|Case name||Ramanathan Chettyar And Anr. vs Kalimuthu Pillay And Anr.|
|Case number||18 Ind Cas 189|
|Court||Madras High Court|
|Bench||Justice Napier, Justice S Nair|
|Author of the judgment||Justice Napier|
|Decided on||August 28, 1912|
|Relevant Act/Sections||Indian Contract Act, 1872 – Section 263|
Brief Facts and Procedural History –
The present appeal is from the judgment and decree of the Additional Subordinate Judge of Madura, dismissing a suit by the plaintiffs against defendants Nos. 1 and 2 on a foreign judgment.
The two defendants were carrying on business in Singapore through their agent at the date of the making of the pro-notes, he having been duly appointed their agent by the power-of-attorney dated March 16th, 1905. He signed the pro-notes on August 5th, 1905, as their agent in discharge of the firm’s liabilities. The suit was brought against him as agent of the firm, against the firm and against the defendants as partners in the firm. The agent was duly served in the jurisdiction and the partners were served with a concurrent writ out of the jurisdiction in British India, they being British Indian subjects.
The Plaintiffs sought to recover Rs. 7,336-1-7 from defendants being balance of the amount with interest due under a decree obtained by them in Suit No. 106 of the Supreme Court of Singapore.
The Additional Subordinate Judge of Madura dismissed the suit on the ground that the defendants were not carrying on business in Singapore at the time of the institution of the suit in the Singapore Court, their agent being only engaged in winding-up the affairs of the firm and, that being so, the Court had no jurisdiction to entertain the suit.
Issue to be decided –
Whether the Court had jurisdiction to entertain the suit or not?
Argument of the appellant –
There was no dissolution of the partnership and the plaintiffs’ agent, P.W. 1, swears that the business was still being carried on. Even if they had dissolved partnership, their obligations continued in all things necessary for winding-up the business (Contract Act, Section 263).
The defendants were resident by virtue of the presence of the agent carrying on business for the firm and that service on him is good service.
Ratio of the judge –
The circumstances that give jurisdiction are, alternatively: (1) where the defendant is a subject of a foreign country in which a judgment has been obtained; (2) where he was resident in the foreign country when the action began; (3) where the defendant in the character of plaintiff has selected the forum in which he is afterwards sued, (4) where he has voluntarily appeared; and (5) where he has contracted to submit himself to the forum in which the judgment was obtained.
Submission in one form or the other is a mixed question of law and fact. Where it appears that the agent is specifically appointed to bring suits of all sorts with reference to the partnership in the forum in which he is subsequently sued, it is to be construed as a submission to the forum within the meaning of one of the conditions required for giving a jurisdiction.
The Court having acquired jurisdiction and service out of jurisdiction by order of the Court, the defendants prima facie are bound by the judgment and, as they have not raised any defence to the suit, the plaintiffs should have been given a decree in the lower court. The decision of the lower Court was thus reversed.