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Girdhari Lal Vs. Spedding Dinga Singh and Co. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtHimachal Pradesh High Court
Decided On
Case NumberFirst Appeal No. 12 of 1951
Judge
Reported inAIR1954HP52
ActsCourt-fees Act, 1870 - Section 1; ;Merged States (Laws) Act, 1949 - Section 7; ;Punjab Court-fees (Amendment) Act, 1922; ;Court-fees (Himachal Pradesh Amendment) Act, 1953; ;Code of Civil Procedure (CPC) , 1908 - Section 89 - Order 41, Rule 2; ;Partnership Act, 1932 - Sections 19(1), 58, 58(1), 59 and 64; ;Evidence Act, 1872 - Sections 101 to 103
AppellantGirdhari Lal
RespondentSpedding Dinga Singh and Co.
Appellant Advocate D.N. Aggarwal, Adv.
Respondent Advocate R.N. Malhotra, Adv.
DispositionAppeal dismissed
Cases ReferredU.P. Government v. Radhey Lal
Excerpt:
(i) commercial - independent contractor - section 182 of contract act - defendant's second appeal against judgment decreeing suit of plaintiff-respondent for certain sum - suit was by buyer against seller for recovery of excess of sums advanced over value of goods supplied plus interest - defendant admitted execution of two contracts but pleaded that he did so as agent - as per section 182 agent is person employed to do any act for principal or to represent that other in dealing with third persons - agent is extended hand or antenna by means of which principal deals with even invisible third persons - as per contracts defendant was independent contractor and not agent of plaintiffs - appeal dismissed.;(ii) barred - sections 58 and 69 (2) of partnership act, 1932 - whether suit was barred.....choudhry, j.c.1. this is a defendant's appeal against the judgment and decree of the learned district judge of mandi, dated 28-3-1951, decreeing the suit of the plaintiff-respondent for rs. 15,335/14/3.2. the suit was as by a buyer against a seller for recovery of excess of sums advanced over valueof goods supplied, plus interest. the suit was based on two contracts of even date, 26-5-1947, under one of which the defendant agreed to supply 100 tons of wheat, and under the other 20 tons of rice, to the plaintiff firm at its godown in chamba before the expiry of the month of june 1947, the qualities of the commodities arid the rates at which they were to be supplied being specified. the plaintiff's case was that the sums advanced to the defendant totalled rs. 60,000/- and that the defendant.....
Judgment:

Choudhry, J.C.

1. This is a defendant's appeal against the judgment and decree of the learned District Judge of Mandi, dated 28-3-1951, decreeing the suit of the plaintiff-respondent for Rs. 15,335/14/3.

2. The suit was as by a buyer against a seller for recovery of excess of sums advanced over valueof goods supplied, plus Interest. The suit was based on two contracts of even date, 26-5-1947, under one of which the defendant agreed to supply 100 tons of wheat, and under the other 20 tons of rice, to the plaintiff firm at its godown in Chamba before the expiry of the month of June 1947, the qualities of the commodities arid the rates at which they were to be supplied being specified. The plaintiff's case was that the sums advanced to the defendant totalled Rs. 60,000/- and that the defendant supplied goods worth Rs. 43,478/5/9 and repaid Rs. 3,500/- in cash. The suit was therefore for recovery of the balance Rs. 13,021/10/3, plus Rs. 5,130/10/- interest at the contract rate of Rs. 18/12/- per cent per annum, total Rs. 18,152/-.

3. The defendant admitted execution of the two contracts but pleaded that he did so as an agent. He admitted receipt of Rs. 60,000/- from the plaintiff but contended that Rs. 50,000/- was received under the aforesaid contracts and Rs. 10,000/- under another, an oral contract for supply of 75 tons of rice. Value of the goods supplied was alleged by him to be Rs. 48,621/9/3. He also admitted repayment of Rs. 3,500/- in cash to the plaintiff. He sought to make the plaintiff liable for two further sums of Rs. 12,000/- each, as follows.

4. One of these two sums is claimed on the alleged oral contract for supply of 75 tons of rice. The oral contract is said to have been entered into at Lahore on 29-7-1947, when plaintiff firm's general manager Bawa Sundar Singh is alleged to have advanced Rs. 10,000/- to the defendant for purchase of the rice from the Narang Syndicate of Narang Mandi. The defendant professed to have advanced the said Rs. 10,000/- plus Rs. 2,000/-more to the Syndicate in the beginning of August 1947 for making the purchase, but he contended that delivery could not be taken due to the disturbances following in the wake of partition. He pleaded that Rs. 12,000/- of the plaintiff were thus left in Pakistan and lost by 'vis major'.

5. The other sum of Rs. 12,000/- was claimed by the defendant as damages in respect of the 20 tons of rice. He professed to have advanced Rs. 10,000/- to various dealers of Kalanaur and Dera Baba Nanak in Gurdaspur district for purchase of the rice, and to have forfeited that amount and suffered a further loss of Rs. 2,000/- because of the failure of the plaintiff to secure the necessary permit for taking delivery of the same. Thus, crediting the plaintiff with Rs. 60,000/-, the defendant debited it with the cash payment of Rs. 3,500/-, supply of goods worth Rs. 48,621/9/3, Rs. 12,000/- lost in Pakistan and Rs. 12,000/- lost over the rice deal in Gurdaspur district, total Rs. 76,121/9/3. His contention therefore was that nothing was due to the plaintiff, but that he was entitled to a decree for RS. 16,121/9/3. He claimed that amount and paid court-fee thereon. He also pleaded that the plaintiff should be required to disclose the names of all its partners, and that the suit was not maintainable as framed.

6. With regard to the last contention, the issue framed was whether the plaintiff firm was registered and whether the suit was maintainable in its present form. The trial Court held that the firm was a registered one and that it was not necessary for all the partners to sue. It may be stated here that the plaintiff firm, styled Messrs. Spedding Dinga Singh & Co., filed the suit through Bawa Sundar Singh as a partner and General Manager of the firm. The trial Court also held that the defendant's position was that of an independent contractor and not of an agent for the plaintiff. With regard to the defendant's claimof Rs. 12,000/- lost in Gurdaspur, it held that although the plaintiff had not succeeded in proving that it secured the necessary permit for lifting the rice, the defendant's evidence regarding sums having been advanced to the rice dealers of Kalanaur and Dera Baba Nanak was unworthy of credence.

It also rejected his claim for the loss of Rs. 12,000/- in Pakistan, its findings being that the oral contract or deposit of Rs. 12,000/- with the Narang Syndicate or, in any case, its deposit for and on behalf of the plaintiff had not been proved. Holding further that the total value of the supply made by the defendant came to Rs. 47,112/11/9, and deducting it from the total advance of. Rs. 60,000/-, it gave plaintiff a decree for the balance of Rs. 12,887/4/3, plus Rs. 2,448/10/- interest at the reduced rate of nine per cent per annum, i. e., a decree for the total amount of Rs. 15,335/14/3. The present appeal has been preferred against that decree.

7. The learned counsel for the plaintiff-respondent took a preliminary objection that the court-fee paid on the memorandum of appeal was deficient. Under Article 1 of Schedule I, Court fees Act, 'ad valorem' court-fee is payable on the amount or value of the subject-matter in dispute in the appeal. Now, a persual of the grounds of appeal will show that not only has the defendant-appellant challenged the decree passed by the trial Court for Rs. 15,335/14/3 in favour of the plaintiff-respondent but reiterated his claim for a decree for the amount set forth in the written-statement. The subject-matter in dispute in the appeal thus covered both Rs. 15,335/14/3 and Rs. 16,121/9/3, and court-fee was therefore payable on the aggregate amount of Rs. 31,457/7/6. The defendant has, however, valued the appeal at Rs. 15,335/14/3 and paid court-fee thereon. 'Prima facie', therefore, the court-fee paid is deficient.

8. The learned counsel for the appellant met this objection in two ways. Firstly, he cited--'Paizullah Khan v. Mauladad Khan', AIR 1929 PC 147 (A), and contended that the appellant was free to value the appeal as he liked, and that therefore the valuation Rs. 15,335/14/3 covered everything. That was however a suit for accounts under Section 7(iv)(f) of the Act, where court-fee is payable according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. Neither the present suit, nor the defendant's counter claim nor the present appeal fell in that category but in the category of claims for ascertained sums of money under Section 7(1) where fee is payable 'ad valorem' under Article 1, Schedule I, according to the amount claimed.

His other argument was that the court-fee paid was sufficient as it really covered the entire amount in dispute in this appeal. He gave up Rs. 3,000/-out of the Rs. 12,000/- claimed in respect of the alleged advances made to the rice dealers of Gurdaspur district, thus reducing the defendant's counter claim to Rs. 13,121/9/3. This reduced counter claim added to the Rs. 15,335/14/3 decreed in favour of the plaintiff made up Rs. 28,457/7/6, and he argued that the court-fee of Rs. 960/- paid on the memorandum of appeal was sufficient for that amount. Now, as adverted to above, the defendant has valued the appeal at Rs. 15,335/14/3 and paid the said court-fee on that figure. He did so according to the rates as amended by the Punjab Court Fees (Amendment) Acts of 1922, 1926 and 1939.

It was subject to these amendments that the Court-Fees Act (VII of 1870) was applied to Himachal Pradesh under the Himachal Pradesh (Application of Laws) Order, 1948, which came into force on 25-12-1948. The Act was again extended to Himachal Pradesh, amongst other Acts, Ordinances and Regulations, by the Merged States (Laws) Act (LIX of 1949), which came into force on 1-1-1950, but without reference to any amendment. In view of this omission and of the effect of Section 5 of the 1949 Act just cited it was held by this Court in--'Munshi Ram v. Raghubir Chand', AIR 1952 Him- P. 60 (B), that since the passing of the said 1949 Act, i.e., since 1-1-1950 court-fee was payable in this State under the Court-Fees Act as originally passed in 1870 unaffected by any future amendments. The learned counsel for the appellant relied upon this decision.

Since then fees have no doubt been raised under the Court-Pees (Himachal Pradesh Amendment) Act, 1953, which came into force since 1-1-1953 under this State's Revenue Department Notification No. R.1-41/51, dated 11-12-1952, published at p. 1217 of Part III, Section 3 of the Gazette of India. But as the present appeal was filed on 21-6-1951, the appellant is entitled to the benefit of the said decision of this Court.

9. The learned counsel for the respondent challenged the view taken by this Court in --'Munshi Ram's case (B)' on the ground that it rendered Section 7 of the Merged States (Laws) Act, 1949, redundant. This section runs as follows:

'For the purpose of facilitating application in any of the new Provinces or merged States of any Act, Ordinance or Regulation specified in the' Schedule, any Court or other authority may construe any such Act, Ordinance or Regulation with such alterations, not affecting the substance, as may be necessary or proper to adapt it to the matter before the Court or other authority.'

The Punjab Amendments in question, however, affected the substance of the Court-Fees Act, 1870, inasmuch as they enhanced substantially the rates of court-fee as originally fixed by the Act. To have recourse to those amendments would not therefore amount merely to construing the Act or adapting it to the matter in hand for the purpose of facilitating its application within the section. The contention that the view of this Court in--'Munshi Ram's case (B)' renders Section 7 redundant has therefore no force.

10. I am not disregarding the view expressed by this Court in--'Mandir Sri Deota Jakh v. Sishi Ram', since reported in AIR 1954 Him-P 26 (C), decided recently on 4-8-1953 and not yet reported, to the effect that the Court-Fees Act, 1870 continued in force in the Bashahr State as amended by paragraph 36 of the Himachal Pradesh (Courts) Order, 1948, despite the provisions of Section 5 of the Merged States (Laws) Act, 1949, inasmuch as that section purported to repeal corresponding and not the same law. That decision is not in conflict with the decision in--'Munshi Ram's case (B)' and has no application here since paragraph 36 of the Himachal Pradesh (Courts) Order, 1948, was not mentioned in the Himachal Pradesh (Application of Laws) Order, 1948, as amending the Court-Fees Act, and there could therefore be no question of its omission in the description of that Act as contained in the Merged States (Laws) Act, 1949. The basis of omission on which--'Munshi Ram's case (B)' was decided did not therefore apply to paragraph 36 of the said Order. I hold that the appellant is entitled to the benefit of the view taken in--'Munshi Ram's case (B)', and according to that view the court-fee of Rs. 960/- paid by him is sufficient tocover the said sum of Rs. 28,457/7/6 in disputein this appeal.

10a. I must take up first a ground not set forth in the memorandum of appeal on which the learned counsel for the appellant sought leave to be heard. The point raised was that the plaint filed in the trial Court should have been signed by all the partners of the plaintiff firm inasmuch as Barkat Ram, who signed it, held a general power of attorney executed by only one of the partners, Bawa Sundar Singh. This objection was not raised at any stage of the suit in the trial Court. The suit was filed on 10-3-1950 on foot of contracts dated 26-5-1947 performable by the defendant uptill the end of June 1947. It appears that the supplies continued to be made by the defendant until long after the expiry of the stipulated period.

But even if the end of June 1947 be taken as the date on which cause of action for the institution of the suit accrued, it is clear that the suit had been filed well within limitation. The written statement was also filed on 16-5-1950 about a month and a half before the expiry of the period of limitation. That being so, had this objection been taken in the written statement, and if the objection were well founded, there was ample time for rectification of the defect on behalf of the plaintiff. To allow the point in question to be raised in the present appeal, even though not set forth in the memorandum of appeal, would in the circumstance clearly prejudice the plaintiff-respondent. Furthermore, at the time when this new point was urged by the learned counsel for the appellant in the course of his arguments the period of limitation for the present appeal had long since expired.

In these circumstances, it would be most unfair for this Court to exercise the discretion under Order 41, Rule 2, C. P. Code, in favour of allowing the said ground to be urged on behalf of the appellant. Leave to do so is therefore not granted. It is not necessary to pursue the point any further, but two other facts may incidentally be stated. One is that the appointment of a general attorney for prosecuting and defending suits not being one of the unusual things enumerated in Sub-section (2) of Section 19, Indian Partnership Act, but, on the contrary, an act necessary for the conduct of the business of the firm, appointment of Barkat Rai by one of the partners of the firm, Bawa Sundar Singh, would fall within the latter's implied authority and would therefore bind the firm.

It is noteworthy that Bawa Sundar Singh was not only one of the partners of the firm but also its General Manager, and that he purported to execute the power of attorney on behalf of the firm. The other point which may incidentally be mentioned is that institution of a suit under a defective power of attorney is a mere irregularity not affecting the merits of the case nor the jurisdiction of the Court, and therefore it stands cured under Section 99, C. P. Code. 'Kanhaya Lal v. Panchayati Akhara', AIR 1949 All 367 (FB) (D);--'Qanayat Husain v. Mt. Sajidunnisa Bibi', AIR 1949 All 499 (E);--'Annamalai Chettyar v. Chidambaram', AIR 1937 Rang 482 (F) and--'Ganpati Nana Powar v. Jiwanabai', AIR 1923 Bom 44 (1) (G).

11. There was one other new point, taken neither in the trial Court nor in the grounds of the present appeal but allowed, for reasons recorded in my order dated 19-8-1952, to be urged on behalf of the appellant, namely: Whether the suit was barred by Section 69(2) of the PartnershipAct. The parties were allowed opportunity to adduce evidence on the same. What the plaintiff-respondent had to prove was that the plaintiff firm had been registered before the institution of this suit, i.e., before 10-3-1950, and that the person or persons suing had been shown in the Register of Firms as partners in the firm. As adverted to above, the plaintiff firm is described in the plaint as Messrs. Spedding Dinga Singh & Co. Chamba, and, the suit was filed through Bawa Sundar Singh as its partner and General Manager.

The plaintiff-respondent filed in this Court a certified copy, Ex. JC P-2, of the entry relating to the firm in the Register of Firms maintained toy the Registrar of the area at Delhi. It proves registration on 28-2-1950 of the firm Messrs. Spedding Dinga Singh & Co. as a partnership at will with its principal place of business at 15 Scindia House New Delhi and other places of business at Pathankot, Srinagar, Jammu, Lahore, Jhelum and Wazirabad. The partners' names are given as Bawa Sundar Singh and F. W. V. Ellvers and the date of their joining the partnership as 1-6-1946.

Under Section 68(2) of the Act this certified copy is valid proof of both the fact of registration and of the contents of the statement under Section 58 recorded therein. This documentary evidence was supplemented by the statement on oath of the partner Bawa Sundar Singh. The conditions prescribed by Section 69(2) would therefore seem to have been fully satisfied. But two contentions were raised by the learned counsel for the defendant-appellant, one that the registration evidenced by the said certified copy of entry was not registration of the plaintiff firm, and the other that even if the plaintiff firm was registered it was not registered according to law.

12. With regard to the first contention it was argued by the learned counsel for the appellant that the plaintiff firm was Messrs. Spedding Dinga Singh & Co. Chamba but Chamba was not shown as one of the places of business of the firm in the entry, and therefore the firm registered was not the plaintiff firm. Bawa Sundar Singh has however explained in his statement that Chamba was not one of the places of business of the firm but only one of the forests in respect of which a lease was taken by the partnership.

Even if it were supposed, though there is really no justification for the supposition in view of the aforesaid unrebutted statement of Bawa Sundar Singh, that Chamba was also one of the places of business of the firm, mere omission of name of one of the places of business of the firm amounted at the worst to a mistake which was capable of rectification under Section 64 of the Act but which did not take away from the fact that the firm itself was registered. It must be stated here in passing that consistently with the argument put forward by the learned counsel for the appellant, namely, that Chamba is not mentioned in the entry as one of the places of business, it is not open to him to contend that Chamba is part of the firm name, for none of the places of business recorded in the entry is incorporated in the firm name Messrs. Spedding Dinga Singh & Co.

13. The above contention was put forward in another shape by the learned counsel for the appellant. Two deeds of agreement between the partners were filed by the respondent at the instance of the appellant, one dated 17-3-1947 and the other dated 17-5-1947. The former relates to Chamba and Pagni forest lease 1942-44 and the latter to Langet Forest leases, and both purport to have effect retrospectively from 1-6-1946. It was contended by the learned counsel for the appellant that it was the latter deed that was registered and not the former. There is, however, nothing on the record to support that contention. There is no intrinsic evidence in the deeds themselves on account of which it might be said that this was registered but not the other. To attribute registration, evidenced by the said entry, to the deed dated 17-5-1947 rather than to the one dated 17-3-1947 is therefore wholly arbitrary.

But the argument proceeds from a misconception of the essential nature of registration under the provisions of the Partnership Act. And the misconception arises from a confusion of registration of a partnership firm under that Act with registration of a document under the Registration Act. A firm, as Section 4 of the Partnership Act indicates, is only the collective name of persons who have entered into partnership, and partnership is the relation based on agreement existing between those persons to share the profits Of a business carried on by all or any of them acting for all. There is nothing in the Act requiring the agreement to be in writing. It may well therefore be oral. If so, there could be no question of registration of a deed of partnership. That is, in fact, why Sections 56 to 71 in Chapter VII of the Act relating to registration speak nowhere of registration of a document but of registration of firm.

That is made plainer still by Section 58, which does not require presentation of a document (as do the provisions in Part IV of the Registration Act) but of a statement stating the firm name, places of its business, the names of partners, the date of each partner joining the firm and the duration of the firm, and by Section 59, which shows that it is these particulars that are entered by the Registrar in the Register of Firms. It is conceiyable therefore that the aforesaid particulars, which alone require registration, may remain constant though the partners 'inter se' enter into various agreements for carrying on different kinds of business with varying terms. In that case there should be but one registration, and not as many as are the agreements. This is in consonance with the principle underlying the provisions relating to registration of firms under the Partnership Act, which is to afford protection to third parties dealing with a firm against evasion of liability by false denial of partnership by any member of the firm.

From that point of view, it is immaterial what agreements the members enter into from time to time provided the constitution of the firm remains intact. That being so, if in the present case there was no change, as indeed there was none, in the firm name of Messrs. Spedding Dinga Singh & Co., in its duration as a partnership at will, in the partners being Bawa Sundar Singh and F. W. V. Ellvers, in their having joined the firm on 1-6-1946 and in the principal and other places of business of the firm as shown in the entry, the registration evidenced by the entry of which Ex. JC P-2 is the certified copy is the only one requiring proof under Section 69(2) of the Act, the aforesaid two, or, for the matter of that, any number of agreements between the two partners notwithstanding.

It may be mentioned that none of the said basic particulars stands affected by the otherwise varying terms of the two documents. The position is made quite clear by the statement of Bawa Sundar Singh which it was not attempted to rebut and which I have no reason not to accept as correct. He admitted that previously there were two other partners, Arjan Singh andGyan Singh, but he stated that they retired and since 1-6-1946 there has been but one partnership with himself and Ellvers as the partners. He explained the execution by the present partners of the various agreements, like the two referred to above, by saying that whenever a fresh lease was taken a deed was executed but the partnership and partners remained the same.

This explanation is quite in keeping with the essential nature of a partnership and its registration as set forth above. To bring in the aforesaid documents is therefore to introduce something quite irrelevant to the matter under consideration. I hold that the plaintiff firm had already been registered before the institution of the present suit, and that Bawa Sundar Singh, through whom the firm sued the defendant, was duly shown in the Register of Firms as one of its partners.

13a. The other objection raised by the learned counsel for the defendant-appellant was that even if the plaintiff firm had been registered the registration was not according to law. This argument has been built upon the circumstance, as shown by the said certified copy of the entry in the Register of Firms and admitted by Bawa Sundar Singh, that the statement of particulars filed under Section 58 was signed by Bawa Sundar Singh himself but by the other partner Ellvers through his attorney A. McLaren. A copy of the power of attorney was filed by the plaintiff-respondent at the instance of the defendant-appellant in this Court. The learned counsel for the appellant argued that under it McLaren was not an agent 'specially authorised' to sign the statement on behalf of Ellvers, as required by the second paragraph of Sub-section (1) of Section 58 of the Partnership Act.

One other statement elicited from Eawa Sundar Singh in cross-examination which was caught hold of by the learned counsel for the appellant was that the power of attorney was not filed with the Registrar. The argument built on this statement was that the Registrar should not have been satisfied, within the intendment of Section 59, that the provisions of Section 58 had been duly complied with, and that the recording by him of the entry of the statement in the Register of Firms was therefore illegal. Neither of these contentions has any force. The latter argument is easily answered. The witness only said that the power of attorney was not filed with the Registrar, not that it was not shown to him.

A perusal of the provisions relating to registration in Chapter VII of the Partnership Act will show that the Registrar has to file under Section 59 the statement of particulars furnished under Section 58, a statement of alterations in firm name and principal place of business under Section 60, intimations of closing and opening of branches under Section 61 and of changes in names and addresses of partners under Section 62, and notices of changes in and dissolution of a firm and of election by a minor on attaining majority under Section 63, and that the statements, intimations and notices so filed are open to inspection, as laid down in Section 66(2). The word 'file' when used in relation to the proceedings before a Registrar of Firms under the said Chapter is therefore a word of art derived from the Latin filum, meaning thread, and connoting as noun the thread, string or wire upon which writs and other exhibits in Courts and offices are fastened or filed for the more safe keeping and ready turning to the same (Black's Law Dictionary), and as a verb the placing of papers on file or among public records (Fowler's Concise Oxford Dictionary).

However loosely may we be sometimes using, certain words and phrases in English language, such solecism is not permissible (if, indeed, it ever is) where technical words and phrases pertaining to any act or science are concerned. I cannot therefore accept the argument of the learned counsel for the appellant that the Registrar was not in a position to be satisfied as regards the due compliance with the provisions of Section 58 simply because the power of attorney was not filed with him even though there be nothing to justify the inference that it was not even shown to him. It may be mentioned that the filing of the power of attorney was not required under any provision of the Act.

It may also be mentioned that the fact that the Registrar recorded an entry of the statement is 'prima facie' evidence that his satisfaction must have been brought about by the power of attorney being shown to him, and, after such recording, the burden of proving want of due satisfaction rested on the appellant. 'Chotey Lal v. Collector of Moradabad', AIR 1922 PC 279 at p. 280 (H), a Privy Council ruling cited by the learned counsel for the appellant himself. This burden, as shown, has not been discharged.

14. As regards the other objection that, McLaren was not specially authorised to sign the statement for Ellvers, the learned counsel for the appellant placed reliance on the Privy Council, ruling just cited. That case related to the mandatory provisions of Sections 32 and 33, Registration Act, The former requires presentation of a document for registration, where such presentation is made by an agent, to be by an agent 'duly authorized' by a power of attorney', and the latter lays down, the powers-of-attorney which alone shall be recognized for the purposes of Section 32. It was with reference to these sections that it was laid down by their Lordships that such power-of-attorney must not be general in its form, but must confer the special authority to present on behalf of the principal, and that even though the Sub-Registrar accepts the presentation under a general power-of-attorney, it is open to any interested party to show that the power-of-attorney was in fact imperfect.

The learned counsel for the appellant therefore argued that the power-of-attorney by Ellvers in, favour of McLaren was imperfect because it was general in form and did not confer the special authority to sign the statement required by the second paragraph of Sub-section (1) of Section 58 of the Partnership Act, and, further, that it was open to him to show that the power-of-attorney was imperfect. It will be sufficient to show that it was not open to the learned counsel to contend that the power-of-attorney in question was imperfect. No question of interpretation of the document with a view to seeing if it was perfect or imperfect could then arise.

15. In order to understand the force of the dictum of their Lordships that it was open to any interested party to show that the power-of-attorney was in fact imperfect it is necessary to refer in brief to the provisions of the Registration Act with reference to which it was laid down. That Act provides in meticulous detail, with a view no doubt to preventing forgeries and procurement of conveyances by fraud or undue influence, for the presentation of documents for registration and admission of their execution before the Sub-Registrar. In cases of non-compliance with those procedural provisions he may refuse to register the document, in which case he has to make an order of refusal and record his reasons for such order in a prescribed book (S.71). In that case, an appeal lies to the Registrar under Section 72, and, where the refusal is on the ground of denial of execution, an application may be made to the Registrar under Section 73.

There is no appeal against the Registrar's order (Section 76), but a suit then lies in a Civil Court under Section 77 for a decree directing the document to be registered. It will thus be seen that neither the Sub-Registrar nor the Registrar is the sole or the final judge of the matters they decide. And that is the important distinction between the provisions of the Registration Act taken into consideration in the aforesaid Privy Council case and those of Section 59 of the Partnership Act. The satisfaction of the Registrar as to the due compliance with the provisions of Section 58 is not subject to appeal or suit. He is therefore the sole authority with regard to that satisfaction. That being so, provided he acts 'bona fide' and follows the prescribed procedure, his satisfaction on the said point is not open to question in a Court of law. 'Emperor v. Benoari Lall Sarma', AIR 1943 PC 36 (I);--'Mahmud Ali v. Macdonald', 50 Pun LR 34 (PB) (J);--'U.P. Government v. Radhey Lal', AIR 1948 All 179 (K).

There is no suggestion of the Registrar in this case having acted otherwise than 'bona fide'. The only ground on which the provisions of Section 58 were alleged as not having been complied with, namely, that the power-of-attorney under which McLaren acted for Ellvers was not shown to the Registrar, has not been substantiated by the appellant. The presumption of all the provisions of Section 58 having been complied with arising from the fact of the Registrar having registered the statement--'AIR 1922 PC 279 (H)' therefore stands. The act of the Registrar being thus both bona fide and in accordance with the prescribed procedure, no Court has the jurisdiction to attempt to substitute its own satisfaction for that of the Registrar by showing that he was not justified in interpreting the power-of-attorney in question as specially authorising McLaren to sign for Ellvers.

It may be stated in passing that if it were open to this Court to interpret the power-of-attorney, the finding would still be against the appellant. One of the powers conferred thereunder was to carry into effect and perform all agreements entered into by the principal with any other person. McLaren was therefore empowered to sign the statement in question under Section 58, Partnership Act, for that was necessary to carry into effect the agreement of partnership between Ellvers and Bawa Sundar Singh. None of the objections raised on behalf of the appellant having any force, I hold, as already shown, that the suit was not barred by Section 69(2), Partnership Act.

16. The next point that may now be taken up is whether the defendant-appellant acted in regard to the transactions in suit as an independent contractor or as an agent of the plaintiff-respondent. Now, as defined in Section 182 of the Contract Act, an agent is a person employed to do any act for another called the principal, or to represent that other in dealing with third persons. The agent is, so to say, the extended hand or the antenna by means of which the principal deals with even invisible, third persons. The act may therefore be the act of the agent, but the Will behind the act, be it express or implied, is the will of the principal. That is why the right to control is the test put forward in the American Restatement of the Law of Agency. Keeping these simple principles in view, the terms of the aforesaid contracts dated 26-5-1947 may be looked into. (On examination of the contracts his Lordship held that the defendant was an independent contractor and not an agent of the plaintiff. His Lordship took up the accounts parts of the case and finding against the defendant on all points dismissed the appeal.)


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