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 31 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.) It is settled law that though Order 30 prescribes a procedure enabling the plaintiff to sue all the partners in the name of the firm, in law all the partners shall be deemed to be in the array of defendants in the capacity as partners. In Ram Prosad Chimonlal V/s. Anundji & Co. (1921) I.L.R. 49 Cal. 524 this legal position was enunciated in clear terms. At page 527 the following observations are made: It is settled law that the effect of the provisions with regard to suing partners in their firm name is merely to give a compendious mode of describing in the writ the partners who compose the firm and that the plaintiff who sues partners in the name of their firm in truth sues them individually,just as much as if he had set out all their names....The firm name is a mere expression not a legal entity, and for convenience it may be used for the sake of suing and being sued. This principle was accepted and followed in the later decisions in Sital Prasad V/s. Peary Lal (1930) I.L.R. 52 All. 951, Parshotam Lal Jaitly V/s. Henley's Telegraph Works (1933) I.L.R. 55 All. 719 and Ramdas V/s. Ram Babu A.I.R. 1936 Pat. 194 It is really a facility given by the Legislature in order to avoid mentioning a large number of names either in the category of plaintiffs or in the category of defendants. Therefore for the purpose of applying Order V-A, Rule 8 the partners may be treated as defendants to the suit.