Calcutta High Court
M/S. J.D. Singh And Others vs Calcutta Port Trust on 6 January, 1993
Equivalent citations: AIR1994CAL148, AIR 1994 CALCUTTA 148
ORDER
1. These are two applications, one made on behalf of the Trustees for the Port of Calcutta, inter alia -- for recall of an order of attachment dated 18th July, 1990 and the other on behalf of the award holder by way of execution of the decree passed upon the award by a garnishee attachment of Rs. 3,21,846.94 out of the moneys held by the State Bank of India, and payment thereof.
2. The award in the instant case was made by an Arbitrator nominated as per agreement between the parties by the President of the Indian Institute of Engineers. The only point in dispute in both the applications is whether the decree passed upon the award in the name of M/s. J.D. Singh & Co. can at all be put into execution in view of the fact that the same is only a business name of one J.D. Singh who is the proprietor and the sole owner of the said business.
3. Mr. S.P. Majumdar, appearing for the Trustees for the Port of Calcutta, has said that under Order 30, Rule 10 of the Civil Procedure Code a person can be sued in the name of the business that he carries on. However there is no such enabling provision either in the Code of Civil Procedure or anywhere else in the general body of law permitting a person to sue, not in his name but abandoning the same, in the name or style of the business which he adopts for commercial purposes.
4. Mr. Majumdar has relied upon the case of Bhagawan v. Hiraji, being a Division Bench decision of the Bombay High Court reported in AIR 1932 Bombay, page 516. He has placed head-note 'A' thereof and has said that in the said decision it has been laid down that a person trading himself as a firm or in an assumed or trading name may be sued in such name under Order 30, Rule 10 but he cannot sue in that name.
5. Mr. Majumdar has thereafter submitted that a similar prohibition exists as against an unregistered firm suing in the firm name. He has referred to Section 69 of the Partnership Act and has referred also to the case of Sundarlal & Sons being a decision of Sabyasachi Mukherji, J. Mr. Majumdar has drawn my attention to the dicta in paragraph 4 of the said decision and the several authorities cited therein. In that paragraph it has been said that a plaint filed by an unregistered firm would not be a plaint at all. Thus all proceedings upon such a plaint would be non-existent and without jurisdiction in the eye of law. A decree passed on the basis of such a plaint cannot be put into execution and any attempted execution thereof can be resisted on a point of nullity or lack, of jurisdiction even at the stage of execution itself.
6. Mr. Majumdar next relied upon the Supreme Court decision of a Five Judge Bench in the case of Jagadish Chandra v. Kajaria Traders, and submitted on the basis thereof that the bar of Sec. 69 is applicable not merely to suits and plaints in regular civil suits but the said bar is applicable as against all proceedings of whatever nature purportedly sought to be instituted in the firm name by or on behalf of an unregistered firm. Mr. Majumdar argued on that basis that a reference attempted to be had at the instance of M/ s. J.D. Singh & Co. would be incompetent since the claimant J.D. Singh has not instituted the proceeding before the Arbitrator in his own name.
7. The point in the instant case is however not concluded by the above authorities. Though there is a specific bar against a suit in a partnership name by an unregistered firm contained in Sec. 69 of the Partnership Act, there is no such similar express bar against a person suing in his trade or business name.
8. The Courts however do not permit such a suit or proceeding to be instituted in the business name where the sole proprietor keeps himself in the back-ground. The point at issue is what should be done in case such an error is committed by a person and a proceeding is instituted by him not in his name but erroneously in his business name.
9. The above Division Bench authority of the Bombay High Court does not go so far as to say that in such an event the plaint instituted in the business name would be a nullity for all or any subsequent purpose.
10. Mr. Barin Ghosh appearing for J.D. Singh on the other hand said that the law in this case would be different from the law applicable to a firm where more than one person is involved.
11. Mr. Ghosh referred to the case of Jai Jairam Manoharlal and said on the authority of the said decision that a person suing in his trade name brings about in the plaint a case of mis-description of his own self. In case of bona fide errors where the other party or any other third party has not yet been irretrievably prejudiced, such errors of misdescription can and should, in the interest of justice, be always rectified. An amendment to cure such a misdescription was, in fact, permitted by the Supreme Court in that case.
12. A combined reading of the above authorities would lead to this result that though a plaint in the name of an unregistered firm is legally non est for all purposes, yet, a plaint or a proceeding instituted in the trade or business name of a sole owner is not similarly deemed to be void for all future purposes. In cases of bona fide error where the mistake has been made not for any ulterior purpose the Court permits a rectification of the name so that the person suing is permitted even at a late stage to show himself as the claimant on record.
13. There is nothing express in the body of law which compels a person to institute a suit in his own name. There is nothing, for example, which expressly compels a plaintiff named "AB" to institute the plaint in the name of "AB". Theoretically he can sue in the name of "CD" and state in the plaint that he, AB, is the real suing party and that though the name "CD" is given in the plaint he is the claimant before the Court. Such a procedure however is not permitted by any Court of Law on the general principle of maintenance of purity of public records which are to be correct on their face, and not merely understood to be so by the parties involved; for, even third parties might choose to conduct themselves on the basis of the apparent tenor of such public records. For such a similar reason there is a principle of maintenance of purity of registers in regard to records of trade names and designs. It is not often needed in a Court of Law to stress or emphasize the necessity of maintenance of the purity of court records, but general court records, plaints and registers as well as decrees should, if anything, be maintained in purity to an even greater degree than a special trade register.
14. The obvious reason for this is that if a person is allowed to sue in any name other than his own, the same leads to possibilities of fraud deception or even mistake which the Courts must make it their business to avoid.
15. This is the reason why a person, who can carry on business even in more assumed names than one, is not allowed to sue in any or all of those business names by keeping himself in the background.
16. If a mistake however is made, as in this case, where the person owning the rights is J.D. Singh and where the name on the face of the decree or the proceedings is similar but erroneous, like in this case, i.e., M/s, J.D. Singh & Co., and there is no suggestion by any of the parties that the mistake was committed for any ulterior or dishonest motive like, say, tax evasion, the Court permits the rectification to be made so that the otherwise good claim of a claimant is not defeated for a mistake of a lawyer or even an arbitrator.
17. In the instant case the parties went before an Arbitrator who is not said to be a lawyer; the parties were however represented by lawyers. The claim was made on the face of it by M/s. J.D. Singh & Co. but it was all along made clear that the claimant J.D. Singh is the sole proprietor thereof. Even in the present execution application, though the cause title shows the claimant to be M/s. J.D. Singh & Co., the verification portion describes the deponent as Janardan Singh, the decree holder. Janardan Singh has himself signed the verification in the execution application and has described himself as proprietor of M/s. J.D. Singh & Co.
18. Under these circumstances Mr. Ghosh has orally made an application for correction of the cause title in the decree that has been passed upon the award, as well as in the cause title of the award filed in Court, and in the cause title of the execution application taken out by Janardan Singh.
19. Mr. Ghosh has submitted that a writ-
ten application to the above effect would be totally unnecessary as he has instructions given by his sole proprietor client i.e. Janardan Singh to make the application for rectification since no other interest of any other business associate is involved in the matter.
20. Mr. Ghosh also relied in this regard upon the case of Lachminarayan Kanoria reported in (1966) 70 CWN p. 110. It was decided by my father while his Lordship was sitting as a Judge of this Court.
21. It was said in paragraph 7 of the said judgment that the reference to arbitration in that case had been made by one Tolaram (India) Ltd. in the name of Victory Jute Mills which was the business name of the said company. His Lordship said in paragraph 16 that there is no bar in England or in India for a company to carry on business in some name other than its own. There is no such bar applicable to individuals either. Moreover, just as in that case of Lachminarayan Kanoria, so also in this case, the real applicant or claimant had never kept himself or itself in the background but had declared himself to be the proprietor of the business concern from the very beginning even at the stage of commencement of the reference before the Arbitrator.
22. Under these circumstances it would be a travesty of justice at this late stage to dismiss the claim for execution altogether merely because of an erroneous description made without any fraudulent or mala fide motive.
23. Mr. Ghosh submitted that in any event the point of lack of jurisdiction should have been taken in the application for setting aside of the award made under Section 30 of the Arbitration Act; with this contention of his however I cannot agree. If a point of jurisdiction arises then the same can be agitated not only in an application under Sec. 30 but it can be agitated also in resistance to execution of the decree passed upon the award provided, however, the point as to the jurisdiction, has been transmitted as such from the award to the decree and has not ended prior to the award ripening into the decree.
24. Here, if the business name of M/s. J.D. Singh & Co. were unrectifiable into the personal name of J.D. Singh, like in the case of an unregistered firm involving more persons than one, then and in that event the error of jurisdiction made in the award by granting the same in the name of an unregistered firm would have been transmitted even after passing of the decree in a similar form to the decree itself. The decree could in that event be resisted when sought to be put into execution. It would be no answer to say that the decree could not be challenged because the matter was not agitated at the stage of the setting aside application. Were the same to be permitted, then it would lead to a circuitous way of avoiding the bar of institution of a suit in the name of an unregistered firm contained in section 69 of the Partnership Act. In the instant case, however, there being no such insuperable express bar, the problem of rectification is not an insoluable or an incurable one.
25. Under these circumstances, the application of Calcutta Port Trust or the Trustees for the Port of Calcutta initiated by their notice taken out on 23rd of February, 1991 is dismissed. In so far as the application of the decreeholder is concerned it is ordered that the name of the claimant shall be corrected to read as "J.D. Singh" instead of "M/s. J.D. Singh & Co." in the award filed in Court, in the decree passed upon the said award and in the application for execution taken out on behalf of the award holder. Such correction or amendment to be incorporated as expeditiously as possible. It is also ordered that the attachment order already passed on the execution application on 16th July, 1990 is confirmed and on the basis thereof the State Bank of India shall make payment of the attached amount of Rs. 3,21,846.94 to J.D. Singh or his advocate-on-record who has taken out the present application for execution within a period of three weeks from date hereof. Since, however, the execution application could not have been allowed without Mr. Ghosh orally applying for the amendment and the amendments being allowed, it cannot be said that the trustees for the Port of Calcutta put up an ineffectual resistance to the application until to-day.
26. Under these circumstances, the award holder cannot be held to be entitled to costs in either of these two applications. Costs, as such, would have to be paid and borne by the parties themselves.
27. The parties, their servants, officers, and agents, the State Bank of India, the department and all others concerned will act upon a copy of this dictated order on the usual undertaking of the applicant award holder.
28. Order accordingly.