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2008 DIGILAW 405 (AP)

Derivate Casoil Ltd. v. Agro Tech Foods Limited

2008-06-24

P.S.NARAYANA

body2008
ORDER: This Court ordered notice before admission on 11.03.2008 and granted interim stay for a limited period, which is being extended. 2. Derivate Casoil Limited represented by its Managing Director, plaintiff in O.S.No.36 of 1996 on the file of I-Additional Senior Civil Judge, Fast Track Court, Mahabubnagar, respondent in I.A.No.88 of 2007, aggrieved by the order, dated 07.02.2008, had preferred the present Civil Revision Petition. 3. The said application was filed by the present respondent/petitioner-2nd defendant for reception of documents on behalf of the 2nd defendant Company. The affidavit in support of the application was sworn to by DW.2. The learned I- Additional Senior Civil Judge, Fast Track Court, Mahabubnagar, after recording certain findings, came to the conclusion that DW.2 be permitted to be examined on behalf of the 2nd defendant Company and the documents to be received in evidence as prima facie they are necessary. However, the learned I-Additional Senior Civil Judge, Fast Track Court, Mahabubnagar, also further observed that, in the facts of the case, the amendment of the change in the name of the 2nd defendant Company as "M/s. Agro Tech Foods Limited" in the plaint is necessary, so as to avoid confusion. Likewise, the plaintiff was directed to amend the plaint as regards the change in the name of the 2nd defendant as "M/s. Agro Tech Foods Limited" and further observed that the evidence of DW.2 will be taken up only after amendment of the plaint as regards the name of the 2nd defendant as "M/s.Agro Tech Foods Ltd." Aggrieved by the same, the present Civil Revision Petition is preferred. 4. Sri P.Gangirami Reddy, learned counsel representing the Revision Petitioner/plaintiff, would maintain that it may be that the respondent may move appropriate applications either to add such a party or pray for amendment of the pleadings suitably, but without filing such independent applications, in an application filed for reception of certain documents, such a direction cannot be given and the same being unsustainable, the impugned order is liable to be set aside. Learned counsel also further commented that even otherwise the documents, which had been produced, may not be relevant at all and hence such documents need no consideration. Even on this ground, the Civil Revision Petition to be allowed. Learned counsel also further commented that even otherwise the documents, which had been produced, may not be relevant at all and hence such documents need no consideration. Even on this ground, the Civil Revision Petition to be allowed. Learned counsel also would maintain that "M/s. Agro Tech Foods Limited" is not a party to the suit at all and as such the Legal Executive is not competent to give evidence on behalf of the 2nd defendant Company. Learned counsel would further comment that the learned Judge ought to have seen that the change in the name of the Company would not automatically entitle M/s. Agro Tech Foods Limited to adduce evidence on behalf of the 2nd defendant, without any application and without an order of change of name of the 2nd defendant. The counsel also pointed out to the relevant portions of the impugned order. 5. On the contrary, Sri Srinivas Iyengar, learned counsel representing the respondent, had pointed out to the respective stands taken by the parties and also the reasons, which had been recorded at paragraphs 8,9,10 and 11 of the order impugned. Learned counsel would maintain that the objections, which are being taken by the revision petitioner-plaintiff, are too technical and, in a way, trivial objections, in the light of the facts and circumstances of the case. Learned counsel, in particular, pointed out to the findings, which had been recorded at paragraph 10, and even in the interest of the respondent herein/defendant No.2, such a direction was given to rectify the name and record the appropriate name of the Company and this would not cause any prejudice at all to the plaintiff. In such a case, it would not be desirable to drive the party to file independent applications. Learned counsel placed reliance on the decision of the Apex Court in PRATIBHA SINGH v. SHANTI DEVI PRASAD1. 6. Heard the counsel. 7. The respondent herein/petitioner-Defendant No.2 filed an application under Order VIII Rule 1 a(3) read with Section 151 of the Code of Civil Procedure to receive certain documents on behalf of the 2nd defendant Company. Learned counsel placed reliance on the decision of the Apex Court in PRATIBHA SINGH v. SHANTI DEVI PRASAD1. 6. Heard the counsel. 7. The respondent herein/petitioner-Defendant No.2 filed an application under Order VIII Rule 1 a(3) read with Section 151 of the Code of Civil Procedure to receive certain documents on behalf of the 2nd defendant Company. In the affidavit sworn to by DW.2, it was averred that he is working as Executive - Legal in the 2nd defendant Company and as such he is authorized and empowered to depose on behalf of the 2nd defendant Company, that he filed the affidavit in lieu of examination-in- chief for the 2nd defendant, that he is deposing on behalf of the 2nd defendant Company on the basis of his acquaintance with the facts of the case in his capacity as the Executive-Legal of the 2nd defendant Company and that in order to prove his contentions, the following documents are necessary:- "(a) Notarized Power of Attorney dated 25.09.2000 executed on behalf of the petitioner/defendant No.2 in his favour. (b) Duly certified copy of the Memorandum of Association and Articles of Association of Agrotech Foods Limited. (c) Certified copy of the statement of supply and crushing of castor seeds which is marked as Ex.A3 in O.S.No.90/1992 on the file of III Senior Civil Judge, City Civil Court, Secunderabad." 8. Further, in the affidavit sworn to by DW.2, he averred that he prayed that the documents may be permitted to be filed by him, that they may be marked as Exs.B6 to B8 respectively on behalf of the 2nd defendant Company, that if the above documents are marked on behalf of the 2nd defendant Company, no prejudice will be caused to the respondent/plaintiff. DW.2 further averred that, on the other hand, if he is not permitted to file the above documents, the Company will be put to serious loss. Several other facts also had been narrated. 9. The application was resisted by filing a counter to the effect that the petitioner is not a party to the suit and, hence, it has no locus standi to file the application. Several other facts also had been narrated. 9. The application was resisted by filing a counter to the effect that the petitioner is not a party to the suit and, hence, it has no locus standi to file the application. Further, a specific stand had been taken that the plaintiff filed the suit against ITC Limited Agro business division and ITC Agro-tech Limited and it is also stated that the present application is filed by Agro Tech Foods Limited, which is not a party to the suit, and unless proper procedure is followed, the relief prayed for in the application cannot be granted. 10. Learned I-Additional Senior Civil Judge, Fast Track Court, Mahabubnagar, after framing the point for consideration at paragraph (5), recorded the reasons at paragraphs 7,8,9,10 and 11 and, ultimately, came to the conclusion that the application to be allowed and further observed that DW.2 be permitted to give evidence on behalf of the 2nd defendant Company and the documents filed along with the application are to be received in evidence subject to proof and relevancy and further a direction had been added to amend the plaint as regards the change in the name of the 2nd defendant as "M/s. Agro Tech Foods Limited". Further, it was observed that the evidence of DW.2 will be taken up only after amendment of the plaint as regards the name of the 2nd defendant as "M/s. Agro Tech Foods Limited". 11. It is no doubt true that, normally, an application to add a party or an application to amend the pleading may have to be filed, but, here is a peculiar case where certain specific reasons had been recorded at paragraph 10, by the learned Additional Senior Civil Judge, Fast Track Court, Mahabubnagar, and the said reasons are as hereunder:- "As seen from the fresh certificate of incorporation consequent on change of name issued by the Deputy Registrar of Companies, Andhra Pradesh, Hyderabad dt.29.06.2000 undoubtedly the name of the second defendant "M/s ITC AGRO TECH LTD" was changed as "M/s. AGRO TECH FOODS LTD". As rightly contended by the learned counsel for the defendants a memo was also filed into court to that effect on 18.12.2001 itself informing the court that the name of the 2nd defendant company was changed into AGRO TECH FOODS LTD with effect from 29.06.2000. As rightly contended by the learned counsel for the defendants a memo was also filed into court to that effect on 18.12.2001 itself informing the court that the name of the 2nd defendant company was changed into AGRO TECH FOODS LTD with effect from 29.06.2000. D.W.2 also filed Power of Attorney executed in his favour by a competent Authority to depose in this case and to defend the 2nd defendant. In this view of the matter, D.W.2 may be permitted to be examined on behalf of the second defendant Company and the documents sought to be received in evidence are prima facie necessary to be received in evidence on behalf of the second defendant company. Further amendment of the changed name of the second defendant company as "M/s. AGRO TECH FOODS LTD" in the plaint is necessary to avoid any confusion." 12. When it is only with regard to rectification of the name i.e., for change in the name of the 2nd defendant company, which is not a different entity, in the light of the reasons recorded at paragraph 10, it would be only substitution of the party and not addition of party and, hence, there is no need of filing a separate application for substitution of party as such. As far as amendment of pleading is concerned, the opposite party, the 2nd defendant, cannot make an application praying for a direction to the plaintiff to amend his plaint. Evidently, in the light of the nature of stand, which had been taken by the plaintiff in the counter, the plaintiff, probably, is not interested in moving appropriate application, though specifically such a stand had been taken by the 2nd defendant by moving the present application. In such circumstances, in the light of the peculiar facts, the learned Judge felt it necessary that even to avoid future complications, the rectification of the 2nd defendant's name into one "M/s. Agro Tech Foods Limited" be directed to be carried out. This Court is of the considered opinion that the said power had been exercised by the learned Additional Senior Civil Judge under Section 151 of the Code of Civil Procedure, taking into consideration the facts and circumstances of the case. 13. This Court is of the considered opinion that the said power had been exercised by the learned Additional Senior Civil Judge under Section 151 of the Code of Civil Procedure, taking into consideration the facts and circumstances of the case. 13. The counsel representing the respondent also relied upon the decision of the Apex Court in Pratibha Singh's case referred supra, wherein it was observed that when there is some omission in the plaint, the trial Court is obliged, while scrutinizing the plaint, to point out the omission and insist on its rectification. 14. Hence, in the light of the reasons, which had been recorded by the learned I-Additional Senior Civil Judge, Fast Track Court, Mahabubnagar, and also, especially, taking into consideration the fact that no prejudice as such would be caused to opposite party and in the interest of justice only, such rectification had been ordered, this Court does not see any legal infirmity in the impugned order. 15. Accordingly, the Civil Revision Petition, being devoid of merit, shall stand dismissed. However, in the circumstances of the case, no order as to costs.