1933 Present: Dalton A.C.J. and Maartensz A.J.

THE BANK OF CHETTINAD, LTD. v. THAMBIAH et al.



I-D. C. (Inty.) Colombo, 44,660.

Jurisdiction-Corporation resident in India-Having Office in Colombo-Right to sue through attorney-Recognized agent-Misjoinder of causes of action-Waiver-Civil Procedure Code, s. 22 (b).

A corporation registered in India, having its registered office and principal place of business there, with a branch establishment in Colombo, is not a party resident within the jurisdiction of the District Court of Colombo for purposes of section 25 (b) of the Civil Procedure Code.

Where the plaintiffs lent the defendants on one mortgage bond two sums of money, due to each separately, and it was provided by the bond that the plaintiffs were entitled to recover the moneys payable to them by suing jointly or separately,-

Held, that the defendants had waived the right to raise an objection to the action on the ground of misjoinder of persons and causes of action.

THIS was an action on a mortgage bond executed by the first and second defendants, husband and wife, by which they borrowed from the first plaintiff the sum of Rs. 216,000 with interest and from the second plaintiff the sum of Rs. 95,600 with interest.

The plaintiffs prayed that the defendants jointly and severally be ordered to pay the first plaintiff Rs. 238,392 and the second plaintiff Rs. 105,584.

The first plaintiff, the Bank of Chettinad, Ltd., is a corporation registered in India with its registered office and principal place of business there, but carrying on its banking business in Ceylon as well, with a branch establishment at Colombo. The second plaintiff is an individual Chetty, not connected with the bank, residing and carrying on business in Colombo.

The following, among other issues, were raised at the trial:-

(a) Is the proxy granted by the attorney of the first plaintiff valid?

(b) Was Somasunderam Chetty the recognized agent of the first plaintiff Company?

(c) Is there a misjoinder of parties and causes of action?

The learned District Judge answered the issues in favour of the plaintiffs and the defendants appealed.

H. V. Perera (with him D. W. Fernando), for defendants, appellants.- Somasunderam Chetty is a person holding a general power of attorney from the first plaintiff. He is not a recognized agent of the first plaintiff within the meaning of the Code. Section 25 does not apply because the first plaintiff is resident within the jurisdiction of the Court. It only applies where the party resides outside the jurisdiction. The company carries on its business here. (Michelin & Co. v. Leo 1[27 N. L. R. 459, at 460.]) A corporation may have more than one place of residence 2[(1924) 2 Ch. 101.]. (The New York Life Insurance Co. v. The Public Trustee 3[(1911) 2 K. B. 516.].) In the case of a corporation which carries on business the conception of home is absent. It resides where it carries on business. A distinction must be drawn between foreign companies which carry on business here themselves through a branch and those which do so through an agent, e.g., another company (The Lalandia)4[(1933) 1 Prob. 56]. The meaning of the word " residence" is indicated in sub-section (c).

There is another objection to this action. The two bonds are distinct and mutually exclusive. In Sokalingam Chettiar v. Ramanayake 5[ 33 N. L. R. 319.] the plaintiffs were joint-creditors. The fact of hypothecation would not make it one cause of action. A hypothecary action is a combination of two actions, a personal action for the money due and an action to declare the land executable. The claims for money due are here distinct. For plaintiffs to join in an action they must be interested in the same cause of action, not the same transaction. (Servante v. James 6[10 Barnwall & Gresswell 410.].)

N. Nadarajah (with him E. B. Wikramanayake and J. L. M. Fernando), for