VIMALA AND CO Vs. SIVAM AND CO BY PARTNERS, NKMSPVALLIYAPPA CHETTIAR, MSCHOCKALINGAM CHETTIAR AND KRMTTVVEDACHALAM 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, as the second defendant in the suit entered appearance only on behalf of myself and in my individual capacity. I am not now a partner in the defendant company. Apart from my individual interest I have no other interest in the suit. The written statement filed by me is only to safeguard my personal right. The learned Master in an elaborate judgment held that the written statement filed by the second defendant should be regarded as that of the firm.

(3.) The petitioner prefers this appeal against the order of the Master. Order 30, Civil Procedure Code, prescribes the procedure to be followed in the case of suits by or against firms and persons carrying on business in names other than their own. Under Order 30, Rule 1 any two or more persons claiming or being liable as partners may be sued in the name of the firm of which such persons were partners at the time of the accruing of the cause of action. Order 30, Rule 3 prescribes the mode of service. It says that the summons shall be served upon any one or more of the partners or at the principal place of business. Rule 6 says that the partners so served shall appear individually in their own names, but all subsequent proceeding's shall nevertheless continue in the name of the firm. Anantakrishna Aiyar, J., in a Full Bench decision in Mahomed Yusuf V/s. Badsha Sahib describes the procedure under Order 30, Civil Procedure Code, in the following terms: Thus an alternative procedure was prescribed, of which parties could, in their option, take advantage. In suits against firms, if the plaintiff be so minded, he could sue any two or more persons claiming or being liable as partners and carrying on business in British India, in the name of the firm of which such persons were partners at the time of the accruing of the cause of action. The plaintiff in such cases is not bound to disclose the names of the partners in the plaint. In this case the procedure prescribed under Order 30 has been adopted and therefore the plaintiff is within his legal rights in suing the partnership in the name of the firm alone.