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2015 DIGILAW 513 (ORI)

Pranati Biswal v. Managing Director, M/s. Puri Beach Resort (P) Ltd.

2015-08-28

A.K.RATH

body2015
JUDGMENT : A.K. Rath, J. By this petition under Article 227 of the Constitution of India, the petitioner has prayed, inter alia, to quash the order dated 24.3.2008 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in C.S. Suit (III) No.135 of 2006, vide Annexure-1, whereby and whereunder the petition filed by her for exemption of court fees was rejected. 2. The petitioner is the proprietor of M/s. Cosmos A.R. Industries. She filed a suit for passing a money decree against the defendant in the court of learned Civil Judge (Senior Division), 1st Court, Cuttack, which is registered as C.S. Suit (III) No.135 of 2006. Along with the suit she filed an application to exempt her from payment of court fees. But then the said petition was rejected by the trial court on the ground that the suit has been filed by the proprietor of M/s. Cosmos A.R. Industries. The entire transaction of the proprietary concern has been made by the proprietor. It was further held that although the proprietor is a woman, the entire benefit goes to the proprietary concern. 3. The seminal point that hinges for consideration before this Court is as to whether the petitioner, who is the proprietor of M/s. Cosmos A.R. Industries, is exempted from payment of court fees in the suit filed by her? 4. In exercise of the powers conferred by Section 35 of the Court-fees Act, 1870, the State of Orissa issued a notification on 7.6.1994 exempting seven categories of persons including women from payment of all fees mentioned in Schedules I and II of the Court-fees Act for filing or instituting cases of proceedings in any court in Orissa. 5. In M/s. Shankar Finance & Investments v. State of Andhra Pradesh & others, AIR 2009 SC 422 , the apex Court held that as contrasted from a company incorporated under the Companies Act, 1956 which is a legal entity distinct from its shareholders, a proprietary concern is not a legal entity distinct from its proprietor. A proprietary concern is nothing but an individual trading under a trade name. In civil law where an individual carries on business in a name or style other than his own name, he cannot sue in the trading name but must sue in his own name, though others can sue him in the trading name. 6. A proprietary concern is nothing but an individual trading under a trade name. In civil law where an individual carries on business in a name or style other than his own name, he cannot sue in the trading name but must sue in his own name, though others can sue him in the trading name. 6. In view of the authoritative pronouncement of the apex Court in the case cited supra, the conclusion is irresistible that the petitioner being a woman is exempted from payment of court fees as per schedule mentioned in the notification dated 7th June, 1994 issued by the Government of Orissa, vide Annexure-2. 7. Accordingly, the order dated 24.3.2008 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in C.S. Suit (III) No.135 of 2006, vide Annexure-1, is quashed. This Court holds that the petitioner is exempted from payment of court fees in the suit. The learned trial court is directed to proceed with the matter. The petition is allowed.