Skip to content


Ramlal Kanhaiyalal Somani a Partnership Firm Vs. Ajit Kumar Chatterjee and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberF.A. No. 326 of 1961
Judge
Reported inAIR1973Cal372
ActsCode of Civil Procedure (CPC) , 1908 - Order 30, Rule 1; ;Judicial Officers Protection Act, 1850 - Section 1; ;Limitation Act, 1908 - Schedule - Article 29
AppellantRamlal Kanhaiyalal Somani a Partnership Firm
RespondentAjit Kumar Chatterjee and ors.
Appellant AdvocateT.P. Das, ;B.C. Roy and ;Sharda Parmar, Advs.
Respondent AdvocateS.C. Dasgupta and ;Nani Gopal Das, Advs.
DispositionAppeal dismissed
Cases ReferredRohini Kumar Chattopadhyay v. Niaz Mohammad Khan. In
Excerpt:
- a.k. sinha, j.1. this appeal is preferred by the plaintiff-appellant against a judgment and decree dismissing its suit for recovery of damages against state of west bengal and some of its officer, briefly in the circumstances as follows:2. the plaintiff which is a firm registered under the indian partnership act consisting of bhimraj somani, hardwari mal somani, om prakash somani, all partners and one satya narayan somani, a minor admitted to the benefits of the partnership firm--all sons of the kanhaiyalal somani since deceased was carrying on business in cooch behar on 27th april, 1957, the defendant-respondent no. 1 -- a police officer -- with a number of police constables wrongfully and forcibly entered into the business premises of the appellant and obtained possession of several.....
Judgment:

A.K. Sinha, J.

1. This appeal is preferred by the plaintiff-appellant against a judgment and decree dismissing its suit for recovery of damages against State of West Bengal and some of its Officer, briefly in the circumstances as follows:

2. The plaintiff which is a firm registered under the Indian Partnership Act consisting of Bhimraj Somani, Hardwari Mal Somani, Om Prakash Somani, all partners and one Satya Narayan Somani, a minor admitted to the benefits of the partnership firm--all sons of the Kanhaiyalal Somani since deceased was carrying on business in Cooch Behar On 27th April, 1957, the defendant-respondent No. 1 -- a Police Officer -- with a number of Police Constables wrongfully and forcibly entered into the business premises of the appellant and obtained possession of several godowns and locked and scaled up the entire premises including various books, papers and goods worth Rs. 27,5000-0-0 under a purported order of attachment dated 26-4-1957 issued against Bhimraj Somani, one of the partners in a criminal case. The order of attachment, it is further alleged, was preceded by an order of proclamation made on 26-4-1957 against Bhimraj Somani declaring him to be absconding with a direction to appear in the Court of Sub-Divisional Officer, Cooch Behar, to answer the charges against him in a criminal case. Such order of proclamation and the order of attachment pursuant thereto and the execution of writ of attachment in the manner indicated above are said to be all illegal, inoperative and void and as a result thereof the appellant has suffered damages on account of loss of business with various parties and also business profits etc. to the extent of Rs. 74,582.87 np. which they are entitled to recover from the defendants-respondents.

3. The first respondent, Officer-in-charge of a Cooch Behar Police Station at the material time, the second respondent. Superintendent of Police, Cooch Behar and the third respondent, the State of West Bengal filed separate written statements and contested the suit. Apart from the general denial of all material allegations in the plaint their case substantially is that ths suit was barred by limitation and as framed is not maintainable and the order of proclamation and attachment and the execution of writ of attachment were all legal and valid and the properties of the firm were rightly attached under the order of attachment issued by the Magistrate and the first respondent acted bona fide in discharging his official duty in executing such writ of attachment issued by the Court for attachment of the property of the absconding accused Bhimraj Somani. It was further asserted by the first respondent that in spite of his requests to the persons present to give him separate possession of the share of the accused Bhimraj Somani, they failed to do so and he had no other alternative than to lock the godown.

4. Quite a number of issues were framed but the issue regarding cause of action was not pressed and the learned trial Court though found that notice under Section 80 of the Code of Civil Procedure was valid and sufficient, held that the suit was not maintainable by the firm as Bhimraj Somani who was the declared absconder had no right to attack the validity of the attachment and suit was barred by limitation. On merits the learned trial Court held that the execution of the writ or that the attachment was not wrongful and were not made with any improper motive. Learned trial Court further, although it was found unnecessary, went into the question of damages and determined that the plaintiffs, namely the two other partners and the minor in their share could at best have altogether a sum of Rs. 10,000/-if at all the suit was competent. But for the view already taken the suit was dismissed. That is how in short the appellant felt aggrieved and preferred the present appeal. 5. The first question that arises for consideration is whether the suit by the firm is maintainable. It is undisputed that Bhimraj Somani who was one of the partners who verified the plaint, in the facts and circumstances of this case could not have instituted a suit for recovery of damages for wrongful attachment of his property in execution of an order passed by the Magistrate owing to his absconsion as an accused in a criminal case. The learned Court below took the view- following a decision of this Court in AIR 1962 Cal 74 that a firm name in truth is merely a description of the individuals who compose the firm and therefore the suit could not be brought in the name of the firm. The question is whether the suit can be brought in the name of the firm where only some of the partners are interested in the result of the suit. Mr. Das on behalf of the appellant has contended that, even if some of the partners have no cause of action, the suit can-not fail by reason of misjoinder of parties and in support of this contention he has relied on Order 1, Rule I, Rule 4 and Rule 9 of the Code of Civil Procedure and cited a decision of the Supreme Court in : [1961]1SCR982 , Purushottam & Co. v. Manilal and Sons and also a decision of Andhra Pradesh High Court in : AIR1959AP126 , J. Pompaiah v. H. Hanumantha Reddy. We do not think, these decisions have any direct bearing on the question involved in the present case, for the question is not whether the suit would fail by reason of misjoinder. of parties but whether some of the partners out of the en-lire body of partners can bring the suit in the name of the firm. It appears, identical questions came up for consideration though under somewhat different circumstances before a Division Bench of this Court in 40 Cal WN 824 = (AIR 1936 Cal 353). Bhadreshwar S. Coal Co. v. Satish and also in : AIR1963Cal310 , (Rabindra N. Sen v. 1st Industrial Tribunal) (though not cited at the Bar), where it was held that one partner was entitled to sue in the name of the firm although the other partners refused to join in this suit. In Bhadreswar Coal Co.'s case what happened was that of the three partners, the first partner Manick Lal Roy brought a suit in the name of the firm represented by him making the other two partners pro forma defendants for recovery of certain sum of money due to the firm. As the notice of the suit was not served on the pro forma partner-defendants, they were dismissed from the suit on the ground of-non-service of summons. Question arose in these circumstances whether the suit was maintainable by one partner in the name of the firm. R. C. Mitter. J. who delivered 1he judgment for the Court observed as follows :

'In our judgment, the suit which has been instituted in the present case by Manik Lal Roy in the name of the firm Bhadreswar Coal Supply Company is a good suit. To such a suit, the other partners of Manik Lal Roy who have refused to join are not necessary parties in the sense that they ought to have been named in the cause title and served with summons of the suit. It would have been better if the cause title of the suit described the plaintiff as Bhadrcswar Coal Supply Company simply without the addition of the words 'through Manik Lal Roy,' but in our Judgment, the addition of those words does not matter in the least. The question as to whether Manik Lal Roy ought to have given mi indemnity to Sripati Charan Mookerjee and Bhujendranath Bhadra as partners for instituting the suit in their names is a matter as between Sripati Charan Mookerjee and Bhujendranath Bhadra on the one side and Manik Lal Roy on the other. If these two persons wanted an Indemnify 'against costs from Manik Lal Roy, it would have been for the' Court to stay the suit till the indemnity is furnished but they had hot come forward and asked 'for such indemnity. The suit could proceed accordingly in the name of the firm with its carriage in the hands of Manik Lal Roy.'

6. We are, however, not concerned with the question of indemnity for costs in this case for here Bhimraj Somani also joined in this suit. In the next case : AIR1963Cal310 (supra) while considering similar questions Bancrjee, J. following the above decision has taken the view that 'one partner only may sue in the name of the firm, if the other partners do not object to his so doing. If they object, they may apply for indemnity against costs.' In the instant case although facts are somewhat different the principle indicated in the above decision will apply. For the suit would be deemed to have been filed by the partners in the name of the firm excluding Bhimraj Somani. So, considering in the light of such; principle, we do not think that the suit would be non-maintainable even it is found that Bhimraj Somani had no right to join as partner and claim relief in this suit. The instant suit clearly would be deemed to have been filed by the other two partners and the minor admitted to the benefits of partnership in the name of the firm. In our opinion, therefore.' the suit is maintainable, even if Bhimraj Somani is held to have no locus standi. we think he has not any, to join his partners and institute the suit along with other partners in the name of the firm. So, the decision of the learned Court-below on the question of maintainability is not correct.

7. The next question, as appears, as considered by the Court under issue No. 7 is as to whether any of the defendants committed any wrongful or illegal act or any act of trespass' as alleged. In other words, whether the attachment of the firm properties was wrongful and illegal. In considering this question it is recorded by the learned Court Mow, which is not disputed, that although the plea taken in the plaint that the order of attachment issued by the S. D. O. was illegal und without jurisdiction on the ground of absence of clear 30 days time given to the accused to appear and answer the charges, such plea was abandoned and the arguments were all advanced on the footing that the order of attachment was 'correct, legal and intra vires'. Even so, the learned Court below rely in 5 on a Bench decision of this Court in AIR 1938 Cal 177, Sewalram Agarwalla v. Abdul Majid, held that irregularity, if there be any, was cured by Section 538 of the Code of Criminal Procedure and in any case the Officer executing such a writ was protected under the Judicial Officers Protection Act (1850). Now. the admitted facts In this case are that Bhimraj Somani who was the accused in a criminal case was declared a proclaimed offender by an order passed by the Magistrate concerned on the 26th Day of April, 1957 and on the same date an order of attachment to compel his appearance was also made' and such order in the form of a warrant was issued to the Officer-in-change at the material time, the first respondent, requiring him to attach by seizure of all movable and immovable properties lying at Biswa Singha Road, Cooch Behar, of which the accused Bhimraj Somani is possessed of and to hold them under attachment pending further order of the Court of the Magistrate with a further direction to return the warrant with an endorsement certifying the manner of execution. The first respondent in obedience to the order made by the Magistrate proceeded to the business premises of the firm at Biswa Singha Road, and ultimately sealed the Gaddi of the firm and the entire godown and submitted report which discloses that attachment was resisted claiming the properties as belonging also to 'other three brothers hut as they failed to 'separate the share of the accused Bhimraj Somani on the advice of their Government Pleader and also on the order of Deputy Superintendent of Police, Headquarters, he 'attached the entire properties of the firm in presence of several witnesses kept them Under lock and key and with all their con-'tents inside sealed and posted armed sentries as ordered by the S. P., Cooch Behar.

8. At the trial, however, evidence was adduced by the appellant to make a further case of use of force, abusive words and violence to the employees of the firm against the first respondent. Still further case of trespass by the first and second respondents upon the land and premises of the appellant firm was also sought to be made out but the appellant as found by the learned Court below on assessment of evidence, we think rightly, failed to establish any such case. We entirely agree with Court below that the question of trespass on the facts and circumstances of this case by the first respondent into the premises of the firm cannot arise as he was directed by the Court to execute the writ of attachment of both movable and immovable properties of a proclaimed offender by actual seizure and to hold them under such attachment until further order of that Court, The first respondent, therefore, had sufficient authority and warrant to enter into the premises of the firm and to execute the order of attachment as indicated in the writ. So in the facts and circumstances of this case the precise question that falls to be considered is whether the attachment of the partnership property and assets belonging to the other three brothers was wrongful and illegal. In other words, whether the first respondent exceeded the authority given to him under the order of attachment and went beyond his jurisdiction in executing the writ by locking and sealing the entire godown. The learned Court below though held that the partner Bhimraj Somani had also dominion and right over the entire properties of the firm and anybody stepping into his shoes must have the same right or dominion over the partnership properties. It concluded however, at the same time that by attachment as made the other partners were being deprived of their right to use and deal with their property of the partnership which certainly was an invasion of their rights and consequently the first respondent must be held to have exceeded the authority covered by the writ. In support of this view Mr. Das has contended that in case of properties belonging to only one or some of the partners and not all attachment could not be made by seizure of the entire properties and assets of the partnership which also belong to other partners. It is submitted that there are specific provisions in the Civil Procedure Code under Order 21. Rule 49 for effecting attachment of partnership properties and although any similar provision is absent in the Code of Criminal Procedure Code such attachment could only be effected not by actual seizure but by appointment of Receiver under Section 88 of the Code of Criminal Procedure. In support of this contention, he 1ns first relied on a decision of the Hyderabad High Court in AIR 1951 Hyd 81, Tigala Veeraya v. Hyderabad State. In this case, as appears, the accused was a member of the Hindu Joint Family and had certain share in the dwelling house and other joint family properties. As all these properties were attached, objection was raised and the Magistrate directed sale of undivided 1/18 share in all these properties under Section 77 of Hyderabad Criminal Procedure Code which substantially correspond to Section 88 of the Criminal Procedure Code. In that context, the High Court held 'that the rights of the Government would be governed by the ordinary principles of Hindu Law under which there would be firstly, no severance in status and secondly the only procedure that could be adopted in such circumstances was to appoint a Receiver to collect the share of the absconder'. This case we think is of no assistance to the appellant for the question whether a sale on the facts of that case could have been made was considered by the High Court and it held that the proper course was to appoint a Receiver for collection of rents in respect of the share of the absconder. It was not decided whether the attachment of the property was wrongful or illegal. Reliance is next placed on a decision of Judicial Commissioner of Sind in ATR 1937 Sind 281, Udharam Vassanmal Nazir v. Grahams Trading Co. Ltd. In this case, a Receiver appointed by the Court in an insolvency proceeding took possession knowingly of certain properties beyond the schedule properties not in possession of the insolvent and it was held that a subordinate who was not executing an order of the Court but acting quite outside the order and in defiance of it could not claim any protection under Section 1 of the Judicial Officers Protection Act (1850) and as such Article 2 of the Limitation Act had no application. This case also, as appears, is distinguishable on facts, for here, the Court was not considering the question whether undivided interest of one of the partners or joint owners could be attached by actual seizure. Jt is difficult to see how if the order by the Magistrate is not challenged as being made without jurisdiction the first respondent then could be held to have exceeded his authority in executing such order of attachment by actual seizure only on the plea taken by the appellant that properties of the partnership firm belonged to other partners besides the accused. In our opinion, the first respondent was bound to carry out the order and to execute the writ of attachment by actual seizure of the properties as held in the Bench decision of this Court in Sewalram Agarwalla's case AIR 1938 Cal 177 (supra). It is equally clear that in executing the order of attachment no discretion was left to him under the relevant provisions of the Code to return the writ of attachment on the ground that several other persons claimed that they had also certain shares in the properties of the firm. If there was any irregularity it was in the order of the Sub-Divisional Magistrate for it did not provide the mode of attachment to be followed in respect of partnership properties. If there is any irregularity in the order itself which, however, we do not find, there is any, as there is no provision or form prescribed for attachment of partnership properties of one of the partners in the Criminal Procedure Code, the Subordinate Officer, namely the first respondent could not cure such irregularity. He was bound to carry out the order and thereupon in executing such order he would be protected under Section 1 of (the Judicial Officers Protection Act. Mr. Das, however sought to distinguish the above decision on facts and submitted that this was a case where order was executed by the Officer concerned without being furnished with a search warrant as prescribed in Form 8 of Schedule V of the Criminal Procedure Code. But we think, the case under consideration before us, as appears, stands on a much firmer footing. Here the appellants proceeded on the basis that order passed by the Magistrate for attachment of the property both movable and immovable of the accused was a valid order. So, even if the interests of some third party are mixed up inseparably the entire properties are still bound to be seized in absence of any specific provision in the Code itself as to the mode of attachment. The parties so affected by such attachment are entitled to raise objections before the Magistrate concerned. The law has contemplated all such contingencies and by incorporation of Sub-section (6-A) in Section 88 of the Criminal Procedure Code enough provisions have been made for enquiring into claims or objections against attachment and for allowing or disallowing such claims either in whole or in part. Such being the position, we are unable to hold in agreement with the learned Court below that in executing the order the first respondent committed error with regard to the mode or manner of attachment and therefore 'it exceeded, undoubtedly to some extent the authority given to him by the writ of attachment'. In our opinion, the attachment made by actual seizure though of partnership property pursuant to the order made by the Magistrate concerned was not wrongful or illegal.

9. In the view we have taken it is not necessary to go into the further question whether in executing the writ of attachment the first respondent acted in good faith, But as the matter was elaborately considered by the trial Court we shall examine the question to see whether the learned Court below was right in concluding that the first respondent in executing such writ at any rate acted in good faith. It appears. that the learned Court below carefully analysed and assessed the evidence adduced by the parties and though thought that instead of seeking advice from the Government pleader or order from his superior officer for effecting attachment, he ought to have gone to the Magistrate for appropriate orders held, however that the first respondent could not be said to be wanting in good faith in executing the writ. We cannot take any view on evidence different from that of the trial Court. The first respondent equally though not obligatory on his part sought for advice of the Circle Inspector, the Government Pleader and his Superior Officer the Superintendent of Police concerned. It is clear at least from the advice given by the Government pleader that in absence of making out separate possession of the parties in respect of the properties attached, the officer first respondent was entitled to execute the writ by seizure of the entire properties in the firm's premises or godown. There can be little doubt that the first respondent was very careful and cautious in proceeding to attach these properties which, no doubt, on the facts revealed was a different and delicate task before him. The learned Court below, it appears, however, also thought that the first respondent should have prayed before the S. D. O. concerned for the attachment of the share of Bhimraj Somani in the assets of the partnership firm and ask for instructions regarding the mode of attachment stating the facts. But there it was clearly wrong. There is no provision in the Criminal Procedure Code as to how the properties and assets of the partnership firm are required to be attached. Although, Mr. Das placed reliance on Order 21, Rule 49 of the Code of Civil Procedure we cannot for obvious reasons hold that the Magistrate would be empowered in exercising his jurisdiction to apply that provision by issuing a prohibitory order in case of attachment of partnership property in a criminal proceeding. Mr. Das also has relied on a passage from Clerk and Lindsell on Torts, 11th Edition under Article 1500 page 902-903 and 'contended that although ordinarily an officer executing an order is not bound to take notice of any defect or irregularity attending the process even though obvious and apparent there is one exception to the general rule where the executing officer seizes under the writ the wrong person's goods. Further, it is also pointed out that where the document is a mere nullity the executing officer is not justified in putting the order in force since he is supposed to know the law. This statement of law, as appears, is based on several English decisions White v. Morris (1852) 11 C. B. 1015, Andrews v. Marris (1841) 1 Q. B. 3, Carrot v. Morlay (1841) 1 Q. B. 18 and Watson v. Bodell (1845) 14 M & W 57. We do not think that these decisions are of any assistance to the appellant in the present case, firstly because, the appellant though raised an objection as to the validity of the order passed by the Magistrate proceeded really on the footing at the trial that such an order was not invalid. In fact, it gave up such a case and confined its case only to the question whether the attachment as made by the first respondent was wrongful and illegal. Secondly because, the properties seized by the first respondent were not the 'wrong person's goods'. These properties no doubt belonged to the proclaimed offender Bhimraj Somani although it may be that the other partners had also their share in such properties of the firm. So, the exception pointed out by the learned Author cannot be made applicable to the instant case and the executing officer under the general rule 'was not bound to take notice of any defect or irregularity attending the process even though obvious and apparent'. It is therefore clear that the first respondent did nothing wrong in not approaching the Magistrate for any further order or direction in the situation with which he was con fronted at the time of attachment of the disputed properties.

10. But before we leave this question we must record that Mr. Das has addressed us on this point at length. In support of his argument Mr. Das has relied again on Udharam's case AIR 1937 Sind 281, in the Court of the Judicial Commissioner of Sind (supra) to show that where the subordinate authority acted beyond his permissible limits, it could not seek protection under Section 1 of the Judicial Officers Protection Act, only on the ground that he acted in good faith. Mr. Das has also relied on a passage from Pollock on Torts, 15th Ed. pages 85-86 to show that the same view was adopted by the learned author namely that 'an Officer arresting a body or taking the goods of the wrong person is not excused. He must lay hands on the right person or property at his peril, the only exception being on the principle of estoppel where he is misled by the parties' own act'. Mr. Das also has argued that malice is not necessary to establish liability to damages. In aid of his contention he has relied on (1881) 8 Moo Ind App 103. Thomas Eales Rogers v. Rajendro Dutt and sought to contend that malice might aggravate damages but could not operate as the basis of liability for damages. Mr. Das has also relied on a passage from Mayne and McGregor on Damages. 12th Edition Article 146 pages 144-145 to show that the 'measure of damages may be affected by the conduct, character and circumstances of the plaintiff and of the defendant and even of a third party involving interference with domestic relationships. These factors are said to go in aggravation or in mitigation of the damages'. Mr. Das may be right in his contention but the question here is whether in executing the writ the officer acted in good faith and not whether he was actuated by malice. Clearly there is a distinction between good faith and malice. This court has held in Sewalram Agarwalla's case AIR 1938 Cal 177 (supra), as noticed earlier, that an officer is protected in carrying out an order of the Court, even in excess of jurisdiction under Section 1 of Judicial Officers Protection Act, provided he has acted in good faith. In this case, as already discussed by us, clearly the first respondent believed in good faith that he was bound to execute the order and attach the properties of the partnership firm by actual seizure and therefore in any view of the matter he is entitled to protection under Section 1 of the judicial Officers Protection Act.

11. The next question considered by the learned Court below is one of limitation and following several decisions namely 64 Ind Cas 513 = (AIR 1921 Cal 774), Arjan Biswas v. Abdul Biswas, AIR 1936 Cal 653, Jaques v. Narendra Lal Das and AIR 1935 All 538 (FB), Pt. Shiam Lal v. Adbul Raof, held that Article 2 of the Limitation Act would govern the suit. Accordingly, the suit not having been filed within 90 days from the seizure of the property, it was held to be barred by limitation. It is contended by Mr. Das that the suit was for compensation for wrongful seizure of movable properties under legal process and therefore it was governed by Article 29 which is a more specific Article and not by Article 2 of the Limitation Act. It is said that Article 2 really contemplates any act done in pursuance of an enactment. Mr. Das has also relied alternatively on Article 49 of the Limitation Act which provides for institution of suit within 3 years for other specific moveable property or for compensation for wrongfully taking or injuring or wrongfully detaining the same or when the detainer's possession becomes unlawful'. Reliance is placed on a Bench decision of this Court in AIR 1944 Cal 4. Rohini Kumar Chattopadhyay v. Niaz Mohammad Khan. In this case, the validity of the order issued by the Magistrate for attachment of the 'properties by actual seizure in the pleading was given up at the lime of trial. So the only question being one of compensation for wrongful seizure and detention of moveable properties, we think the Articles which arc more specific in nature and cover categories of such cases must govern the suit. At any rate, the question of application of Article 2 being of doubtful nature, the suitor, in our opinion, is entitled to the benefit of a longer period of limitation if provided for application to a suit of the present nature brought by the appellant. In this view of the matter, we think the learned Court below was not right in applying Article 2 of the Limitation Act to say that the suit was barred by limitation. Even so, as we have already held that the attachment was not wrongful and illegal and in any event the first respondent acted in good faith in effecting such attachment in compliance with the order issued by the Magistrate concerned, the appellant is not entitled to any relief in this suit. In this view of the matter the question of fastening the respondents Nos. 2 and 3 for liability for damages cannot arise at all and the appellant equally is not entitled to get any relief against them. We therefore come to the same conclusion as reached by the learned trial Court below though we have, it may be, differed on the question of maintainability of the suit and on limitation.

12. In the above view of the matter it is not necessary to go into the question relating to quantum of damages and we do not express any opinion as to the correctness of the amount of damages as determined by the learned Court below.

13. The result is the appeal fails and is hereby dismissed. But considering the facts and circumstances of this case we make no order as to costs.

A.N. Banerjee, J.

14. I agree.


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