The Bank of Chettinad, Ltd. v. Thambiah.
The following, among other issues, were raised at the trial:—
Is the proxy granted by the attorney of the first plaintiff valid?
Was Somasunderam Chetty the recognized agent of the first
plaintiff Company?
Is there a misjoinder of parties and causes of action?
The learned District Judge answered the issues in favour of theplaintiffs and the defendants appealed.
V. Perera (with him D. W. Fernando), for defendants, appellants.—Somasunderam Chetty is a person holding a general power of attorneyfrom the first plaintiff. He is not a recognized agent of the first plaintiffwithin the meaning of the Code. Section 25 does not apply becausethe first plaintiff is resident within the jurisdiction of the Court. It onlyapplies where the party resides outside the jurisdiction. The companycarries on its business here. (Michelin & Co. v. Leo1.) A corporationmay have more than one place of residence*. (The New York Life In-surance Co. v. The Public Trustee °.) In the case of a corporation whichcarries on business the conception of home is absent. It resides whereit carries on business. A distinction must be drawn between foreigncompanies which carry on business here themselves through a branchand those which do so through an agent, e.g., another company (TheLalandia) The meaning of the word “ residence " is indicated insub-section (c).
There is another objection to this action. The two bonds are distinctand mutually exclusive. In Sokalingam Chettiar v. Ramanayake* theplaintiffs were joint-creditors. The fact of hypothecation would not makeit one cause of action. A hypothecary action is a combination of twoactions, a personal action for the money due and an action to declarethe land executable. The claims for money due are here distinct. Forplaintiffs to join in an action they must be interested in the same causeof action, not the same transaction. (Servante v. James°.)
N. Nadarajah (with him E. B. Wikramanayake and J. L. M. Fernando),for plaintiff, respondent.— The term “reside” has various meaningsin various enactments.(6 Bom. 100.)In section 25 (b) the term is used
in the sense of a person’s real home. A corporation resides where it isdomiciled. (De Beer’s Consolidated Mines v. Howe7; Dicey’s Conflictof Laws, 3rd ed., 163; Foote’s Private International Law 5th ed., 176.)What is contemplated in section 25 (b) is not an inferential residencebut a real residence. The question of the residence of individuals hasbeen decided in Kanappa Chetty v. Saibo & Co.* It is not the placewhere he carries on business but the place where he lives. In the caseof a company the test is the residence of the directors.0 Suppose forexample the company is sued. The attorney, on appellant’s argument,cannot appear. Section 111 of the Joint Stock Companies Act requiresthe name to be given of the person who is authorized to accept processon behalf of the company.
On the question of misjoinder, the definition in section 5 does notexhaust causes of action. (Samichi v. Peris”) The terms of the bond
i 27 N. L. R. 469, at 460.
(1924) 2 Oh. 101.
a (1911) 2 K. B. 616.
(2933) 2 Prob. 66.
33 N. L. R. 319.
a 10 Barnwall & Gresswell 410.
(1906) A. C. 466.
C. L. 11. 37.
13 N. L. B. 41; 1 Times 214.10 16 V r n or.*
192DALTON A.CJ.—The Bank of Chettinad, Ltd. v. Thambxah f
must be considered to see whether the int&fest is joint. Then* is onlyone hypothecation. The cause of action is the default in the paymentof interest.' The Roman-Dutch law recognizes concurrent mortgages Both plaintiffs are interested in the sale of the mortgaged property.The right to sell the property is a joint right. If the actions areseparate the rights in the land of the mortgagee who is struck outwill be extinguished. If this is to be considered as two bonds, one willbe prior to the other according to the time of registration. There is aterm in the bond giving the plaintiffs the right to sue jointly. The rulesof section 22 of the Code are made for the convenience and the benefitof the parties and may be waived. They may therefore be contracted out of.{Rauther v. Kandasamy*; Griffiths v. Dudley *; Corporation of Toronto v..Russel*.) Section 839 gives the Court the power to consolidate suits forthe sake of convenience. So it has been held in India under thecorresponding section. (Hukurn Chand Boid v. Singh*.)
H. V. Perera, in reply.—The cases cited with regard to residence areIncome Tax cases. The same considerations do not apply. It may benecessary in such cases on the ground of convenience to find out oneresidence for a corporation. The test of carrying on business does notapply in the case of a corporation. The only function of a tradingcorporation is to carry on business. It may have more than one placeof residence. The test is “ Is it here?”.
There can be no waiver unless a person is aware.of the rights he iswaiving. Parties cannot contract themselves out of the provisionsof the law. If the law says the plaintiffs cannot join in an action thedefendant cannot by consent give them the right to join. The clausein the bond, moreover, is conclusive proof that the parties realized thatthe claim were distinct.
September 21, 1933. Dalton A.C.J.—
This is an action brought by the two plaintiffs, against the defendantsfor the recovery of capital and interest alleged to be due on a mortgagebond. The first plaintiff, the Bank of Chettinad, Ltd., on the factsstated to us which (although they differ from some of the statementsmade in the plaint) are not now denied, is a corporation registered inIndia, with its registered office and principal place of business therebut carrying on its banking business elsewhere, as well as in Ceylon,at Colombo with a branch office here. It is admitted also that it hascomplied with the provisions of section 111 of the Joint Stock CompaniesOrdinance, No. 4 of 1861, applicable to Companies established outsidethe Island. The second plaintiff is an individual, a Chetty, not connectedso far as appears in this case with the bank, residing and carrying onbusiness in Colombo. The defendants are wife and husband, and theyexecuted the bond now sued on in favour of the plaintiffs in Colombo •on August 6, 1930. Various issues were framed on the pleadings, of
1 2 Nathan 1089.» (1882) 9 Q. B. 351, at 964.
s8 C. W. R. 16.< (1908) A. C. 493, at 500.
DALTON A.CJ.—The Bgiric of Chettinad, Ltd, v. Thambiah.193
■which it was decided three/Should be decided first These three wereas follows:—*ls there*a misjoinder of parties and causes of action?
Is the proxy granted by Somasunderam Chetty, the attorney
of the first plaintiff, valid?
<4) Was Somasunderam Chetty the recognized agent of the firstplaintiff Company?
In the lower Court the first issue has been answered in the negative,and the second and fourth in the affirmative. The defendants now appealfrom this decisiQn.
It is convenient to deal with the question raised in the second andfourth issues first. They may be considered together and they only•concern the first plaintiff, whom I will call the bank.
The action was instituted, so far as the bank is concerned by Messrs.Wilson & Kadirgamar filing a proxy and plaint with the bond. Theproxy is signed “The Bank of Chettinad, Ltd., by attorney A. RSomasunderam Chetty” and is in the usual form. A certified copyof a general power of attorney by the bank in favour of SomasunderamChetty to manage the branch of the bank established at Colombo wasproduced. This power is very wide and in paragraphs 32 to 34 authorizesthe attorney to commence and prosecute and defend all suits, actions,and proceedings arising out of the various transactions of the bankand to sue for and recover all sums of money and debts due to the bank.There can be no doubt that Somasunderam was the authorized agentof the bank to commence these proceedings, but it is urged he was notthe bank’s “ recognized agent ”, within the meaning of sections 24 and 25of the Civil Procedure Code.
Section 24 provides that acts may be done or appearances may bemade in any Court by a party in person, by his recognized agent, or by aproctor appointed ~by the party or recognized agent. The persons whocome within the term “recognized agent” are set out in section 25,and include in sub-section (b) persons holding general powers of attorneyfrom parties not resident within the local limits of the jurisdiction ofthe Court concerned. The question to be answered is whether the bankwas resident or not within the jurisdiction. If it was not so resident,then Somasunderam was the recognized agent of the bank under section25 (b) ; but if the bank was resident within the jurisdiction section 25 (b)did not apply and Somasunderam Chetty was not a recognized agent ofthe bank under the provisions of the Code, and was not authorizedto institute this action or to do any other act on behalf of the bank as aparty thereto.
We have had a very full argument on the question of the residenceof a corporation with many authorities cited, and I think it is generallyconceded that the answer to the question must vary according to thewording of the particular statute or rule under consideration. Diceyin his Conflict of Laws (5th ed. p. 137) states “ in each case the particularquestion is not whether a corporation has in reality a permanent residencein a particular country, but whether for certain purposes (e.gf., submission35/ 16
DALTON A.C..T.—The Bank of Chettinad. Ltd. v. Thambiah.
to the jurisdiction of the Courts or the situs of its shares, or liability totaxation) a corporation is to be considered as resident in England or insome other country
The class of case principally relied upon in the argument for theappellant before us was that class dealing with foreign corporations,the corporation in question having its centre in a foreign country butwhich is held to reside or be present in England so as to be liable to beserved with a writ under Order IX., rule 8, if it does business in Englandthrough an agent. Compagnie General Trans-atlantique v. Law & Co.1and Saccharin Corporation, Ltd. v.. Chemische Fabrik von HeydenAktiengesellschaft3 are two of several such cases cited to us. Rule 8 isapplicable to foreign corporations carrying on business and havingan office in England in such a mannar as to constitute residence therefor the purpose of founding jurisdiction, and the question whether thecorporation is carrying on business and has such an office is a question,of fact. The same question, residence for the purpose of being sued,arose in New York Life Insurance Co. v. Public Trustee% a case of asimple contract debt. Stress was laid by Mr. Perera upon some wordsused by Atkin L.J. in his judgment at p. 120 as if they were of generalapplication. The words “ purposes of suit ” used there, as appears fromthe words that follow, clearly have reference to the right to sue the corpora-tion and nothing more. Taken together, all these authorities go to showthat for purposes of subjection to jurisdiction a corporation may have, asmany residences as it has places of business. (Dicey, ubi supra p. 140.)
These authorities in my opinion do not assist and cannot be usedby way of analogy in interpreting section 25 (b). First of all one is notdealing with a case of residence to found jurisdiction for the purpose ofsuing the bank. There can, I suppose, be no doubt that under theprovisions of section 111 (2) of the Joint Stock Companies Ordinance,1861, the bank is here for the purpose of being served with process.Secondly, such decisions as Michelin & Co. v. Don & Co. * on the disabilityof “absence beyond the seas” under section 14 of the PrescriptionOrdinance, 1871, and The Keynsham Blue Lias Lime Co., Ltd., v. Baker *on the meaning of the word “dwells”, in section 128 of 9 & 10 Viet. c. 95(Small Debts Recovery Act) show that each case must be answeredaccording to the wording of the particular enactment under consideration.Then, if one turn to section 25 (c), where the words “parties notresident ” are also used, it is clear that the parties referred to are partieswhose trade or business is being carried on within the jurisdiction, theparties themselves being not resident within the jurisdiction. “ Resident ”there cannot therefore mean, or include the idea of, having an officeand carrying on business in a place, in addition to being actually resident.Sub-sections (b) and (c) must be read together, for they provide for twoclasses of cases that may arise in turn, and the word “ resident ” hasthe same meaning in both sub-sections. The argument raised in thelower Court that section 25 did not apply to corporations was not pursuedbefore us, and it is conceded that the decision in The Singer Manu-facturing Company v. The Sewing Machine Company*on this point has
* tt899) A. C. 431.*2 N. L. R. 459.
a (19X2) 2 K. B. 516.* 2 H. & C. 730.
3 (.1924) 2 Ch. 101.8 (1898) 2 S. C. Rep. 27.
MAARTENSZ AJ.—The Bank of Chettinad, Ltd. v. Thambiah.
never been followed, the consistent practice being, as pointed out by thetrial Judge, that foreign persons whether individuals or corporationsappear through attorneys appointed by powers of attorney duly executedby the individual or the corporation. It is apparent that very consider-able practical difficulties would arise if Mr. Perera’s contention is adopted,although that fact cannot affect the interpretation of the section, if onewere satisfied it is correct.
As I have stated, the question to be answered depends upon thewording of each particular act or enactment and I have come to theconclusion that the bank is not resident within the jurisdiction withinthe meaning of section 25 (b). The residence there referred to in myopinion is its residence and domicile, the place where its principal placeof business is situated, in this case at Chettinad in India. The bank is,therefore, for the purposes of section 25, a party that is not residentwithin the local limits of the jurisdiction of the Court, and the issues(2) and (4) were therefore in my opinion correctly answered by thelearned trial Judge.
On the first issue, whether there was misjoinder of parties and causesof action, I am unable to agree that the facts in Sokalingam Chettiar v.Ramanayakel, so far as they concern this point, are exactly similar,as the learned Judge has found. Each of the plaintiffs here, although theyjoined in one bond, has a cause of action against the defendants.It is clear however from the conditions in the bond that the defendantsagreed that the obligees on the bond should be entitled to sue for andrecover the moneys payable to them respectively under the bond eitherby suing jointly with the other of them or separately. I see no goodreason here why the defendants should be freed from the terms to whichthey have agreed. They have taken objection to this misjoinder undersection 22 of the Code, which is applicable, but I see no reason why aperson should not previous to action, in such a bond as this, contract outof his right to take objection. There is no suggestion that the defendantsdid not fully understand what this condition meant, and it is quitepossible if they had objected to its mention in the bond the transactionmight not have been carried through. There seems to be no reasonto think that the two causes of action cannot be conveniently triedtogether and in all these circumstances the objection raised by thedefendants on the ground of misjoinder should be dismissed. The resulton this issue then is that the defendants must fail.
For these reasons I would dismiss this appeal with costs.
Maartensz A.J.—
This was an action on a mortgage bond No. 1,596 executed by thefirst and second defendants on August 8, 1930, by which they becameheld and bound to the first plaintiff in the penal sum of Rs. 432,000for the payment to the first plaintiff of the sum of Rs. 216,000 with interestat the rate of 12 per cent, per annum from the date of the bond, andto the second plaintiff in the penal sum of Rs. 191,000 for the paymentto the second plaintiff of the sum of Rs. 95,000 with interest at the samerate.
1 33 N. L. B. 319.
196MAARTENSZ A.J.—The Bank of Chettfnad, Ltd. v. Thambiah,
The plaint averred that there was due and owing to the first plaintiffon the said bond a sum of Rs. 238,392, to wit: Rs. 216,000 as principaland Rs. 23,392 as interest from August 8, 1930, to the date of action,and to the second plaintiff Rs. 105,584.89, to wit: Rs. 95,600 as principaland Rs. 9,984.89 as interest for the same period.
The plaintiffs prayed that the defendants jointly and severally “ beordered to pay the first plaintiff Rs. 238,392” and the second plaintiffRs. 105,584.89 with further interest as set out in the prayer of the plaint.
That the property described in the schedule to the plaint be declaredspecially bound and executable for the said sum of Rs. 343,976.89 andinterest on the footing of the said bond and for plaintiff’s costsof suit.
That in default of payment of the said sum of Rs. 343,976.89 andinterest, and costs of suit within the said period (which does not appearto be mentioned in the prayer), the said premises declared specially boundand executable be sold, &c.
The third defendant is joined in the action as a puisne incumbrancer.
The first plaintiff is a bank duly incorporated and having its registeredoffice at Colombo within the local limits of the jurisdiction of the DistrictCourt of Colombo.
A number of issues were framed at the trial of which three were dealtwith by the District Judge as preliminary issues of law. They are asfollows: —
Is there a misjoinder of parties and causes of action? (Issue
No. 1.)
Is the proxy granted by Somasunderam Chetty, the attorney of
the first plaintiff, valid? (Issue 2.)
Was Somasunderam Chetty the recognized agent of the first
plaintiff? (Issue 4.)
No evidence was recorded on any of these issues nor is there anynote on the record of the facts on which the judgment is based. Thefacts must therefore be gathered from the judgment.
According to the judgment:—“ With regard to issues 2 and 4 theposition taken up by the defendants is that the first plaintiff bank,having a' branch and registered office in Colombo must be consideredas residing in Colombo and that section 25 of the Civil Procedure Codehad no application as sub-section (b) of that section provides thatappearance on behalf of a party may be made by persons only in caseswhere the party giving the power of attorney is not resident within itsjurisdiction ”.
The learned District Judge after discussing the arguments addressedto him said “ I am inclined to the opinion that section 25 does apply,that the first plaintiff company has its head office in South India and hasonly a branch office here and that it must be regarded for the purposesof section 25 as resident outside the local, jurisdiction in spite of the factthere is a branch in Colombo. Being thus outside a person holding ageneral power of attorney for the company is a recognized agent of thefirst plaintiff bank within the meaning of section 25 ”.
MAARTENSZ AJl—The Bank of Chettinad, Ltd. v. Thambiah. 197
The proctor appearing for the first plaintiff has been appointed underthe provisions of section 24 of the Civil Procedure Code by SomasunderamChetty, who holds a general power of attorney from the bank.
He would have the authority to appoint the proctor if he is a recognizedagent of the first plaintiff company within the meaning of section 25 (b)of the Civil Procedure Code.
Section 24 of the Civil Procedure Code enacts that—
“any appearance, application, or act in or to any court, required orauthorized by law to be made or done by a party to an actionor appeal in such court, except only such appearances, applica-tions, or acts as by any law for the time being in force onlyadvocates or proctors are authorized to make or do, and exceptwhen by any such law otherwise expressly provided, may bemade or done by the party in person, or by his recognized agentor by a proctor duly appointed by the party or such agent to acton behalf of such party”
Section 25 provides that—
“The recognized agents of parties by whom such appearances andapplications may be made or acts may be done are—
(b) Persons holding general powers of attorney from parties notresident within the local limits of the jurisdiction of the courtwithin which limits the appearance or application is made oract done, authorizing them to make such appearances andapplications, and do such acts on behalf of such parties; whichpower, or a copy thereof certified by a proctor or notary, shallin each case be filed in the court ”.
The question for decision on issues 2 and 4 is whether the firstplaintiff company is or is not a party resident within the local limitsof the jurisdiction of the District Court of Colombo. The answer to thequestion depends on the meaning to be given to the word “resident”in the section cited, 25 (b).
In support of the appellant’s contention that the first plaintiff companyis a party resident within the local limits of the jurisdiction of the DistrictCourt of Colombo we were referred to various cases under the IncomeTax Act (16 & 17 Viet. c. 34, s. 2, Sch. D), and Rule 8 of Order IX.,of the Rules of the Supreme Court (England) regarding service of awrit of summons on a corporation.
By section 2, Schedule D, duties are imposed for and in respect of theannual profits or gain arising or accruing to any person residing in theUnited Kingdom from any profession, trade, employment, or vocationwhether the same shall be respectively carried on in the United Kingdomor elsewhere.
The rule laid down foT determining whether a foreign company residesin the United Kingdom is as follows :—
“ The test of residence is not where it is registered, but where it reallykeeps house and does its real business. The real business iscarried on where the central management and control actuallyabides ”.
198MAARTENSZ A.J.—The Bank of ChetHnad, Ltd. v. Thambiah.
Whether any particular case falls within that rule was held to be a purequestion of fact, to be determined not according to the constructionof this or that regulation or by law, but upon a scrutiny of the courseof business and trading. (De Beer’s Consolidated Mines, Ltd. v. Howe(Surveyor of Taxes )
The facts were that the business of diamond merchants was carriedon by the De Beers Company in England. The principal office was inEngland, the majority of the directors met in England and althoughthe diamonds sold came from Kimberley the profits were realized withinthe United Kingdom, and it was held that the Company resided inEngland.
The case of The Attorney-General v. Alexander & others ’ is an exampleof a case where on the facts it was held that the foreign corporationdid not reside in the United Kingdom although the corporation—abank—had a branch and agency in London where the ordinary businessof bankers was carried on under the management of a committee ofpersons who resided in England and were elected by the shareholders.
Rule 8 of Order IX. says that in the absence of any statutory provisionregulating service of process every writ of summons issued against acorporation aggregate may be served on the Mayor or other head officer,or on the town clerk, treasurer, or secretary of such corporation.
In the cases cited the question was whether a foreign corporationwas amenable to the jurisdiction of the English Courts and could beserved with writ of summons under the rule and it was held that wherea foreign corporation does business in England in such a way as to beresident in England it may be sued and the writ served on the officein England.
I need only refer to the case of La Compagnie Generale Trans-Atlantiquev. Thomas Law & Co.3 This rule was applied to a banking corporationin the case of A. de Lhonous Linon et Cie v. The Hongkong & ShanghaiBanking Corporation.*
The bank had a head office and directorate abroad with an agency inIndia where it carried on business, and it was held that the service of awrit in an action against the corporation, the cause of which action aroseout of the jurisdiction, could properly be effected upon the manager of theLondon Agency. Bacon V.C. said in the course of his judgment, “ Theyhire a house, they write up their name and send out cheques and otherdocuments in which their London address also appear and beyond allquestion they stamped upon themselves and upon their place of businessthe assumption that they were carrying on business at that place ”.
I understand that the activities of the first plaintiff company in thiscase are very similar.
In the case of New York Life Insurance Co. vs. Public Trusteethequestion was whether the company was a debtor resident in England,and it was held that a corporation might have a dual residence and that
1 (1900) A. C. 405..3 (1899) A. C. 431.
1 (1874) 44 L. 3. Exchequer, p. 3.1 (1886) 54 Late Times 863.
s (1924) L. R. 2 Chancery 101.
MAARTENSZ AX—The Bank of ChetUnad, Ltd. v, Thambiah. 109
the plaintiffs were resident both in New York and England. Lord Atkinthere said at page 120 :—
“ It appears to me that the true view is that the corporation residesfor the purposes of suit in as many places as it carries on business, andit is to be noted that in ordinary cases where an obligation is entered intoby the corporation without any particular limits of the place where it ispayable, inasmuch as that obligation is an ordinary personal obligationwhich follows the person, you have in each jurisdiction a right to sue thecorporation there; the corporation is resident there, and the obligationis enforceable there. Under ordinary circumstances the debt would besituate in each place where the corporation can be found ”.
I am of opinion however that the rules to which I have referred do notapply to the question which falls -for decision in this case.
The word “Resident” has a variety of meanings just as much as theword “ residence ” which Erie C. J. said has a variety of meanings accord-ing to the statute in which it is used. See Neaf & another v. Mutter,1see also the dictum of Cotton L.J. in the case of In re Bowie. *
In the case of Ramachandra Sakharam v. Koslav Durgaji by his AgentHakma Depaji ‘, the term * non resident ’ in section 37 (a) of the IndianCode of Civil Procedure (which corresponds to section 25 (b) of our Code)was held to cover every absence which may reasonably be supposed tohave been within the contemplation of the legislature.
The company is no doubt ‘ here to use the expression applied in thecase of La Compagnie Generate Trans-Atlantique v. Thomas Law & Co.,for certain purposes. It carries on business and is registered in Ceylonunder the provisions of section 111 (c) of the Joint Stock Companies Ordi-nance, No. 4 of 1861, as amended by Ordinance No. 7 of 1918, and has,I take it, furnished as required by the Ordinance the names and addressesof some one or more persons resident in Ceylon authorized to accept onbehalf of the company service of process and any notices required to beserved on the company.
But is it here for the purpose of appointing proctor? I am of opinionthat it is not. There is nothing on the record to show that there is inCeylon any person who could sign the proxy except the attorney and theobject of section 25 (b) would be defeated if we were to hold that theproxy must be sent to India to be signed by a member of the company.Again section 25 (c) which enacts that—
“ Persons carrying on trade or business for and in the names of partiesnot resident within the local limits of the jurisdiction of thecourt within which limits the appearance or application ismade or act done, in matters connected with such trade orbusiness only, where no other agent is expressly authorized tomake such appearances and applications and do such acts. ”—makes it quite clear that the mere carrying on of a trade or businessthrough an agent does not render the principal a resident within thejurisdiction of the Court, and I am of opinion that the word resident ’in section 25 (b) must be interpreted in the same sense.
The first plaintiff company is therefore not a resident within thejurisdiction of the District Court of Colombo.
i (1862) 31 L. J. C. P. 357.* (1880) 50 L. J. Chancery 3Si.
3 3 I. I*. R. Bombay 100,
200MAARTENSZ AJ.—The Bank of Chettinad, Ltd. v. Thambiah.
I am of opinion that the finding of the District Judge regarding issues 2and 4 is right and must be affirmed.
On issue No. 1 whether there was a misjoinder of parties and causes ofaction, the District Judge held on the authority of the case of SockalingamChettiar v. Ramanayake1 that there was no misjoinder of parties and causesof action.
I am of opinion that the learned District Judge has misdirected himselfwith regard to the case on which he relied.
The bonds in both cases are what are called concurrent bonds but theterms of the bond in the reported case on which it was held that therewas no misjoinder of parties and causes of action are not reproduced inthe bond now sued on. A detailed comparison is unnecessary.
Respondent’s counsel drew our attention to certain passages in thebond sued on, which he contended showed that the obligation was jointand several. I am unable to agree with him. It is to my mind perfectlyclear that one obligee has no interest in the amount lent by the otherand that each obligee is only entitled to recover the amount he has lent.
The respondent’s counsel further argued that the learned DistrictJudge’s order could be supported by the following proviso in the bond:—
“Provided also that it shall be lawful for the said respective obligeesto sue for and recover the moneys payable to them respectivelyunder and by virtue or in respect of these presents either bysuing jointly with the other of them or by suing separatelyfor the amounts due to each of them separately. ”
by which he contended the first and second defendants had contractedthemselves out of the provisions of the Code relating to misjoinder of. parties and causes of action.
Two objections were urged against this contention. The first objectionwas based on section 46 of the Code which provides that the Court mayrefuse to entertain a plaint and return it for amendment if it is wronglyframed by reason of non-joinder or misjoinder of parties or because theplaintiff joined causes of action which ought not to be joined.
This section vests a discretion in the Court which has not been exercised,and that such objections could be waived is clear from section 22 of theCode which enacts that—
“ all objections for want of parties, or for joinder of parties who have nointerest in the action, or for misjoinder as co-plaintiffs or co-defendants, shall be taken at the earliest possible opportunity,and in all cases before the hearing. And any such objection not sotaken shall be deemed to have been waived by the defendant ”.
The second objection was that there was nothing to show that thedefendants were aware of the rights which they were surrendering.This objection might have been a good one if the waiver was only impliedor expressed in general terms. But the provision in question expresslygives the obligee the right to sue on the bond together—it is more than awaiver and the defendants must have known that it was inserted to removeany objection which could be raised to such a course of action.
I would dismiss the appeal with costs.
Appeal dismissed.
I 33 N. L. R. 319 & 9 Timet Late Reports (Cey.) S3.