form on a nonjudicial stamp paper worth Rs. 2. 25 Ps. and such agreement shall be required to be returned to the purchaser within 15 days from the receipt of order duly signed on each page. The said clause thus provides that the contract document shall mean and include (1) Contract agreement, (2) Purchase order and its annexures and (3) Terms and conditions of the specification. From this it follows that the contract stands concluded after the execution of the contract agreement in triplicate. Admittedly, in this case, the purchase order was not accepted by the plaintiff. Nor any contract agreement was executed. Having regard to these circumstances, the irresistible conclusion would be, that the contract between the plaintiff and defendants was not concluded. Under clause 2. 03 of General Conditions, if the supplier fails or neglects to observe or perform the contract, it would be lawful for the purchaser to forfeit either in whole or in part, the security deposit furnished by the supplier. In the instant case, since the contract itself was not concluded, the question of forfeiting the security deposit would not arise. The question whether the contract is concluded or not, depends upon the circumstance of each case, having regard to the nature of the documents produced, and also the evidence on record. Therefore, the judgments relied upon by the learned Counsel for the defendants - appellants reported in Punjab State Electricity Board, Patiala vs. M/s. Abnash Textile Trading Agencies, Ambala City, Heavy Engineering corporation Ltd. , vs. Crompton Greaves Ltd. and M/s. Suraj Besan and Rice Mills vs. Food Corporation of India do not apply to the facts of the case. In those cases, having regard to the material placed on record, the respective Courts held that the contract was concluded. But in the instant case, as discussed by the Court below and also by me in this judgment, the contract was not concluded. Therefore, those judgments would not be applicable to the facts of this case.

( 9 ) IN view of my above conclusion that the contract itself was not concluded, the defendants cannot rely upon Clause 1. 51 of General Conditions, to contend that in terms of the said condition, it is only the Courts at Jaipur/kota has jurisdiction. They cannot also rely upon Clause 1. 53 of the General Conditions for invoking arbitration clause. These clauses apply only in case when there is a concluded contract between the parties. Since, there is no concluded contract, the defendants cannot contend that the Court at Kothagudem has no jurisdiction. They cannot also contend that in view of the arbitration clause, the suit itself was not maintainable. In fact, in the judgment relied upon by the defendants - appellants reported in M/s. Zodiac Electricals Pvt. Ltd. vs. Union of India, the Supreme Court also took a similar view and held that when there is no concluded contract between the parties, the arbitration clause said to be contained in the contract could have no existence. The Honble Supreme court held in paragraphs 4 and 5 as under in that judgment:- "4. Mr. Talukdar then relied upon that part of the letter dated 21-8-1979 which, following upon the confirmation of the telegram, contained a request by the appellants to the DCS and D to issue a detailed order at their earliest so that the appellants could plan the delivery accordingly. But this statement in the letter, far from supporting the contention of Mr. Talukdar, goes against it, because it clearly indicates that the matter was still under negotiation between the parties. This statement in the letter cannot possibly held the respondent, because it is in line with what has been stated in the telegram and it clearly shows that when the appellants extended the period for acceptance of the original offer made by them, they requested the DCS and D to accept their original offer and issue the detailed order at their earliest, so that the appellants could plan the delivery in time. We are, therefore, of the view that the original offer contained in the tender submitted by the appellants, the two letters dated 13-8-1979 addressed by the DCS and D to the appellants and the telegram and the confirmatory letter dated 21-8-1979 sent by the appellants to the dcs and D, did not constitute any concluded contract between the parties. 5. If there was no concluded contract between the parties, then obviously the arbitration clause said to be contained in the contract could have no existence and in that event the appellants must succeed in the petition filed by them in the High Court under Sec. 33 of the Arbitration Act challenging the existence of the arbitration agreement. We accordingly allow the appeal, set aside the judgment of the High Court and hold that there was no concluded contract between the parties and hence no arbitration agreement binding upon them. There will be no order as to costs throughout. "

( 10 ) THE other judgments relied upon by the learned Counsel for the appellants in A. B. C. Laminart Pvt. Ltd vs. A. P. Agencies, Salem and M/s. Bismi abdullah and Sons, Merchants and Commission Agents vs. The Regional Manager, f. C.. , Trivandrum are the cases where there was a concluded contract. Since the case on hand being one in which there is no concluded contract, the principle laid down in those judgments would not be applicable to the facts of this case.

( 11 ) NOW the last point that remains for my consideration would be whether it can be said that the instant case is one in which a part of cause of action arises at Kothagudem, in terms of Section 20 (c) of C. F. C. It is a case in which the plaintiff has filed a suit at Kothagudem alleging that the contract was not concluded and he was entitled for refund of the security deposit that he has deposited with the defendants vide D. D. No. 539627, dated 20-1-1981. As I have already stated above, the contract was not concluded and consequently/ the plaintiff was entitled to refund of the said amount and in that view of the matter, the defendants should have sent either Cheque or Demand Draft for the said amount to the plaintiff residingat Kothagudem, Moreover, the persons at negotiation table representing defendants were not authorised to conclude the contract. D. W. I who is Assistant Engineer, Rajasthan State Electricity board, Kota in his cross-examination admitted that:- "on the other hand we informed a representative of the plain tiff-firm that the Purchase order will be issued immediately, in due course. No commitment date was given by me at the time of discussions as I was not competent authority. Besides me Sri S. S. Jain, at that time Sr. Accounts officer, and now Controller of Accounts was present at the time of discussions with the plaintiffs representative Sri G. K. Agarwal. " even this statement also goes to show that the matter was not finalised and the persons negotiated were not the competent authorities.

( 12 ) FROM these facts it is clear that the negotiation for the supply of sleepers by the plaintiff to the defendants ultimately failed and as such no contract could come into existence between the plaintiff and the defendants at Kota. The legal consequence would be that the plaintiff was entitled to refund of the security deposit, which he had deposited with the defendants vide d. D. No. 539627, dated 20-1-1981. In other words, there would be relationship of the debtor and the creditor between the defendants and the plaintiff and if that is so, the defendants as the debtors have to refund the amount and make the payment to the plaintiff, as the creditor, at the place where the plaintiff resides. For such refund of the security deposit, no place is stipulated between the parties. In the absence of any place being stipulated by the parties, the defendants has to refund the said amount at the place where the plaintiff resides on the basis of the common law principle that "debtor has to seek out his creditor and pay" and, therefore, the plaintiff as a creditor is entitled to institute the suit for the debt at the place of his residence and in that view of the matter a part of cause of action arises in terms of Section 20 (c) C. P. C. For this kind of proposition, my conclusions are fortified by number of authorities of other High Courts and at least one authority of this Court. In maria Munnisa Begum vs. Noore Mohammad Saheb, a learned single Judge of this Court by following the ruling of a Division Bench of Calcutta High Court reported in Jagadish Chandra Sikdar vs. Smt. Santimoyee Choudhuri held that a debtor should seek out the creditor and discharge his debt at the place where the creditor is residing. It would be useful, if I extract the relevant part of the judgment as under:- "the learned Counselfor the respondent has relied upon a Division Bench ruling of the Madras High Court in Ramalinga Iyer vs. Jayalakshmi, AIR 1941 Mad 695: (1941) 1 Mad LJ 784. This decision does not at all indicate that the English Common Law doctrine that a debtor should follow his creditor and pay him does not apply to India. If anything, the judgment of Leach C.. indicates the contrary view. But the common law doctrine was not applied in AIR 1941 Mad. 695: (1941) 1 Mad LJ 784 because as a matter of inference and interpretation of the contract and circumstances of that case it was held that the debtor was to deliver the articles at particular place different from where the suit was laid. It is well established that the rule that the debtor should seek out the creditor so as to pay him will apply only where the contract does not specify the place of performance or such a place cannot be implied from the terms of contract or the circumstances of the case. If the contract specifies that the debt is to be repaid or the goods are to be redelivered at a particular place, then the rule that the debtor should seek the creditor cannot be invoked. So also if by implication a certain place for repayment or redelivery can be predicated, the common law rule cannot come into operation. Therefore, in A.. R. 1941 Mad 695: (1941) 1 Mad LJ 784, their lordships held that the goods were to be redelivered at a particular place as a matter of necessary implication arising from the circumstances of the case, and consequently the rule that the debtor should seek out the creditor was not applied. It follows that AIR 1941 Mad 695: (1941) 1 Mad l.. 784 is not an authority for the proposition that the common law rule does not apply to this country or does not apply to a case like the present where the place for the return of the jewels was not specified nor could it be inferred as a matter of necessary implication from the circumstances of the case. To such a case, the common law rule that the debtor should seek out the creditor will apply. (20) Halsbury, in Volume VII, page 1956 stated the position as follows:- "where no place for performance is specified either expressly or by implication, from the nature and terms of the contract and the surrounding circumstances, and the act is one which requires the presence of both parties for completion, the general rule is that the promisor must seek out the promisee and perform the contract wherever he may happen to be. This rule applies not only to contracts for the payment of money but to all promises for the performance of which the concurrence of the promisee is necessary. " (21) The English rule has been thus stated by Bowen,. In The Elder, (1893) P. 119 "the general rule is that where no place of payment is specified either expressly or by implication, the debtor must seek his creditor. In haldane vs. Johnson, (1853) 8 Ex 689 it was held that a covenant for payment of rent, when no particular place of payment is. mentioned, is analogous to a covenant to pay a sum of money in gross on a day certain in which case it is incumbent on the covenantor to seek out the person to be paid and pay or tender him the money. In the judgment in that case, the conclusion to the same effect, arrived at on the -"Athorities by Parke, B in Poole vs. Tumbridge, (1837) 2m. and w. 223 is relied upon. Most of the cases are collected in Fessar vs. Mugnia (1865) 18 CBNS 286. "

(22) A Division Bench of the Calcutta High Court has dealt at length with the applicability of the common law doctrine that a debtor should find his creditor and pay him, in fagadish Chandra Sikdar vs. Smt. Santimoyee choudhim, AIR 1961 Cal. 321 [LQ/CalHC/1960/212] . This decision has also reviewed the relevant case law on the subject. The several authorities discussed there show that this rule is applicable to this country also, although it cannot be invoked in the case of negotiable instruments. (23) I ha ve no doubt that in the instant case the defendant is in the position of a debtor and the plaintiff in the position of a creditor. Therefore, the defendant, who was specifically called upon by the plaintiff, was bound to deliver to her the Hiba Jewels or pay their price at the place where she resided. " almost to the same effect is the law declared by another Division Bench of calcutta High Court reported in State of Punjab vs. A. K. Raha (Engineers) Ltd. . The plaintiff in that case filed a suit where the plaintiffs establishment is situated for payment of the amount due towards the final bill, under the contract between the plaintiff and the defendant. The said establishment was situated at Calcutta. The Court after finding that there was no contract between the parties as to the place where the final amount is to be paid to the plaintiff held as under:- "the general rule is that where no place of payment is specified in the contract either expressly or impliedly the debtor must seek the creditor, see The Eider (1893) P 119 at P. 136, Drexel vs. Drexel (1916) 1 Ch 251 at p. 261, North Bengal, Das Brother Zemindary Co. Ltd. vs. Surendrn Nath Das, ilr (1957) 2 Cal 6. The obligation to pay the debt involves the obligation to find the creditor and to pay him at the place where he is when the money is payable. The application of the general rule is not excluded because the amount of debt is disputed. " the Privy Council also had an occasion to consider this aspect of the case in Soniram Jeetmull vs. R. D. Tata and Company, Ltd. The Privy Council after noticing Section 49 of the Indian Contract Act held that, Section 49 does not get rid of an inference, that should justly be drawn from the terms of the contract itself or from the necessities of the case, involving in the obligation to pay the creditor, and the further obligation of finding the creditor so as to pay him. This interpretation that, the suit can be filed where the creditor resides, is in accordance with the principles of justice and equity and conscience.

( 13 ) AT any rate from the material on record it is clear that the defendants have admitted the suit amount being deposited with them vide D. D. No. 539627 dated 20-1-1981, and as held by the Court below and also by me that the contract was not concluded. In these circumstances, on the basis of the technical objection as to territorial jurisdiction, the defendants cannot avoid their liability of refunding the security deposit. Hence, on the basis of territorial jurisdiction to deny the relief to the plaintiff would result in the failure of justice, particularly when the suit is filed in the year 1981 and if the plaint were to be returned now for presenting it before the Court at Rajasthan, it would take another twenty years to see the finality. Therefore, it would be unequitable to deny the decree to the plaintiff on the basis of territorial jurisdiction alone, when the suit amount is admitted by the defendant. To the same effect is the law declared by the Supreme Court in R. S. D. V. Finance Co. Pvt. Ltd. , vs. Shree vallabh Glass Works Ltd. in which the Honble Supreme Court ruled as under:- "in the present case though the first two conditions are satisfied but the third condition of failure to justice is not fulfilled. As already mentioned above there was no dispute regarding the merits of the claim. The defendant has admitted the deposit of Rs. 10,00,000/- by the plaintiff, as well as the issuing of the five cheques. We are thus clearly of the view that there is no failure of justice to the defendant decreeing the suit by the learned single Judge of the Bombay High Court, on the contrary it would be totally unjust and failure of justice to the plaintiff in case such objection relating to jurisdiction is to be maintained as allowed by the division Bench of the High Court in its appellate jurisdiction. " by following the principle laid down in the said judgment and also on the basis of the material on record, I have to hold that the plaintiff is entitled to decree and the judgment and decree of the Court below do not call for interference, Accordingly, I pass the order as under:- the appeal is dismissed, but in the circumstances without costs.