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1999 DIGILAW 565 (KAR)

Mudlappa v. Srinidhi Textiles

1999-10-13

T.N.VALLINAYAGAM

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ORDER T.N. Vallinayagam, J.—The Defendant is the Petitioner in CRP who challenges the decree passed in a suit for recovery of money for goods sold and delivered. Except a total blank denial, the Defendant has not said anything. Yet it is contended that the suit is barred by limitation and Exts. P-1 to P-4 are prima facie manipulated. 2. The Court below has considered and found that the Defendant has purchased clothes from the Plaintiff on credit basis worth Rs. 3,800/- on 10.5.1989, Rs. 380/- on 20.5.1989; Rs. 322/- on 9.12.1989 and Rs. 91-20 on 11.1.1990. Considering the documents produced Ext.P-1 to P-4 and P-5, the Court found that the claim is true. On the question of interest, the Court found interest at 18% is reasonable in respect of commercial transaction and found that interest claimed is correct. Another point raised was that Order 30, Rule 1 was said to have been violated. It is contended that the Section reads as follows: Suing of partners in name of firm: (1) Any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm to be furnished and verified in such manner as the Court may direct. 3. The above section contemplates how a suit on behalf of the parties shall be filed. However, the provision has been interpreted by this Court in Shivananjappa Vs. Marulasiddappa Sons, ILR (1992) KAR 955 to the following effect: A mere perusal of Rule one indicates that there is nothing in the said Rule which enjoins that in any suit filed in the name of the partnership, two or more persons must necessarily join as Plaintiffs. Any two or more persons mentioned therein is a provision relating to the persons carrying on business. It is only an enabling provision. It has to be necessarily held that the suit filed by only one person in the name of the partnership firm is clearly maintainable. 4. Any two or more persons mentioned therein is a provision relating to the persons carrying on business. It is only an enabling provision. It has to be necessarily held that the suit filed by only one person in the name of the partnership firm is clearly maintainable. 4. In the case of Purushottam Umedbhai and Co. Vs. Manilal and Sons, AIR 1961 SC 325 the Supreme Court has held that it is only enabling provision and consequently the suit filed by one of the partner is maintainable. In that case even the power of attorney executed by one of the partnership firm is entitled to maintain the suit. This is what the Supreme Court observed in paragraph-10. One of the partners Manubhai-Maganbhai Amin was the Manager of the firm Manilal and Sons. He had executed a Power of Attorney in favour of four persons including one Dunderdale. By this power he authorized any one of these persons to sue for recovery of moneys due to the firm from the firm Purushottam Umedbhai and Company., the Appellant. It also empowered these persons to appear and to represent the firm in any Court in any jurisdiction-civil, criminal, insolvency, original, appellate or otherwise and before any official in any suit or proceeding or matter and to make, sign, verify, present and file any plaint. Dunderdale had signed and verified the plaint in the present case. We have no doubt on a perusal of the power of Attorney that it authorised Dunderdale to file the plaint on behalf of the firm Manilal and Sons and also to verify it. It was suggested that this was a power of Attorney by Manubhai Maganbhai Amin for himself and not for the firm of Manilal and Sons. As we understand the Power of Attorney that is not so. No doubt the power of attorney is not signed by all the partners of Manilal and Sons but only by Manubhai Maganbhai Amin. In one opinion, it was not necessary that the Power should have been signed by all the partners of the firm because Manubhai Maganbhai Amin was the manager of the firm. Under Section 18 of the Act a partner is an agent of the firm for the purposes of the business of the firm. Manubhai Maganbhai Amin was therefore the agent of the firm as well as the manager. Under Section 18 of the Act a partner is an agent of the firm for the purposes of the business of the firm. Manubhai Maganbhai Amin was therefore the agent of the firm as well as the manager. It is to be noticed that under Section 19 (2) of the Act instances are stated where, in the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to do matters mentioned in Clauses (a) to (h). It is significant that in these clauses there is no prohibition to a partner executing a Power of Attorney in favour of an individual authorizing him to institute a suit on behalf of the firm. In these circumstances, it cannot be said that at the time the plaint was filed it was defective because the Power of Attorney in favour of Dunderdale was not a Power of Attorney on behalf of the firm and its partners. 5. In the light of the above dictum the plaint signed by one of the partner cannot be said to be improper and consequently, the trial Court has rightly upheld maintainability of the suit. So far as the absence of specific denial is concerned, Order 8, Rule 5 comes into operation. Order 8, Rule 5 reads as follows: Every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the Defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. 6. In AIR 1988 KarLJ 335 Srinivasa Vs. Venkatappa, the Division Bench of this Court has held, every allegation of facts of Plaintiff in the plaint if not specifically or by necessary implication or stated to be not admitted in the pleadings of the Defendant shall be taken to be admitted except as against that person under disability. It is also seen in Food Corporation of India Vs. Venkatappa, the Division Bench of this Court has held, every allegation of facts of Plaintiff in the plaint if not specifically or by necessary implication or stated to be not admitted in the pleadings of the Defendant shall be taken to be admitted except as against that person under disability. It is also seen in Food Corporation of India Vs. Municipal Committee, Jalalabad and Another, AIR 1999 SC 2573 , the Supreme Court has held as under: Where no challenge is made to an averment that assessment of property tax was based under Karnataka Rent, it cannot be contended that the agreed rent is not firm and there has been violation of the provision relating to fixation of annual value. 7. In this case, I find that there is no specific denial except a vague general denial. Therefore, on the basis of Order 8, Rule 5 also, the trial Court is right in passing the decree. Consequently, I hold no Merit in the Civil Revision Petition. 8. Civil Revision Petition is dismissed with costs.