Norman Macleod, Kt., C.J.
1. The plaintiffs are a firm carrying on business in cotton in Liverpool.
2. They have tiled this suit through their constituted attorney in the Court of the First Class Subordinate Judge at Ahmedabad against the firm of Chandrasing M. Jeaingbhai by its partners and managers (1) Ajitsing Manibhai, (2) Chandrasing Manibhai, a minor by his next friend, to recover damages amounting to Rs. 13,870-4-0 and interest and the costs of a solicitor's bill. In the first place it must be noted that the title of the plaint is not correct. Under Order XXX, Rule 1, any two or more persons being liable as partners and carrying on business in British India may be sued in the name of the firm. In such a case the proper title of the defendant is : 'A B a firm carrying on business in partnership at,' See Appendix A to the Civil Procedure Code, (2) 'Description of parties in particular cases.' Rule 3 provides for the manner of service of the summons where persons are sued as partners in the name of their firm and Rule 6 provides for the manner of appearance of such persons. An individual partner may be sued personally along with the firm : Taylor v. Collier & Co. (1882) 30 W.R. (Eng.) 701 It is not therefore correct to sue persons as partners in the name of the firm by a partner or manager, and the proper title of the defendants in the suit should have been:-
Defendant 1 Chandrasing M. Jeisingbhai a firm,
Defendant 2 Ajitsing Manibhai a partner in the firm,
Defendant 3 Chandrasing Manibhai a partner in the firm.
3. It does not appear from the way in which the plaint is drafted whether there are three defendants or only one, the firm of Chandrasing M. Jesingbhai.
4. Although the written statement is headed
'Plaintiff'. The (Grunning Company.
Defendant. Chandrasing Manibhai, a firm
it is signed; by Ajitsing Manibhai for himself and as guardian of the minor Chandrasing Manibhai.
3. Para 2 states 'the suit filed by the plaintiffs against us the defendant No. 1 and the minor defendant No. 2 is false.
4. Para 3 states that Ajitsing was only doing the work of management of the firm and was neither a partner nor a proprietor, the plaintiffs had no right to file a suit against him personally or against the person of defendant No. 2. Therefore the suit could not be maintained.
5. The further defences in the written statement may be summarised as follows.-
Although the plaintiffs stated that they had purchased 100 bales American Cotton January delivery 1921 on behalf of defendants, defendants did not accept the contract as it was received late, and even before it was signed plaintiff's asked for margin. Plaintiffs should have closed the transaction when the market began to go down. If margin was not given the plantiff's could not leave the transaction outstanding. Damages could only be claimed according to the rate prevailing on the day on which the rates began to go down.
6. The provisions of Order XXX are very complicated and technical, and are seldom sufficiently studied by practitioners in the Subordinate Courts. A summons under Order XXX, Rule 3, shall be served either upon any one or more partners, or at the principal place at which the business is carried on within British India upon any person having at the time of service the control or management of the partnership business there.
7. It seems that the summons in this case was served on Ajit-tting, so that was good service on the firm, since whether he was a partner or not, he admits that he was the manager.
8. Under Order XXX, Rule 6, where persons are sued as partners in the name of their firm, they shall appear individually in their own names but all subsequent proceedings shall nevertheless continue in the name of the firm.
9. It is not easy to observe the provisions of this somewhat incongruous rule.
10. Each partner has to appear individually, each partner can put in a separate written statement but each written statement; is the written statement of the firm. It is only when a person is sued personally along with the firm that he may put in a personal defence.
11. In this case there is no written statement of the firm, though It may be said that the defences raised in the written statement of Ajitsing were the same defences as would have been raised in a written statement by the firm.
12. In this state of the record, the Judge should have drawn the plaintiffs' attention to the provisions of Order XXX, Rule 8.
13. Ajitsing was protesting that he was not a partner Plaintiffs could disregard the appearance under protest altogether and have the summons served as provided by rule 3, or they could J contend that the person served was a partner at the time the cause of action accrued, and apply on that basis either to have the appearance entered struck out, or to have the denial of partnership struck out of the appearance,
14. None of these courses was chosen by the plaintiffs. The suit proceeded as if the firm had been duly served, as well as the individuals alleged to be partners.
15. Issues Nos. 1 to 10 were raised on the merits. The answer to issue No. 11 'Are the defendants 1 and 2 liable under the contract' was 'The defendant firm are liable.'
16. The answer to issue No. 12 ' Are defendants 1 and 2 personally liable under the plaintiff's claims' was 'Defendant 1 is liable.'
17. A decree accordingly was passed against the firm of Chandrasing M. Jeshingbhai and against Ajitsing as one of its partners, The firm and Ajitsing appealed and appeared by the same counsel.
18. The principal grounds of appeal were-
1. That the Subordinate Judge had erred in holding that Ajitsing was a partner instead of holding that his mother was the sole proprietor of the firm.
2. That he had erred in not holding that there was no agreement.
3. That he had erred in not holding if there was a valid agreement that the plaintiff should have re-sold the goods at a much earlier date,
4. That the loss actually suffered had not been proved. Not a single objection was raised with regard to the service of the summons or the frame of the pleadings.
19. It would not then be equitable for this Court in the circumstances of the case to do more than we have done in pointing out the defects of the procedure in the lower Court, since the merits of the case have in no way been affected thereby.
20. We accept then the fact that a decree has been passed against the firm and against Ajitsing personally, and that both the firm and Ajitsing have appealed against that decree.
21. [ His lordship dealt with the merits of the case and passed the following order.] I think the plaintiffs are entitled to succeed, but they are not entitled to interest on the claim before the date of the suit, nor can they recover the amount of their solicitors' coats before suit. There will, therefore, be a decree for Rs. 13,870 with interest at six per cent, from the date of the suit until judgment with costs in both Courts in proportion, with interest on judgment at six per cent.
22. [ After setting out the facts, his lordship remarked: ] While the arguments were proceeding, the learned Chief Justice called the attention of the parties to the defect in the pleading'. A reference to the plaint and the written statement in this case shows that not much regard was paid to the rules which regulate suits against firms (Order XXX, Code of Civil Procedure. 1908). The parties themselves, however, apparently felt no embarrassment on that account. In a suit against a firm, it is permissible to the plaintiff to make one or more partners defendants in conjunction with the firm. In the plaint in this case Ajitsingh is described both as the manager of the firm and a partner, He accepted service of the summons; he signed and put in the one written statement in the case; he also signed the Vakalatnama which accompanied it. Some of the issues framed in the suit related to the merits of the plaintiffs' claim; but there were others which had reference personally to Ajitsing and Chandrasing. In these circumstances, the decree of the lower Court cannot be disturbed merely on account of this defect unless it affected the merits of the case or the jurisdiction of the Court; and it is not contended that any of those results has followed in this case (s. 99, Code of Civil Procedure). The rest of the judgment is not material to this report.]