Mohammadali Kunju Ahammed Kunju vs Abraham George and others

Govinda Pillai, J.—The 3rd Defendant is the appellant. The suit is for money due under a chitty hypothecation bond Ex. A dated 26-8-1106 executed by the 1st defendant in favour of the foremen who were Puthenpurakkal Varki Thommi and Vazhapalhl Poulose Kumvila. The 1st defendant prized the ticket on 1-3-1106 at the seventh drawing and drew the amount. He defaulted to pay the subscriptions thereafter. In Thulam 1106, there was an Udampady between the two foremen and their children. By this Udampady one of the foreman Poulose Kuruvila and the son of the other foreman, Thommi Varghese, were authorised to realise the outstandings or assign the same in favour of others for money due to them. Accordingly the plaintiff was given the assignment of the rights under Ex. A by Ex. C dated 2-5-1119.

The plaintiff stated that he came to know that in execution of the decree in O. S. 642 of 1108 of the Alleppey Munsiff''s Court, the Keralavilasom Bank impleaded in this case as the 2nd defendant had purchased the rights under Ex. A bond, that the said decree & the execution proceedings were invalid and not binding on the foreman mainly because the foremen were not impleaded in the above suit, that the said decree was obtained against P. Thomas and company which had been a concern different from that which conducted the chitty, that even if P. Thomas & Company were connected with the chitty, the decree would not be binding on them since the partners in that firm were not impleaded in that suit, that Thommi Varghese who was impleaded in that case was not competent to represent P. Thomas & Company as he had no control or management of the present concern and that the summons in that case was returned unserved. The suit was therefore for a declaration that the decree and execution proceedings in O. S. 642 of J108 would not be binding on the foremen of the chitty and for recovery of 25200 fanams with interest.

Defendants 2 & 3 had filed written statements in the case. Their main contentions were that the decree in O. S. 642 of 1108 of the Alleppey Munsiff''s Court was validly obtained against the 1st defendant and P. Thomas & Company of which the partners were Varki Thomas and Poulose Kuruvila, that the foremen of the chitty were the partners in the said firm, that in execution of this decree which is Ex. XIII in the. case, the rights under the plaint hypothecation bond as well as the plaint properties were purchased by the 2nd defendant, that Thommi Varghese the son of one of the partners was in management and control of P. Thomas & Company at the relevant time, that the decree was properly obtained and was binding on the partners of the firm, that Ex. C assignment relied on by the plaintiff was executed by Thommi Verghese and others, in favour of the plaintiff who is the son-in-law of Thommi Varghese without any consideration, that it was invalid as at the time of the assignment, the foremen had no subsisting right over Ex. A and that the decree and the execution proceedings in Ex. XIII case were not liable to be set aside.

The 2nd defendant which went into liquidation had purchased the right under the chitty hypothecation bond and also the 1st defendant''s right to the equity of redemption in execution of Ex. XIII case. Thus the 2nd defendant was the full owner thereof, and this right was sold in auction by the liquidator and purchased by the 3rd defendant. He had obtained delivery of possession of the properties. In addition to this the 3rd defendant contended that the suit was barred by limitation.

The plaintiff filed a replication where it was stated that P. Thomas & Company had nothing to do with the chitty concern except what is contained in clause 24 of the chitty Variola authorising Thommi Varghese the son of Varki Thommi one of the partners to attend to all the affairs in the chitty and apart from this Thommi Varghese had no right to the chitty assets. Since the chitty foremen were not defendants in O. S. 642 of 1108, neither the plaintiffs nor the 3rd defendant in that case could get any right by virtue of the decree and execution proceedings and he pressed for a decree as prayed for.

The findings, of the court below are (1) P. Thomas & Company, of which the two persons Thommi Varki and Poulose Kuruvila are partners, are the foremen of the chitty in question. (2) at the time when Ex. XIII decree was obtained Thommi Varehese was in control or management of P. Thomas & Company. (3) Since no direction of court was taken in Ex. XIII case to serve summons on the person in management of P. Thomas & Company, the second defendant in that, suit, the summons cannot be considered as validly served under Order XXX, R. 3 and as such the court had no jurisdiction to pass Ex. XIII decree against P. Thomas & Company: in other words Ex. XIII decree is one passed without jurisdiction against P. Thomas & Company. (4) The 3rd defendant is incompetent to question the validity of the assignment of the chitty security bond in the name of the plaintiff. (5) The plaintiffs right to claim subscriptions which fell due in Medom 1106 and Thulam 1107 is barred by limitation.

The plaintiff was therefore, given a decree to release Tr. Rs. 3100 with interest. The parties were directed to bear their costs. The appellant''s arguments related to the correctness of the third finding given above. If his position is accepted then there was nothing for the foremen to assign and the suit has to be dismissed. The plaintiff-respondent has, filed a cross appeal memorandum claiming the subscriptions which fell due in Medom 1106 and Thulam 1107.

The result of the appeal would depend on the question whether the non-observance of the direction in Order 30. R. 3. C. P. C., would result only in an irregularity which can be cured by S. 99. C. P. C., or whether it is an illegality affecting the jurisdiction of the court. Order XXX of the CPC lays down the rules for suits by or against firms and persons carrying on business in names other than their own. Obviously, as pointed out in - Ram Kumar Ram Chandra Vs. The Dominion of India, , this is intended to avoid a long array of the plaintiffs or defendants and it prescribes a convenient mode of institution of suits by or against the partners collectively in the names of the partners who carry on business under a particular name. The firm as such need alone be described as the plaintiff or the defendant, and the addition of the words "represented by A. a partner or by B. the Manager" does not alter the character of the suit as one by or against the firm. In describing the cause title of such suit the name of the plaintiff or the defendant should be the name of the firm only without addition of the name of the partner or Manager suing although (sic) of such name does not matter in the least. Such description can only be treated as mere surplusage. See the decisions in - Motilal Jasraj Vs. Chandmal Hindumal, and - Bhadreswar Coal Supply Co. Vs. Satis Chandra Nandi and Co. and Others, .

It came necessary to mention this aspect for there was an argument advanced by the respondent''s learned Advocate that Ex. 13 suit was not against P. Thomas & Company but only against Thommi Varghese, the Manager. This is against what the plaintiff himself pleaded in the lower court. Clause (b) of paragraph 10 of the plaint runs thus: ("The 2nd defendant in that case was P. Thomas & Company. That was another partnership concern of the (sic)" In Ex. 13 the description of the 2nd defendant was "Thommi Varghese. aged 40, merchant and manager for P. Thomas and Company in Puthenangadi. Alleppey". There is no doubt that the suit had been instituted against the partnership concern P. Thomas & Company. The finding of the lower court that this P. Thomas & Company were the foremen in the chitty was not questioned before us for the overwhelming evidence in the case fully justifies this finding.

The question then is whether the taking of summons to Thommi Varghese as manager of P. Thomas & Company without a specific direction from court as provided for in R. 3 of Order 30, C. P. C. will make the decree Ex. 13 invalid. The court which passed Ex. 13 decree has the jurisdiction to entertain, try and decide the suit in which that decree is passed. Thus want of jurisdiction to pass Ext. 13 decree does not at all arise for consideration. It is evident that the summons of suit was not issued after taking the direction mentioned in R. 3 of O. 30. It lays down that when persons as sued as partners in the name of their firm, the summons shall be served upon any one of more of the partners or at the principal office at which the partnership business is carried on within India upon any person having, at the time of service the control or management of the partnership business there, as the court may direct. It is obvious that a direction of court is necessary for such service either on the partner or partners or on the person in control or management of the business. If the summons had been issued and sewed on the manager without a specific direction of the court in the behalf, will it affect the jurisdiction of the court to pass a decree against the firm or whether it will only be an irregularity, error or defect that can be curse by S. 99. C. P. C.

In this case summons was served, though by affixture, on Thommi Varghese as manager of the firm. He was really the manager of the firm at that time and tins is further evident from Ext. D the partnership agreement. He had also been authorised to sue and to defend on behalf of his father, one of the two partners on behalf of the firm. The decree, was passed in 1108 after the contest by the 1st defendant in that case. He is the 1st defendant here also. Then in 1113, Thommi Varghese filed the original of Ext. 4 petition to set aside the ex parte decree against him. Ext. 3 is copy of the affidavit filed in support of Ext. 4. In this he seems to have been under the impression that the decree was personally against him. This court dismissed his petition by Ext. 6 order holding that the petition was not maintainable as the decree was against the company and not against the person of the petitioner. It was thereafter on 1-3-1115 as seen from Ext. 14 execution diary that the rights under the plaint hypothecation bond were sold in court auction. In 1119, an assignment of the identical bona was taken in the name of the plaintiff who is none other than the son-in-law of Thommi Varghese and the present suit was filed.

The only defect pointed out was cine by a petition the direction of the court as to the mode of service of summons was not obtained. The summons itself was served through court, and the service without a direction can only be irregularity curable under S. 99, C. P. C. This latter section is enacted in order "to prevent technicalities from overcoming the ends of justice and from operating as a means of circuits, of litigation". Vide - AIR 1937 233 (Privy Council) and - Piare Lal v. Bhagwan Das''. AIR 1933 All 29. (E). A decision which is correct on the merits and is within the jurisdiction of the court should not be upset merely for technical and imma�terial defects Vide - Niranka Sashi Roy and Another Vs. Swarganath Banerjee, ; - Ishan Chandra Banikya Vs. Moomraj Khan, , and - AIR 1926 402 (Lahore) . In a case like the one before us, the Calcutta High Court held in - Keen Robinson and Co., Ltd. Vs. Lily Biscuit Co., that when in fact a partner had been served with summons but no directions of the court under O. 30. R. 3 had been first obtained, such service might be deemed good service. Reference was made by the respondent''s learned Advocate to the three decisions for the position that direction of court should be taken before summons was issued. They are - ''Gokuldas v. Dilsukharam'', AIR 1943 Sind 188 (J): - ''Narain Das & Co. v. S. M. Queshi'', AIR 1933 Sind 102 (K) and ''Indian General S. N. & H. Co. v. Lai Mohan Saha'', AIR 1916 Cal 818 (L).

In the ''AIR 1943 Sind case (J)'', a prohibitory order had been issued in execution of a decree to a firm not to make payment to the defendant. It had been accepted by one Mankodi who had affixed his signature thereto and also the rubber stamp of the garnishee firm. Then the decree-holder applied for a direction to the garnishee to produce the money in court. Notice on that also had been served as mentioned before. There was no appearance for the garnishee and so an order for payment of money in court was passed. Then the garnishee firm appeared and applied under O. 9, R. 13, C. P. C. to set aside the ex parte order. The Court finding that no direction of court had been taken for serving notice as provided in Order 30, R. 3. C. P. C. set aside the order and restored the garnishee proceedings to file. In the course of the order Lobo J., observed that Order 30, R. 3 and Order 48, R. 2. C. P. C. should be read together that in order to effect proper service in this matter the directions of the Court should have been obtained in the first instance and service should have been effected in the manner provided for in O. 30. R. 3, C. P. C., that he cannot treat these matters of service as mere formalities and that strict compliance with the provision of law alone will justify a court in holding service to be good under Order XXX.

The notice in that case was addressed to the firm and it was accepted by Mangodi who was not a partner of the firm. Neither the notice was addressed to Mankodi as manager of the firm, nor had he accepted the notice describing as such and so his Lordship observed thus at page 190:

The notice issued by the court should have specified that it was being served upon the person having at the time of service the control or management of the partnership business. It did not do so.

If the notice had been directed as indicated above, it was apparent that the service would have been good, and the absence of direction by court would only have been an irregularity curable under S. 99, C.P.C. There was defect in the issue of notice and in service therefor. The service of notice was not considered to be proper and that induced the court to set aside the ex parte order. The decision does not say what the effect would have been if the notice had been served on one of the partners or on the person in control of the business or on the manager. It also does not consider whether the defect is an irregularity or an illegality.

On the facts of the case there, the opinion was expressed and it does not in any way affect the case before us. Here the firm is the defendant and summons had been served on the manager of the firm. The manager knew of it. He applied to set aside the ex parte decree treating it as one passed against him. He was told that the decree is against the firm and not against him. Yet no steps were takers by the firm to get the decree set aside. Thereafter the decree was executed and the right under the bond sold in 1115. The irregularity is one that can be cured under S. 99, C. P. C.

In the ''AIR 1933 Sind case (K), the suit was by two partnership firms of the same name. The managing partner of the first firm and the secretary of the second firm had verified the plaint. The Registrar wanted the description to be clarified and this went before the Additional Judicial Commissioner for orders. Following the decision in '' AIR 1916 Cal 818 (L), it was held that where a corporation or firm is sued as a defendant the plaint should be accompanied by a separate application under O. 29. R.2 or O. 30, R. 3, C. P. C., as the case may be stating where, in what manner and on whom the plaintiff wishes the summons to be served. This does not decide the question before us. In '' AIR 1916 Cal 818 (L)'', the suit was against the defendants described as the India General Navigation and Railway Company and the Rivers Steam Navigation Company by their joint agent K. E. Rogers. Rogers entered appearance and pleaded that the suit was not maintainable against him. When the case came on for trial it was represented to the court on behalf of Rogers that he had retired from the services of the companies mentioned and had in fact left the country. The plaintiff therefore applied for leave to omit the name of Mr. Rogers from the plaint. The application was granted and the suit was decreed ex parte as if it had been instituted properly against the two companies.

There was a petition to set aside the ex parte decree and while allowing the same their Lordships observed that the suit was substantially against Mr. Rogers although he was sued in his capacity as the agent of the two companies mentioned, that the suit should have been framed as one against the two companies described by their proper names, that with the removal of Roger''s name from the party array the plaint will stand amended as against the two companies and that fresh summons should have been issued to the defendants before decreeing the same. This case also does note touch the matter now before us.

On a consideration of all the facts mentioned above, we hold that there was proper service of summons on the firm P. Thomas and Company in Ext. 13 case, that the omission on the part of the plaintiff that to seek the direction of the court for service of summons was only a defect or irregularity that can be cured by S. 99, C. P. C., that the decree and execution proceedings in that case are valid and that by obtaining the assignment in question the plaintiff had not obtained any right over the chitty bond. The decree of the court below is thus not maintainable. In reversal therefore of the decree of the lower court, the plaintiff suit is dismissed with costs to the 3rd defendant throughout. Since the plaintiff''s suit stands dismissed, there is no occasion for considering the cross-appeal memorandum on the merits. It is dismissed but without costs.