TMI Blog1926 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... f R.M.K.R.M. The defendant firm is owned by one Ramaswamy Chetty of Palavangudy, Ramnad District, Southern India. It is the practice for such firms to carry on their business through an attorney and agent and to describe, and style the firm by its vellasam or mark coupled with the name of its Penang agent for the time being. Subramanian Chetty was at all material times the attorney and agent of the plaintiff (sic) and A.N.S. Somasundaram Chetty the attorney and agent of the defendant firm. 4. The relation in which these attorneys or agents, when engaged in money lending business, stood to their principals, whether the latter were individuals or firms, their functions and powers, are well and authoritatively described by Mr. Justice Barrett-Lennard in his judgment delivered in this case in the Court of appeal on the 22nd September 1924. He said: First, when a local representative of a Chetty firm carries on the business under the vellasam (i.e., letters) of the firm coupled with his own distinct name, the announcement to the external world in general is that, whether a co-partner with, or a mere agent of other persons, he is to be looked upon as a principal. It is to be noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swore that the defendant was justly indebted to him (presumably under that description) in the sum of $ 7,293,60, described as being the amount of the balance for principal and interest due on current, account. Then R.M.K.R.M. Somasundaram Chetty, by his solicitor Mr. Lim Cheng Kan, took out a summons for further particulars of the plaintiff's claim. This summons was supported by the affidavit of the defendant, in which he denied being indebted to the plaintiff in the sum claimed and further denied ever having agreed to pay interest at the rate of 125 per 100, or that such a rate of interest was payable on Chatty's current accounts. On the 28th March 1923, an order was made by Mr. H.G. Sarwar, the Registrar, to the effect that the plaintiff was at liberty to sign judgment against the defendant for the sum of $ 7,400, with costs, and that the defendant was at liberty to defend as to the balance. The defendant never did defend as to the balance, possibly because he was superseded in his office, but the result apparently was that in Suit No. 120 judgment was signed for the) original capital sum of $ 7,400. The person who was the principal of the business of which Somasundaram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over not only the principal sum of $7,400, for which a judgment had been already recovered in Suit No. 120, but interest calculated at 125 per 100 per mensem, amounting in the whole to $ 8,376,40. Ramaswamy, who carries on business at Penang under the mark R.M.K.R.M. entered an appearance and required statement of claim to be delivered him. A summons was on the 17th September 1923, taken out by the plaintiff firm under S. 203 of the Civil Procedure Code, requiring the parties concerned to appear before the Registrar; in Chambers at 10 o'clock on the morning of the 24th September 1923, on the hearing of an application on the part of the plaintiff, calling on the defendant firm to show pause why final judgment should not by entered against them for the sum of $ 8,376,40, being the amount endorsed on the writ for balance of principal and interest and costs. This summons was supported by an affidavit made by Subramanian Chetty describing himself as attorney of the plaintiff firm who proved the debt claimed. This summons was opposed on an affidavit of one S.S. Subramanian Chetty, who described himself as the attorney of R.M.K.R.M. Ramaswamy Chetty. The deponent denied that the defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carriage thereof, and that the costs of the parties in the actions, including the costs of that application, might be costs in the consolidated actions. The application was adjourned into Court for argument and came on for hearing on the 8th October 1923, before Mr. Justice Sproule who granted the application asked for, that Suits No. 120 and No. 550 should be consolidated and be thenceforth carried on as one suit. But strange as it may appear, while these proceedings for the consolidation of the two suits were taking place, the earlier proceedings were also taking place: first, an application by the plaintiff in Salt No. 120 to set aside the judgment signed in that suit, and, second, an appeal by the plaintiff in Suit No. 550 from an order of the Registrar made on the 24th September 1923, granting the defendant liberty to defend. The questions involved were fully argued on three occasions, and it was ultimately ordered that the summons and appeal should stand for judgment, and same standing for judgment It was, on the 12th October 1923, ordered that the appeal should be dismissed and be dealt with on the trial of the consolidated actions, and that the costs be reserved to the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o business on behalf of his firm, and that Ramaswamy authorized his attorney to open the accounts which resulted in the debt sued for. In the statement of claim it is averred that R.M.K.R.M. Ramaswamy Chetty and A.N.S. Somasundaram Chetty were not joint contractors, nor was the latter a partner in the firm R.M.K.R.M. and the judgment signed sub nomine R.M.K.R.M. was not a bar to judgment being given against R.M.K.R.M. Ramaswamy Chetty; that the judgment dated 28th March 1923, i.e., the judgment in Suit No. 120, was bad and void in law and should be set aside; that this judgment was not and was never intended to be signed against A.N.S. Somasundaram Chetty personally, or against anyone except the firm R.M.K.R.M.; that A.N.S. Somasundaram Chetty is a person, but R.M.K.R.M. is merely a trading name and has no personal existence at all; that A.N.S. Somasundaram Chetty is a person and was not sued as a defendant in that suit, and he is not bound by it. Most of these averments are flatly contradicted by the documents in the case. Somasundsram Cbetty was sued in the case as R.M.K.R.M. Somasundaram Chetty, which on the admitted facts means that this latter person was attorney or agent or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, of showing that the two judgments were really for the same debt or cause of action, and that satisfaction of one was or would be satisfaction of both. 20. The case of King v. Hoare (1844) 13 M W 494: 2 D L 382: 14 LJ Ex 29, was approved of by the Lord Chancellor and Lords Hathaerley, Panzance, O'Hagan Selborne, Blackburn and Gordon, and applied by each to the facts of the case, with the exception of Lord Penzance who held that the rule laid down in King v. Hoare (1844) 13 M W 494: 2 D L 382: 14 LJ Ex 29 was only a rue of law and that since the Judicature Act, of 1873 the rule of equity as to such matters had superseded the law. The other noble Lords delivered judgment in practical agreement with that of the Lord Chancellor, and it was decided that alb action and judgment against two persons who had borrowed money from the plaintiffs (though the judgment be unsatisfied) constitute a bar to another action brought by the same plaintiffs against a third person who was afterwards discovered to have been interested as a partner with the two debtors in the business for the purposes of which the money was borrowed. In Vol. 1, p. 209, of Halsbury's Laws of England, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applies to have this judgment set aside because he had mistakenly formed an extravagant opinion of his own rights which misled him into litigation. 22. It is, of course, open to the plaintiffs, both attorney and principal, to bring an action to have the judgment entered up in Suit No. 120 set aside. They do not take that course; they apparently want to have it set aside by motion. It is not necessary to cite on this point any authorities in addition to Ainsworth v. Wilding (1896) 1 Ch 673: 65 LJ Ch 432: 74 LT 193: 44 WR 540. Romer, J., in giving judgment in that case, said at page 676: The Court has no jurisdiction after the judgment at the trial has been passed and entered to rehear the case. Formerly the Court of Chancery had power to rehear cases which had been tried before it even after decree had been entered, but that is not so since the Judicature Acts. So far as I am a war a the only cases in which the Court can interfere after the passing and entering of the judgment are these: (1) Where there has been an accident or slip in the judgment as drawn up, in which case the Court has power to rectify it under O. 28, R. 11, and (2) where the Court itself finds the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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