Ramgopal Ramrikh Pandya vs Tarachand Ghanshyamdas on 3 March, 1937

Bombay High Court
Ramgopal Ramrikh Pandya vs Tarachand Ghanshyamdas on 3 March, 1937
Equivalent citations: (1937) 39 BOMLR 648
Author: K John Beaumont
Bench: J Beaumont, Kt., Blackwell


John Beaumont, Kt., C.J.

1. This is an appeal from a judgment of Mr. Justice Divatia, in which he held that the Court had no jurisdiction to try the suit on the ground that the 1st defendants did not dwell or carry on business or personally work for gain within the limits of this Court’s original jurisdiction.

2. The plaintiffs are eight of the trustees of a deed of composition executed by a firm of Mamraj Rambhagat. The other two trustees are defendants Nos. 2 and 3, both of whom reside in Bombay. The 1st defendants are described in these terms :

Messrs. Tarachand Ghanshyamdas a firm carrying on business at Shaikh Memon-. Street outside the Fort of Bombay and also at Karachi and Calcutta.

The plaintiffs allege that the firm of Mamraj Rambhagat was a partner with, the 1st defendant firm of Tarachand Ghanshyamdas, and they ask for accounts of the partnership.

3. It is clear from an affidavit made by the plaintiffs on a motion in the suit that originally they thought that the firm of Tarachand Ghanshyamdas was one firm which carried on business at three places,-Bombay, Karachi and Cal cutta. But it appears from an affidavit made by the defendants on the motion, and the fact is not now disputed by the plaintiffs, that there are in fact three firms carrying on business under the name of Tarachand Ghanshyamdas. first firm consists of eleven individuals and carries on business at Calcutta; the second firm consists of those same eleven individuals and Mamraj Ram-bhagat and carries on business at Karachi; and the third firm consists of the same eleven individuals and defendant No. 2, though he is sued in another capacity, and that firm carries on business in Bombay. Now, having regard to those facts, when one looks at the description of the 1st defendants it is apparent that it must cover only the Calcutta firm of eleven persons, because that is the only firm of Tarachand Ghanshyamdas which carries on business at the three places named, since it carries on business at Calcutta alone, and at the other two places in partnership. So that, I have no hesitation in holding (and that is the first point we have to decide) that the 1st defendants are the eleven individuals carrying on business under the name of Tarachand Ghanshyamdas at Calcutta; and it is clear from paragraph 1 of the 1st defendants’ written statement that they so understood the plaint, because they say : “These defendants state that they do not carry on business in Bombay and state that they carry on business in Calcutta. “So that, it was realized by the 1st defendants that the people sued were people carrying on business at Calcutta. The learned Judge held that there being three firms, and the Bombay firm being distinct from the Calcutta firm, this Court had no jurisdiction to entertain the suit. But in that it appears to me that he is clearly wrong. Clause 12 of the Letters Patent confers jurisdiction on this Court if the defendant at the time of the commencement of the suit shall dwell, or carry on business, or personally work for gain within the local limits of the Court’s jurisdiction. It seems to me quite plain that the eleven persons do carry on business in Bombay, and none the less so because they carry on business in partnership with a twelfth individual. Clause 12 is not confined to carrying on business alone; and, as was pointed out by Lord Justice Farwell in the English case of Sadler v. Whiteman (1910) 1. k.b. 868, 889 a case which dealt with the expression “carrying on business” as used in the English Money-lenders Act, “It is a fallacy to say that a partner in a firm does not, but the firm does, carry on business. “I think that, view is correct; and here, undoubtedly, the eleven individuals, who are comprised in the firm name used to describe the 1st defendants, do carry on business in Bombay, though in partnership with another individual.

4. That being so, I think the learned Judge was wrong in holding that the Court had no jurisdiction to entertain the suit.

5. The appeal must be allowed with costs, and the suit remanded to the lower Court for trial on the merits. Costs of the suit in the lower Court to be dealt with by the learned Judge trying the suit on merits.

Blackwell, J.

6. I agree.

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information