IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Original Side Present : The Hon’ble Mr.Justice Ashim Kumar Banerjee And The Hon’ble Mr.Justice Debangsu Basak A.P.O.No.125 of 2013 C.S.No.324 of 2007 TATA STEEL LIMITED versus BALL ROLL CORPORATION For the Appellant : Mr.Swarnendu Ghosh, Advocate Mr.Joydeb Ghorai, Advocate Mr.Dwarkanath Chattopadhyay, Advocate For the Respondent : Mr.Rudradeb Chowdhuri, Advocate Mr.Deepnath Roy Chowdhury, Advocate Mr.K.N.Jana, Advocate Heard on : December 4, 2013 Judgment on : December 17, 2013 DEBANGSU BASAK, J.
Appellant/plaintiff filed a suit for recovery of price of goods sold and delivered in 2004.
The defendant was sued in the name of the firm “Ball Roll Corporation”.
The firm was, however, described as a sole proprietorship concern of one Gopal Rathi.
The appellant/plaintiff applied in 2009 for amendment.
Mr.Gopal Rathi also applied for striking out of his name.
He contended, he had no nexus with Ball Roll Corporation and Ball Roll corporation was a partnership concern of which the proposed defendants were partneRs.By the application for amendment the appellant/plaintiff the sole defendant was sought to be described as a partnership firm and the partners of such firm were sought to be brought on record as the defendant Nos.2 to 4.
The learned Single Judge disallowed the application for amendment giving rise to the present appeal.
Mr.Swarnendu Ghosh, learned Counsel appearing in support of the appeal, contended, the suit was filed against Ball Roll Corporation.
He contended, Ball Roll Corporation was misdescribed as a sole proprietorship concern of Mr.Gopal Rathi which in fact was not so.
He sought to rely on the documents annexed to the plaint to demonstrate that the appellant/plaintiff had dealings and transactions with Ball Roll Corporation and not Mr.Gopal Rathi as the sole proprietor of Ball Roll Corporation.
In support of his contention that a misdescription could be allowed to be amended, he relied on All India Reporter 1955 Madras page 294 (Mohideen v.
V.O.A.Mohomed).Mr.Ghosh relied on All India Reporter 1984 Madras page 19 (T.P.Palaniswami & Anr.v.Deivanaiammal & Ors.) to contend that negligence or carelessness or belatedness need not be put against a party seeking amendment if the facts and circumstances of the case would warrant allowing of the amendment for the purpose of adjudicating the controveRs.between the parties comprehensively in the same lis.
He contended that the Courts ought to be liberal in allowing an amendment at a pre-trial stage.
The trial of the suit did not commence as yet.
He relied on 2008 volume 14 Supreme Court Cases page 364 (Rajkumar Guruwara v.
S.K.Sarwagi and Company Private LTD.& Anr.) in support of such contention.
Mr.Rudradeb Chowdhuri, appearing for the proposed defendants, on a query from the Court, fairly submitted that the respondent No.1 was a partnership firm duly registered under the Indian Partnership Act, 1932 and that the defendant Nos.2 to 4 were the partners of the defendant No.1 and, that apart from the defendant Nos.2 to 4, nobody else was entitled to represent the defendant No.1.
He contended that on the date when the application for amendment was made, the claim of the plaintiff as against his clients stood barred by the laws of limitation.
Consequently, his clients could not be brought on record as defendants by way of the proposed amendment.
He contended, the original defendant was not misdescribed.
The appellant/plaintiff was well-aware of the constitution of the firm and the same would appear from various documents to which he drew our attention to.
The appellant/plaintiff had dealings and transactions with Gopal Rathi.
The so-called misdescription was certainly not a mistake.
By the proposed amendment the appellant/plaintiff was seeking to leave out Mr.Gopal Rathi with an ulterior motive.
The amendments sought for, would change the nature and character of the suit.
The amendments, if allowed, would convert a suit against a proprietorship concern to one against a partnership firm.
He relied on All India Reporter 1953 Supreme Court page 455 (The Commissioner of Income Tax, West Bengal v.
M/S.A.W.Figgis & Co.and Ors.) to submit, under the law a partnership firm had no legal existence apart from its partners and that it was merely a compendious name to describe its partneRs.He relied on 115 (2004) Delhi Law Times page 471 (Miraj Marketing Corporation v.
Vishaka Engineering & Anr.) to contend, a proprietorship firm was not a legal entity like a registered firm.
A suit could not be instituted in the name of an unregistered proprietorship firm and the suit was instituted in the name of the proprietor.
A sole proprietorship firm could not sue or be sued in its own name.
Would Ball Roll Corporation which was described as a sole proprietorship firm of Gopal Rathi (a person who was not a partner of the firm) be allowed to be correctly described as a partnership firm of the defendant No.2 to 4 by the application for amendment when the claim of the plaintiff was contended to be barred by limitation?.
In the cause title of the plaint the appellant/plaintiff described Ball Roll Corporation as a sole proprietorship concern of Mr.Gopal Rathi.
Documents annexed to the plaint, namely, the invoices show that the same were raised on Ball Roll Corporation.
The goods in question attracted Central Excise.
The plaintiff filed the suit claiming that sums remained outstanding due and payable by Ball Roll Corporation to it.
Ball Roll Corporation admittedly was a registered partnership firm of which the proposed defendant Nos.2 to 4 were partneRs.Before the Revenue Authorities the appellant/plaintiff as well as the Ball Roll Corporation proceeded on the basis that Ball Roll Corporation was a partnership firm.
Both the appellant/plaintiff as well as Ball Roll Corporation were assessed by the Central Excise Authorities on the transactions between them.
Money due and payable by Ball Roll Corporation as claimed by the appellant/plaintiff was the subject matter of the suit.
Therefore, before the Revenue Authorities both the appellant/plaintiff and Ball Roll corporation acknowledged a transaction between the appellant/plaintiff and a registered partnership firm Ball Roll Corporation.
Ball Roll Corporation was only one entity, that is, a registered partnership firm of the defendant Nos.2 to 4 and not a sole proprietorship concern of Mr.Gopal Rathi.
Order VI Rule 17 of the Code of Civil Procedure, 1908 deals with amendments of pleadings.
Amendments which were necessary for the purpose of determining the real questions in controveRs.between the parties were to be allowed at any stage of the proceedings on such terms as may be just.
The proviso to Order VI Rule 17 was not attracted in the instant case as the trial did not commence.
In the instant case, the suit was for recovery of price of goods sold and delivered.
Goods were sold by the appellant/plaintiff to Ball Roll Corporation, a registered partnership firm acknowledged by Ball Roll Corporation to be a registered partnership firm before the Central Excise Authorities.
The parties to the transaction as declared before the Central Excise Authorities, therefore, are the appellant/plaintiff one hand as the seller and Ball Roll Corporation and its partners as buyers on the other hand.
Ball Roll Corporation was named in the cause title of the plaint, albeit with a misdescription.
The amendments proposed by the appellant/plaintiff would give clarity to the parties to the lis already pending.
Order XXX of the Code of Civil Procedure, 1908 was relied on by both the parties.
It was contended on behalf of the respondents, the suit could not be filed in the name of Ball Roll Corporation describing it to be a sole proprietorship concern.
On the other hand, the appellant/plaintiff contended, the suit was filed as against Ball Roll Corporation, a partnership firm, who was misdescribed and such misdescription the appellant/plaintiff sought to correct by way of the application for amendment.
Transactions between t