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Satya Narayan Todi Vs. Sm. Surekha Chowdhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberAppeal No. 22 of 1971
Judge
Reported inAIR1979Cal10
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantSatya Narayan Todi
RespondentSm. Surekha Chowdhury and ors.
Cases ReferredGanesh Trading Co. v. Moji Ram
Excerpt:
- .....dated 10th march, 1970 passed by deb j. in a hire-purchase action.2. in the cause title of the plaint the plaintiff has been described as follows:'satya narayan todi carrying on business under the name and style of todifinancing corporation at no. 4, jag-mohan mullick lane, calcutta, within the aforesaid jurisdiction.-- plaintiff.'3. in the body of the plaint the plaintiff has been described as partner of todi financing corporation. it is also stated therein that by a hire-purchase agreement in writing dated 8th july, 1965, duly executed by the plaintiff and the defendants nos. 1 and 2 at the plaintiff's place of business, the plaintiff agreed to take on hire a chevrolet motor bus which was the property of the plaintiff on terms and conditions stated in the said paragraphs. in fact,.....
Judgment:

Ramendra Mohan Datta, J.

1. This is an appeal from the decree dated 10th March, 1970 passed by Deb J. in a hire-purchase action.

2. In the cause title of the plaint the plaintiff has been described as follows:

'Satya Narayan Todi carrying on business under the name and style of TodiFinancing Corporation at No. 4, Jag-mohan Mullick Lane, Calcutta, within the aforesaid jurisdiction.-- Plaintiff.'

3. In the body of the plaint the plaintiff has been described as partner of Todi Financing Corporation. It is also stated therein that by a hire-purchase agreement in writing dated 8th July, 1965, duly executed by the plaintiff and the defendants Nos. 1 and 2 at the plaintiff's place of business, the plaintiff agreed to take on hire a Chevrolet Motor Bus which was the property of the plaintiff on terms and conditions stated in the said paragraphs. In fact, the plaintiff proceeded on the basis that the plaintiff was still the proprietor of Todi Financing Corporation.

4. On the 17th July, 1968 the defendant filed the written statement, inter alia, stating that the agreement was entered into with the partnership firm of Todi Financing Corporation and as such the plaintiff had no cause of action.

5. Thereafter, the plaintiff made an application on 19th November, 1968 for amendment of the plaint, inter alia, alleging that his wife Bimala Devi Todi was one of the partners of Todi Financing Corporation and she had retired 'on 16th June, 1966 from the said firm. Thereafter, it was found that such an amendment sought for in the said application was not sufficient unless the above-mentioned cause title had been changed suitably. Accordingly, the plaintiff asked for leave to withdraw the said application with liberty to make a fresh application for amendment of the plaint. The plaintiff obtained the said order on 29th February, 1969. On 13th March, 1969 the second application for amendment was made and the plaintiff sought to changa the cause title by describing himself as follows:

'Satya Narayan Todi, a partner of Todi Financing Corporation a partnership firm now dissolved, having its office at No. 4, Jagmohan Mullick Lane, Calcutta, within the aforesaid jurisdiction.--Plaintiff:'

6. The plaintiff also sought to add his wife being the other retired partner of the partnership firm by describing her as follows:

'3. Srimati Bimala Devi Todi, a retired partner residing at No. 4, Jagmohan Mullick Lane, in Calcutta within the aforesaid jurisdiction.-- Defendants.'

7. The body of the plaint was sought to be amended by making the necessary and incidental alterations thereunder andalso by adding two paragraphs being 16A and 16B as follows:

'16A. On or about 16th June, 1966 Sm. Bimala Devi Todi the defendant No. 3 the partners of Todi Financing Corporation retired and/or severed her connections with the partnership Firm and claimed no part of the assets thereof and disowned liability of the partnership.

16B. The plaintiff is absolutely entitled to the property of the late partnership. No relief is claimed against the defendant No. 3 but she has been made a party so that the matter in dispute in this suit may be decided in her presence.'

8. The matter came up before Deb J, and by his judgment and order dated 16th June, 1969, the learned Judge dismissed the application for amendment with costs.

9. In the grounds of appeal a point has been taken that the application for amendment should not have been dismissed inasmuch as it was mere mis-description of the plaintiff which was sought to be amended and no question of changing the cause of action could arise in the circumstances.

10. In my opinion, the learned Judge was not right in his view that the application for amendment, if allowed, would change the original cause of action as pleaded in the plaint. What was sought to be done by the petition for amendment was to show correctly the capacity in which the plaintiff was suing. According to the plaintiff the partnership was dissolved and so he described himself as a partner of the dissolved partnership and on that basis he had sought to make the other retired partner a party to the suit, with the result that if there would be any question of realisation of the assets of the dissolved partnership that would be a matter between the two retired partners in whose presence the matter was to be decided. The defendant in such an event, was not likely to suffer any prejudice. It would be a matter between the two retired partners. As to whether the partnership had dissolved or not was a question of fact to be ultimately decided in the suit, if the defendants take the point in the additional written statement which they might be allowed to file. That point will remain open to them at the trial, but prima facie, on the averments made in the petition we are satisfied and we think that the amendments should be allowed.

11. The learned Judge while dealing with the amendment application had observed that if the proposed amendment would be allowed then the entire suit would be converted into an action for the realisation of the assets of the dissolved partnership which would be a completely different cause of action. In my opinion, that is not the correct approach to the point. The cause of action in the suit was based on hire purchase agreement and for the realisation of the dues in respect of such transaction. That cause of action remained untouched and the relief asked for in respect thereto also remained the same. Accordingly, observations of the learned Judge cannot hold good in the facts and circumstances of the case.

12. The question as to whether the amendment should be allowed even after the expiry of the statutory period of limitation has been considered by the Supreme Court in several reported decisions. In the case of A. K. Gupta & Sons Ltd. v. Damodar Valley Corporation, reported in : [1966]1SCR796 the Supreme Court after reviewing several decisions including one of its earlier decision in the case of Pirgonda Hongonda Patil v. Kalgonda Shidgonda, : [1957]1SCR595 held that amendment should be allowed even after the expiry of the statutory period of limitation where the amendment did not involve the addition of a new cause of action or raised a different case but amounted merely to a different or additional approach to the same facts. In the above case the appellant sought the Court's leave to amend the plaint by adding an extra relief whereby the decree for the amount, to be found due on proper account being taken, was prayed for at a time when a suit for money claim under the contract was barred. The Supreme Court held that the amendment amounted to no more than a different or additional approach to the same facts and allowed the amendment even after the expiry of the statutory period of limitation.

13. In the case of Jai Jai Ram Mano-har Lal v. National Building Material Supply, Gurgaon, : [1970]1SCR22 the matter again came up for consideration in a case where the amendment involved the correction of a misdescription of the plaintiff in the suit. At page 1270 the Supreme Court observed:--

'Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises; the plaint must bedeemed on amendment to have been instituted in the name of the real plaintiff, on the date on which it was originally instituted.'

The principles governing the amendment of the plaint again came up for consideration by the Supreme Court in its latest decision in the case of Ganesh Trading Co. v. Moji Ram, : [1978]2SCR614 . That was also a matter where the amendment did not involve any change in the cause of action in the plaint but merely sought to correct the misdescription of the plaintiff in the suit. The omission amounted to failure to mention that the plaintiff firm Ganesh Trading Company, Kar-nal, had been actually dissolved on 15th July, 1973, on which date a deed of dissolution of the firm was executed. The Supreme Court reviewed its earlier decision and allowed the amendment.

14. As to the bona fides of the said application the learned Judge was not satisfied, but with regard thereto the same would be a matter dependent on the proof of certain facts relating to the retirement of Srimati Bimala Devi Todi, the wife of the plaintiff, from the partnership. In respect thereto the defendants Nos. 1 and 2 would be at liberty to agitate the point at the trial, if so advised.

15. That being the position, in our opinion, the amendments should have been allowed by the learned Judge.

16. When the matter came up for trial after the dismissal of the amendment application, the counsel appearing for the plaintiff stated that in view of the dismissal of the application for amendment he could not proceed with the suit as it was framed then. On that basis and after hearing the submissions of the parties the suit was dismissed with no order as to costs.

17. In the premises, the appeal is allowed and the decree dated March 10, 1970 is set aside. The judgment and order dismissing the application for amendment dated June 16, 1969 is also set aside and the following order is passed : (a) the proposed amendment as indicated in red ink in Annexure 'A' to the petition dated March 12, 1969 is allowed; (b) leave is given to incorporate the amendments as shown in red ink in the draft plaint annexed to the petition; (c) leave is given to add Srimati Bimala Debi Todi as defendant No. 3 in the suit as shown in red ink in the draft plaint annexed to the petition; (d) leave is givento Satya Narayan Todi to re-verify the plaint after the amendment is incorporated; (e) the amendment is to be effected within a fortnight from the date of signing of the order herein; (f) fresh leave under Clause 12 of the Letters Patent is granted in view of the addition of the party; (g) additional written statement, if any, has to be filed by the respective defendants within three weeks from the date of service of the amended copy of the plaint after such incorporation and (h) all parties including the department are to act on a signed copy of the minutes.

18. The suit is remanded to the trial Court for disposal according to law after incorporation of the amendments. The suit will appear in the peremptory list of the trial Court eight weeks hence and the parties are directed to appear before that Court on that day for the purpose of receiving the directions as to further proceedings in the suit.

19. With regard to the costs, the following order is passed : In view of the omission of the plaintiff to correctly state the description in the pleading and in view of the delay in making the application for amendment we think that the plaintiff should bear all the costs of the two applications before the trial Court as also the costs of the appeal. The respondents would be entitled to the costs from the plaintiff in respect -thereto including the cost of filing of the additional written statement. Certified as a fit case for engaging advocate in the amendment application.

Hazra, J.

20. I agree.


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