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2023 DIGILAW 168 (TS)

Bloom Solutions Pvt Ltd. v. Stone Water Info Tech

2023-02-24

P.NAVEEN RAO

body2023
ORDER: 1. Heard Sri K.Anoop Kumar, learned counsel for petitioners/defendants and Sri Rajesh Maddy, learned counsel for respondents/plaintiffs. 2. M/s. Stone Water Info Tech, represented by its proprietor-M.Venkateswarlu, instituted O.S.No.255 of 2016 in the Court of Chief Judge, City Civil Court at Hyderabad, for recovery of money from the defendants. During the pendency of the said suit, he died. The legal heirs of the plaintiff i.e., wife, son and daughter, filed I.A.No.7022 of 2021 praying to permit them to implead as plaintiffs to the suit as legal representatives of proprietor of M/s. Stone Water Info Tech. By Order dated 18.04.2022, the Court below allowed the I.A. Challenging the same, this Civil Revision Petition is filed. Xxxx 4. Learned counsel appearing for the petitioners/ defendants submits that once the proprietor dies, the cause in the suit does not survive and the trial Court grossly erred in allowing the application filed by the legal heirs of the deceased, by name, M.Venkateshwarlu, to come on record and prosecute the suit. In support of the said contention, the learned counsel has placed reliance on the decision of the Hon’ble Calcutta High Court in M/s. S.A. ENTERPRISE v. THE GENERAL MANAGER, EASTERN RAILWAY & OTHERS, 2017 SCC Online Cal 16988. 5. Per contra, learned counsel for the respondents/ plaintiffs submits that as the suit was filed for recovery of money, the cause in the suit survives even after the death of the proprietor and his legal heirs are entitled to prosecute the suit. In support of the contention, learned counsel has placed reliance on the following decisions: i) Decision of the Hon’ble Supreme Court in ASHOK TRANSPORT AGENCY v. AWADHESH KUMAR AND ANOTHER, (1998) 5 SCC 567 ; ii) Judgement of the Hon’ble Punjab and Haryana High Court in BHAN SINGH AND ANOTHER v. SUDESH RANI AND OTHERS, 2013 SCC Online P&H 27021: PLR (2013) 172 P&H 180; iii) Order of this Court in FOOD CORPORATION OF INDIA, TADEPALLIGUDEM v. SRI RAMACHANDRA BOILED AND RAW RICE MILL AND OTHERS, AIR 1985 AP 23 ; and iv) Judgment of the Hon’ble Supreme Court in AMWAY INDIA ENTERPRISES PRIVATE LIMITED VS. RAVINDRANATH RAO SINDHIA AND ANOTHER, (2021) 8 SCC 465 . 6. I have carefully considered the respective submissions. 7. RAVINDRANATH RAO SINDHIA AND ANOTHER, (2021) 8 SCC 465 . 6. I have carefully considered the respective submissions. 7. It is not in dispute that the petitioners in I.A.No.7022 of 2021 are wife and children of late M.Venkateshwarlu and the Suit was filed for recovery of money from the defendants. 8. The decision relied upon by the learned counsel for the petitioners do not come to the aid of the petitioners. In the said decision, the mother of the writ petitioner represented as the sole proprietor and participated in the tender process with the Indian Railways. The General Conditions of Contract of 2014, particularly paragraph-9 of Annexure “P1” thereof provides, inter alia, that if a tenderer expires after submission of the tender or after acceptance thereof, the railways would deem such tender as ‘cancelled’. In view of the said clause, the Calcutta High Court held that the legal heirs cannot prosecute the matter. 9. In Ashok Transport Agency (supra), the Hon’ble Supreme Court has clearly held that in the event of death of the proprietor of a proprietary concern, the legal heirs of the proprietor are entitled to prosecute the litigation. The Hon’ble Supreme Court held as under: “6. A partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person but Order XXX Rule 1 CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions of Rule 10 of Order XXX which make applicable the provisions of Order XXX to a proprietary concern, enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The real party who is being sued is the proprietor of the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order XXX have no application to such a suit as by virtue of Order XXX Rule 10 the other provisions of Order XXX are applicable to a suit against the proprietor of proprietary business “insofar as the nature of such case permits”. This means that only those provisions of Order XXX can be made applicable to proprietary concern which can be so made applicable keeping in view the nature of the case. 7. In the present case, A.C. Basu, Proprietor of Ashok Transport Agency, had died before the date of the institution of the suit and on the date of the institution of the suit, the proprietary concern was not in existence. Only the legal representatives of A.C. Basu could be sued with regard to any cause of action arising against A.C. Basu in connection with the proprietary business. We find it difficult to understand how the provisions of Rule 4 Order XXX CPC, could be extended to such a case.” 10. Same is the view taken by Hon’ble Punjab and Haryana High Court and this Court. 11. In regard to the decision of Hon’ble Supreme Court, I do not see any error in the decision of the trial Court warranting interference. 12. In view thereof, Civil Revision Petition is dismissed. Miscellaneous petitions, pending if any, shall stand closed. No costs.