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Chowringhee Properties Ltd. Vs. Bright and Mc Ivor - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 4095 of 1953
Judge
Reported inAIR1960Cal294
ActsCode of Civil Procedure (CPC) , 1908 - Order 30, Rule 3
AppellantChowringhee Properties Ltd.
RespondentBright and Mc Ivor
Cases ReferredKeen Robinson and Co. Ltd. v. Lily Biscuit Co.
Excerpt:
- .....suit said that the applicant was interested in some way or other in the assets of the defendant firm business and therefore acceded to the application of that person to be made a party defendant. the decision in 40 cal wn 677 does not in my view prevent r.n. poddar who has filed a written statement from asking for an adjudication as to whether the plaintiff has properly served the defendant. 7. under order 30 rule 3 where persons are sued as partners in the name of their firm the summons shall be served either (a) upon any or more of the partners or (b) at the principal place upon 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 and such service.....
Judgment:

A.N. Ray, J.

1. This is a suit for the recovery of possession of premises No. 16A Chowringhee Road, Calcutta. The suit was filed against the defendant described as Bright Mc Ivor carrying on business at 16A Chowringhee Road in the town of Calcutta within the aforesaid jurisdiction.

2. Mr. Advocate-General appearing on behalf of the defendant raised only two issues :

1. Has the defendant been properly served in accordance with law?

2. Is the suit maintainable?

3. There was an application by the plaintiff on 3-2-1954 for an order that the returnable date of the writ of summons be extended by one month from the date of the order to be made and an order that leave be granted to the Sheriff of Calcutta to serve the duplicate cooy of the writ together with the copy of plaint on R.N. Poddar on behalf of the defendant firm. In that application in paragraph 2 it was alleged, 'the business of the defendant firm is being carried on by one R.N. Poddar who is also in complete charge and management of the said business'. Orders were passed in terms of prayers fa) to (c) of the petition by the learned Master on 6-2-1954. Along with the writ there was a notice taken out by the attorneys for the plaintiff addressed to R.N. Poddar stating that the writ of summons in the suit was being served on R.N. Poddar as the person having at the time of such service the control and management of the defendant firm. On the reverse of the notice there is an endorsement which reads as follows:

'Received a copy Bright and Me Ivor, G. Shroff, Manager. 23-2-1954.'

The other endorsement is by G.C. Mukherjee, who I am told is still in the employment of the Sheriff. The endorsement made by him is as follows:

'Served by me on 23-2-1954 at about 4 p.m. a copy of the within notice on Sri G. Shroff, Manager of the defendant firm for R.N. Poddar as a person having the control and management of the defendant firm.'

The third endorsement on the notice is made by the Deputy Sheriff bearing date 11th March 1954 which reads as follows;

'I do hereby certify that I did on 23-2-1954 serve the within notice on the manager of the defendant firm within named.'

This endorsement is described as an answer of the Sheriff and is signed by the Deputy Sheriff for the Sheriff. On the writ there is another endorsement signed by the Deputy Sheriff for the Sheriff and described as the answer of the Sheriff which reads as follows:-

'I do hereby certify that I did on the 23rd day of February, 1954 serve a copy of the within writ of summons with a copy of the plaint on the defendant company within named.'

The date of the answer is 11-3-1954.

4. There is a written statement filed on 22-3-1954. The written statement is described as one on behalf of the defendant, and it is signed as follows:

'Bright and Me Ivor by the pen of R.N. Poodar a person served as a Partner'.

In paragraph 1 of the written statement it is alleged that the defendant is not a firm and the service of the writ of summons on R.N. Poddar as a partner of the defendant firm is wholly ineffective nor is R.N. Poddar a partner of the defendant firm. It is said that the said R.N. Poddar has entered appearance under the protest.

5. In the present case the plaintiff sought the direction of the Court to serve the writ on R.N. Poddar' on behalf of the defendant firm alleging that the business of the defendant firm was being carried on by R.N. Poddar who was in complete charge and management of the said business. It is indisputable that there has been no service on R.N. Poddar. There was service on a person called G. Shroff who has been described by the Sheriff's Officer as manager of the defendant firm. Mr. Advocate-General contended that the words 'person having at the time of service the control or management of the partnership business' are not synonymous with the word 'manager'. In other words a person may be a manager and yet he may not have control or management of the partnership business within the meaning of Order 30 Rule 3(b). I agree with the contentions of Mr. Advocate-General and I am of opinion that service on G. Shroff as manager is not service under Order 30 Rule 3(b) on R.N. Poddar as a person having at the time of service control or management of the partnership business. The answer by the Sheriff in one place suggests that the service was on the manager of the defendant firm and in another place suggests that the service was on the manager of the defendant company. In my opinion the contention of Mr. Advocate-General is correct that there has been utter confusion with regard to service. It is impossible to hold in view of the endorsements made by the Sheriff's Officer whether there has been service on the defendant as a firm or as a Company.

6. The question remains as to whether it is competent for R.N. Poddar to canvass the question of service at this stage. Counsel for the plaintiff relied on the decision reported in Sreemutty Dhai v. Bhadarmull Hargobindroy, 40 Cal WN 677. That case related to an application by party not served with the writ of summons but interested in the defendant firm to be made a party defendant on the allegation that the applicant was not a partner but apprehended that at some future time the plaintiff might attempt to execute a decree against the applicant on the basis of partnership, Panckridge J., held that it was a case where bothparties in that suit said that the applicant was interested in some way or other in the assets of the defendant firm business and therefore acceded to the application of that person to be made a party defendant. The decision in 40 Cal WN 677 does not in my view prevent R.N. Poddar who has filed a written statement from asking for an adjudication as to whether the plaintiff has properly served the defendant.

7. Under Order 30 Rule 3 where persons are sued as partners in the name of their firm the summons shall be served either (a) upon any or more of the partners or (b) at the principal place upon 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 and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without India. Either mode of service is effective in seeming a decree against the firm. In the case of first mode of service the partner served is also liable personally and may be proceeded against in any execution under Order 21 Rule 50. The partners not so served cannot of course lie made personally liable under Order 21 Rule 50(1)(c). On the other hand service by the second mode of the person in control though good upon the firm is not service upon each partner so as to make him liable personally. In such a casa if it is desired to proceed personally against any person as being a partner leave has to be obtained in accordance with Order 21 Rule 50(2).

8. In the present case the plaintiff invoked Order 30 Rule 3(b) for service on the defendant firm. The court directed pursuant to the plaintiff's application that the writ was to be served on R.N. Poddar as the Person in control or management of the partnership business. Under Chapter VIII Rule 20(a) of the Rules on the Original Side of this Court the person entering appearance -may apply to set aside the service on mm on the ground that he was not a partner or liable as such or he may deliver a defence denying either or both is liable as a partner and the liability of the defendant in respect of the plaintiff's claim.

9. In the case of Keen Robinson and Co. Ltd. v. Lily Biscuit Co. reported in : AIR1932Cal541 , the writ of summons was served through the Munsifs Court at Sealdah and in the affidavit of service it was stated that service was made on P.C. Sett, the manager of the firm. The business of the firm belonged to two brothers Pratap Ch. Sett and Benoy Bh. Sett. Probodb Ch. Sett and Prokash Ch. Sett were also concerned in the business as the managers; An application was made by Protap Ch. Sett denying service on himself and stating that the two managers were both absent from the place of business at the alleged time of service. The firm applied to have the ex parte decree against them set aside on the ground of non-service or in the alternative improper service. On the facts of that case it was Held that a partner of the defendant firm had been served with the writ. A question was canvassed as to whether it was obligatory for the plaintiff to obtain the direction of the Court before service and that if no such direction was obtained whether it would be a proper service. Buckland J., held that where service had in fact been made on the partner of a firm the service would not be bad because the direction of the Court under Order 30 Rule 3 had not been first obtained. His Lordship left open the question as to whether without the directions of the Court having been obtained service effected upon some person having at the time of service the control or management of thepartnership business could be deemed to be good service. Mr. Advocate-General contended that where directions of the Court are sought as to service under Order 30 Rule 3(1)) such service shall be deemed good service only if the directions of the Court are followed. In the present case his contention was that as the plaintiff asked for directions and the Court directed service on R.N. Poddar and it appearing that R.N. Poddar has not been served the service shall not be deemed to be good service. In my view the contention of Mr. Advocate-General is sound and correct for the reason that the words 'such service' in Order 30 Rule 3 mean service as directed by the Court. I am therefore of opinion that there has been no service on the defendant firm.

10. Let fresh writ of summons be issued on the defendant and the person upon whom it is to be served would be decided by the plaintiffs solicitor in the usual way by application before the learned Master. Summons to be issued on a signed copy of the minutes upon the undertaking that the plaintiff's solicitor will complete the decree and the order. The decree and the order to be drawn up expeditiously. The plaintiffs are to pay to the defendants costs of one day's hearing.


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