RAMANATHAN CHETTYAR Vs. KALIMUTHU PILLAY

JUDGEMENT

(1.) This is an appeal from the judgment and decree of the Additional Subordinate Judge of Madura, dismissing a suit by the plaintiffs against defendants Nos. 1 and 2 on a foreign judgment. Plaintiffs sought to recover Rs. 7,336-1-7 from defendants being balance of the amount with interest due under a decree obtained by them in Suit No. 106 of the Supreme Court of Singapore. The decree is Exhibit A. The suit was brought by the plaintiffs against Oona Kavenna Suvenah Pillay, two other persons with whom this suit has no concern, Oona Kavenna and Co., and the two defendants to the present suit as carrying on business in Singapore under the firm name of Oona Kavenna and Co. The allegation in the plaint in the Court of Singapore, so far as appears from a writ of summons for service out of the jurisdiction (Exhibit B), is that all the defendants made two promissory-notes of August 2, 1905, jointly and severally payable to the plaintiffs and two pro-notes of the same date made in like manner payable to V.V.R. Somasundaram Chetty and endorsed to the plaintiffs. According to the evidence of the plaintiffs in the present suit, the pro-notes were executed by the 1st defendant s son, that is, the 1st defendant in the Singapore suit, for himself and as agent for the firm of U. K and Co. that is, the defendants firm and by the other persons as sureties. It is not alleged that the present defendants either of them signed the pro-notes as it is admitted by the plaintiff that they had left Singapore in 1903 and 1904 respectively. He proves, however, that the amounts for which the pro notes were given were debts due from the firm of U.K. and Co, It appears that by the order of the Court dated February 17th, 1908, a concurrent writ of summons was issued and ordered to be served on the two present defendants out of the jurisdiction (Exhibit B) and that, subsequently, all parties were served with notice to show cause why judgment should not be entered up against the present defendants (Exhibit D) and on the proof to the satisfaction of the Court of the service out of jurisdiction, leave was given to enter up judgment as prayed on 28th May 1906 (Exhibit E) and judgment was so entered up on May 30th, 1906, (Exhibit A). To the present suit on this decree, various defences were raised by the two defendants but the suit was dismissed on the ground that the defendants were not carrying on business in Singapore at the time of the institution of the suit in the Singapore Court, their agent being only engaged in winding-up the affairs of the firm and, that being so, the Court had no jurisdiction to entertain the suit. In this Court, the defendants urge the various pleas sat up in the lower Court and I now proceed to deal with them. The first plea is that accepted by the lower Court. I am unable to agree with the Subordinate Judge. There was no dissolution of the partnership and the plaintiffs agent, P.W. 1, swears that the business was still being carried on. Even if they had dissolved partnership, their obligations continued in all things necessary for winding-up the business (Contrast Act, Section 263). The Subordinate Judge himself uses the phrase "the business of the firm had practically failed." The dismissal of the suit on the ground relied on by the Subordinate Judge cannot be sustained,

(2.) The next plea is that the 1st defendant in the Singapore suit was not in fact the agent for the defendants at the date of the suit. I agree with the Subordinate Judge that he was, It is contended that the power-of-attorney given by the second defendant in this suit to the son of the 1st defendant in this suit, i, e., the 1st defendant in the Singapore suit was with reference to some private business of his own in Singapore. This is not so. The document (Exhibit K) is given by him as a trader carrying on business under the name of Oona Kavenna Suvenah Pillay and Co., and appoints him agent for the business then being carried on by him and is signed by him with the firm name as well as his own. It is also inconsistent with his evidence in this suit in which he swears that he gave the power-of-attorney as agent only. That plea, therefore, fails. It is next urged that there was in fact no service out of the jurisdiction on these defendants. I am satisfied on the evidence of Thiruvengidam P.W. No. 3 that he did serve the defendants in India as sworn by him in his affidavit before the Court at Singapore (Exhibit V), That plea, therefore, fails. It is next contended that the 1st defendant in the Singapore suit was only made a party as a son of the 1st defendant to make him personally liable. This contention was not raised before the lower Court and is clearly untenable. He had signed the pro notes as agents for the firm in discharge of the firm s debts and was sued and served as 1st defendant as their agent. The service of the summons is proved by the plaintiff against P.W. No. 1. That plea, therefore, fails.

(3.) The facts, as I find them, therefore, are as follows. The two defendants were carrying on business in Singapore through their agent at the date of the making of the pro-notes, he having been duly appointed their agent by the power-of-attorney dated March 16th, 1905, (Exhibit K). He signed the pro-notes on August 5th, 1905, as their agent in discharge of the firm s liabilities. The suit was brought against him as agent of the firm, against the firm and against the defendants as partners in the firm. The agent was duly served in the jurisdiction and the partners were served with a concurrent writ out of the jurisdiction in British India, they being British Indian subjects. It is argued by the defendants that even on these facts, the Court had no jurisdiction to pass a decree against them. The law is now settled as laid down by Fry, J. in Rousillan v. Rousillan 14 Ch. D. 351; 49 L.J. Ch. 338; 42 L.T. 679; 28 W.R. 623; 44 J.P. 663 following Schibsby v. Westenholz 6 Q.B. 155; 40 L.J.Q.B. 73; 24 L.T. 93; 19 W.R. 587 and Copin v. Adamson 9 Ex. 335; 43 L.J. Ex. 161; 31 L.T. 242; 22 W.R. 658 and was lately affirmed by the Court of Appeal in the same words in Emanuel v. Symon (1908) 1 K.B. 302; 77 L.J.K.B. 180; 98 L.T. 304; 24 T.L.R. 85. The circumstances that give jurisdiction are, alternatively: (1) where the defendant is a subject of a foreign country in which a judgment has been obtained; (2) where he was resident in the foreign country when the action began; (3) where the defendant in the character of plaintiff has selected the forum in which he is afterwards sued, (4) where he has voluntarily appeared; and (5) where he has contracted to submit himself to the forum in which the judgment was obtained. Selection of forum, submission by appearance and contract to submit are treated, in Mr. Dicey s Conflict of Laws , under one heading submission.