Judgment : 1. Plaintiff in O.S.No. 391 of 1978 on the file of Additional District Munsif, Court, Srivilliputhur is the appellant. 2. She filed a suit for recovery of a sum of Rs. 3,877.60 being the balance of value of handloom cloth purchased by defendants on credit basis, on 210. 1977 from the plaintiffs shop at Rajapalayam on agreeing to pay the same with interest at the rate of 12% p.a. as per trade usage and custom. 3. The case of the plaintiff as found in the plaint are briefly as follows:- The plaintiff is doing business in handloom and power loom clothes at Rajapalayam under the name and style of “Sri Venkataswara Handlooms” She is the sole proprietrix. The defendants are doing business in handloom and had dealing with the plaintiff. The defendants purchased handloom clothes on 210. 1977 as follows:- Invoice Nos. Date Amount 182 210. 1977 Rs. 1,429.60 183 -do- 1,429.60 184 -do- 1,429.60 185 -do- 1,429.60 186 -do- 1,429.60 187 -do- 1,429.60 The total amount comes to Rs. 8,5760. The 2nd defendant signed all the above invoices in taken of his having accepted them. The defendants have paid Rs. 1,200 on 112. 1977, Rs. 1,500 on 20.12.1977 and Rs. 2,000 on 11. 1978 making in all Rs. 4,700 by means of demand drafts. There is a balance of Rs. 3,8760. Inspite of repeated demands, the defendants have failed to pay the balance of Rs. 3,877.60 to the plaintiff. A suit notice was issued to the defendants on 8. 1978. The 1st defendant received the notice, but did not send any reply nor paid the balance. The 1st defendant is the son of the 2nd defendant. They are constituting a Hindu joint family and doing business jointly. Hence the 2nd defendant is also added as a party. The defendants are liable to pay interest at the rate of 12% p.a. as per trade and usage. However, the plaintiff restricted her claim With interest at 12% p.a. from the date of plaint. 4. The 2nd defendant filed a written statement and the 1st defendant has adopted the same. The necessary averments in the written statement are as follows:- It is denied as false that the defendants are doing business in handloom clothes and that they purchased handloom clothes on 210. 1977. It is equally incorrect to state that these defendants were directly purchasing goods from the plaintiff. The necessary averments in the written statement are as follows:- It is denied as false that the defendants are doing business in handloom clothes and that they purchased handloom clothes on 210. 1977. It is equally incorrect to state that these defendants were directly purchasing goods from the plaintiff. The plaintiff has deliberately suppressed the truth and brought out this speculative suit. The following 14 per sons are partners of the firm under the name and style of “Sri. P.K. Gothandarama Iyer Sons” Madurai. 1. P.K. Rajaram (2nd defendant in this case) 2. P.K. Rajagopal. 3. P.K. Santharam, 4. P.K. Janardhanan, 5. P.K. Mohan. 6. P.K. Sankarlal. 7. P.K.R. Athmaram (the 1st defendant in this case) 8. P.K.R. Manoharan. 9. P.K.R. Motilal, 10. P.K.R. Ramdoss, 11. P.K.R. Rajan, 12. P.R. Sridaran, 113. P.R. Mahesh, 114. P.R. Saravanan. 5. These partners are all members of a Hindu joint family and they are carrying on commission business from 18. 1977 in handloom clothes. On 110. 1977 the defendant firm had entered into an agreement with the plaintiff. The said agreement is signed by Mohan, one of the partners on behalf of the firm. The plaintiff is well aware of the fact. In accordance with the above mentioned practice, goods covered by invoices Nos. 182 to 187 were sent by the plaintiff to Thansi and two partners of the defendants fir m sold the goods at Thansi and other places, some for cash and some for credit. The account realised was sent to the plaintiff as admitted in the plaint. The balance amount has to be realised yet from the purchaser. Though the transactions are in the names of one or other among the partners of the firm, it is really with the defendants’ firm. Therefore, the plaintiff is not entitled to separate each and every transaction which stands in the name of one or the other of the partners. Hence the suit as framed is not maintainable in law. The plaintiff is not entitled to sue in respect of particular transaction, simply because, they stand in the name of one or other of the partners of the firm. He can sue only the defendants’ firm “P.K. Kothandarama Iyer Sons” for accounts. The suit is also bad for non-jointer of the defendants’ firm “P.K. Kothandarama Iyer Sons.” With these averments, the defendants prayed for dismissal of the suit. 16. He can sue only the defendants’ firm “P.K. Kothandarama Iyer Sons” for accounts. The suit is also bad for non-jointer of the defendants’ firm “P.K. Kothandarama Iyer Sons.” With these averments, the defendants prayed for dismissal of the suit. 16. The plaintiff filed reply statement in the following manner; The plaintiff was not aware of the partnership firm that 14 members as contended in the written statement. Moreover, the suit claim has nothing to do with the defendants’ partnership firm. It is a separate transaction. It is also false to state that defendants’ firm entered into an agreement with the plaintiff on 110. 1977 and the same was signed by Mohan on behalf of the defendants’ firm. The agency agreement is only between the plaintiff an d P.K. Mohan only. Moreover, goods covered under invoices 182 to 187 were sold to the 2nd defendant in taken of it, he had signed the said invoices. As per the direction of the 2nd defendant, the goods were sent to Thansi. The 2nd defendant had also taken delivery of the same at Thansi. Since the contract is between the plaintiff and the 2nd defendant he is liable to pay the price of the goods. The 2nd defendant alone had signed the invoices in his individual capacity and therefore, he is liable to pay the price of the goods. 7. The husband of the plaintiff viz., Thiru Mahalingam was examined as P.W.I and he has marked Ex.A.l to A.58 in support of her case. On the other hand, the 2nd defendant was examined as B.W.I and Ex.B.l to B.17 were marked in support of their defense. 8. The learned District Munsif, Srivilliputhur after referring to various documentary evidence and in the light of oral evidence let in by both the parties, by judgment and decree dated 8. 1989 came to the conclusion that it is not open to the plaintiff to choose two partners alone and sue them for the plaint amount, consequently held that the suit as framed is not maintainable and dismissed the same. 9. Aggrieved by the dismissal of the suit by the learned District Munsif, Srivilliputhur, the unsuccessful plaintiff filed an appeal in A.S.No.8 of 1981 on the file of Sub-Court, Srivilliputhur. The Appellate Judge also affirmed the finding of the trial court, viz., the suit as framed is not maintainable, consequently dismissed the appeal. 10. 9. Aggrieved by the dismissal of the suit by the learned District Munsif, Srivilliputhur, the unsuccessful plaintiff filed an appeal in A.S.No.8 of 1981 on the file of Sub-Court, Srivilliputhur. The Appellate Judge also affirmed the finding of the trial court, viz., the suit as framed is not maintainable, consequently dismissed the appeal. 10. Against the concurrent findings of the courts below, the plaintiff filed the present second appeal before this Court. While entertaining this second appeal, this Court determined the following substantial questions of law for consideration. 11. Whether the suit against the defendants is not maintainable? 12. Whether the defendants are not liable for the price even though they admit their liability to collect and remit and they Act on behalf of undisclosed principals? 11. Mr. R. Alagar, learned senior counsel appearing on behalf of the appellant, after referring to various documents and in the light of the legal position, contended that both the courts below committed an error in holding that the suit against the two defendants is not maintainable. According to the learned senior counsel both the courts below committed an error in dismissing the suit as not maintainable. He also contended that the courts below failed to see that so long as the plaintiff does not want the decree binding on the members of the family, the suit against the members, who entered into the transactions is maintainable. He also very much relied on Order 30, Rule 1, C.P.C. in support of his contention. Alternatively he contended that even if the defendants are held to be commission agents, in view of the evidence available on record, the plaintiff is entitled to a decree as prayed for. 12. On the other hand, Mr. S. Subbiah, learned counsel appearing for the respondents contended that the documents produced by them (defendants) clearly show that the suit transaction was only with a partnership firm viz., “P.K. Kothandarama Iyer Sons, Madurai”, hence the present suit against the two individual partners is not maintainable and further contended that the findings of both the courts below in this regard are perfectly in order and prayed for dismissal of the second appeal. 13. It is seen from the pleadings that the plaintiff is the sole proprietrix of “Sri Venkataswara Handlooms” and doing business in handloom and powerloom clothes at Rajapalayam. 13. It is seen from the pleadings that the plaintiff is the sole proprietrix of “Sri Venkataswara Handlooms” and doing business in handloom and powerloom clothes at Rajapalayam. Ex.A.l to A.6 disclose that the goods have been sent by the plaintiff to the defendants 1 and 2 as per Invoices referred above (Invoice Nos. 182 to 187). The husband of the plaintiff, who was examined as P.W.I has explained the above transaction in detail. The 2nd defendant who was examined as D.W.I has also admitted the same. In ot her words, Ex.A.l to A.6 stand in the name of the 1st defendant. A perusal of the above documents also show that the 2nd defendant has signed all the above invoices in taken of his having accepted them. It is the case of the plaintiff that two defendants have paid a sum of Rs. 1,200 on 12. 1977, Rs. 1,500 on 20.12.1977 and Rs.2,000 on 11. 1978 making in all Rs. 4,700 by means of demand drafts. There is a balance of Rs. 3,877.60 for which only the plaintiff has filed the present suit against the defendants 1 and 2. D.W.I further admitted that Ex.A.l to A.6 are signed by him on behalf of the 1st defendant. A perusal of Ex.A.l to A.6 and the oral evidence of D.W.I show that the defendants 1 and 2 are liable for the goods purchased by them. In this regard, it is to be noted, for the earlier transaction, the defendants alone had settled and paid a sum of Rs. 4,700 to the plaintiff. The present claim is for the balance amount of Rs. 3,6760. Admittedly Ex.A.l to A.9 relates to the suit transaction. In the said document, there is nothing to suggest that they were on behalf of P.K. Kothandarama Iyer Sons, Madurai. Moreover, neither Ex.A.l to A.6 nor Ex.A.7 to A.9 have been signed on behalf of P.K. Kothandarama Iyer Sons, Madurai. Counsel for the appellant on the basis of the above mentioned factual position and in the light of Ex.A.l to A.9 vehemently contended that the suit transaction were entered into by the defendants in their individual capacities. Since the suit transaction is a separate transaction by defendants with the plaintiff, the plaintiff issued notice to them under Ex.B.16, but no reply was sent by the defendants to the plaintiff. A reliance was placed on Ex.B.17 by the defendants. Since the suit transaction is a separate transaction by defendants with the plaintiff, the plaintiff issued notice to them under Ex.B.16, but no reply was sent by the defendants to the plaintiff. A reliance was placed on Ex.B.17 by the defendants. However, the counsel for the plaintiff contended that inasmuch as Ex.B.17 is an unregistered document, under the Indian Partnership Act, the same cannot be relied upon or looked into. 14. It is the definite case of the defendants that the suit transaction was not a case of sale at all. The two defendants are partners of the firm viz., P.K. Kothandarama Iyer Sons, Madurai and they acted as agents of the plaintiff for sole selling the plaintiffs handloom products in all the States of India on commission basis. According to them, the goods covered under Ex.A.l to A.6 were despatched to Thansi for sale by P.K. Kothandarama Iyer Sons, Madurai as agent of the plaintiffs. It is also the case of the defendants that Ex.B.3 (Ex.A.12) is signed by P.K. Mohan, who is none other than the brother of D.W.I. It is also signed by P.K. Santharam and other partner. Therefore, according to them, Ex.B.3 is binding on the plaintiff. The said P.K. Mohan is a partner will bind the firm. It is also pressed into service that all correspondence are only between the plaintiff and P.K. Kothandarama Iyer Sons, Madurai. The counsel for the defendants also very much relied upon Ex.B.4 dated 210. 1977 which is an inland letter sent to P.K. Kothandarama Iyer Sons by the plaintiff. The said inland letter under Ex.B.4 reads as follows:- “bring all these 21 invoices, which were handed over to you in person demands those goods. If he takes them we will pay the commission to you.” On the basis of Ex.B.4 it is contended that the goods covered under Ex.A.l to A.6 were not sold to the defendants and they were ordered to be sold by P.K.K. Sons for commission. According to the learned counsel for the respondents the contents of Ex.B.4 cuts the very root of the plaintiffs case. Likewise, the learned counsel for the respondents also brought to my notice, the contents of Ex.B.10 wherein the plaintiff, according to him, admitted that she has appointed P.K.K. sons as her agent and that the agents remuneration is 3% for sarees. 15. Likewise, the learned counsel for the respondents also brought to my notice, the contents of Ex.B.10 wherein the plaintiff, according to him, admitted that she has appointed P.K.K. sons as her agent and that the agents remuneration is 3% for sarees. 15. As pointed out by the learned Senior Counsel for the appellant that the proper provision applicable to the present transaction is Order 30, Rule 1, C.P.C. while relying upon the said provision, the learned Senior Counsel submits that if the transaction is by the partners of the firm, it is open to the aggrieved party to sue the firm or any of its partners. Here, the material documents viz., Ex.A.l to A.6 invoices show only at the instance of defendants 1 and 2, the plaintiff sent the handloom clothes at their request. As a matter of fact, for the very same transaction, the defendants had already paid or discharged part of the transaction amount. Merely because, for the balance amount, the plaintiff had written letters to P.K.K. sons, as seen from Ex.B4 or Ex.B.10, it is not possible to come to the conclusion that the transaction was for the P.K.K. Sons firm. 16. In the absence of the clear evidence, it is open to the court to verify the other documents in order to find out the truth of the case. When Ex.A.l to A.6 amply prove that the goods were sent to Thansi as directed by defendants 1 and 2 and their names find a place in the relevant documents, it is not open to the courts below to refer other correspondences between the parties. Even Ex.B.3 (Ex.A.12) is the agreement dated 110. 1977 entered into between the plaintiff and Mohan. Nowhere it is stated that t he said Mohan has entered into an agreement with the plaintiffs firm on behalf of P.K.K. Sons. The entire perusal of Ex.B.3. (Ex.A.12) falsifies the case of the defendants.’ There is no warrant or reason to come to the conclusion that the transaction of the defendants 1 and 2 were on behalf of the firm P.K.K.Sons. Hence the contention that the suit against two individual partners without impleading the firm in the proper manner is untenable. Apart from the above, some of the factual position also falsifies the defendants’ case. Hence the contention that the suit against two individual partners without impleading the firm in the proper manner is untenable. Apart from the above, some of the factual position also falsifies the defendants’ case. The case of the plaintiff is clearly mentioned in para 4 to 6 of the plaint which are extracted hereunder:- “4. The defendants are doing business in Handloom clothes and had dealings with the plaintiff. The defendants purchased handloom clothes on 210. 1977 as follows:- Invoice No. Date Amount 182 210. 1977 Rs. 1429.60 183 -do- Rs. 1429.60 184 -do- Rs. 1429.60 185 -do- Rs. 1429.60 186 -do- Rs. 1429.60 187 -do- Rs. 1429.60 Total. Rs. 8577.60 The second defendant signed in all the above invoices in taken of his having accepted them. 5. The defendants have paid Rs. 1200 on 112. 1977, Rs. 1,500 on 20.12.1977 andRs. 2,000 on 1. 1978 making in all Rs. 4,700 by means of bank drafts. 6. The defendants have not paid the balance of Rs. 38760. Repeated demands by the plaintiff and’her husband provide futile. The plaintiff sent a registered notice dated 7. 1978 demanding the amount from the first defendant. He acknowledged the same on 18. 1978. But did not send any reply nor paid the amount. “ With regard to Ex.B.4 and B.10 even in the reply statement filed by the plaintiff, more particularly in para 4, the same has been explained which is reproduced hereunder:- “Any correspondence addressed by the plaintiff to P.K.K.Sons is simply as given by the defendant for address sake but and nothing more than that. It is the address given by the defendants for communication purposes alone. It is the practice amongst traders.” The oral evidence of P.W.I is also very relevant. He has mentioned in Chief Examination: The above referred oral evidence of P.W.I and D.W.I amply prove that defendants 1 and 2 alone were responsible for the suit transaction and not P.K.K.Sons. In this respect, the conclusion of the Courts below is contrary to the evidence on record. 17. Apart from the above factual position, the learned Senior counsel for the appellant referred Narayana Chetti v. Lakshmana Chetti , I.L.R. 21 Mad. 257. In the case cited above, the plaintiff therein used to recover a sum due on account of dealings in clothes from March, 1989 to 1995. 17. Apart from the above factual position, the learned Senior counsel for the appellant referred Narayana Chetti v. Lakshmana Chetti , I.L.R. 21 Mad. 257. In the case cited above, the plaintiff therein used to recover a sum due on account of dealings in clothes from March, 1989 to 1995. Upto 1994 the dealings took place between the plaintiff and the firm consisting admittedly of the defendant and another. In that year the firm was admittedly dissolved and the business was carried on by the defendant. The defendant pleaded inter alia, non-joinder of his late partner. Against the grant of decree by the learned District Munsif, the defendant preferred revision before the High Court. A Division Bench of this court has held as follows:- “According to the law declared in the Contract Act, Section 43, especially when taken with section 29 of the Civil Procedure Code, it is clear that it is not incumbent on a person dealing with partners to make them all defendants. He is at liberty to sue any one partner as he may choose. The suit was not bad for non-joinder of late partner.” He also relied on a decision reported in Atma Ram v. Umar Ali , A.I.R. 1940 Lah. 256. In the said decision after referring Order 30 Rule 1 it has been held as follows:- “Order 30, Rule 1, is only an enabling provision. It merely says that a “firm” may sue or be sued in the name of the firm. It is nowhere laid down that this is the only form in which a suit on behalf of, or against, the partnership members can sue jointly in their individual names. As a matter of fact, Order 30 merely provides an alternative and a shorthand made of describing the parties with a view to facilitating the bringing of suits on behalf of or against persons working under a trade name.” With regard to the admission of the defendants viz. Commission Agents, the learned counsel cited Kalyanji v. Tirkaram , A.I.R, 1938 Nag. 254. Regarding the commission agent, in the above said judgment, it is mentioned as follows:- “Where a person receives goods from another as a commission agent and then sells them for him, he is an agent upto a certain point that is upto the date of the sale. 254. Regarding the commission agent, in the above said judgment, it is mentioned as follows:- “Where a person receives goods from another as a commission agent and then sells them for him, he is an agent upto a certain point that is upto the date of the sale. Thereafter, whether he still continues as an agent or the relationship is that of a debtor and creditor depends on whether the commission agent when he sells has authority to sell in his own right to pass a valid title. If he has authority to sell and also authority to pass a valid title in his own right, he is acting as a principal vis-a-vis the purchasers and not merely as an agent and therefore, from that point on, he is debtor of the erstwhile principal and not merely an agent. Whether this is so or not must depend on facts in each particular case.” 18. As pointed out by me in respect of factual position and in the light of decisions referred above, I am of the firm opinion that the plaintiff is entitled to maintain the present suit against the defendants 1 and 2 without impleading the firm viz., “P.K. Kothandarama Iyer Sons, Madurai”. The dismissal of the suit and appeal by both the courts below are erroneous and the findings rendered by them are perverse. According to me, there is substantial question of law and with the available material, this Cour t can interfere by allowing the second appeal. 19. For all the reasons stated, above, the judgment and decree of the courts below are set aside and the suit filed by the plaintiff is decreed as prayed for with costs. Consequently, the second appeal is allowed with costs.