R.C. Mitter, J.
1. In this case a suit was brought for the recovery of the price of coal supplied to the defendants who were partners of a firm carrying on business under the name and style of Satis Chandra Nandy and Company. The cause title of the plaint was as follows:
Bhadreswari Coal Supply Company through Manik Lal Roy, plaintiff v. Satis Chandra Nandy and Company represented by Jnanendra Nath Nandy and others, defendants.
2. At the date of the suit three persons namely Manik Lal Roy, Sripati Charan Mukherjee and Bhujendra Nath Bhadra were partners of a firm carrying on business under the name of Bhadreswar Coal Supply Company. They were also partners of the same firm carrying on business under the same firm name when the defendant Company bought the coal. The finding of the learned District Judge is that the said partnership of Manik Lal Roy, Sripati Charan Mukherjee and Bhujendra Nath Bhadra commenced under a deed of partnership and the partnership was still continuing at the date of the suit. To the suit as originally framed Sripat Charan Mukherjee and Bhujendra Nath Bhadra were added as pro forma defendants, but the notice of the suit was not served on them and ultimately they were dismissed from the suit on the ground of non-service of the summons. The suit thereafter continued as a suit by the 'Bhadreswar Coal Supply Company' represented by Manik Lal Roy against Satis Nandy and Company. To the suit two substantial defences were taken. The first was that the suit was not maintainable and, secondly, that the claim of the Bhadreswar Coal Supply Company had been satisfied by payments. The learned Subordinate Judge overruled both these pleas and granted a decree in favour of the plaintiff firm for Rs. 1,577 8-6 less Rs. 275 admitted to have been paid, with interest at 12 per cent. The defendant firm filed an appeal before the learned District Judge. The learned District Judge did not enter into the plea of payment set up by the defendants but dismissed the suit on a preliminary point.
3. He held that a suit under the provisions of Order 30, Civil P. C., can be instituted in the name of the firm only if the suit is instituted by two or more partners of the firm. He came to the conclusion that inasmuch as the suit has been instituted by one partner, viz. Manik Lal Roy, in the name of the firm, the suit was not maintainable. The learned Advocate for the plaintiff firm urges before us that the view taken by the learned District Judge is erroneous. He says that a firm or a partnership must consist of two or more persons and Order 30, Rule 1, enables a suit to be carried on in the name of the firm, and it does not matter whether the suit is filed at the instance of one or more of the partners. Mr. Chakravarti, who appears on behalf of the respondents, contends that Order 30, Rule 1, can only apply when all the partners of a firm desire to institute a suit. He says that the said rule only provides for a convenient form of suing, and for the purpose of supporting his contentions he takes us through the history of the law. He says before 1908 all the partners of a firm had to be named in the plaint in order that the suit may be a good one. They had all to appear by name as plaintiffs, and such of them as were unwilling to join as plaintiffs had to be put down in the plaint as pro forma defendants. He accordingly argues that where all the partners of a firm do not agree to institute a suit, a suit cannot be instituted in the name of a firm; for a suit instituted in the name of a firm must be taken to be a suit instituted by all the partners of a firm, and in a case where some of them refuse to institute a suit, the dues of the firm can only be realised by following the same procedure which had to be followed before the introduction of Order 30 in the Code of 1908, that is to say in such a case the partner intending to sue must sue in his own individual name making the others who are unwilling to join him as defendants in the suit.
4. In our judgment the contention of Mr. Chakravarti is not sound. No doubt Order 30 has laid down a convenient procedure in this respect. A firm is not a legal entity but the legislature has provided for the partners of a firm to sue in respect of moneys due to a firm in the firm name. The provisions of Order 30, Rule 1 have been taken from the provisions of Order 48-A of the Rules of the Supreme Court. The question which we have to decide was considered by the Court of appeal in England in Seal & Edgelow v. Kingston (1908) 2 K B 579. In that case two persons, Seal and Edgelow, constituted a firm of attorneys carrying on business under the name and style of Seal and Edgelow. Kingston was a client of theirs and the said firm had a claim against him. Edgelow did not desire that an action should be brought or proceeded with against Kingston, but Seal contended that the firm had a good case and thought that they ought to sue. Edgelow refused to join in the suit. On that Seal instituted the suit in the name of the firm, viz. Seal and Edgelow. The defendant made an application, which was granted by the Court by which he required the plaintiffs to make a further affidavit of documents in their possession within one month. Seal made the affidavit of documents and he served a copy of the order on Edgelow. Edgelow neglected to swear to an affidavit of documents whereupon Seal took out summons to commit Edgelow for contempt of Court in not obeying the order of the Court requiring a further affidavit of documents by the plaintiffs. Ridley, J. refused to make an order on this summons on the ground of want of jurisdiction whereupon Seal preferred an appeal to the Court of appeal. One of the questions raised in the Court of appeal was whether a suit could be instituted in the firm's name under the provisions of Order 48-A of the Rules of the Supreme Court by one of the two partners, the other partner refusing to sue. Sir Gorell Barnes decided that a suit could be so instituted. At p. 582 of the report he makes the following observations:
In my opinion the learned Judge had jurisdiction to make the order. It is clear upon the authority of Whitehead v. Hughes (1840) 2 C & M 318 that Seal had the right as one of the partners in the firm to use the name of the other partner for the purpose of bringing an action to recover a debt due to the firm, on giving his partner an indemnity against costs. As was said by Bayley B in the case referred to 'one of the several partners has a clear right to use the names of the other partners. If they object to their names being used, they may apply for an indemnity against costs to which they might be subjected by the use of their names.' In the present case an indemnity was given, and Seal was taking the proper steps to carry on the action, but Edgelow refused to assist him in the matter by making the further affidavit of documents which the plaintiff had been ordered to make.
5. 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 Bhadreswar 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 an indemnity to Sripati Charan Mukherjee and Bhujendra Nath Bhadra as partners for instituting the suit in their names is a matter as between Sripati Charan Mukherjee and Bhujendra Nath Bhadra on the one side and Manik Lal Roy on the other. If these two persons wanted an indemnity 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 not 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. We accordingly allow the appeal, set aside the judgment and decree of the Court of appeal below and remand the case to that Court so that the plea of the payment raised by the defendants may be considered. Costs to abide the result.
M.C. Ghose, J.
6. I agree.