RAJENDRASINGH GANDASINGH Vs. IBRAHIM ABDULALI

JUDGEMENT

(1.) THE plaintiff-appellant owned a motor lorry No. C.P. 1786. This motor lorry was hired by the defendant from the plaintiff for the use of the Baster State on the occasion of the marriage of Rani Sahiba. The plaintiff brought the suit out of which this second appeal arises, to recover from the defendant the money that, he received from the State for and on behalf of the plaintiff. Various defences were raised, the most technical being that the suit was not maintainable as the subject-matter of the claim was partnership property because the plaintiff and one Shankerlal were partners and were jointly interested in the hire of the motor lorry. The trial Court overruled this technical plea and decided the whole case on its merits. On appeal the learned District Judge only dealt with this technical plea and having held that the suit was not maintainable without the joinder of Shanker Lal allowed the appeal and dismissed the suit. The plaintiff has therefore filed this second appeal and I am clear that it must succeed. On the facts found that the money in suit is partnership property of the plaintiff and Shankerlal it does not follow that the plaintiff has no right of suit. I respectfully accept the following proposition of law enunciated in Kapurji Magniram v. Panaji Devichand AIR 1929 Bom 177 : at p. 114 of 53 Bom. Even supposing that the agreement between the two firms amounted to an actual partnership, there is no absolute rule of law that one partner of a firm cannot sue for a debt that is due to the firm. As long ago as 1861 it was laid down by the Privy Council in Agacio v. Forbes (1861) 14 Moo PC 160 (P.C.), that a partner with whom a contract had been personally made was entitled to sue upon that contract in his own name without joining the coparceners as plaintiffs, although the benefit of the contract would result to the partnership firm; and that is really an illustration of the well recognized rule that an agent having an interest in the contract which he has entered into on behalf of his principal is entitled to sue in his own name. The cases that establish that proposition will be found in Pollock and Mulla's Indian Contract Act, 5th Edn., p. 722; and among other cases where it has been recognized may be cited, Subrahmania Pattar v. Narayanan Nayar (1901) 24 Mad 130 and Coorla Spinning and Weaving Mills v. Wallabhdas Kallianji AIR 1925 Bom 547.

(2.) IT is admitted that the contract of hire in the present case was made by the plaintiff personally. In the eye of the law though the plaintiff acted as an agent of his partner Shankerlal in this contract he had also a personal interest in it. That being the position he was entitled to sue upon the contract in his own name. Alternatively he could also have brought the suit in the name of Shankerlal and himself or in the name of the firm under the provisions of Order 30, Civil P. C. I hold then that the suit in its present form was maintainable. The result is that the decree appealed against is reversed and the case remanded to the lower appellate Court for disposing of the appeal on its merits. The costs of this appeal will be costs in the suit and will abide the ultimate result.