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2010 DIGILAW 307 (DEL)

Anil Bearings v. State Motors & Anr.

2010-02-19

REVA KHETRAPAL

body2010
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 impugnedjudgment dated 19.11.2009 passed by the learned Additional DistrictJudge dismissing the suit of the plaintiff as not maintainable on theground that the suit is filed by the proprietorship concern, which is not alegal entity. 4. Admittedly, in the suit, the name and description of the plaintiffis given in the following manner:M/s. Anil Bearings,633/4, Hamilton Road,Kashmiri Gate, Delhi - 110006Through its proprietorShri Anil Thapar 5. The appellant in his suit claimed recovery of Rs.4,52,364/-(Rupees Four Lakhs Fifty Two Thousand Three Hundred and SixtyFour only), which included Rs.3,82,402/- towards the principal andRs.69,962/- towards the interest. The plaint was signed and verified byShri Anil Thapar. Apart from signing and verifying the plaint, Shri AnilThapar also furnished his affidavit in support of the plaint in thecapacity of proprietor of M/s. Anil Bearings. He also executed andsigned vakalatnama in favour of the counsel for the plaintiff. 6. It may be pertinently mentioned at this juncture that the suit forrecovery of the aforesaid amount was filed on the basis of goodssupplied by the plaintiff to the defendant against different invoices, asset out in paragraph 7 of the plaint. Pertinently also, in the writtenstatement filed by him, the defendant admitted all the invoices asmentioned in paragraph 7 of the plaint against which goods weresupplied to it. Not only this, the defendant also admitted the 'C' Forms,which it had issued to the plaintiff against the aforesaid goods suppliedto it. 7. On 6th October, 2008, the following issues were framed by thelearned trial Judge before the matter was adjourned for the plaintiff'sevidence to 19.11.2008:- “(i) Whether the plaintiff is entitled to recovera sum of Rs.4,52,364/- along with interestand pendentilite in future @ 18% perannum 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. 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 trialcourt did not declare any of the issues as a preliminary issue, and as amatter 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, theplaintiff's witness along with his counsel was present in the court andthe plaintiff filed his affidavit by way of evidence, an advance copy ofwhich had been supplied to the defendant prior to the date of hearing.Thereafter, the matter was adjourned to 24th February, 2009 for theexamination 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 inevidence, the counsel for the defendant raised an objection to themaintainability of the suit, relying upon the provisions of Order XXXRule 10 of the Code of Civil Procedure, which resulted in the trial courttreating Issue No.(ii) as a preliminary issue and dismissing the suit asnot maintainable, adjourning the case to 21st January, 2010 for theevidence of the defendant on the counter-claim. 10. Aggrieved by the impugned judgment and order dated 19thNovember, 2009, the present appeal has been preferred by the appellant.Arguments were advanced by Mr. Rajesh Gogna, the counsel for theappellant and Mr. Suresh Goyal, the counsel for the respondents. 11. The principal contention of Mr. Rajesh Gogna on behalf of theappellant is that the trial court failed to appreciate that the description ofthe party had been succinctly delineated in the plaint and there wasenough material on the record to conclude that the plaint had been filedby Shri Anil Thapar, as the proprietor of M/s. Anil Bearings. He furthercontended that the Court had taken a hyper-technical approach indismissing the suit, ignoring the fact that the plaint was signed andverified by Shri Anil Thapar, and the defendant themselves hadaddressed their legal notice dated 30th August, 2007 to M/s. AnilBearings and not to Shri Anil Thapar in his individual name. He furthercontended that the Court had taken a hyper-technical approach indismissing the suit, ignoring the fact that the plaint was signed andverified by Shri Anil Thapar, and the defendant themselves hadaddressed their legal notice dated 30th August, 2007 to M/s. AnilBearings and not to Shri Anil Thapar in his individual name. In suchcircumstances, it was incumbent upon the trial court to have read theplaint as a whole rather than looking at the memo of parties to concludethat the plaint had been filed by a non-legal entity. It was alsocontended that if the Court considered that the suit as framed was notmaintainable, it should not have dismissed the suit on this hypertechnicalground, but should have given an opportunity to the appellantto amend the memo of parties so as to mention the name of theproprietor (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 ajudgment of the Bombay High Court in Municipal Council, Tiroda vs.K. Ravindra & Company reported in 2003 (2) Civil Court Cases 578, insupport of his contention that in cases of bonafide error, where themistake has been made not for any ulterior purpose, rectification of thememo of parties ought to be permitted by the Court rather than adoptingthe course of rejecting the plaint. 13. Reference was also made by the learned counsel for the appellantto a judgment of this Court in Chunnil Lal vs. RPG Home FinancePvt. 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 Respondenthas contended that the Petition is notmaintainable as C.L. Construction Company is asole proprietorship concern and is not a legalentity. A perusal of the Memorandum of Partieswill disclose that the Petitioner has been arrayedas C.L. Construction Company through itsproprietor Shri Chunni Lal who has signed theapplication and the Affidavit in support thereof.In this affidavit Shri Chunnil Lal has stated thathe is the Plaintiff. While the array of partiesought to have been fashioned as Shri Chunni Lal,sole proprietor of C.L. Construction Company,this hyper-technical objection deserves to beoverruled. Order 30 Rule 10 specifically permitsthat a person carrying on business in a name orstyle other than his own may be sued in suchname or style as if it were a firm name.Thereafter the Petitioner can require theDefendant so arrayed to disclose the name anddetails of the owner. Order 30 Rule 10 specifically permitsthat a person carrying on business in a name orstyle other than his own may be sued in suchname or style as if it were a firm name.Thereafter the Petitioner can require theDefendant so arrayed to disclose the name anddetails of the owner. This is because Order XXXis made applicable to such cases.” 14. In rebuttal, the contention of the learned counsel for therespondent was that the suit, having been filed by a proprietorshipconcern, which was not a separate legal entity, clearly fell foul of theprovisions of Order XXX Rule 10 CPC, which read as under: “10. Suit against person carrying on businessin name other than his own.- Any personcarrying on business in a name or style otherthan his own name, or a Hindu undivided familycarrying on business under any name, may besued in such name or style as if it were a firmname, and, in so far as the nature of such casepermits, all rules under this Order shall applyaccordingly.” 15. Having considered the rival contentions of the parties, I am of theview that the learned trial court adopted a hyper-technical approach indismissing 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 plaintin its entirety. Thus, in paragraph 1 of the plaint, it was clearlymentioned that the plaintiff was a proprietorship establishment and ShriAnil 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 wasbeing filed by Shri Anil Thapar, who was the proprietor and was wellconversant with the facts and circumstances of the case and competentto file, sign and verify the suit and to do all other necessary acts forpursuing the case against the defendants. Then again, in consonancewith the provisions of Order VI Rules 14 and 15 CPC, the plaint wassigned and verified by Shri Anil Thapar as plaintiff and Shri AnilThapar had also furnished his affidavit in support of the plaint. Then again, in consonancewith the provisions of Order VI Rules 14 and 15 CPC, the plaint wassigned and verified by Shri Anil Thapar as plaintiff and Shri AnilThapar had also furnished his affidavit in support of the plaint. Thelearned trial court also, in my view, altogether lost sight of the fact thatOrder XXX Rule 10 CPC is an enabling provision, inasmuch as itallows the plaintiff to sue a person carrying on a business in a name orstyle 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 saidprovision 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 alegal entity, the privilege of suing in the name of a firm is available onlyto those persons who are partners in a firm and are doing business assuch. The present was, therefore, a case where the description of theplaintiff by a firm name was a mis-description, but such error in law, notbeing the description of a non-existent person, is not one which cannotbe corrected. The learned trial court ought, therefore, to have directedthe plaintiff to amend the memo of parties to enable a proper descriptionof the plaintiff and proceeded to determine the real question in issuebetween the parties. 17. In Jai Jai Ram Manohar Lal vs. National Building MaterialSupply Gurgaon (1969) 1 SCC 869 where the Supreme Court had anoccasion to consider a somewhat similar question, inasmuch as the suitinstead of being filed in the name of the plaintiff as manager of theHindu Undivided Family to which the business belonged, was filed inthe business name “Jai Jai Ram Manohar Lal”. An amendmentapplication was filed by the plaintiff which was rejected by the HighCourt on the ground that there was no averment to the effect that themis-description was on account of a bonafide mistake. The SupremeCourt, on appeal, held that the order passed by the High Court could notbe sustained, and laid down the following oft-quoted dicta:- “5. ..................................Rules of procedureare intended to be a handmaid to theadministration of justice. A party cannot berefused just relief merely because of somemistake, negligence, inadvertence or eveninfraction of the rules of procedure. The SupremeCourt, on appeal, held that the order passed by the High Court could notbe sustained, and laid down the following oft-quoted dicta:- “5. ..................................Rules of procedureare intended to be a handmaid to theadministration of justice. A party cannot berefused just relief merely because of somemistake, negligence, inadvertence or eveninfraction of the rules of procedure. The Courtalways gives leave to amend the pleading of aparty, unless it is satisfied that the partyapplying, was acting mala fide, or that by hisblunder, he had caused injury to his opponentwhich may not be compensated for by an order ofcosts. However negligent or careless may havebeen the first omission, and, however late theproposed amendment, the amendment may beallowed if it can be made without injustice to theother side....................................................” 18. In view of the aforesaid, the judgment and order dated19.11.2009 pertaining to the maintainability of the suit are set aside andthe suit is restored to the file of the learned Additional District Judge tobe dealt with in accordance with law with the direction to the plaintiff toamend the plaint latest within six weeks from the date of the passing ofthis order. Parties shall appear before the learned District Judge on 5thApril, 2010, when the learned District Judge shall proceed to decide theremaining 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.