A partner cannot be sued individually for a debt of the partnership without the firm being included as a necessary party.

JUDGMENT

This appeal arises out of the concurrent findings of the Principal Sub Court, Thrissur in O.S. No. 1029 of 2002 as confirmed in A.S. No.

51 of 2007 by the Addl. District Court (ADHOC), Thrissur.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The appeal arises out of a suit for recovery of money by the respondent Company against the appellant. According to the plaintiff, the defendant is the Managing Partner of M/s. Tata Automobiles, Thrissur, which purchased automobile spare parts on credit basis for Rs. 1,22,163/-. Though the plaintiff requested the defendant to arrange the amount, the same was not done. The defendant returned automobiles spare parts worth Rs. 24,657/-. Thus, an amount of Rs. 97,506/- is required to be recovered and hence, the suit. The defendant resisted the suit contending that the firm was not made a party and the liability is not on account of the firm and, therefore, the suit is bad for non-joinder of necessary parties.

2.2. On behalf of the plaintiff, Exts. A1 to A7 documents were marked and PW1 was examined. On behalf of the defendant, Exts. B1 to B5 were marked. There was no oral evidence on behalf of the defendant.

2.3. The Trial Court, on appreciation of the oral and documentary evidence, came to the conclusion that the plaintiff is entitled to realise an amount of Rs. 1,33,738/- and decreed the suit with interest @ 6% p.a. from the date of suit till realization. The appeal preferred by the defendant was also unsuccessful since the appeal was dismissed by judgment dated

14.01.2011 and hence, the present appeal.

3. Heard Sri. C. S. Manilal, the learned Counsel appearing for the appellant and Sri. Santhosh P. Poduval, the learned Counsel appearing for the respondent.

4. On 09.01.2012, this Court framed the following substantial questions of law for consideration:

Have not the courts below gone wrong in “1)

decreeing the suit without necessary party in the array of parties?

2) Whether a partner can be individually be sued in his personal capacity for the debt of partnership firm without making the firm a party, nor the partner being arrayed otherwise than in the capacity as a partner of the firm?”

4.1. In the nature of the substantial questions of law framed by this Court, it appears that there is no dispute on the facts. The purchase of automobile spare parts on credit basis is an admitted case. It is also an admitted case that the goods worth Rs. 24,657/- were returned. Thus, the suit was for recovery of the amount which represents the value of the unreturned spare parts. Going by the plaint averments, it is clear that the transactions was with a partnership firm named M/s. Tata Automobiles, Thrissur. But, however, when the suit was filed, only the Managing Partner alone was impleaded. Though there exists a liability of a partner for the acts of the firm as provided under Section 25 of the Indian Partnership Act, 1932 , it is imperative in a suit for recovery of money, the partnership firm is also required to be impleaded in the party array. This is more so, when, it is possible for a partner to resist the suit and also the liability against him on account of the fact that the liability incurred by the firm is not binding upon him because it may be a wrongful act. Therefore, the partnership firm being a different legal entity as such, it is highly necessary for the plaintiff to have made the firm also in the party array.

5. The provisions of Order 30 Rule 1 of the Code of Civil Procedure, 1908 is indicative of the fact that, when a suit is filed against the firm, it is imperative for the plaintiff to mention the names and addresses of the persons who are at the time of accruing the cause of action, partners in such firm etc. In the present case, it is impossible to assume a situation where the defen