Skip to content


F.L. Harcourt and anr. Vs. Clarke Rawlins Ker and Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1941Cal679
AppellantF.L. Harcourt and anr.
RespondentClarke Rawlins Ker and Co. and ors.
Cases ReferredEllis v. Wadeson
Excerpt:
- .....again mentioned.3. on 3rd june 1940, on an application purporting to be on behalf of the defendant firm clarke rawlins ker & co., lort-williams j. made the following order:it is ordered that the rt. hon'ble sir dennis herbert kenneth macdonald beaumout, allan ebenozer ker and the sole executrix to the estate of william hastings beaumont, deceased, be at liberty to file a fresh warrant of attorney in this suit in favour of messrs. victor moses and mehta, firm of attorneys of this court, and it is further ordered that the applicant should pay the plaintiffs all their costs of and incidental to the application.4. a warrant in these terms was thereupon filed on 5th september 1940. the registrar accepted the warrant and directed the allocatur to issue. apparently before lort-williams j. the.....
Judgment:
ORDER

Panckridge, J.

1. The history of this matter is as follows: In 1931 there was a firm of Solicitors practising in Calcutta under the name and style of Clark Rawlins Ker & Co. The partners were the Rt. Hon'ble Sir Dennis Herbert, Mr. K. M. Beaumont, Mr. W. H. Beaumont and Capt. A. E. Ker. In that month a suit was filed against the firm by one Mr. Harcourt, acting as liquidator of a Limited Company known as the Eastern Tavoy Minerals Corporation Ltd. The suit was for damages for conspiracy and for negligence and failure of duty as solicitors. On 18th April 1931 Capt. Ker gave a warrant of attorney to Mr. Victor Moses to act on behalf of the firm of Clark Rawlins Ker & Co. That warrant was signed Clarke Rawlins Ker & Co. by the pen of A. E. Ker partner, on 3lst December 1931. Messrs. Clarke Rawlins Ker & Co. were dissolved, and thereafter Capt. Ker continued to carry on business in Calcutta under the name and style of Clarke Rawlins Ker & Co. It is admitted that the warrant given on 18th April 1931, was in order, and it is also admitted that after the dissolution of the firm, the former members of it as defendants continued to be properly represented by Mr. Victor Moses. Difficulty has arisen because on 1st November 1937 Mr. Moses entered into a partnership with another attorney named Mr. Mehta, and these two gentlemen from that time onward carried on business under the name and style of Victor Moses & Mehta. On 13th November 1937 a fresh warrant of attorney was filed. It is in this form:

We Clarke Rawlins Ker & Co. the first defendant above named of No. 6, Old Post Office Street, Calcutta, do hereby appoint Mr. Victor Moses and Mehta, Solicitors of No. 6, Old Post Office Street, Calcutta, to be our true and lawful attorneys to act in the above suit and to do all such other acts as may be necessary, and we do hereby undertake to pay them all their costs and expenses that may be. incurred in the premises.

2. The signature to the warrant is in the following form : 'Clarke Rawlins Ker & Co. by the pen of A. E. Ker, proprietor.' The history of the suit is that it was dismissed' by Ameer Ali J. with costs on 12th August 1938. An appeal was filed by the plaintiffs and the defendants applied for an order for security for cost. That application was adjourned sine die pending the issue of an allocatur. Taxation proceeded, and on 2nd June 1939 exception was taken by the plaintiffs to the sufficiency of the warrant of attorney of 13th November 1937. That objection was overruled by the taxing officer. The plaintiffs appealed, as they were entitled to do, to the registrar against the decision of the taxing officer. The Registrar in a written judgment expressed the view that' an allocatur could not issue, allowing cost to the three partners who, to use his words, 'have not been covered by the existing warrant', that is to say Sir Dennis Herbert, Mr. K. M. Beaumont and Mr. W. H. Beaumont, He concludes as follows:

I have decided that the circumstances of this case are such as may justify an opportunity being given to the defendant partners of the old firm of Clarke Rawlins Ker & Co. to file a warrant or warrants rectifying the omission that has been detected. To do this they should apply to the Court on notice to the opposite party. I must direct that an allocatur cannot issue at the present time; but in order to give an opportunity to the partners of Messrs. Clarke Rawlins Ker & Co. to remedy the defect I will defer a final decision until 4th April 1940, when the matter can be again mentioned.

3. On 3rd June 1940, on an application purporting to be on behalf of the defendant firm Clarke Rawlins Ker & Co., Lort-Williams J. made the following order:

It is ordered that the Rt. Hon'ble Sir Dennis Herbert Kenneth Macdonald Beaumout, Allan Ebenozer Ker and the sole executrix to the estate of William Hastings Beaumont, deceased, be at liberty to file a fresh warrant of attorney in this suit in favour of Messrs. Victor Moses and Mehta, firm of attorneys of this Court, and it is further ordered that the applicant should pay the plaintiffs all their costs of and incidental to the application.

4. A warrant in these terms was thereupon filed on 5th September 1940. The Registrar accepted the warrant and directed the allocatur to issue. Apparently before Lort-Williams J. the leave asked for to file a fresh warrant was not seriously objected to although the plaintiffs insisted on their costs. Mr. Banerjee, however, is undoubtedly right in saying that the order nowhere purports to give the warrant retrospective effect though he admits the Court had the power, which he says it did not exercise, to order the warrant to be filed nunc pro tunc, that is to say, having effect from 13th November 1937. In my opinion if the Registrar has erred, his error is in the order of 12th December 1939 refusing to issue the allocatur. My reasons for saying so are these: The suit as against Messrs. Clarke Rawlins Ker &. Go. was a suit under Order 30, and the partners therefore of that firm could not file separate defences. The same position continued after the dissolution of the firm, that is to say Capt. Ker was on the record as a member of the firm of Clarke Rawlins Ker & Co. and anything he did was done on behalf both of himself and his former [partners. Guidance on this question is afforded by Ellis v. Wadeson (1899) 1 QB 714. In that suit an action was brought against a firm in its firm name. There were two partners one of whom died after writ and appearance. The surviving partner put in a defence not purporting to be the defence of the firm, but as his personal defence. The Court of appeal hold that the form of the defence was wrong and that the defendant was not being sued in his personal capacity, and accordingly was not entitled to put in personal defence, but only a statement of defence for and in the name of the firm.

5. It follows to my mind that Capt. Ker could only obtain a change of attorney on behalf of the firm and not on his own be-half as long as he continued to be defending the suit on behalf of the firm, and accordingly the situation was not affected by the filing of the new warrant in favour of Mr. Victor Moses and Mr. Mehta under their firm name Victor Moses and Mehta on 13th November 1937, and the fact that' Capt. Ker described himself as proprietor of Clarke Rawlins Ker & Co. as in fact at the time he was, is not of importance, be-cause, as far as this litigation was concerned, he could only act on behalf of the old dissolved firm, as a member of which he was being sued under the provisions of Order 30. If on the other hand the situation was that he was acting on behalf of other members of the old firm technically without authority to my mind the signature of the fresh warrant ratified his action and cured any defect in the authority he was purporting to exercise. In these circumstances the application fails and is dismissed with costs. Certified for counsel.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //