Bachawat, J.@mdashThis suit was originally instituted by the firm of Ramdhandas Bhagwandas on March 23, 1957. Subsequently, the plaint was amended and the plaintiff firm was described as the firm of Ramdhandas Biharilal carrying on business inter alia under the name of Ramdhandas Bhagwandas at 56, Netaji Subhas Road in the town of Calcutta. The plaintiff firm sues to recover a sum of Rs 10,000/- and interest thereon said to be due to the plaintiff firm for moneys lent and advanced by the plaintiff firm to the defendant No. 1 Tiloke Chand Chopra and in respect of which the defendant No. 1 is said to have executed a Rukka dated Chait Badi 5 Sambat year 2010 corresponding to March 24, 1954 in favour of the defendant No. 2 Ramjivan Saraf, one of the partners of the plaintiff firm. Both Tilokechand Chopra and Ramjiban Saraf are impleaded as defendants in the suit. The evidence of Jugraj Sharma shows that a certain firm carrying on business under the name of Ramdhandas Bhagwandas lent and advanced a sum of Rs. 10,000/- to the defendant Tilok Chand Chopra sometime in Sambat year 2007 or 2008, that Tiloke Chand did not repay the money though the period of limitation was going to expire and that on being pressed for payment Tiloke Chand executed the rukka in question. Now the plaintiff firm of Ramdhandas Biharilal was not in existence on March 24, 1954 or on any earlier date when the loan was advanced. Ext. A, the copy of the entry in the register of firms as also Ext. 1, the copy of the application for registration of the firm by its partners show that this firm was established and came into existence on June 4, 1954. This is corroborated by the evidence of Gajanand Shroff (Q. 27). The partners of this firm are five in number. Their names are (1) Ramjibon Saraf. (2) Parameswarlal Saraf, (3) Kashi Prasad Saraf, (4) Gajanand Saraf and (5) Hanuman Prasad Saraf. It is plain beyond doubt that the firm of Ramdhandas Biharilal referred to in Ext. A and Ext. 1 is the plaintiff before us. The learned trial Judge held that the plaintiff firm was established long ago and was in existence when the loan was advanced and the rukka was executed. We regret that we are unable to share this view. The. evidence of Jugraj Sharma undoubtedly shows that a certain firm of the name of Ramdhandas Bhagwandas advanced the loan, that, that firm of Ramdhandas Bhagwandas was in existence in Sambat year 2001 and even prior thereto and that the firm of the name of Ramdhandas Bhagwandas which advanced the loan was really the name and style in which a certain firm of Ramdhandas Biharilal carried on business in Calcutta But the evidence of Jugraj Sharma (Qq. 4, 5 and 24 to 26) also shows that the partners of the particular firm of Ramdhandas Bhagwandas and/or Ramdhandas Biharilal which advanced the loan were five in number and their names were (1) Bhagwanmal Shroff, (2) Ramjibon Shroff, (3) Shova Chand Shroff, (4) Phokarmal Shroff and (5) Biswanath Shroff. The copy of the application for registration of the firm of Ramdhandas Bhagwandas (Ex. 2) however shows that the partners of that firm were four in number and their names were (1) Bhagwandas Saraf, (2) Ramjibon Saraf, (3) Hanumanbux Bajle and (4) Bhagwandas Jalan. It is not necessary to decide whether the persons referred to by Jugraj Sharma in his answer to question 24 or the persons referred to in Ext. 2 constituted the firm of Ramdhandas Bhagwandas on the date when the loan of Rs. 10,000/- was advanced to Tiloke Chand or on the date when the Rukka was executed. On the evidence it is plain enough that the firm of Ramdhandas Bhagwandas and|or Ramdhandas Biharilal which advanced the loan is distinct and separate from the plaintiff firm of Ramdhandas Biharilal carrying on business inter alia under the name and style of Ramdhandas Bhagwandas which came into existence on June 4, 1954. Parameshwarlal Saraf, Kashiprasad Saraf, Gajanand Saraf and Hanumanprased Saraf are partners of the plaintiff firm but those persons were not partners of the firm of Ramdhandas Bhagwandas and/or Ramdhandas Biharilal which advanced the loan. Again none of the persons referred to in Ext 2 or in the evidence of Jugraj Sharma (Q. 24) other than Ramjibon Saraf is a partner of the plaintiff firm. Some confusion has arisen between the firm of Ramdhandas Bhagwandas and/or Ramdhandas Biharilal which advanced the loan and the plaintiff firm because of the identity of name but the two firms are separate and distinct. There has been no assignment of the debt by the creditor firm of Ramdhandas Bhagwandas and/or Ramdhandas Biharilal in favour of the plaintiff firm; nor has there been a novation or a substituted promise by the debtor to repay the loan to the plaintiff firm. The plaintiff firm was not in existence on the date of the loan or on the date of the pukka and is not entitled to recover the loan in this suit.
2. An argument was advanced before us that the entry in the register of firms with regard to the date of the establishment of the plaintiff firm is conclusive as against the partners of the plaintiff firm having regard to section 68(1) of the Indian Partnership Act and having regard to the fact that that date is also mentioned in Ext. 2 which was signed by the partners of the plaintiff firm. We do not think it necessary to examine this contention. On the evidence before us we are satisfied that the plaintiff firm of Ramdhandas Biharilal was established on June 4, 1954 and was not in existence on the date of the loan or on the date of the rukka. The decree passed by the learned trial Judge in favour of the plaintiff firm cannot be sustained.
3. The question still remains whether a decree should be passed in favour of Ramjibon Saraf as against Tiloke Chand Chopra. Now Ramjibon Saraf is not a co-plaintiff. He has been impleaded as defendant Nevertheless, if Ramjibon Saraf has a cause of action against Tiloke Chand Chopra and that cause of action is well pleaded in the plaint, the fact that a wrong person has sued as plaintiff and the further fact that Ramjibon Saraf is a defendant is not a bar to the Court passing a decree in favour of Ramjibon Saraf against Tiloke Chand Chopra. In Monghibai v. Cooverji Umersey (1) 66 I.A. 210 at 219 Lord Porter observed:
It has long been recognised that one or more of several persons jointly interested can bring an action in respect of joint property, and if their right to sue is challenged can amend by joining their co-contractors as plaintiffs, if they will consent, or as co-defendants if they will not. Such cases as Luke v. South Kensington Hotel Co. and Chullen v. Knowles are examples of this principle. Nor, indeed, would it matter that a wrong person had originally sued though he had no cause of action: See Hughes. v. The Pump House Hotel Co. Ltd. (No. 2). Once all the parties are before the Court, the Court can make the appropriate order, and should give judgment in favour of all the persons interested whether they be joined as plaintiffs or defendants.
4. Now, the rukka which was passed in this case by Tiloke Chand Chopra in favour of Ramjibon Saraf is as follows:
The greetings of Tiloke Chand Chopra are conveyed to Babu Ramjibonji. Further having received from you Rs. 10,000/- it has been credited. Date Miti Chait Badi 5 Sambat year 2010. Sd. Tilok Chand Chopra.
5. This rukka acknowledges the receipt of Rs. 10,000/- from Ramjibon Saraf and of the amount having been duly credited. We read this rukka as a plain acknowledgment of liability by Tiloke Chand Chopra to account for and pay the money to Ramjiban Saraf. Now, all unconditional acknowledgment of liability implies a promise to pay. In Maniram v. Seth Rupchand (2) L.R. 33 LA. 165 at 172 Sir Alfred Wills observed:
An unconditional acknowledgment has always been held to imply a promise to pay, because that is the natural inference if nothing is said to the contrary. It is what every honest man would mean to do.
6. We find therefore that a loan of Rs. 10,000/- was advanced by the firm of Ramdhandas Bhagwandas of which the defendant Ramjiban Saraf was a partner. There is an unconditional written promise by Tiloke Chand Chopra to repay the amount of the loan to Ramjiban Saraf. The firm of Ramdhandas Bhagwandas which advanced the loan is not a party to the suit; nevertheless Ramjivan may enforce the promise and recover the amount which the debtor promised to pay to him. A suit by Ramjiban to enforce the promise is not liable to be defeated on the ground that all the partners of the creditor firm are not parties to the suit. In a case where a debtor had borrowed a sum of money from a firm and subsequently has made an unconditional promise to pay the money to one of the partners, such a partner can maintain an action in his own name. In Agacio v. Forbes (3) (1861) XIV Moore''s Privy Council 160 at 171 Lord Chelmsford observed:
The question, therefore, really is whether there was this separate agreement with Agacio, the plaintiff. Upon the form of it there can be no doubt, because the letter of Russell & Co. is addressed to him alone, and although, being for the benefit of the firm they might be entitled to sue upon it, yet it appears to their Lordships to be a case in which, according to the authorities, Agacio was at liberty to carry the action in his own name, and therefore, that the learned Judge in the Court below was in error in directing a nonsuit to be entered.
7. The principle upon which this case was decided is well pointed out in the judgment of Fawcett, J. in Kapurji Magniram v. Panaji Devichand (4) ILR 53 Bom. 110 at 114 where the learned Judge observes:
Even supposing that the agreement between the two firms amounted to an actual partnership, there is no absolute rule of law that one partner of a firm cannot sue for a debt that is due to the firm. As long ago as 1861 it was laid down by the Privy Council in Agacio v. Forbes that a partner with whom a contract had been personally made was entitled to sue upon that contract in his own name without joining the co-partners as plaintiffs, although the benefit of the contract would result to the partnership firm: and that is really an illustration of the well recognised rule that an agent having an interest in the contract which he has entered into on behalf of his principal is entitled to sue in his own name.
8. We are therefore satisfied that Ramjivan Saraf is entitled to maintain a suit against Tiloke Chand Chopra on the promise contained in the rukka dated March 24, 1954. This rukka is well pleaded in paragraph 2 of the plaint. The rukka must therefore be read as if it is a part of the plaint. Though the promise contained in the rukka was made for the benefit of the firm, Ramjivan Saraf is alone entitled to sue on the promise, since the promise is made to him personally. Although a wrong plaintiff has sued the debtor the Court has the power and the duty to see that appropriate order and decree is passed in favour of the proper plaintiff on the cause of action pleaded in the plaint. We are therefore satisfied that the appropriate decree should be passed in favour of Ramjivan Saraf though he is not the plaintiff.
9. A point was made in the trial Court that Tiloke Chand Chopra had paid the money to Ramjivan Saraf. The date of payment is not stated. No receipt for the alleged payment is produced. Had the payment been made, Tiloke Chand would have taken back the rukka from Ramjivan Saraf. Tiloke Chand said that he withdrew some money from his Bank for the purpose of repayment but the Bank Pass Book was not produced. The learned Judge rightly repelled the plea of payment.
10. Ramjivan has appeared before us by learned Counsel. He has through Counsel prayed that a decree be passed in his favour. Mr. Dutt who appears on behalf of Ramdhandas Biharilal stated that he has no objection to the decree being passed in favour of Ramjivan Saraf.
11. There is a claim in the plaint with regard to interest. The basis of the claim is not set out in the plaint. The evidence does not disclose that there was any agreement with regard to interest. We are satisfied that the plaintiff is not entitled to any interest.
We therefore pass the following order:
The judgment and decree passed by the trial Court in favour of the plaintiff firm is set aside. In lieu of the decree passed by the trial Court we pass a decree in favour of Ramjivan Saraf as against Tiloke Chand Chopra for a sum of Rs. 10,000/- This decretal sum will carry interest at the rate of six per cent. per annum from today. In all the circumstances of this case we direct that each party will pay and bear his own costs throughout, both in the Court of appeal and the trial Court.
K.C. Sen, J.
I agree.
