ARAMUKHAN NAYADI Vs. CHANDU KUNHIRAMAN

JUDGEMENT

(1.) This revision is by the defendant in a suit for realisation of chity moneys filed by a subscriber. The chitty was conducted by the defendant describing himself as manager of Sree Saraswathi Banking & Trading Syndicate. The plaintiff claimed relief against the defendant personally because according to him the chitty concern really belonged to the defendant and he had only assumed the Syndicate name for his foreman-ship. The written statement, beyond stating that the defendant could not be made personally liable, did not choose to deny the plaint averments that the defendant was merely the alter-ego of the chitty concern. The defendant did not point out what exactly the constitution of the Syndicate was, what was the nature of its assets or where exactly they were functioning.

(2.) Learned counsel for the defendant strenuously argues that in the absence of any evidence in the case the suit should have been dismissed. For according to counsel, the burden lay on the plaintiff to prove that the defendant was not the manager but really the proprietor. But it is forgotten that O.8 R.5 comes to the aid of the plaintiff so as to dispense with proof when the defendant does not specifically deny a plaint averment. Here the plaint expressly said that all the plaintiffs efforts to identify the Syndicate had failed and so the defendant was the real foreman. And the defendant would not disclose the principal, if there was one, other than himself. S.230(3) of the Indian Contract Act provides for the personal liability of agents where the principal though disclosed, cannot be sued. And commenting on this sub-section, the learned authors, Pollock and Mulla say that cases have occurred where the principals were uncertain bodies of persons or otherwise incapable of being sued by the description in the contract and they cite the case In Furnivell v. Coombes (1843) 5 M. & Cr. 736 where an express term that a covenant should not bind the covenanters personally was held to be inoperative because no one else could be joined. There can be no doubt that the defendant failed to disclose the principal here because there was really none such except himself. Indeed when the plaintiffs counsel took the same position as in the plaint in Ext. A 3 notice of suit, the defendant in his reply Ext. A 4 did not even evade the allegation. I hold therefore along with the Munsiff that the defendant was liable personally under the instant transaction.