M.S. Chockalingam Chettiar vs Vimala and Co.

Subba Rao, J.—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.

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.

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. Anundji & Co. ILR (1921) 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. Peary Lal ILR (1930) All. 951, Parshotam Lal Jaitly v. Henley''s

Telegraph Works ILR (1933) All. 719 and Ram Das and Others Vs. Ram Babu and Others, 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.

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.