JUDGMENT
Janarthanam, J.
1. M/s. Evergreen Farm Service and Vasantham Trailers Industries, it is said, was a partnership concern consisting of three partners, namely, (1) Mr. J. Jeyasingh (petitioner), (2) Mr. M. V. Charles and (3) Mr. D. Rajkumar. The said partnership firm was an assessee on the file of the Deputy Commercial Tax Officer, Nilakottai (respondent). There were arrears of sales tax, additional tax and penalty due by them under the Tamil Nadu General Sales Tax Act, 1959 (Tamil Nadu Act 1 of 1959 for short “the TNGST Act”) and the Central Sales Tax Act, 1956 (Act 74 of 1956 for short “the CST Act”) for the assessment years from 1973-74 to 1977-78. The aforesaid arrears as under the TNGST Act amounted to Rs. 6,00,692.18 and under the CST Act Rs. 1,14,440. Two other partners, it is said, died and their estates were available at the hands of their legal representatives.
2. For the aforesaid tax arrears due by the partnership firm, efforts have been taken for realisation of the said arrears, by bringing to sale the lands and buildings belonging to the petitioners, situate at Oruthattu village, Nilakkottai taluk, Dindigul-Anna district at 11 a.m. on December 27, 1993, by issuance of proceedings in Roc. No. 3802/77-A3 under the TNGST Act and Roc No. 1248/82-A3 under the CST Act of even date, namely, October 29, 1993.
3. Aggrieved by the said proceedings, the petitioner resorted to the present action praying for issue of writs of certiorarified mandamus to quash the said proceedings and further to direct the respondent to proceed against the property of the said firm allegedly situate at No. 11, Nippani Subba Rao Street, Ponneri, contending that the impugned proceedings initiated for recovery of arrears of tax due by the partnership firm from his individual assets, leaving out the estates available in the hands of the legal representatives of the deceased partners of the firm, without even proceeding first in point of time as against the assets of the firm, are not warranted, as the same is not in conformity with the provisions of the TNGST Act.
4. The petitioner also filed the aforesaid W.M.Ps., praying for stay of all further proceedings, pending disposal of the writ petitions.
5. When the writ petitions, along with W.M.Ps., came up for admission, this Court directed Mr. T. Ayyasamy, learned Government Advocate (Taxes) to take notice for and on behalf of the respondent and he accordingly did so.
6. Learned counsel for the petitioner reiterated the very same contentions, as had been urged in the affidavits in the writ petition, to which course, learned Government Advocate (Taxes), striking a discordant note, submitted that the veil covering the face of seemingly tenable contentions, as urged by the other side, would get pierced, if a cursory look is made into the salient provisions adumbrated under section 19 of the TNGST Act, dealing with the liability of the firms.
7. In appreciating and understanding the effect of rival submissions, as focused above, better it is, to pen down section 19 of the TNGST Act, which reads as under :
“19. Liability of firms. –
(1) Where any firm is liable to pay any tax or other amount under this Act, the firm and each of the partners of the firm shall be jointly and severally liable for such payment.
(2) Where a partner of a firm liable to pay any tax or any amount under this Act retires, he shall, notwithstanding any contract to the contrary, be liable to pay the tax or other amount remaining unpaid at the time of his retirement and any tax or other amount due up to the date of retirement, though unassessed.”
8. From a cursory perusal of what has been extracted above, it is rather crystal clear that each of the partners of the firm shall be jointly and severally liable to pay any tax or other amount due under this Act by the firm.
9. The concept of “joint and several liability” had been defined at page 522 of K. J. Aiyer’s Judicial Dictionary (popularly known as Manual of Law Terms and Phrases), Eighth Edition (1980) thus :
“Joint and several liability. – When two or more members declare themselves jointly and severally bound, this means that they render themselves liable to a joint action against all as well as to a separate action against each, in case the conditions of the bond are not complied with. And the party to which they are so jointly and severally bound is called a ‘Joint and several creditor’ (Mozley).”
10. Such a principle had been given a statutory recognition also under section 43 of the Indian Contract Act, 1872 (Act 9 of 1872), which is reflected as below :
“43. Any one of the joint promisors may be compelled to perform. – When two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise.
Each promisor may compel contribution. – Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract.
Sharing of loss by default in contribution. – If any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares.
Explanation. – Nothing in this section shall prevent a surety from recovering from his principal, payments made by the surety on behalf of the principal, or entitle the principal to recover anything from the surety on account of payments made by the principal.”
11. The enactment of a section, as above, constitutes a material variation from the rules of English law. The English rule is that all joint promisors must be sued jointly for a breach of contract, and if only one joint promisor is sued, it is open to him to plead that the co-promisors should also be made parties to the action. But the section, as extracted above, however, makes all joint liability, joint and several. It is, therefore, open to the promisee to sue anyone or all, of the joint promisors and failure to implied all of them is no defence to a suit against one or some only.
12. Similarly, section 19 of the TNGST Act, recognising the principle of joint and several liability as enjoined under section 43 of the Indian Contract Act, made the partners of the firm jointly and severally liable for the tax arrears due by the firm and such being the case, if the personal estate of one of the partners of the firm had been proceeded against for the arrears of the tax due by the firm, without resorting to proceedings initiated for recovery of such tax, either from the private or personal assets of the other partners of the firm or from the assets of the firm, such an action cannot at all be dubbed as one not in accordance with law, and that is what exactly had been done in the case on hand, in the sense of initiation of recovery proceedings against the private or personal assets of the petitioner, a partner of the erstwhile firm, going by the name M/s. Evergreen Farm Service and Vasantham Trailers Industries instead of preferring to initiate proceedings against the assets available in the hands of the legal representatives of other deceased partners of the firm as well as the so-called assets, as had been mentioned in the writ petition stated to be standing in the name of the firm.
13. Learned counsel for the petitioner would, however, draw the attention of this Court to the decision of the Madhya Pradesh High Court in the case of Lalji v. Assistant Commissioner, Sales Tax, Raipur [1958] 9 STC 571 wherein their Lordships, constituting the Division Bench expressed at paragraph 5 (at page 573) thus :
“5. Since the department could only assess the firm, the arrears of tax are, in the first instance, recoverable from its assets. Until the assets are realised or cannot be found, the action of the taxing authorities to try to realise the amounts of tax from the partners personally is premature. The department is accordingly directed to realise the arrears of tax initially from the assets of the partnership, whether they may be in the hands of the court, the receiver, or any of the partners or any other person on their behalf. We leave undecided the question whether the partners would be personally liable for the balance, if any, remaining due. The parties concerned can take up that matter when the occasion for its determination arises.”
14. Expression of such an opinion, as above, by learned Judges of the Madhya Pradesh High Court may be the resultant product of consideration of the relevant provision of the Central Provinces and Behar Sales Tax Act, 1947 (Act 21 of 1947). From a scrutiny of the entire judgment, it is not known as to how the language of the relevant provision had been couched, which came up for consideration, resulting in the expression of such an opinion. In such a situation, it is not permissible to make an inference that the said Act contains a provision in pari materia with section 19 of the TNGST Act, 1959. If such a provision does really exist in the said Act and despite such a provision, if the opinion, as expressed above, had been given, I respectfully agree to disagree with the same, inasmuch as the meaning to be ascribed to the doctrine of “joint and several liability” does not appear to have reflected therein. In this view of the matter, the said decision does not, in any way, improve or advance the case of the petitioner any further whatever.
15. For the reasons as above, both these writ petitions deserve to be dismissed even at the admission stage and they are accordingly dismissed. Consequently, W.M.Ps., are also dismissed. There shall, however, be no order as to costs, in the circumstances.
16. Petitions dismissed.