M.S. CHOCKALINGAM CHETTIAR Vs. VIMALA AND CO.

JUDGEMENT

(1.) THIS is an application for issuing a third party notice to N.K.M.S.P. Valliyappa Chettiar. C.S. No. 194 of 1947 was filed on the file of the Court by Vimala & Co., against Sivam & Co., by three partners (1) N.K.M.S.P. Valliyappa Chettiar, (2) M.S. Chockalingam Chettiar and (3) K.RM.T.T.V. Vedachalam Chettiar. The suit notice was served on M.S. Chockalingam Chettiar and he filed a written statement. In the connected appeal I held that the written statement filed by him must be treated as one filed on behalf of the firm.

(2.) THIS application is filed for issuing a third party notice to N.K.M.S.P. Valliyappa Chettiar under Rule 8 of Order V -A of the Original Side Rules, In the affidavit in support of the application it is alleged that the three partners agreed to dissolve the partnership and the major partner Valliyappa Chettiar agreed to take over the entire business and carry it on his own account on the terms and conditions set out in the agreement of dissolution dated the 31st January, 1946. It is alleged that as per the terms of the agreement the petitioner should be freed and indemnified against all the claims in respect of the said partnership. The respondents mainly contends that this application is not maintainable as the applicant is not a defendant to the suit and secondly that he is not entitled to contribution or indemnity against the first partner within the meaning of the said rule.

(3.) ORDER V -A, Rule 8, Original Side Rules, says: that the Court may issue a third party notice to the other defendant if one of the defendants claims to be entitled to contribution and indemnity against him. In the affidavit filed by him the petitioner claims that under an arrangement entered into between the partners N.K.M.S.P. Valliyappa Chettiar is bound to indemnify him against all the claims in respect of the said partnership firm. At this stage I am not called upon to decide the validity or the existence of such claim for indemnity against the first partner. I direct issue of notice under the said order returnable within two months. The costs of this application will be costs in the cause.