9911796707
TMI Blog1973 (11) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... pay up the arrears of charges in respect of the telephone line of his partnership firm, Shakti Oil Mills, the Telephone Department, by the said notice intimated to him that if it was not complied with, his personal telephone line would be disconnected. The petitioner did not comply with the second notice but replied to it on 21st April 1971. On 26th April 1971, the Telephone Department disconnected the personal telephone line of the petitioner. 3. The petitioner, therefore, filed Civil Suit No. 282 of 1971 in the Court of the Civil Judge (Senior Division), Jamnagar, for a permanent injunction restraining the respondents from disconnecting his personal telephone line. In this suit the petitioner applied for an interim injunction. The learned Civil Judge granted ad-interim injunction and issued notice to the respondents to show cause why it should not be confirmed. The respondents appeared in the suit and stated that they had already disconnected the personal telephone line of the petitioner. The learned Judge, thereupon, vacated the ad-interim injunction. Thereafter the petitioner withdrew the suit on 30th July 1971 and filed this petition. 4. In this petition, Mr. Suresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been damaged on the premises of its subscriber. It further empowers him to disconnect a telephone line, if its subscriber has altered or made any attachment to the apparatus supplies to him. Rule 436 requires a subscriber to pay to the Telephone Authority installation or shifting charges and rent in respect of a telephone. Rule 437 deals with the payability of the rental of a telephone. Rule 439 provides that the telephone charges shall be payable on presentation of a bill in respect thereof. Rule 442 is a material rule. It provides as follows: 442. Any notice, bill or demand from the Telegraph Authority for any fee or charges due from a subscriber may be served by delivery to the subscriber, or by sending it by post to the address of the subscriber or by leaving it at the premises in or upon which the apparatus is installed. Then follows Rule 443 which deals with the cases of default of payment. It is this rule on the construction of which Mr. Shah has argued before me. It provides as follows: 443. Default of Payment. If, on or before the due date, the rent or other charges in respect of the telephone service provided are not paid by the subscriber in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally a suit against all the partners of the firm and, therefore, decree passed in such a suit is in effect against all the partners, though it may in form be against the firm. This decision of the Supreme Court makes it quite clear that a partnership firm is not a legal entity distinct from its partners. A firm and its partners are, therefore, interchangeable terms. If, therefore, a partnership firm incurs any liability, it is the liability of all the partners. 8. Section 25 of the Indian Partnership Act, 1932, provides that every partner is liable, jointly with all the other partners and also severally, for all acts of the firm done while he is a partner. It is, therefore, clear that the liability of a partnership firm is the joint and several liability of all its partners. 9. Applying the; principle down in the aforesaid decision of the Supreme Court, it is quite clear that telephone number 491, rented by Shakti Oil Mills, was really rented by its four partners. Therefore, any payment which became due respect of the telephone, became the joint and several liability of all the four partners. The payment due from Shakti Oil Mills, therefore, could have been recovered even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e due had ceased to be the partner subsequently, in accordance with the provisions of law, and had disowned his liability on account of that reason, the argument advanced by Mr. Shah would have required some consideration. In the instant case, there has been no change in the constitution of Shakti Oil Mills. Therefore, the doctrine of distinct personality laid down by the Privy Council cannot be applied to exonerate the petitioner from the liability of the telephone charges which were due from Shakti Oil Mills. 11. The next decision which Mr. Shah has cited before me is in the Commissioner of Income Tax, West Bengal v. A.W. Figgis and Co. and Ors. [1953] 24 ITR 405 (SC). In that case the Supreme Court has laid down that a partnership firm can be charged as an assessable entity distinct from its partners who can also be assessed individually. The aforesaid decision of the Supreme Court is based upon certain special provisions of the Income Tax Act. The ratio laid down in that decision, therefore, cannot be made applicable to the instant case. 12. It has next been argued by Mr. Shah that, at the most, the petitioner was liable to pay telephone charges in respect of the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or its charges. If he has more than one telephone pay charges which become due respect of all. If he commits default in payment of charges in respect of one telephone, he cannot be allowed to escape with impunity and to retain his other telephone connections. Where there are more than one telephone connection, given to a subscriber, the Telephone Authority is the same and the subscriber is the same. The Telephone Authority and the subscriber remaining the same, there is no reason to hold that a defaulter may be allowed to retain his other telephone lines except one in respect of which default has been committed by him. In my opinion, therefore, the power of disconnecting one or more telephone lines of a subscriber can be exercised as long as the default continues and as long as there are telephone lines, installed for the benefit of the defaulting subscriber, available for disconnection. In view of the aforesaid reasons I am of the opinion that the petitioner was liable to pay arrears of telephone charges in respect of telephone number 491, installed in the name of his partnership firm Shakti Oil Mills. Since he did not comply with the demand of the Telegraph Department to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
