S. B. MAJMUDAR, J. ( 1 ) IN these two petitions under Art. Z27 of the Constitution of India though styled as petitions under Art. 226 a common order of the Gujarat State Co-operative Tribunal exercising appellate jurisdiction under the provisions of Gujarat Co-operative Societies Act 1961 has been brought under challenge. By the said common order two appeals have been disposed of by the Tribunal. Consequently two writ petitions have been filed. ( 2 ) THE petitioner in both these petitions is the Porbandar Commercial Co-operative Bank Ltd. The said bank had advanced two different amounts under two separate loan transactions. to respondent No. 3 who is the common respondent. He is Mr. P. V. Simaria proprietor of Ashok Electrical Industries. He is the principal; debtor in both the proceedings. According to the patitioner Bank the said loans were advanced on the basis of the security furnished by respondents Nos. 1 and 2 which are two firms functioning at Porbandar and whose partners according to the petitioner-Bank guaranteed repayment of both these loan amounts by principal debtor respondent No. 3. As the loan amounts were not recovered from the principal debtor the petitioner-Bank filed two separate arbitration cases being LVD cases No. 1581 of 1975 and 1582 of 1975 under Sec. 96 of the Act before the Board of Registrars Nominees Rajkot. In both these suits there were common defendants defendant No. 1 being the principal debtor. respondent No. 3 herein while the two firms were joined as defendants No. 9 and 3 respectively. Money decrees were claimed against the principal debtor as well as against the partners of the concerned two firms defendants No. 2 and 3 respectively. The Board of Nominees after recording the evidence in both these cases came to the conclusion that the principal debtor original defendant No. 1 was liable to pay the loan amounts with interest as prayed for. So far as common defendants No. 2 and 3 were concerned according to the Board of Nominees awards were required to be passed against the concerned firms meaning thereby against all of their partners as they had stood sureties for the repayment of the loan amounts and hence they were liable to make good the amounts as assured. Accordingly both the cases were decreed and the concerned three defendants were ordered to repay the amounts jointly and severally. Accordingly both the cases were decreed and the concerned three defendants were ordered to repay the amounts jointly and severally. That resulted into two appeals before the Gujarat State Co-operative Tribunal on behalf of original opponents Nos. 2 and 3 the firms against which awards which awards were passed on the basis that they were sureties for repayment of the respective loan amounts. Appeal No. 54 of 1977 was filed against the award in arbitration case No. 1581 of 1975 while appeal No. 55 of 1977 was filed by the very same defendants Nos. 2 and 3 against the award in arbitration case No. 1582 of 1975. The petitioner-plaintiff Bank was joined 35 Contention respondent No. 1 in both these appeals while the principal debtor was joined as common respondent No. 2 in both these appeals. These appeals came to be allowed by the Tribunal by its common order dated 12/10/1977 The Tribunal took the view that so far as arbitration case No. 1581 of 1975 was concerned the decision in which was the subject matter of appeal No. 54 of 1977 no decree could by passed against the original opponent No. 2 firm as the signatory below the guarantee agreement Shri D. V. Simaria had no authority to bind the firm and therefore rest of the partners of the firm. So far as original opponent defendant No. 3 firm was concerned the Tribunal took the view that the signatory below suretyship agreement Shri Nathalal Dhanji who signed on behalf of the firm would not have by his mere signature bound the other partners of the firm but for the letter produced at Exh. 3516 proving that all the remaining partners of opponent No. 3 final had ratified the action of their colleague who had signed the surety bond on behalf of the firm. On this finding of the Tribunal the decree and award passed by the Board of Nominees against opponent No. 3 firm would have been confirmed by the Tribunal. However the Tribunal took the view that the partners of opponent No. 3 firm rightly disowned their liability under the suretyship agreement in favour of petitioner-Bank as they got discharged under sec. On this finding of the Tribunal the decree and award passed by the Board of Nominees against opponent No. 3 firm would have been confirmed by the Tribunal. However the Tribunal took the view that the partners of opponent No. 3 firm rightly disowned their liability under the suretyship agreement in favour of petitioner-Bank as they got discharged under sec. 141 of the Indian Contract Act in view of the fact that the Manager of the petitioner Bank Shri Raval in his deposition clearly stated that the hypothicated goods which formed the subject matter of security were lost as there was the board of Central Bank of India on the godown where these goods were stored In that view of the matter according to the Tribunal no award could have been passed even against the partners of original opponent No. 3 firm. ( 3 ) SO far as arbitration case No. 1582 of 1975 was concerned its decision was made subject matter of appeal No. 55 of 1977. Very same reasoning was adopted by the Tribunal for exonerating opponents No. 2 and 3 firms from the liability in view of the fact that the partner who signed the surety bonds could not bind the other partners in view of sec. 19 of the Indian Partnership Act. Hence both the partnership firms opponents-original defendants No. 2 and 3 were exonerated from their liabilities. The Tribunal further held that in that case there was no evidence of ratification by other partners of any of the firms as was in the companion matter and therefore there was no question of binding other partners of the firm to meet the suit liability. On the basis of the said findings the Tribunal allowed both the appeals and dismised the petitioner Banks arbitration cases against original defendants Nos. 2 and 3 respectively in both the matters. That is how the petitioner-plaintiff Bank is before this Court in the present proceedings. ( 4 ) MR. G. N. Desai learned advocate appearing for the petitioner-Bank in both these matters raised the following contentions. 2 and 3 respectively in both the matters. That is how the petitioner-plaintiff Bank is before this Court in the present proceedings. ( 4 ) MR. G. N. Desai learned advocate appearing for the petitioner-Bank in both these matters raised the following contentions. (I) The Co-operative Tribunal had patently erred in law in taking the view that if one of the partners of the firm signed a surety bond the said act would not bind the remaining partners of the firm and consequently the awards could have been passed against the concerned firms representing all the partners (II) It was alternatively contended by Mr. Desai that even assuming that the concerned signatories had signed the surety bonds under circumstances which could not bind the remaining partners of their respective firms; even then these signatories who had signed the promissory notes would remain liable as compromisors and decrees could have been passed against them even on that basis. (III) Mr. Desai next contended that the Co-operative Tribunal had ex-facie erred in law in taking the view that the sureties would get discharged under sec. 141 of the Indian Contract Act so far as Appeal No. 54 of 1977 arising from judgment and award in Arbitration Case No. 1581 of 1975 was concerned. (IV) Lastly Mr. Desai contended that in any view of the matter once the individual partners of opponents No. 2 and 3 firms had signed the surely bond in arbitration case No. 1582 of 1975 they could not escape their liability as sureties to meet the suit claim in the absence of pleading and proving their defence under Section 141 of the Indian Contract Act; that so far as the aforesaid arbitration case was concerned as held by the Co-operative Tribunal itself no such evidence were placed and consequently the award ought to have been passed atleast against the concerned signatories in their individual capacities as sureties for the suit claim. ( 5 ) MR. J. R. Nanavati learned advocate appearing for the respondents on the other hand supported the common order passed by the Tribunal in both the appeals I shall deal with the submissions canvassed by Mr. Desai seriatim. ( 6 ) SO far as the first contention of Mr. ( 5 ) MR. J. R. Nanavati learned advocate appearing for the respondents on the other hand supported the common order passed by the Tribunal in both the appeals I shall deal with the submissions canvassed by Mr. Desai seriatim. ( 6 ) SO far as the first contention of Mr. Desai is concerned it must be kept in view that the surety bonds in both these cases have been signed by Shri D. V. Simaria as partner of common opponent No. 2 firm running in the name of Mrs. Bhanji Lavji while Shri Nathalal Dhanji has signed as partner of common original opponent No. 3 firm Messrs. Dhanji Meghji and Co. Before their signatures as partners of the concerned firms can bind the respective firms and other partners of those firms it has to be established by the petitioner-Bank that the concerned signatories had the express or implied authority to bind the remaining partners of the firms. Such an authority can be traced only from sec. 19 of the Indian Partnership Act. The said section reads as under:"19 (1) Subject to the provisions of sec. 22 the act of a partner which is done to carry on in the usual way business of the kind carried on by the firm; binds the firm. THE authority of a partner to bind the firm conferred by this section is called his implied authority (2) In the absence of any usage or custom of trade to the contrary the implied authority of a partner does not empower him to (A) submit a dispute relating to the business of the firm to arbitration (B) open a banking account on behalf of the firm in his own name (C) compromise or relinquish any claim or portion of a claim by the firm (D) withdraw a suit or proceeding filed on behalf of the firm (E) admit any liability in a suit of proceeding against firm (R) acquire immovable property on behalf of the firm (G) transfer immovable property belonging to the firm or (h) enter into partnership on behalf of the firm. ( 7 ) MERE look at the aforesaid section shows that before an act of a partner can hind the firm and therefore rest of the partners it must be shown that the concerned act was done in the usual way to carry on the business of the kind carried on by the firm. On the facts of the present case it is nowhere shown that it was the business of either opponent No. 2 firm or opponent No. 3 firm to underwrite the loan transactions of third parties by standing as sureties. The evidence on the contrary shows that the firm of Bhanji Lavji was carrying on business of selling pure ghee and similarly opponent No. 3 firm Dhanji Meghji and Co. was also a business firm carrying on commercial activities. In that view of the matter sec. 19 cannot be pressed in service by Mr. Desai for the petitioner Bank. Sec. 22 of the Indian Partnership Act also cannot be of much assistance to Mr. Desai for the petitioner-Bank for the simple reason that it is merely a procedural provision which shows how a partner can bind his firm and the rest of the partners of the firm once his act is within the four corners of sec. 19 (1 ). It is obvious that the procedure of sec. 22 can be pressed in service provided the basic condition for foisting the liability on the firm and the remaining partners is established as per the requirement of sec. 19 (1 ). If that basic requirement is not satisfied even though the partner complies with the procedure of sec. 22 of the Act by executing instruments in the manner provided by sec. 22 it would remain an abortive exercise. On the facts of the present case it has been found by the Tribunal that it was not the usual course of business of either of the two firms to execute any suretyship contracts for the benefit of third parties when they became debtors. In this connection it is profitable to refer to the following discussion found at page 203 of Lindley on Partnership 11 Edition. "how far one partner can bind the firm by a guarantee obliging the firm to pay if some other person does not has been much disputed. In this connection it is profitable to refer to the following discussion found at page 203 of Lindley on Partnership 11 Edition. "how far one partner can bind the firm by a guarantee obliging the firm to pay if some other person does not has been much disputed. The later cases however decide that unless it can be shown that the giving of guarantees is necessary for carrying on the business of the firm in the ordinary way one of the members will be held to. have no implied authority to bind firm for generally speaking it is not usual for persons in business to make themselves ar. . swerable for the conduct of other people". THE leaned author in this connection has referred to the case of BRETTEL V. WILLIAMS 4 EX. 623. wherein the facts were that the defendants who were railway contractors had made a sub-contract for performance of part of some work they had undertaken. The sub-contractor required a quantity of coal and one of the defendants. in the name of the firm guaranteed to the plaintiffs who there coal merchants payment of coal to be supplied by them to the sub-contractors. It was held in that decision that this guarantee did not bind the Partners of the contractor signing it. As seen above Indian statutory provisions lay down the same principle. In that view of the matter the Tribunal was eminently justified in taking the view that merely because the concerned two partners signed as sureties on behalf of their respective firms by these acts alone they could not bind any other partners of the firm or the firms themselves for the purpose of answering the claim of the petitioner bank. The first contention of Mr. Desai therefore has to be repelled. ( 8 ) THAT takes me to the second contention of Mr. Desai. So far as this contention is concerned it need not detain me any further. The case of the petitioner-Bank in both the arbitration cases was that defendants Nos. 2 and 3 firms were to be made liable only as sureties No case was put up by the petitioner Bank against the concerned partners who were signatories below the surety bonds that they wore liable in their individual capacities as co-promisors who had signed promissory notes. 2 and 3 firms were to be made liable only as sureties No case was put up by the petitioner Bank against the concerned partners who were signatories below the surety bonds that they wore liable in their individual capacities as co-promisors who had signed promissory notes. As such a case was not initially put up by the Bank against the concerned signatories no such new case can be permitted to be made out in Art. 227 proceedings when before both the courts below the petitioner Bank had not thought it fit to urge such a case. My permitting Mr. Desai to raise such a contention in the present proceedings Would clearly prejudice the concerned defendants and would take them by surprise. When this difficulty wa noticed by Mr. Desai he fairly conceded that he would not press the present contention. It is therefore answered as not pressed. ( 9 ) SO far as the third contention of Mr. Desai is concerned. it is equally devoid of any merit. The Tribunal on evidence has taken the view that the manager of the petitioner Bank itself clearly admitted in his evidence that the hypothecated goods were lost as the board of another bank viz Central Bank of India was placed on the godown containing the goods. It is a pure finding of facts based on relevant evidence which cannot be gone behind in the present proceedings. The finding reached by the Tribunal is that the petitioner-Bank had lost the security and hence pro tanto sureties were discharged despite the ratification of the suretyship agreement by all the partners of defendant No. 3 firm as per Exh. 35/6. As this finding is based on relevant evidence and especially in the light of the admissions by the petitioner-Banks own Manager Shri Raval no fault can be found with the conclusion reached by the Tribunal on this aspect. It must therefore be held that the Tribunal was justified ill taking the view that the sureties were discharged under sec. 141 of the Indian Contract Act so far as arbitration case No. 1581 of 1975 is concerned. The third contention therefore stands repelled. ( 10 ) SO far as the last contention raised by Mr. Desai is concerned Mr. It must therefore be held that the Tribunal was justified ill taking the view that the sureties were discharged under sec. 141 of the Indian Contract Act so far as arbitration case No. 1581 of 1975 is concerned. The third contention therefore stands repelled. ( 10 ) SO far as the last contention raised by Mr. Desai is concerned Mr. Desai submitted that in any view of the matter so far as arbitration case No. 1582 of 1975 goes the Tribunal could not have wholly dismissed the suit of the petitioner against the concerned two defendants which were mentioned to be the two firms whose two partners admittedly signed the surety bond. Mr. Desai submitted that atleast these two signatories could have been made liable to answer the claim even if the other partners of the concerned firms might get exonerated because of the finding reached by the Tribunal in the light of sec. 19 of the Indian Partnership Act. Mr. Desai further submitted that in seeking decrees personally against the signatories of the suretyship agreement no new case is being made out as from the very beginning the petitioner-Bank has sought for a money decree against all the partners of the concerned two partner. ship firms by suing them in the names of the firms as permitted by Order 30 Rule 1 C. P. C. on the ground that they were liable as sureties for the debt of original defendant No. 1 and the passing of the decree against the concerned signatories would also be on the basis that they were sureties. No new case is thereby made out against the concerned signatories. Mr. Nanavati learned advocate appearing for the respondents vehemently combatted the aforesaid contention and submitted that both the arbitration cases were filed against the firms and not against the partners and therefore no decree could be passed against the partners. It was also submitted that even if it is assumed that the two partners who had signed the surety bond were parties to the dispute even then they were not sued in their personal capacities but only as partners of the firm hence no personal decrees can be passed against them. Alternatively Mr. It was also submitted that even if it is assumed that the two partners who had signed the surety bond were parties to the dispute even then they were not sued in their personal capacities but only as partners of the firm hence no personal decrees can be passed against them. Alternatively Mr. Nanavati submitted that even as signatories below the surety bond if the concerned two partners are to be held liable to meet the suit claim they would he entitled to submit that under sec. 141 of he Indian Contract Act they are discharged as the security is lost. ( 11 ) THE aforesaid contention of Mr. Desai is well sustained. The objection raised by Mr. Nanavati cannot hold good for the simple reason that the arbitration case is filed against the firms which would necessarily imply suing the partners of the firm as permitted by Order XXX Rule (1) C. P. C. It is trite to say that the firm is not a legal entity. However only for convenience of suing all the partners of the firms the procedure permitted by Order XXX can be followed. Still the proceedings would remain proceedings against the concerned partners. The concerned partners are actually sued through the name of the firm. Hence it cannot be said that the partners who actually signed the surety bond were not parties to the dispute. It is also necessary to note that the case of the petitioner-Bank from the beginning is that the concerned partners of the firms are liable as sureties to meet the claim of the bank and that the bond is signed by the concerned partners and hence they are liable along with other partners. It is true that the concerned partners have not signed in their individual capacities. However that can hardly make any difference so far as persent proceedings are concerned. It may be noted that strict and rigorous provisions of C. P. Code do not apply to the trial of a dispute under sec. 96 of the Act. It has to be decided according to justice equity and fair play. If this was a fullfledged civil suit tried by a regular civil court Mr. Nanavati could have urged with emphasis that by merely suing partners under O. XXX R. 1. 96 of the Act. It has to be decided according to justice equity and fair play. If this was a fullfledged civil suit tried by a regular civil court Mr. Nanavati could have urged with emphasis that by merely suing partners under O. XXX R. 1. through the name of the firm no personal decree can be passed against the concerned partners unless he was also joined in his personal capacity as a defendant. It is also true that in a suit governed by O. XXX C. P. C. each partner aping individually can put in a separate written statement but each written statement is the written statement of the firm. It is only when a person is sued personally along with the firm that he may put in a personal defence (See A. I. R. 1953 Bom. 20 (25) A. I. R. 1965 Bom. 494 (496 ). Still however the fact cannot be lost sign of that the present proceedings are to be decided on principle of justice equity and good conscience and not strictly according to the rigorous procedural provisions of the C. P. C. Let us see if basic requirements of justice and fair play are met in this case or not. The partners of defendant Nos. 2 and 3 firms who have actually signed the surety bond are deemed to be parties to the dispute. They knew the case of the plaintiff which they had to meet. The case of the plaintiff bank against these partners hinges on the surety bond below which they have signed. They did not dispute their signatures below the bond. Their defence under sec. 19 of Contract Act was rejected by the nominees Court and decree for full amount was passed against all partners of the firm as sureties. The Tribunal has exonerated the rest of the partners in the light of sec 19 of the Indian Partnership Act Still however the award passed by Nominees Court against partners who actually signed the bond was also set aside by the Tribunal. Mr. Desai seeks restoration of that limited award against actual signatories of the surety bond. It is difficult to appreciate how this limited restoration of nominees award against actual signatories of the bond as partners of the firms can in any way take them by surprise. Mr. Desai seeks restoration of that limited award against actual signatories of the surety bond. It is difficult to appreciate how this limited restoration of nominees award against actual signatories of the bond as partners of the firms can in any way take them by surprise. Plaintiffs case was contested on merits and issues were joined evidence was also led by the concerned defendants on all material aspects of the case. Hence justice and fair play demands passing of a limited decree against only 2 partners of the two firms who signed the bond while dismissing the claim against rest of the partners and the firms themselves. Once it is found on evidence that the concerned two partners had signed the surety bond which cannot bind the remaining partners there is no reason why proper award cannot be passed against the signatories of the surety bond in their personal capacities as sureties. Mr. Nanavatis objection that even the concerned signatories would get exonerated on account of sec. 141 of the Indian Contract Act cannot help him in arbitration case No. 1582 of 1975 for the simple reason that the Tribunal has found that no such defence was put up on behalf of the defendant-firms in that case and there was no evidence on record to show that the security in that case was lost by the petitioner-creditor. Consequently the benefit of sec. 141 which was available in companion case No. 1581 was not available to the defendants in arbitration case No. 1582 of 1975. Hence the last contention raised by Mr. Desai has got to be accepted. It is held that even though other partners of the concerned two firms are not liable and no decree can be passed against the concerned two firms as such the respective two partners Shri D. V. Simaria and Shri Nathalal Dhanji who had signed the surety bond would remain personally liable to answer the suit claim as sureties. Decree can be passed against these two partners to the aforesaid extent even though further relief cannot be granted to the petitioner against the remaining partners of the said two firms. Decree can be passed against these two partners to the aforesaid extent even though further relief cannot be granted to the petitioner against the remaining partners of the said two firms. ( 12 ) IN the light of the aforesaid discussion the following result is arrived at: ( 13 ) SPECIAL Civil Application No. 380 of 1978 which arises from common order of the Tribunal in appeal No. 54 of 1977 will have to be dismissed as no fault can be found with any of the finding of the Tribunal in that appeal. However so far as special civil application No. 299 of 1978 is concerned which arises from common order of the Tribunal in appeal No. 55 of 1977 which in its turn arose from the decision in arbitration case No. 1582 of 1975 it is held that the Tribunal was not justified in allowing the said appeal. The judgement and order of the Tribunal allowing appeal No. 55 of 1977 stand quashed and set aside However that with not result in automatic confirmation of the award of the Registrars Nominee in Arbitration case No. 1582 of 1975 instead award-decree will be passed against the respective two partners of opponents No. 2 and 3 firms namely Shri P. V. Simaria and Shri Nathalal Dhanji who will be held personally liable to meet the claim of the petitioner-Bank in Arbitration case No. 1582 of 1975. They shall jointly and severally pay Rs. 22015-33 with 13% interest per annum to the petitioner-bank. They shall also pay costs of the lavad case to the petitioner-bank. The award passed by the Registrars Nominee in arbitration case No. 1582 of 1975 shall be restored to the aforesaid limited extent. It is clarified that awards passed by the Nominee against original defendant No. 1 principal debtor in both the cases (common respondence No. 3 herein) will of course remain untouched as they have already become final. Rule issued in special civil application No. 299 of 1978 is made absolute partially to the extent indicated in this judgment. Rule issued in special civil application No. 300 of 1978 shall stand discharged. In the facts and circumstances of the case there will be no order as to costs in both the special civil applications. (RJS) Spl. C. A. 299/78 allowed. Spl. C. A. 300/78 dismissed. .