Page 1 of 4 1995-AIR (ORI)-0-291 , 1995 (TLS)1501602 HIGH COURT OF ORISSA Coram : ARIJIT PASAYAT MISC. APPEAL 205  Of  1992 (APRIL 17, 1995) POWSULPH (INDIA)PVT. LTD. VS. INVENTA TECHNICAL ARIJIT PASAYAT, J. ( 1 ) APPELLANT, a private limited company, filed an application for exemption from payment of court-fee on the plaint, and to institute the suit against the present respondents as an indigent person. The prayer was turned down by the learned Subordinate Judge, First Court, Cuttack on three grounds; namely; the application was not presented as prescribed under O. 33, R. 2 of the Civil P. C. 1903 (in short, the 'cpc'); the appellant had sufficient means to pay court-fee of nearly Rs. 26,000/-; and the application was not verified properly as provided under O. 6, R. 15 of the CPC. The conclusions of the learned Subordinate Judge are assailed in this appeal primarily on the ground that the application was in order, and proper form and in any event technicality should not have weighed with the learned Subordinate Judge. The assets position of the appellant has been wrongly assessed by the learned Subordinate Judge. The learned counsel for the respondents, on the other hand, submitted that the judgment is in order. It suffers from no infirmity and no interference is called for. The appellant being a company cannot be called to be indigent and therefore, O. 33 of the CPC has no application to it. ( 2 ) FOR resolution of the controversy, a few provisions which threw light are necessary to be quoted. Order 33 of the CPC relates to suits by indigent persons. Order 33, R. 1, CPC provides for suits which may be instituted by an indigent person subject to the provisions contained therein. Though different High Courts have taken contrary views in respect of partnership firm, they have no relevance so far as a company is concerned. The word 'person' in the rule includes both natural as well as juristic person. There is no substance in the plea that a company cannot file a suit as indigent person. A Full Bench of the Allahabad High Court in Kundas Sugar Mills v. Amidha Indian Sugar Syndicate Ltd. , AIR 1959 All 540 (FB) has also taken a similar view. Order 33, Rule 2 relates to contents of application, and reads as follows :";rule 2. A Full Bench of the Allahabad High Court in Kundas Sugar Mills v. Amidha Indian Sugar Syndicate Ltd. , AIR 1959 All 540 (FB) has also taken a similar view. Order 33, Rule 2 relates to contents of application, and reads as follows :";rule 2. Contents of application.- Every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. "; rule 3 relates to presentation of application, and reads as follows :";r. 3. Presentation of application.- Page 2 of 4 Notwithstanding anything contained in these rules, the application shall be presented to the Court by the applicant in person, unless he is exempted from appearing in Court, in which case the application may be presented by an authorised agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person. Provided that, where there are more plaintiffs than one, it shall be sufficient if the application is presented by one of the plaintiffs. "; emphasis is laid by the respondent No. 1 on the provisions of R. 5 which stipulates that the Court shall reject an application for permission to sue as an indigent person, where it is not framed and presented in the manner prescribed by Rules 2 and 3. ( 3 ) THE learned Subordinate Judge held that the application for permission to sue as an indigent person has to contain the particulars required in regard to plaint in suits, a schedule of movable and immovable property belonging to the applicant with the estimated value thereof, which has to be annexed thereto, and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. Rule 3 provides that an application is to be presented to the Court by any person unless he is exempted from appearing in Court, in which case the application may be presented by an authorised agent who can answer all material questions relating to the application and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person. The application under R. 2 is prescribed by the C. P. C. in the matter of institution of a suit as a pauper without payment of Court-fee prescribed under the Court-fees Act. There is nothing personal in such a case. The application should not be rejected summarily merely on the ground that it has not been signed and verified by the applicant. A Division Bench of the Allahabad High Court in Piare Lal v. Bhagwan Das, AIR 1933 All 295 held so. The view seems to be reasonable. Even if there is an omission in the application, the application can be returned for rectification. Bona fide omission should be allowed to be rectified. Unless there is an intentional departure from good faith, rigidity in the matter of acceptance of the application would frustrate the very purpose for which the provision has been enacted. The rule is not to be meticulously interpreted against the petitioner. A substantial compliance with the rule is sufficient. Where the applicant does not verify the contents of the petition at the foot of the petition, but does so by a separate affidavit in which the statements contained in the several paragraphs in the application were said to be true, the affidavit can be treated as part of the application. As rightly observed by a Division Bench of the Calcutta High Court in Madan Mohan Lal Kapasi v. Jhalman Singh, AIR 1954 Cal 89 , where the pauper petition has not been signed and verified as required by R. 2, but the plaint annexed to it has been signed and verified in the usual manner it is to be held that the Court can allow the petitioner to sign and verify the petition. ( 4 ) IT is of relevance to note that the application contained the following statements :";para. ( 4 ) IT is of relevance to note that the application contained the following statements :";para. 11- xxxx The latest balance-sheet showing the assets and liabilities position of the petitioner which has taken into account all movable and immovable properties owned and possessed by it is annexed to this application and may be read as part of this plaint. xxx xxx xxx. "; there is a verification, and an Page 3 of 4 affidavit amended to the application. ( 5 ) THOUGH the Court noticed that the application was verified and duly supported by the affidavit, yet observed that the schedule of movable and immovable properties was not annexed. A copy of the balance-sheet was filed later on. That was considered to be non-compliance with the requirements of O. 33, R. 2, C. P. C. , and held to be fatal. It is not in dispute that the balance-sheet has been filed. The learned Subordinate Judge failed to notice that the balance-sheet is a statement of assets and liabilities on a particular date. The assets position and liabilities can be known from the balance-sheet. A schedule of movable and immovable properties is nothing different from the figures indicated against it. Movable and immovable properties are indicated in the assets side of the balance-sheet. Therefore, there was nothing irregular to warrant rejection of the application on the ground that it did not comply with the requirements of Rules 2 and 3 of O. 33. If the application does not conform to Rules 2 and 3, opportunity should be given to rectify the defects. Order 33, Rule 5, as it relates to procedure, is only directory and not mandatory. The application cannot outright be rejected. Some mistake may occur sometimes deliberate, sometimes accidental, and therefore, an opportunity should be granted for rectification. Same view was expressed by the Andhra Pradesh High Court in Bomminani Laxmi Devoumma v. Bomminani Konapoa, AIR 1990 AP ll5 and by Punjab and Haryana High Court in Smt. Anita Rani v. State of Punjab, AIR 1988 P and H 141. Therefore, in proper cases the Court has power to allow an application to be amended so as to make it conform to the law. ( 6 ) COMING to the question whether the appellant-petitioner was possessed of means to pay the Court-fee, the learned Subordinate Judge noticed that the petitioner-appellant was possessed of raw materials worth Rs. Therefore, in proper cases the Court has power to allow an application to be amended so as to make it conform to the law. ( 6 ) COMING to the question whether the appellant-petitioner was possessed of means to pay the Court-fee, the learned Subordinate Judge noticed that the petitioner-appellant was possessed of raw materials worth Rs. 27,803 /-, cash in hand was Rs. 198/-, Rs. 1,015. 27 paise was in the Bank (current account), and some valuable machineries. The learned Subordinate Judge held that no attempt was made to sell away the machineries, and / or raw materials to raise the Court-fee on the plaint. Possession of sufficient means as indicated in cl. (a) of Explanation I of R. 1 is not possession of property but of sufficient means and the Court has to enquire into the capacity to raise money and not actual possession. The possession of 'sufficient means' refers to the possession of sufficient realisable property which will enable the plaintiff to pay the court-fee on the plaint. The expression 'possession of sufficient means' refers to capacity to raise money and not the actual possession of property. Where the property of the party is hypothecated to a bank to secure principal and interest, and the party is not in a position to convert the property into cash, he cannot be held to be a person possessing sufficient means to pay the court-fee. The word 'means' is intended to cover and include all forms of realizable assets which can be converted into cash, and as such can be used for financing the litigation. A debt which is due from a third person cannot be said to be 'means' of which the applicant is possessed, and the words 'is not possessed of ' must mean that the applicant has no actual control over it. 'possessed of sufficient means' mean actual control over a thing and capacity to reduce it into his possession without having recourse to law. Where the petitioner is possessed of some property which is not cash, the test to decide whether he is a pauper, is not whether in the abstract he has the power of Page 4 of 4 raising money, but whether in the concrete circumstances of the case he can succeed in raising anything substantial by exercising that power. Where the petitioner is possessed of some property which is not cash, the test to decide whether he is a pauper, is not whether in the abstract he has the power of Page 4 of 4 raising money, but whether in the concrete circumstances of the case he can succeed in raising anything substantial by exercising that power. ( 7 ) FROM the Balance-sheet it is apparent that the appellant had liability of Rs. 18,28,767. 01 in respect of secured loans from the Orissa State Financial Corporation and the loan was secured against hypothecation of plant, machinery and all tangible movable properties of the Company and mortgage of land and interest thereon. So far as the fixed assets are concerned, it was reflected that the capital work was in progress. These aspects were not considered by the learned Subordinate Judge when he held that the appellate had means to pay the requisite court-fee on the plaint. The order is set aside and the matter is remitted back to the original Court to re-consider the question of availability of means with reference to the Balance-sheet filed. The appeal is allowed to the extent indicated above. Appeal allowed. --- *** --- .