Dipti Mitra, Proprietress vs Himangshu Krishna Mitra

Ashamukul Pal, J.—This Rule arises out of an application u/s 25 of the Provincial Small Causes Courts Act where the High Court for the purpose of satisfying itself that a decree or order made in any case decided by that Court was according to law may call for the records. Accordingly, the record was called for. The suit as made out in the plaint was for a decree of a sum of Rs. 5,000/- and costs on an accommodation loan taken by the defendants Smt. Dipti Mitra and Messrs. Oriental Enterprises from the plaintiff to the tune of Rs. 4,000/- on June 26, 1976 executing a promissory note signned by Dhirendra Nath Mitra husband of the defendant no. 1 on the capacity of Constituted Attorney of Defendants. Money was not repaid on repeated demands and a suit was filed in the Small Causes Court for a sum of Rs. 5,000/- which was within the jurisdiction of that court giving up Rs. 400/- which became accrued due by way of interest. The defendants filed the Written statement denying the validity of the transaction and capacity of the plaintiff to get a decree. The defendants took the ground that non joinder of Dhirendra Nath Mitra, the husband and the Constituted Attorney in the suit was fatal for the suit. The defendants also denied any knowledge about the execution of the said Promissory Note by Dhirendra Nath Mitra. The defendants also denied the authority of Dhirendra Nath Mitra to execute such a Promissory note. It is also denied that the plaintiff had lent any money to the defendants or to any of them. The defendants further assert that the plaintiff had no cause of action against the defendants. The learned Judge on the assessment of evidence had, however, decreed the suit in favour of the plaintiff. He observed in his judgment "It further transpires from the documentary evidence as well as from the oral evidence that the defendant Smt. Dipti Mitra was the sole proprietress of M/s. Oriental Enterprises at 242, Jessore Road Clive House Dum-Dum". He further observed that the said fact was admitted by the defendants. On further scruitiny of the evidence, he came to the finding that the husband Dhirendra Nath Mitra was looking after the business and giving instructions to the lawyer on her behalf. After a careful consideration of the evidence adduced both oral and documentary, he found that Rs. 4000/- was advanced as loan to Oriental Enterprises on the basis of an account payee cheque and the said cheque was duly encashed through its own account and admittedly the said amount has not been repaid by the defendants.

Here in this connection I want to set out the arguments of Mrs. Dipti Kana Basu appearing for the defendants. Her argument is that the learned Judge was wrong in coming to the finding that husband was the agent of the wife and the learned judge should have held that the creditor should have satisfied himself about the right or authority of the husband to bind the wife for the loan advanced and she generally argued that the decision was based on improper and erroneous appreciation of evidence. In support of her contention Mrs. Bose argued before me that as on the promissory note the name of the wife Sm. Dipti Mitra did not appear anywhere the promissory note in question does not and cannot bind the principal. She referred to me the provisions of Sections 27 and 28 of the Negotiable Instruments Act. But here one thing has been missed in my view that it was not a suit on a promissory note as such it is a suit for money lent and advanced and it appears from the evidence that the money had been encashed after the cheque being an Account payee cheque and credited in the account of Messrs. Oriental Enterprise of which Sm. Dipti Mitra was admittedly the proprietress.

Mr. Sen rightly pointed out to me the evidence of P. W. 1 where it has been deposed by Anil Kumar Bose that the cheque was an Account payee cheque on Oriental Enterprise. The amount of the cheque was Rs. 4,000/- and it was debited in favour of the Oriental Enterprise from the account of the plaintiff. Therefore, there is clear evidence that the money had been appropriated by the Oriental Enterprise and moreover the promissory note which was given as it appears was made over for a collateral security. The plaint states that the defendant took an accommodation loan from the plaintiff to the tune of Rs. 4000/-on June 26, 1972 executing a promissory note signed by D.N. Mitra, husband of the defendant no. 1 on the capacity of the Constituted Attorney of the defendants. Therefore, it was a case of money lent and the Promissory note was a document given by way of collateral security. Moreover, on the promissory note itself at the bottom. It is written per pro Oriental Enterprise.

The words "per pro" indicate that the person signing the note is not doing on his personal capacity, but as an agent. The words "Per pro" suggest that the person signing as such has but a limited authority to sign and signs in a representative capacity. Therefore when the words ''per pro'' occur it prima facie excludes the personal liability of the person signing. Mrs. Bose refers to me Wharton''s Law Lexicon, 14th Edition page 807, but I think the annotation of the words ''per pro'' as they occur there instead of helping Mrs. Bose serves the plaintiff''s case. According to Wharton''s, the person signing a bill under the cover of per pro signs it in a representative capacity and is not personally liable on the bill. Therefore, when Dhirendra Mitra signed the pronote as per pro, he was acting as indicated thereby as an agent excluding his personal liability for it and he was doing it on behalf of Oriental Enterprises as it appears from the Promissory note itself.

Mrs. Bose refers to me a judgment reported in AIR 1961 S.C. at page 1449 (S.N. Dutt Vs. Union of India). Their Lordships of the Supreme Court were pleased to observe in the said Judgment that which an individual carries on business in some name and style the notice has to be given by the individual in his own name; for the suit can only be filed in the name of the individual The proposition is different in the present case. Here Smt. Dipti Mitra was carrying on business under the name and style of M/s. Oriental Enterprises. Therefore, here an individual was carrying on business in assumed name. The law enjoins that if a suit is to be filed, it has to be filed in the name of the individual person and not in the business name unless it is a partnership. But this bar does not exist when a suit is filed against that business in its trade name. Therefore, here the framing of the suit is perfectly in order and Mrs. Bose''s argument that D.N. Mitra was a person to be liable is also unacceptable because he signed it ''per pro'' thereby manifestly excluding his liability.

Mrs. Bose further argued that the words "per nro", although there, do not indicate that Dhirendra Mitra was acting as an Agent. That argument of Mrs. Bose also is not acceptable because the signature with the words "Per Pro" operates prima facie as notice that the persons signing had only a limited authority to sign unless otherwise suggested and/or proved and principal and not the agent is bound by such signature. Here in this case, Principal was M/s. Oriental Enterprises of which admittedly Smt. Dipti Mitra was the proprietress. Nextly, Mrs. Bose argues that, even it indicated that he was doing it as agent, it would still have required the creditor to make an enquiry about the exact authority and if he did not do that, he cannot recover the money for his laches. That argument is also not tenable. Whoever is the proprietor/proprietress of Messrs. Oriental Enterprises would be liable when in its letter head one has signed as per pro. Besides the sum of Rs. 4000/- covered under the cheque was credited in the account of Rs. M/s. Oriental Enterprises. I asked Mrs. Bose in course of argument whether the husband Sri Dhirendra Nath Mitra and wife Mrs. Dipiti Mitra have been living separate or together and I understand that they were and have always been living together. It is rather a very ingenious defence on the part of the wife to disown the liability when it is admitted that she was the sole proprietress of the business and the amount of cheque was credited in its account and her husband in the letter containing the name of the business in print signed the relevant document as "per pro".

On the general conspectus I do not find any reason to set aside interfere the judgment of the learned Judge. He has assessed the evidence both oral and documentary in a proper manner, considered the defence in every angle and in no sense the judgment and/or finding can be said to be perverse in fact or erroneous on law.

On careful consideration of all the relevant matters, I can not accept the contentions of Mrs. Bose although argued ably and I find no ground to set aside interfere the judgment and finding of the learned Judge. Hence it is ordered that the Rule is discharged : stay order, if any, is vacated. Let the records be sent down expeditiously.

There will be no order as to costs.