A suit by a registered firm is maintainable in the name of the firm without impleading all the partners as plaintiffs, and the addition of partners as pro forma defendants after the period of limitation does not bar the suit.

Ramratna Singh, J.

1. This appeal arises out of a suit for realisation of Rs. 11,396/2/6 as the price of the mica supplied to Mahabir and Company, defendants No. 3, a private unregistered firm, besides interest and some miscellaneous expenditure. The principal plaintiff is a registered firm known as New India Traders of Jhumriteleiya near Koderma, and Mahabir and Company is situated at Giridih. The plaintiffs 1 and 2 are described as managing partners of New India Traders. The suit was instituted on the 2nd April, 1954 and defendants 4 to 6, who are also partners of the plaintiff firm, were impleaded as pro forma defendants on account of a petition for amendment of the plaint filed on the 12th May, 1955, in view of the defence that they were necessary parties to the suit. Defendants 1 and 2 are connected with Mahabir and Company because, Chiman Lal, (defendant No. 2) is the father of Mahabir Prasad Agarwala, (defendant No. 1) by whose name the firm Mahabir and Company is known. Defendant No. 2, Chiman Lal, filed a written statement on the 4th November, 1954 and Shib Shankar Agarwala filed another written statement on the 14th February, 1955, as the sole proprietor of Mahabir and Company. On the allegations contained in these written statements that there is no person of the name of Mahabir Prasad Agarwala and that Shib Shankar Agarwala, one of the sons of Chiman Lal (defendant No. 2), is the sole proprietor of Mahabir and Company, an amendment was made by the aforesaid petition that Mahabir Prasad was also known as Shib Shanker. These two defendants only contested the claim of the plaintiffs.

2. Admittedly the plaintiff firm supplied some quantities of mica to Mahabir and Company on the 15th March, 1951 under pass Nos. 3270/50 and 3171/1 and again on the 3rd April, 1951 under pass No. 2371/52. These passes were required for movement of mica from one place to another under the Bihar Mica Act, 1947 , Mahabir and Company paid to the plaintiff firm a sum of Rs. 4,000 by a cheque dated the 16th March, 1951 and another sum of Rs. 1,500 by another cheque dated the 13th March, 1951.

3. The case of the plaintiffs is that the said quantities of mica were sold to Mahabir and Company and the amount paid through the two cheques was the price of the mica supplied on the 15th March, 1951. But Mahabir and Company had not paid the price of the mica supplied on the 3rd April, 1951; and the suit has been instituted for recovery of the same. On the other hand, the common defence of the defendants is that mica was supplied on both the occasions to Mahabir and Company as a pledge against the amounts advanced under the two cheques, and the plaintiff firm stocked the mica in the godown of Mahabir and Company at Giridih for selling the same as and when buyers would be available. But as the mica was of poor quality no buyer came and the stock of the mica supplied by the plaintiff firm is still lying intact" in the godown of Mahabir and Company. It is also asserted that the suit was not properly framed and the claim was barred by limitation.

4. The learned Subordinate Judge accepted the case of the plaintiff firm and found that the suit was maintainable and claim of the plaintiffs was not barred by Limitation. He accepted the price of the mica claimed by the plaintiffs, but disallowed the claim regarding interest and miscellaneous expenditure. Hence, the appeal by the defendants.

The most important question to be considered is whether the mica was sold to Mahabir and Company or whether it was pledged with them.

5. Then, Mr. Mukherji raised some legal questions. He referred to Sec. 45 of the Indian Contract Act under which all joint promises have to join in a suit on the basis of a contract. But he conceded that this provision would not affect a suit instituted under Order 30, Rule 1, of the Code of Civil Procedure which lays down that two or more partners carrying on business may sue or be sued in the name of the firm of which they are partners.