Vimala and Co. vs Sivam and Co., by Partners, N.K.M.S.P. Valliyappa Chettiar, M.S. Chockalingam Chettiar and K.RM.T.T.V. Vedachalam Chettiar

Subba Rao, J.—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.

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.

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 T. Mohamed

Yusuf and Others Vs. Khan Bahadur Muhammad Sadulla Badsha Sahib and Others, 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.

The firm was also served in the prescribed manner, that is by serving the notice upon the respondent who is one of the partners. Under Order

30, Rule 6, though the defendant is entitled to appear individually, the subsequent proceedings in the suit shall continue in the name of the firm.

It is therefore clear that the procedure adopted by the respondent is irregular and does not comply with the provisions of Order 30, Civil

Procedure Code. He was not entitled to describe himself as second defendant when the plaintiff had adopted the alternative procedure in instituting

the suit against the firm and he was also wrong in filing the written statement on behalf of the second defendant. He should have filed the written

statement on behalf of the firm.

It is not necessary to consider the various decisions cited by the learned Master as Mr. Viswanatha Aiyar did not question the correctness of the

conclusion arrived at by him. The Master correctly states the law on the point when he stated that the respondent the second named partner would

in his capacity as a partner be entitled to file a written statement and that the only consequence of his not being imp leaded in his individual capacity

was that his written statement would be regarded as a written statement filed on behalf of the firm. In another place in his judgment the Master

pointed out that in the written statement he did not deny that he was a partner at the time the transactions covered. by the suit were entered into

and that he also sought to raise defenses generally on behalf of the firm. In my view the Master''s view of the law and also his interpretation of the

pleadings is correct. As I said before, Mr. Viswanatha Aiyar learned Counsel for the applicant does not question the same but he wants that

position to be made clear so that further complications may not arise in future and the defendant may not persist in his attitude. I think that his

request is reasonable, and the respondent may not have any grievance if the position is made clear. I therefore direct that the description of the

respondent as defendant may be deleted and that the written statement filed by him should be treated as one filed on behalf of the firm. With these

directions the appeal is dismissed, in the circumstances, without costs. The costs before the Master will be borne by the parties.