Delhi High Court
M/S.Anil Bearings vs M/S State Motors & Another on 19 February, 2010
Author: Reva Khetrapal
Bench: Reva Khetrapal
REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 19/2010 and CM No.773/2010 (stay)
M/S. ANIL BEARINGS ..... Appellant
Through: Mr. Rajesh Gogna and Mr. Sanjay
Jha, Advocates
versus
M/S. STATE MOTORS & ANR ..... Respondents
Through: Mr. Suresh Goyal, Advocate
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
% 19.02.2010 : REVA KHETRAPAL, J. (Oral) 1. Admit.
2. Since a very short point is involved, with the consent of the parties the appeal is taken up for final hearing.
3. The appellant in this appeal seeks to assail the impugned judgment dated 19.11.2009 passed by the learned Additional District Judge dismissing the suit of the plaintiff as not maintainable on the ground that the suit is filed by the proprietorship concern, which is not a RFA 19/2010 Page No. 1 of 10 legal entity.
4. Admittedly, in the suit, the name and description of the plaintiff is given in the following manner:
M/s. Anil Bearings, 633/4, Hamilton Road, Kashmiri Gate, Delhi - 110006 Through its proprietor Shri Anil Thapar
5. The appellant in his suit claimed recovery of Rs.4,52,364/- (Rupees Four Lakhs Fifty Two Thousand Three Hundred and Sixty Four only), which included Rs.3,82,402/- towards the principal and Rs.69,962/- towards the interest. The plaint was signed and verified by Shri Anil Thapar. Apart from signing and verifying the plaint, Shri Anil Thapar also furnished his affidavit in support of the plaint in the capacity of proprietor of M/s. Anil Bearings. He also executed and signed vakalatnama in favour of the counsel for the plaintiff.
6. It may be pertinently mentioned at this juncture that the suit for recovery of the aforesaid amount was filed on the basis of goods supplied by the plaintiff to the defendant against different invoices, as set out in paragraph 7 of the plaint. Pertinently also, in the written statement filed by him, the defendant admitted all the invoices as mentioned in paragraph 7 of the plaint against which goods were RFA 19/2010 Page No. 2 of 10 supplied to it. Not only this, the defendant also admitted the 'C' Forms, which it had issued to the plaintiff against the aforesaid goods supplied to it.
7. On 6th October, 2008, the following issues were framed by the learned trial Judge before the matter was adjourned for the plaintiff's evidence to 19.11.2008:-
"(i) Whether the plaintiff is entitled to recover a sum of Rs.4,52,364/- along with interest and pendentilite in future @ 18% per annum and cost? OPP.
(ii) Whether the suit is not maintainable in the present form? OPD.
(iii) Whether this court has no jurisdiction to try and entertain the present suit? OPD.
(iv) Relief."
8. So far as the counter-claim was concerned, the following issues were framed:-
"(i) Whether the defendant is entitled to a sum of Rs.4,17,944/- along with pendentilite and future interest @ 18% per annum? OPD.
(ii) Relief."
9. The appellant states that at the time of framing of issues the trial court did not declare any of the issues as a preliminary issue, and as a matter of fact set down the case for recording of the plaintiff's evidence.
On the date fixed for the plaintiff's evidence, i.e., on 19.11.2008, the RFA 19/2010 Page No. 3 of 10 plaintiff's witness along with his counsel was present in the court and the plaintiff filed his affidavit by way of evidence, an advance copy of which had been supplied to the defendant prior to the date of hearing. Thereafter, the matter was adjourned to 24th February, 2009 for the examination of the plaintiff and thence to 9th July, 2009, 21st August, 2009 and 19th November, 2009. On the last date, i.e., on 19th November, 2009, as the plaintiff was in the process of tendering his affidavit in evidence, the counsel for the defendant raised an objection to the maintainability of the suit, relying upon the provisions of Order XXX Rule 10 of the Code of Civil Procedure, which resulted in the trial court treating Issue No.(ii) as a preliminary issue and dismissing the suit as not maintainable, adjourning the case to 21st January, 2010 for the evidence of the defendant on the counter-claim.
10. Aggrieved by the impugned judgment and order dated 19th November, 2009, the present appeal has been preferred by the appellant. Arguments were advanced by Mr. Rajesh Gogna, the counsel for the appellant and Mr. Suresh Goyal, the counsel for the respondents.
11. The principal contention of Mr. Rajesh Gogna on behalf of the appellant is that the trial court failed to appreciate that the description of the party had been succinctly delineated in the plaint and there was RFA 19/2010 Page No. 4 of 10 enough material on the record to conclude that the plaint had been filed by Shri Anil Thapar, as the proprietor of M/s. Anil Bearings. He further contended that the Court had taken a hyper-technical approach in dismissing the suit, ignoring the fact that the plaint was signed and verified by Shri Anil Thapar, and the defendant themselves had addressed their legal notice dated 30th August, 2007 to M/s. Anil Bearings and not to Shri Anil Thapar in his individual name. In such circumstances, it was incumbent upon the trial court to have read the plaint as a whole rather than looking at the memo of parties to conclude that the plaint had been filed by a non-legal entity. It was also contended that if the Court considered that the suit as framed was not maintainable, it should not have dismissed the suit on this hyper- technical ground, but should have given an opportunity to the appellant to amend the memo of parties so as to mention the name of the proprietor (Anil Thapar) before the name of the proprietorship concern, "M/s. Anil Bearings".
12. Reliance was placed by the learned counsel for the appellant on a judgment of the Bombay High Court in Municipal Council, Tiroda vs. K. Ravindra & Company reported in 2003 (2) Civil Court Cases 578, in support of his contention that in cases of bonafide error, where the RFA 19/2010 Page No. 5 of 10 mistake has been made not for any ulterior purpose, rectification of the memo of parties ought to be permitted by the Court rather than adopting the course of rejecting the plaint.
13. Reference was also made by the learned counsel for the appellant to a judgment of this Court in Chunnil Lal vs. RPG Home Finance Pvt. Ltd. 2007 (1) R.A.J. 13 (Del), wherein it was observed as follows:
(R.A.J., Page-15, paragraph 4) "4. In the Written Statement the Respondent has contended that the Petition is not maintainable as C.L. Construction Company is a sole proprietorship concern and is not a legal entity. A perusal of the Memorandum of Parties will disclose that the Petitioner has been arrayed as C.L. Construction Company through its proprietor Shri Chunni Lal who has signed the application and the Affidavit in support thereof.
In this affidavit Shri Chunnil Lal has stated that he is the Plaintiff. While the array of parties ought to have been fashioned as Shri Chunni Lal, sole proprietor of C.L. Construction Company, this hyper-technical objection deserves to be overruled. Order 30 Rule 10 specifically permits that a person carrying on business in a name or style other than his own may be sued in such name or style as if it were a firm name.
Thereafter the Petitioner can require the Defendant so arrayed to disclose the name and details of the owner. This is because Order XXX is made applicable to such cases."
14. In rebuttal, the contention of the learned counsel for the respondent was that the suit, having been filed by a proprietorship RFA 19/2010 Page No. 6 of 10 concern, which was not a separate legal entity, clearly fell foul of the provisions of Order XXX Rule 10 CPC, which read as under:
"10. Suit against person carrying on business in name other than his own.- Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under this Order shall apply accordingly."
15. Having considered the rival contentions of the parties, I am of the view that the learned trial court adopted a hyper-technical approach in dismissing the suit, ignoring the fact that at the most it was a case of mis-description of the parties, as was clear from a reading of the plaint in its entirety. Thus, in paragraph 1 of the plaint, it was clearly mentioned that the plaintiff was a proprietorship establishment and Shri Anil Thapar was the sole proprietor of the plaintiff establishment, having its office at 633/4, Hamilton Road, Kashmiri Gate, Delhi - 110006. In paragraph 2 of the plaint, it was elaborated that the suit was being filed by Shri Anil Thapar, who was the proprietor and was well conversant with the facts and circumstances of the case and competent to file, sign and verify the suit and to do all other necessary acts for pursuing the case against the defendants. Then again, in consonance RFA 19/2010 Page No. 7 of 10 with the provisions of Order VI Rules 14 and 15 CPC, the plaint was signed and verified by Shri Anil Thapar as plaintiff and Shri Anil Thapar had also furnished his affidavit in support of the plaint. The learned trial court also, in my view, altogether lost sight of the fact that Order XXX Rule 10 CPC is an enabling provision, inasmuch as it allows the plaintiff to sue a person carrying on a business in a name or style other than his own in such name or style as if it were a firm name, as is apparent from a bare perusal of the provisions thereof. The said provision far from coming to the assistance of the respondent- defendant, comes to the aid of the appellant-plaintiff.
16. No doubt, the settled legal position is that since a firm is not a legal entity, the privilege of suing in the name of a firm is available only to those persons who are partners in a firm and are doing business as such. The present was, therefore, a case where the description of the plaintiff by a firm name was a mis-description, but such error in law, not being the description of a non-existent person, is not one which cannot be corrected. The learned trial court ought, therefore, to have directed the plaintiff to amend the memo of parties to enable a proper description of the plaintiff and proceeded to determine the real question in issue between the parties.
RFA 19/2010 Page No. 8 of 10
17. In Jai Jai Ram Manohar Lal vs. National Building Material Supply Gurgaon (1969) 1 SCC 869 where the Supreme Court had an occasion to consider a somewhat similar question, inasmuch as the suit instead of being filed in the name of the plaintiff as manager of the Hindu Undivided Family to which the business belonged, was filed in the business name "Jai Jai Ram Manohar Lal". An amendment application was filed by the plaintiff which was rejected by the High Court on the ground that there was no averment to the effect that the mis-description was on account of a bonafide mistake. The Supreme Court, on appeal, held that the order passed by the High Court could not be sustained, and laid down the following oft-quoted dicta:-
"5. ..................................Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying, was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side...................................................."
18. In view of the aforesaid, the judgment and order dated RFA 19/2010 Page No. 9 of 10 19.11.2009 pertaining to the maintainability of the suit are set aside and the suit is restored to the file of the learned Additional District Judge to be dealt with in accordance with law with the direction to the plaintiff to amend the plaint latest within six weeks from the date of the passing of this order. Parties shall appear before the learned District Judge on 5 th April, 2010, when the learned District Judge shall proceed to decide the remaining issues on merits, after taking on record the amended memo of parties and the amended plaint.
RFA 19/2010 and CM No.773/2010 stand disposed of accordingly.
REVA KHETRAPAL,J FEBRUARY 19, 2010 km RFA 19/2010 Page No. 10 of 10