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Ramlal Kanhaiyalal Somani v. Ajit Kumar Chatterjee

Courtesy/By: Niharika Shukla | 2020-05-21 19:21

Ramlal Kanhaiyalal Somani a partnership firm v. Ajit Kumar Chatterjee:

The plaintiff which is a firm registered under the Indian Partnership Act consisting of Bhimraj Somani, Hardwari Mal Somani, Om Prakash Somani, all partners and one Satya Narayan Somani, a minor admitted to the benefits of the partnership firm—all sons of the Kanhaiyalal Somani since deceased was carrying on business in Cooch Behar On 27th April, 1957, the defendant-respondent No. 1 — a Police Officer — with a number of Police Constables wrongfully and forcibly entered into the business premises of the appellant and obtained possession of several godowns and locked and sealed up the entire premises including various books, papers and goods worth Rs. 27,5000-0-0 under a purported order of attachment dated 26-4-1957 issued against Bhimraj Somani, one of the partners in a criminal case.

The order of attachment, it is further alleged, was preceded by an order of proclamation made on 26-4-1957 against Bhimraj Somani declaring him to be absconding with a direction to appear in the Court of Sub-Divisional Officer, Cooch Behar, to answer the charges against him in a criminal case. Such order of proclamation and the order of attachment pursuant thereto and the execution of writ of attachment in the manner indicated above are said to be all illegal, inoperative and void and as a result thereof the appellant has suffered damages on account of loss of business with various parties and also business profits etc. to the extent of Rs. 74,582.87 np. which they are entitled to recover from the defendants-respondents. The first respondent, Officer-in-charge of a Cooch Behar Police Station at the material time, the second respondent, Superintendent of Police, Cooch Behar and the third respondent, the State of West Bengal filed separate written statements and contested the suit. Apart from the general denial of all material allegations in the plaint their case substantially is that the suit was barred by limitation and as framed is not maintainable and the order of proclamation and attachment and the execution of writ of attachment were all legal and valid and the properties of the firm were rightly attached under the order of attachment issued by the Magistrate and the first respondent acted bona fide in discharging his official duty in executing such writ of attachment issued by the Court for attachment of the property of the absconding accused Bhimraj Somani. It was further asserted by the first respondent that in spite of his requests to the persons present to give him separate possession of the share of the accused Bhimraj Somani, they failed to do so and he had no other alternative than to lock the godown.

 In the instant case although facts are somewhat different the principle indicated in the above decision will apply. For the suit would be deemed to have been filed by the partners in the name of the firm excluding Bhimraj Somani. So, considering in the light of such principle, we do not think that the suit would be non-maintainable even it is found that Bhimraj Somani had no right to join as partner and claim relief in this suit. The instant suit clearly would be deemed to have been filed by the other two partners and the minor admitted to the benefits of partnership in the name of the firm. In our opinion, therefore, the suit is maintainable, even if Bhimraj Somani is held to have no locus standi, we think he has not any, to join his partners and institute the suit along with other partners in the name of the firm. So, the decision of the learned Court below on the question of maintainability is not correct.

In the above view of the matter it is not necessary to go into the question relating to quantum of damages and we do not express any opinion as to the correctness of the amount of damages as determined by the learned Court below. The result is the appeal fails and is hereby dismissed. But considering the facts and circumstances of this case we make no order as to costs.

 

Courtesy/By: Niharika Shukla | 2020-05-21 19:21