VIMALA AND CO. Vs. SIVAM AND CO., BY PARTNERS, N.K.M.S.P. VALLIYAPPA CHETTIAR, M.S. CHOCKALINGAM CHETTIAR AND K.RM.T.T.V. VEDACHALAM CHETTIAR

JUDGEMENT

(1.) THIS is an appeal against the order of the learned Master dismissing the application filed by the plaintiffs in C.S. No. 194 of 1947 for striking out the written statement and vakalat of the second defendant. The facts that led up to the application may be briefly stated. The plaintiffs are stock and share brokers carrying on business in the name of Vimala & Co. The defendants Messrs. Sivam & Co. are a partnership firm registered under the Indian Partnership Act; There are three partners in the firm: (1) N.K.M.S.P. Valliyappa Chettiar, (2) M.S. Chockalingam Chettiar and (3) K.RM.T.T.V. Vedachalam Chettiar. The plaintiffs filed C.S. No. 194 of 1947 on the file of this Court for the recovery of Rs. 13,312 -1 -3 with interest from the defendants, the balance due in regard to the dealings they had in shares. In the plaint the defendant was described as Sivam & Co. by the aforesaid three partners. The records show that summons was taken out on Messrs. Sivam & Co. represented by the three partners. Notice was served only on the second partner M.S. Chockalingam Chettiar. He entered appearance and filed a written statement. In his written statement he stated that it was the written statement of M.S. Ghockalingam Chettiar the second defendant herein. He also signed the written statement as the second defendant and in the verification he has described himself as second defendant. A perusal of the written statement shows that it was really filed on behalf of the firm. He has stated that the firm was dissolved and that under an arrangement between the partners the first partner, i.e., Valliyappa Chettiar, was the sole person liable to pay all claims against the partnership including the suit claim.

(2.) THE present application is filed by the plaintiff for striking out the defence. In the affidavit filed in support of the application it is alleged that Mr. M.S. Chockalingam Chettiar entered appearance in the High Court and that he chose to describe himself as the second defendant and was defending the suit in his personal capacity and not on behalf of the firm. The petitioner further stated that either the said Chockalingam Chettiar should amend the vakalat and the written statement so as to enter appearance and contest on behalf of Sivam & Co., or in the alternative the said vakalat and the written statement should be rejected. In the counter -affidavit filed by the respondent he persisted in his attitude and he states,

(3.) THE firm was also served in the prescribed manner, that is by serving the notice upon the respondent who is one of the partners. Under Order 30, Rule 6, though the defendant is entitled to appear individually, the subsequent proceedings in the suit shall continue in the name of the firm.