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TMI Blog1983 (3) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... Jullundur City (hereinafter referred to as "the company"), to the extent of one lakh of rupees, on the joint and several liability of the company and all its directors. Later, the company was ordered to be wound up. After the winding-up order had been passed, the appellant filed a suit for the recovery of Rs. 20,983.30, the amount due from the company against the directors only on the basis of their personal liability, on 11th March, 1971. The company was not impleaded as a party therein. The suit was dismissed on 5th June, 1974, against which a first appeal was filed in this court. The appeal has been accepted by me and the case remanded to the trial court for fresh decision, vide judgment dated 22nd February, 1983. The appellant filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AC 504, the above rule was adopted by majority. Section 43 and the above cases were noticed by a Division Bench of the Allahabad High Court in Muhammad Askari v. Radhe Ram Singh [1900] ILR 22 All 307, where Sir Arthur Strachey C.J., speaking for the Bench, in view of section 43, did not follow the rule laid down in the abovesaid English cases and held as follows (at p. 312) : "As explained in those judgments, the doctrine that there is in the case of a joint contract a single cause of action which can only be once sued on is essentially based on the right of joint debtors in England to have all their co-contractors joined as defendants in any suit to enforce the joint obligation. That right was in England enforceable before the Judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that on account of the decree having been obtained against his son, as a partner, there was no debt due and payable by him and, therefore, the creditor could not get him declared as an insolvent. It was held that section 43 of the Contract Act applied as much to partners as to other co-contractors. A judgment against one partner was no bar to a subsequent suit on the contract or obligation against the other partners, so long as the debt was not extinguished, as the liability of partners was a joint and several one. In view of section 43, the principle laid down in Hoare's case [1844] 13 M . W 494, was not followed in this case too. Similar view was taken by the Madras High Court in B.R. Nagendra Iyer v. R.V. Subburamachari, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a company in liquidation stands on the same footing as instituting a suit. I am, therefore, of the opinion that if a suit is filed for recovery of a debt against some of the joint debtors and the amount is not recovered from them, a claim can be filed before an official liquidator against another joint debtor a company in liquidation. In the circumstances, the order of the official liquidator in rejecting the claim of the appellant on the ground that the suit filed by it against the directors bars its claim against the company is erroneous and liable to be set aside. For the aforesaid reasons, I accept the appeal, set aside the order of the official liquidator and remand the case to him to decide the matter afresh on merits. - - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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