018-NLR-NLR-V-53-RAHIMAN-Appellant-and-PITCHAI-KAGOO-Respondent.pdf
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Rahiman v. Pitckai Kagoo
1049
Present: Nagalingam J. and Gratiaen J.
RAHIMAN, Appellant, and PITCHAI KAGOO, RespondentS. C. 71—D. C. (Inty.) Colombo, 18,597
Partnership—Action filed against partners subsequent to' dissoution of partnership—Service of summons on past Manager—Is it valid ?—Civil Procedure Code,Section 64_-
Tn regard to Bervice of summons on the Manager of a partnership business,it must be shown (1) that the cause of action is one in respect of the partnershipbusiness, (2) that the defendants were partners of such business at the date ofthe. cause of action, (3) that at the date of institution of the action the partnershipbusiness was yet in subsistence, (4) that at the date of service of summons alsothe partnership continued to exist, (5) that the person on whom summons isserved was at the date of the service of summons the Manager of such business,and (6) that where there is more than one place* of business of the partnership,such'person was‘Manager at the principal place of such business. If any oneor more of these requirements is not satisfied, then the service of summons can-not be regarded as one binding bn the .partners so as to make the judgment 'valid and effectual as against them.
NAGALINGAM J.—Rahiman c. Pitchai Kagoo
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PPEAL from a judgment of the District Court, Colombo.
C. Renganathan, for the 1st defendant appellant.
W. Tambiah, for the plaintiff respondent.
Gut. adv. tult.
November 30, 1949. Nagalingam J.—
The question that arises for decision on this appeal is whether servioeof summons on a person who -had been the manager of a partnership busi-ness since dissolved is a good and proper service so as to bind the erstwhilepartners.
'The undisputed facts are that the two defendants carried on businessin partnership under the name,' style and firm of Indian Cargo BoatCompany. That partnership was dissolved on 15th September., 1947,as is evidenced by the deed of dissolution 1D1 of that date. The causeof action in respect of which this action was instituted was one which aroseagainst the partnership business prior to the dissolution.' With the disso-lution of the partnership, the services of the Manager of the partnershipbusiness, it would follow, were also terminated, though, no doubt, one ofthe partners who carried oh the business may have employed him as hisManager. Though the action, as stated earlier, arose against the defend-ants during the subsistence of the partnership, the action, however, wasinstituted on 23rd October, 1947, subsequent to the dissolution.Summons in this case was reported by the Fiscal to have been served on theManager of the business. It is common ground that the person who wasdescribed by the Fiscal as the Manager had in fact been the manager ofthe partnership prior to its dissolution and that subsequent to the disso-lution one of the partners, who took over the firm, name and assets of thebusiness, employed him as his Manager.
It has been contended that the service of summons on the person whois described as the Manager is not a good service as against either defend-ant. The learned Judge has taken the view that as the cause of actionhad arisen anterior to the dissolution the service of summons on theperson who was the Manager of the business at the date on which the causeof action arose was a valid service within the meaning of section 64 of theCivil Procedure Code.
Section 64, generally speaking, deals with the mode of service- of sum-mons on an agent of the defendant. The section in its first part rpfers to
an agent appointed under section 30 of the Code, that is to say, either arecognized agent or an agent especially appointed to accept) service ofsummons, and (2) a Proctor holding a warrant or power of attorney. Thesection then proceeds to deal with the case of service of summons bnpartners and, adopting the well-known principle of Partnership Lawthat each partner is the agent of the other partner or partners in regard toany partnership transaction, enacts that .service of summons on jahy onepartner would be an adequate service of the summons on all the partners.
US
NAGALINGAM J.—Rahiman e. Pitchai Kagoo
Finally, the section proceeds to set down the proposition that any personother than a partner “ who has the management of the business of thepartnership at the. principal place of such business ” is also an agentempowered to accept service of summons on behalf of the partners.
It will be seen that the doctrine of agency is-the foundation to sustainthe validity of the service of summons in each and everyone ■ of this-class of cases. It would therefore follow that, where the relationship ofprincipal and agent has ceased to exist, it cannot be argued that service•on* an erstwhile agent is a proper service so as to bind the principal. Ifthis principle is borne in mind, it would be obvious that with the dissolu-tion of the partnership not only did each partner cease to be an agent forthe other but also the manager of the partners had no further authorityto act on behalf of the partners' for, in fact, there were no partners at thedate of the service of summons, the partnership having been dissolvedprior to that date.
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Counsel fbr .the respondent .contended that in regard to a partnershiptransaction service of summons on the Manager, though the partnershipmay have been dissolved, would be a good service. The fallacy of thisargument becomes apparent when one has to consider the question as towhether service of summons on the dismissed Manager of a partnershipbusiness in regard, no doubt, to a transaction" that took place during thetime of the employment of the dismissed Manager, is a proper and validservice. Should the contention be upheld, judgment may be obtainedagainst the partnership business without the partners themselves beingaware of the institution of the proceedings ; but it is pointed out thatthe section requires that the summons should be served at the principalplace of the business and that a dismissed Manager may not be found there.
– The answer to that argument_is that when a partnership is dissolved thereis not only no place of business but no principal place of business of thepartnership at which summons could be served. I need only point outthat the language of the section, which is in the present tense, and whichreads : “ who has the management of the business ”, excludes the contentionthat any past manager is also one of the persons who is empowered toaccept service of summons under the terms of the section.
In regard to service of summons on the Manager of a partnershipbusiness, it must be shown (1) that the cause of action is one in respect ofthe partnership business, (2) that the defendants were partners of suchbusiness at the date of the cause of action, (3) that at the date of institutionof the action the partnership business was yet in subsistence, (4) that atthe date of service of summons also the partnership continued to exist, (5)that the person on whom summons is served was at the date of the serviceof summons the Manager of such business, and (6) that where there is morethan one place of business of the partnership, such person was Managerat the principal place of such business. If any one or more of these require-ments is not satisfied, then the service of summons cannot be regardedas one binding on the defendants so as to make the judgment valid andeffectual as against them.,
Counsel for the respondent cited both English and Indian cases but the,value to be attached to those judgments has been, if I may respectfully
BA8NAYAKE J.—Kandapptt «. Veeragathy
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say so, properly assessed in the- case of Mohamedo Cassim v. PeriannanGhctty 1. I do not therefore propose to make any comments in regardto them.
For the reasons already given by me I would set aside the order appealedfrom and direct that summons be reissued for service on the defendantspersonally. The 1st defendant-appellant will have costs both of appeal.-and of the proceedings in the lower court.
Cratiaen J.—I agree.
Order set aside*