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Jardine Mills Agencies and anr. Vs. Neptune Navigation - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 152 of 1962
Judge
Reported inAIR1966Cal84
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantJardine Mills Agencies and anr.
RespondentNeptune Navigation
DispositionAppeal allowed
Cases ReferredM. B. Sirkar and Sons v. Powell and Co.
Excerpt:
- sinha, j.1. this is an appeal against an order passed by datta j. on 10th april, 1962 whereby he dismissed an application made by the plaintiff for amendment of the plaint. the facts are shortly as follows: this appeal arisesin connection with suit no. 659 of 1961 (jardine mills agencies and another v. neptune navigation) which was filed by the plaintiff appellants in this court on 1st of may, 1961 against the defendant respondents. the cause title as appearing in the original plaint was as follows:1. jardine mills agencies, a firm registered under the indian partnership act and carrying on business at premises no. 4, clive row, calcutta within the said jurisdiction. 2. atlas assurance co. ltd. a company duly incorporated in england with limited liability and also carrying on business at.....
Judgment:

Sinha, J.

1. This is an appeal against an order passed by Datta J. on 10th April, 1962 whereby he dismissed an application made by the plaintiff for amendment of the plaint. The facts are shortly as follows: This appeal arisesin connection with suit No. 659 of 1961 (Jardine Mills Agencies and another v. Neptune Navigation) which was filed by the plaintiff appellants in this Court on 1st of May, 1961 against the defendant respondents. The cause title as appearing in the original plaint was as follows:

1. Jardine Mills Agencies, a firm registered under the Indian Partnership Act and carrying on business at premises No. 4, Clive Row, Calcutta within the said jurisdiction.

2. Atlas Assurance Co. Ltd. a Company duly incorporated in England with limited liability and also carrying on business at 4, Clive Row, Calcutta, within the said jurisdiction--Plaintiffs.

Versus

Neptune Navigation, a firm registered under the Indian Partnership Act and carrying on business at Premises No. 133, Canning Street, Calcutta, within the said Jurisdiction--Defendant. The subject matter of the plaint is as follows: It is stated that the defendant is a common carrier of goods for hire by inland navigation. On or about 9th April, 1960 the plaintiff No. 1 delivered to the defendant a consignment of 1750 bales of jute at Gouhati and the defendant agreed as such carrier to carry the said goods safely and securely by its steamer m, v. (Rajan) from Gouhati to Calcutta and there to deliver the same to plaintiff No. 1 or its order for hire. It is stated that the defendant issued a bill of lading GAV/C/1393/60 dated April 9, 1960 in respect of the carriage of the said goods. The said vessel arrived at Calcutta on 28th April 1960. It is further stated that on or about 2nd May, 1960 after 1205 bales had been delivered, a fire broke out in the said vessel as a result of which the balance of the goods were destroyed or damaged as a result of the negligence or default of the defendant or its servants or agents. The plaintiffs said that they had suffered damages to the extent of Rupees 45,028.11 nP. less salvage. The claim in the plaint is for a decree for that amount with interest and costs. On 25th May, 1961 M/s. Sandersons and Morgans, solicitors for the plaintiffs enquired of M/s. Fowler and Co., solicitors, as to whether they would accept service of me writ of summons on behalf of Neptune Navigation, the defendant in the suit. On the 17th June, 1961 Messrs. Fowler and Co., Solicitors, replied stating that they had received instructions from the defendant to accept service of the writ of summons on their behalf. On or about the 27th June, 1961 the writ of summons along with the copy of the plaint was served on Messrs. Fowler and Co., by the Sheriff. On the very same day Messrs. Fowler and Co., wrote to the Sheriff of Calcutta as follows:

'In this suit we as Solicitors for Neptune Navigation had informed Messrs. Sandersons and Morgans that we had instruction to accept the service of the writ of Summons on behalf of the defendant. The Writ of Summons together with copy of plaint has today been served on us with a notice that it was being served on Bijoylal Chopra or Pannalal Chopra as partners of the defendant. In fact none of the said two persons is a partner of the defendant and as such we are unable to accept the service on their behalf. We, are, therefore, returning the writ herewith....'

2. Thereafter, the plaintiffs applied for and obtained an order under Order 30 Rule 3 of the Code of Civil Procedure, for service of the Writ of summons upon V. M. Sha as manager of Neptune Navigation. On the 27th September, 1961 the Writ of Summons along with the copy of the plaint was sought to be served upon the said V.M. Sha, but as he refused service, it was served by affixation on premises No. 133, Canning Street, Calcutta. On the 5th October, 1961 the said V.M. Sha wrote a letter to the Sheriff enclosing the Writ of Summons, stating that he was not the person having control arid management of the business of Neptune Navigation of 133, Canning Street, Calcutta. On or about the 22nd December, 1961 the suit appeared for hearing as an undefended suit before Datta, J. when counsel appeared for Rani Jagadamba Kumari Devi and submitted that she was the sole proprietrix of Neptune Navigation of 133, Canning Street, Calcutta, and asked for time to enable his client to apply for leave to defend the suit. The suit was thereupon adjourned. On the 18th January, 1962 Rani Jagadamba Kumari Devi, describing herself as the sole proprietrix of Neptune Navigation of 133, Canning Street, Calcutta took out a Master's summons for a direction upon the plaintiffs to serve upon her or her solicitors a copy of the plaint and for leave to enter appearance and file a written statement and defend the suit. In the petition in support of the said application, it was stated that at all material times the petitioner Rani Jagadamba Kumari Devi carried on and still was carrying on business under the name and style of Neptune Navigation as the sole proprietrix thereof at No. 133, Canning Street, Calcutta and her solicitors were Messrs. Fowler and Co. It was stated that the plaintiffs were wrongfully contending that Neptune Navigation was it partnership firm and it sought to serve the writ of summons on various persons other than the petitioners so that it is necessary for the petitioners to defend the said suit by entering appearance and filing a written statement stating out all facts in defence of the said suit including the facts stated above. This application was contested by the plaintiff. One Donald Forwood describing himself as Assistant Secretary of Jardine Heuderson Ltd., affirmed an affidavit-in-opposition dated 7th February, 1962 in which he denied that the plaintiffs were wrongfully contending that Neptune Navigation was a partnership firm as alleged or that it was necessary for the petitioner to defend the suit for the reasons alleged or at all. The affidavit-in-reply was filed by Shantilal Mehta describing himself as constituted attorney of the Rani. He stated that V.M. Sha was neither a manager of the defendant nor he has any authority to accept the Writ of Summons on behalf of the defendant, as he was nothing but an assistant in the office of the petitioner. When this application came up for hearing, counsel appearing on behalf of the plaintiff asked for an opportunity to make an application for amendment of the cause-title of the plaint. On the 13th March, 1962, the plaintiff took out a Master's summons asking for leave to amend the plaint and for other consequential reliefs. In paragraphs 15and 10 of the petition used in support of the said application; the following statements were made:-

'15. The said application came up for hearing before his Lordship the Hon'ble Mr. Justice Datta on or about March 9, 1962. Counsel appearing on behalf of the applicant submitted to his Lordship that the said Rani Jagadamba Kumari Devi was the sole proprietrix of Neptune Navigation of 133, Canning Street, Calcutta, and asked for an order directing your petitioners to serve a copy of the plaint on the said Rani Jagadamba Kumari Devi or Messrs. Fowler and Co. and for an order giving leave to the applicant to enter appearance and file written statement.

16. Counsel appearing on behalf of your petitioners accepted the said statement that Rani Jagadamba Kumari Devi was at all material times and still is the proprietrix of Neptune Navigation of 133, Canning Street, Calcutta, and submitted to his Lordship that leave be given to your petitioners to amend the cause title of the plaint accordingly. His Lordship upon the said submission made was pleased to direct your petitioners to apply for an amendment of the plaint and for that purpose adjourned the said application for a week.'

3. In the said application, the petitioners asked for an amendment of the cause-title in one of two alternative ways. In the first, they merely prayed that the words 'a firm registered under the Indian Partnership Act and' in the description of the defendant in the cause-title should be struck off. Alternatively, they prayed that the name and description of the defendant should be altered as 'Rani Jagadamba Kumari Devi carrying on business under the name and style of Neptune Navigation at premises No. 133, Canning Street, Calcutta, within the said jurisdiction'. This application was contested by Rani Jagadamba Kumari Devi and Shantilal Mehta in his affidavit affirmed on March 1962 inter alia stated as follows;

'13. I deny the allegations made in paragraph 11 of the petition. I say that the suit has been filed against the said Bejoylal Chopra and Panualal Chopra in the name or their registered partnership firm and not against the said Rani Jagadamba Kumari Devi or her said concern. The said Bajoylal Chopra and Pannalal Chopra also carried on business for sometime at No. 133, Canning Street, Calcutta as partners of the then Neptune Navigation.

16. I deny and dispute the allegations and submissions made in paragraphs 17 to 20 of the petition, I say that the plaintiffs having made the defendant and its said partners party to the suit, cannot by amendment as indicated in An-nexure C or D discharge them from the suit and make the said Rani Jagadamba Kumari Devi as party to the suit and then make her liable for all costs incurred up to date in the suit.'

The application of the plaintiffs for amendment of the plaint and the application of the Rani for leave to defend the suit were both heard by Datta, J. and by his judgment and order dated 10th April 1962 the learned Judge dismissed both the applications. It is against this order dismissing the plaintiffs' application for amendment of the plaint that this appeal is directed. On the 17th January, 1964 the appeal appeared in the list of Bachawat and Mukherjee, JJ. and upon the application of Rani Jagadamba Kumari Devi, she was added as a party to the appeal. It is this appeal that has now come up before us for hearing and Rani Jagadamba Kumari Devi only is contesting the appeal. At the hearing, Mr. Dev appearing on behalf of appellants has prayed that the cause-title be amended by omitting the words 'a firm registered under the Indian Partnership Act and'. He does not insist on the other alternative amendment inserting the name of the Rani. The contest between the parties may be briefly stated as follows: According to the appellants, they engaged Messrs. Neptune Navigation of No. 133 Canning Street, Calcutta, who acted as common carrier of goods for hire and it was Neptune Navigation which issued the bill of lading No. GAV/C/1393/60 dated April 9, 1960. It is argued that the said Neptune Navigation was misdescribed in the cause title as a firm registered under Indian Partnership Act. What happened was that there was in fact a Neptune Navigation which was a registered partnership firm, the partners being Bejoylal Chopra and Panrialal Chopra. This firm however, carried on business at No. 42 Vivekananda Road. It appears that this firm did not exist at the relevant time, but it is admitted on behalf of the respondent Rani that Bejoylal Chopra and Pannalal Chopra also earried on business for some time at No. 133, Canning Street, Calcutta, as partners of Neptune Navigation. According to the Rani, at the relevant time she was the sole proprietrix of the business, Mr. Dev argues that it was always intended and is still intended to sue Neptune Navigation of No. 133, Canning Street, Calcutta, which issued the bill of lading and accepted the goods for carriage; but as a result of wrong information it was misdescribed in the cause title as a registered partnership firm, while in fact Rani Jagadamba Kumari Devi is the sole proprietrix thereof. Under Order 30 Rule 10 of the Code of Civil Procedure, any person carrying on business in a name or style not his (or her) own may be sued in such name or style, as if it were a firm name; and so far as the nature of the case will permit, all rules under Order 30 of the Code will apply. He argues that in the interest of justice the cause title should be allowed to be amended. It is argued on behalf of the Rani that it is not a case of misdescription at all, but a substitution. It is argued that a partnership firm is not a legal entity, but is a compendious description of the names of the partners. What is to be considered is as to what the plaintiffs originally intended to do. It is stated that although Messrs. Fowler and Co. agreed to accept the Writ of Summons on behalf of the Rani, the plaintiffs caused the Writ of Summons to be served, as if ft was a service on partners, namely, Bejoylal Chopra and Pannalal Chopra and that is the reason why Messrs. Fowler and Co. refused to accept service. Thereafter the Rani actually made an application for leave to enter appearance and defend the suit, but this was strongly contested and it was dented that she was the sole owner of the business at the relevant time. It is argued that on thesefacts it is quite clear that the plaintiffs originally intended to sue the said two partners and the registered partnership firm, Neptune Navigation. Now they wish to substitute the name of the Rani in their place and stead, but in the meanwhile the claim is barred by limitation so far as she is concerned. If, of course, it is a case of substitution, the limitation will be considered as at the date of substitution and not at the commencement of the suit, and there are good grounds for contending that the suit is barred. Therefore, the real point to be considered is, as to whether it is a case of misdescription or substitution. The authorities show that if it is a misdescription only, an amendment should be allowed and in that event no question of limitation will arise. On the other hand, if it is a case of substitution then, the question of limitation must be taken into consideration and there are great difficulties in the way of allowing an amendment at this stage. The learned Judge, upon consideration of the facts of the case, has come to the conclusion that it is a case of substitution and has dismissed the application. The learned Judge states that it is now a 'common case' of the parties that there is a firm consisting of two partners Bejoylal Chopra and Pannalal Chopra by the name of Neptune Navigation in the register of firms having its office at No. 183, Canning Street, and there is no entry in the register of firms that the said firm was dissolved. The learned Judge is in error, because there never was a registered partnership firm of Neptune Navigation, having its office at No. 133, Canning Street There was a registered firm of that name carrying on business at No. 42 Vivekananda Road in which Bejoylal Chopra and Pannalal Chopra were the partners, but that firm has long ago been dissolved. It appears, however, that these two gentlemen were carrying on business in the same name at premises No. 133, Canning Street for sometime, but at the relevant time it is the Rani who is carrying on business under the name and style of Neptune Navigation as the sole proprietrix. In order to decide this point, it will be necessary to consider a number of authorities. T will first consider certain English authorities which have been cited before us. The first case cited is a decision of the Court of appeal Emily Rose Hiltoa v. Sutton Steam Laundry (a firm), (1945) 2 All ER 425. In that case, the appellant brought an action describing herself as administratrix to the estate of her deceased husband. At the time of issuing the writ, letters of administration had not been taken out by her to the estate of her deceased husband. She made an application for amendment of the cause-title by striking off the words 'as administratrix of the deceased's estate' so that the claim by her would be in a new capacity as a dependant of the deceased under the Fatal Accidents Act, 1846. It was held that the amendment could not be allowed. R. S. C., Order 3 Rule 4 provided that the endorsement should show in what capacity a plaintiff was suing and the appellant had bound herself to an action in a reprsentative capacity which she did not possess and the amendment could not be allowed as it would deprive the respondents of their rights undersection 3 of the Fatal Accidents Act, 1946. It was stated that if the amendment was allowed, the respondents would be prejudiced because they would lose the benefit of limitation. The next case cited is also a decision of the Court of Appeal---Alexander Mountain and Co. v. Rumere Ltd., (1948) 2 All ER 482. The facts in that case were as follows: The late Alexander Mountain carried on a business in the name of Alexander Mountain and Co. In other words, he was the sole proprietor thereof. In that business, he deposited a quantity of steel tubing with the defendants. A suit was brought in the name of Alexander Mountain and Co. against the defendants. Under R. S. C., Order 48-A Rule 1 an action can be brought in a firm name only where there are two or more partners. The position is the same under the Indian law. Immediately after the Writ was issued, the solicitors discovered the fact that the business had been carried on by Alexander Mountain without any partners and they informed the defendants of the position and notified them that they would apply for amendment when the action came on. When the action came on before Lord Goddard, an amendment was asked for. His Lordship with considerable reluctance expressed the view that he had no jurisdiction to make the amendment. In the Court of Appeal, Cohen, L. J. stated the facts as fallows, Alexander Mountain died in July 1947 and his widow was the sole executrix and beneficiary under his will. She continued the business in the name of Alexander Mountain and Co. with the assistance of her brother-in-law Mr. Haron. The solicitors unfortunately did not know the true position. They were under the impression that Mr. Haron was a partner. Under a misapprehension, the writ was issued in the name of Alexander Mountain and Co. which was not permissible under R. S. C. Order 48-A, Rule 1. The learned Judge held that the case should be properly treated as one of 'misnomer' and the writ should be allowed to be amended by substituting the executrix as plaintiff. Scott, L. J. said that the Writ was issued on behalf of a living person wrongly described. It was a case of misnomer and therefore, the writ should be allowed to be amended.

4. The next case to consider is Etablissement Baudelot v. R. S. Graham and Co., Ltd., (1953) 1 All E. Rule 149. In that case, the facts were as follows: The plaintiffs, the heirs under the will of a deceased Frenchman carrying on his business, issued a writ against the defendants for the price of goods sold and delivered. In intended compliance with R. S. C., Order 4, Rule 1 there was endorsed on the writ a statement that the plaintiff was a company incorporated according to the laws of France. But in fact, the information was incorrect, as there had been no formal act of incorporation. The defendants applied to strike out the name of the plaintiff and all subsequent proceedings, whereupon the plaintiff applied to amend the writ by adding as plaintiffs the names of the individuals who are actually carrying on the business. Birkett, L. J. states as follows:-

'The first question to be determined is whether the plaintiffs' description in the writ,'Etablissement Baudelot', represented some thing which existed. I assume for the purpose of this case that it was not a corporate body. The answer to the question I have posed can only be that of course, it did. It existed, certainly, so far as this case is concerned, from March, 1949, down to the day of the hearing, as a trading concern, to use a natural expression. It has, in fact, traded with the defendants, delivering to them goods and receiving payment from them, and when difficulties arose it made a compromise on various points of difference as appears from the statement of claim. It was perfectly plain from the headed notepaper and from the transactions between the parties, that this trading concern existed. The second question is: Does it make any difference, so far as the remedy is concerned, that there was added to the writ the words that the defendants were a corporate body to comply with R. S. C., Order 4B. 1? I think that the proper way to regard it is that it is a case of misnomer. It is said: Here is the name of the plaintiffs. They have existed, and are existing, to your knowledge, and merely because they are described in that way it does not alter the fundamental question whether they exist or not. It is idle to say the question is: Do they exist as a corporate body? because it has been conceded that this description as a corporate body was a mistake. I think that the provisions of Order 72, Rule 2, are quite sufficient to enable this Court to deal with the situation which has arisen here, and I think it would be a great pity if this Court were not able so to do.'

5. The next case is a decision of the Court of Appeal--Belgian Economic Mission v. A.P. and E. Singer, Ltd., (1950) WN 418. The facts were as follows: The State of Belgium, in the name of the Belgian Economic Mission, bought certain quantities of powder from the defendants. The claim was filed in the name of the Belgian Economic Mission for repayment of pounds 3,000 on the allegation that it was overpaid. The defendants' statement was that the 'Belgian Economic Mission' was neither a corportion nor a firm and therefore could not sue in its own name. The plaintiffs asked for an amendment on the ground that it was a case of misnomer. The amendment' was allowed,

6. Coming now in Indian cases, the first case to be considered is a Bench decision of the Bombay H. C.--Amulakchand Mewaram v. Babulal Kanalal, AIR 1933 Bom 304. In that case the facts were as follows: A suit was commenced wherein the plaintiffs were described as Amulakchand Mewaram, a firm of merchants carrying on business at Kalladar Road at Bombay. Later it was realised that this firm was not a partnership firm, but a Joint Hindu family business. A Hindu Joint Family business is not a firm in the name of which proceedings may be commenced under Order 30, Rule 1 C.P. Code. An application was made for leave to amend the cause title. Beaumont, C. J. said asfollows:

'It seems to me that the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought is the name of a non-existent person or whether it is merely a misdescription of existing persons. If the former is the case, the suit is a nullity and no amendment can cure it. If the latter is the case, prima facie there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the Court should always allow an amendment where any loss to the opposing party can be compensated for by costs. Now it seems to me that where you have a suit brought in the name of A. B. and Co., if it be proved that A. B. and Co, is the name of an existing firm or family consisting of certain individuals C. D. and E, then the description A. B. and Co. merely cloaks the identity of C. D. and E who are before the Court under that name. If under the rules C. D. and E are not allowed to sue in the name of A. B. and Co., then for the purposes of the suit the description is incorrect and must be altered. But it seems to me that in such a case the proposed alteration does not involve introducing new plaintiffs, but merely involves describing correctly, rather than incorrectly, the plaintiffs already before the Court.'

The amendment was allowed, but on stringent condition as to payment of costs. In Manilal and Sons v. Purushottam Umedbhai and Co. : AIR1960Cal15 the facts were as follows: A suit was instituted wherein the plaintiff was described as 'Manilal and Sons, a firm carrying on business at No. 11-A, Mallaca Street, Singapore'. The objection was taken that a partnership firm carrying on business outside India could not sue in the name of the firm. Thereupon, the plaintiffs made an application for amendment praying for substitution of the names of the partners of the firm. The matter appeared before P. B. Mukharji, J. The learned Judge held that this was not a case of misdescription, but of substitution and as the claim was barred by limitation the application for amendment was refused. Thereupon the plaintiffs appealed. It was argued that a partnership firm as opposed to a corporation has no legal entity, and it has no legal existence, and in the absence of some special provisions of law granting the power to sue or be sued, the firm name would really be the name of a non-existing person or dead person arid therefore, no amendment can be allowed as the suit instituted by a non-existent or dead person has no existence in the eye of the law. Das Gupta, C. J. said as follows:-

'In my opinion, there is no substance in this contention. It is certainly a correct proposition of law that a partnership firm is not a legal entity in the sense a corporation or an incorporated body is a legal entity. To say this is, however, not to say that a firm does not exist in law, A firm has a very real existence in the combination of two or more individuals in partnership. To say that the firm name does not describe any existing person is, therefore, unrealistic and not correct.

This was pointed out in forceful language by Das, J. in Munshilal and Sons v. Modi Bros., 51 Cal W.N. 563. At p. 567 we find the following observations:

It is said that a firm is not a legal entity. What is the implication of this proposition? It is well known that there is a difference in the notions of commercial men and lawyers respecting the nature of a firm. Commercial men look upon a firm in the light in which lawyers look upon a Corporation, that is to say, as a body distinct from the members composing it and having rights and obligations distinct from those of its members. That however, is not the legal notion of a firm. The firm is not recognised by English lawyers as distinct from its members.' Then follows the significant passage: 'It is to bring out and emphasise this legal notion of a firm that it is said that a firm is not a legal entity. This does not mean that the law does not recognise a firm for any purpose. It does not mean that a firm name has, in the eye of law, no meaning or content. The firm name is a compendious mode of describing the partners.' I have, therefore, come to the conclusion that treating the question as one of first principles, it should be answered by saying that the name (Manilal and Sons) as used and described in the plaint in the suit was a defective mode of describing the five individual partners of the firm and that this is a case of mere misdescription.'

7. The learned Judges considered a number or cases both in England and India and allowed the amendment. In the same case Bachawat, J. said as follows:

'Whether or not, there is misdescription or misnomer is a question of fact. The Court must be satisfied that the name on the record was, in fact, used for the purpose of impleading the party whose correct, name is later sought to be substituted. On being so satisfied, the Court has ample, power to allow the error or defect to be cured...... Where the Court regards thename on the record as a misdescription, the Court, in effect, finds that the person who is so misdescribed is already on the record. If on such a finding the Court allows the amendment by introducing the legitimate name of that person, the Court is not adding a new party for the purposes of Section 22 of the Indian Limitation Act nor is it taking away from the defendant any defence accrued by lapse of time.'

8. The next case on which the respondent strongly relies and will have to be carefully considered is M. B. Sirkar and Sons v. Powell and Co. : AIR1956Cal630 . The facts were as follows: The respondent Powell and Co. was a firm carrying on business as supplier of marbles and flooring materials. On 23-11-1953 the respondent instituted a suit on the Original Side of this Court for recovery of a sum of Rupees 5,989-13-6 pies for work done and labour and materials supplied. The suit was brought against 'M. B. Sirkar and Sons, a firm carrying on business as jewellers at Nos. 167 and 167-C, Bow-bazar Street, Calcutta.' It was stated that the work was done and materials supplied under orders placed by the firm through one of its partners Gostha Behary Sirkar. At first, the solicitors for the plaintiff wrote a letter to Messrs. B. N. Basu and Co. solicitors, and enquired whether they would accept service of the writ of summons on behalf of the defendant firm. It was stated that not having received any reply, the respondent caused certain searches to be made in the office of the Registrar of Firms and ascertainedtherefrom the name of the firm's partners. Thereafter the respondent obtained an order from the Master for extension of the returnable date of the writ of summons and for leave to serve the writ on one Pulin Behary Sirkar as one of the partners of the defendant firm, being a person in charge of the control and management of the business, The writ or summons was issued and served on Pulin Behary Sirkar. On 4-3-54 Messrs. B.N. Basu and Co. wrote a letter to the plaintiff's solicitors in which it was stated that they had entered appearance in the suit on behalf of the defendant company which had been wrongly sued as a firm. The plaintiff took no notice of this and a written statement was filed in due course where the defendant denied that it was a firm, but stated that it was a company incorporated under the Indian Companies Act without the addition of the word 'limited'. The claim was denied. The appellant company filed its written statement on 12-4-54 but the respondent took no steps until December 1954 when it is stated that they caused a search to be made in the office of the Registrar of Joint Stock Companies and discovered that M/s. M.B. Sirkar and Sons had been incorporated as a private limited company on 11-4-54 and that Gostha Behary Sirkar was the Managing Director of the company. Even after that discovery, no steps were taken for amending the plaint until the 20th May 1955 when an application for amendment was made. It was prayed that the cause title and the suit register might be amended by deleting the word 'fire' and by substituting in its place the words 'a company incorporated under the Indian Companies Act having its registered office at 124/1, Bowhazar Street, Calcutta' and for consequential amendments in the body of the plaint. P. B. Mukluuji, J. allowed the amendment, against which there was an appeal.' It may be mentioned here that there was a partnership firm under the name of M. B. Sirkar and Sons which had been registered on 22-12-1934, and had not been dissolved. At least, the registration records did not show any dissolution. Chakravartti, C. J. stated as follows:-

'The real controversy before us, however, was on the question as to whether there had been only a misdescription in the original plaint and whether the same party was not being sought to be described by a new name and appellation. It is true that if the case be one of misdescription no question of limitation or destruction of any valuable right already accrued to the appellant company arises. But it will be useful to consider first what 'misdescription' really means. A case can properly be said to be a case of misdescription when the party, really intended to be impleaded, had always been the same and such intention appeared clearly from the body of the plaint in spite of the inaccurate description in the cause title and what an amendment does, in such cases, is not to add a new party to the suit or substitute a new party for the original one, but to make the identity or the party originally impleaded clearer by amending or rectifying the inaccurate description. When the same person, whether an individual or a legal entity, remains the defendant but only the name is altered, there is a case of amending a misdescription. But where a new legal entity is substituted for another, it cannot correctly be said that the original error was a mere misdescription and that, by the amendment, no change of a substantial character affecting the right of any party is being effected. Common examples of misdescription are cases where a plaintiff, intending to sue a railway, sues it by its Agent without, however, claiming any personal relief against him but asking for relief against the railway alone, or cases where a plaintiff, intending to sue a municipality, does so by its name and not by the Chairman and the Commissioners, as the law requires. Substitution of a company for a firm, however, appears to me to be a very different proposition.'

The learned Chief Justice proceeded to state that in the body of the petition for amendment it was stated that the respondent dealt with Gostha Behary Sirkar and he had represented to the respondent that he and his three brothers were partners of Messrs. M.B. Sirkar and Sons and that the respondent believed in such representation. Therefore, it was not easy to see how the respondent could contend that when it filed the plaint it: had intended to implead any body other than the firm of Messrs. M. B, Sirkar and Sons.

9. The case of misdescription, therefore, broke down on the facts. The learned Chief justice also pointed out that even when it was repeatedly pointed out to the respondent that the defendant was a company and not a firm, no steps were taken. It was a case of substitution of a new party and not a case of misdescription and as the plaintiffs claim was barred by limitation, the amendment should not be allowed.

10. Let us now apply these principles to the facts of the present case. The question to be decided is as to whether this is a case of 'misdescription' or 'substitution.' For this purpose it is necessary to recapitulate some of the facts as they appear from the materials before us. According to the plaintiffs, they consigned certain number of jute bales for carriage from Gauhati to Calcutta through 'Neptune Navigation' which is described as a common carrier of goods for hire. It is stated in the plaint that the said 'Neptune Navigation' issued a bill of lading No. GAV/C/1393/60 dated April 9, 1960, in respect of the carriage of the said goods. According to the plaintiffs, these very goods were insured by the plaintiff No. 2 who granted to the plaintiff No. 1 a protection Note No. H60/ 9399 and open policy No. JH60/131. These goods were brought down to Calcutta by a steamer M.V. 'Rajan' which is stated to have been delivering the goods at the jetty of the Howrah Jute Mills at Ramkrishnapur, It is stated that while doing so a fire broke out in the vessel and 545 bales of jute were destroyed and/ or damaged. It is on this basis that the plaintiffs have made a claim for damages and other reliefs. In the plaint, the defendant 'Neptune Navigation' has been sued as a firm registered under the Indian Partnership Act and carrying on business at premises No. 133, Canning Street, Calcutta. It appears to be more or less admitted on the pleadings before us that, at the relevanttime there was no registered firm known as Neptune Navigation carrying on business at No. 133, Canning Street, Calcutta. We were shown certified copies of certain entries, made under the Indian Partnership Act and it showed Bejoy Lal Chopra and Pannalal Chopra as carrying on a registered partnership business at 42, Vivekananda Road, Calcutta. That was dissolved a long time ago. According to an affidavit filed by Shanti Lal Mehta on behalf of the Rani, Bejoy Lal Chopra and Panna Lal Chopra carried on business for 'some time' at No. 133, Canning Street as partners of 'the then' Neptune Navigation. It is stated that at the relevant time Rani Jagclamba Kumari Devi was the sole owner of 'Neptune Navigation' carrying on business at No. 133, Canning Street, Calcutta. It is, therefore, evident that there was a Neptune Navigation which was a registered firm carrying on business at 42, Vivekananda Road, the partners being Bejoy Lal Chopra and Panna Lal Chopra. This firm had been dissolved and/or had ceased to exist. The Chopras carried on business in the same name for some time at No. 133, Canning Street, Calcutta. At the relevant time, however, Rani Jagadamba Kumari Devi was carrying on business in that name at No. 133, Canning Street as the sole owner thereof. It is true that the plaintiffs described in the plaint 'Neptune Navigation' as a registered firm carrying on business at premises No. 133, Canning Street. But in the background of the facts above mentioned, which 'Neptune Navigation' did they intend to sue? Obviously, it was the 'Neptune Navigation' which was carrying on business at the relevant time at No. 133, Canning Street, which had accepted the contract of carriage, which had issued a bill of lading No. GAV/C/1393/60 elated April 9, 1960 and which had carried the goods in respect of which the plaintiff No. 2 issued a protection Note No. H60/9399 an3 open policy No. JH60/131. The goods in respect of which damages were claimed were the goods carried by the said vessel under the said bill of lading and insurance policy from Gauhati to Howrah. It is true that when the suit was filed the plaintiffs seemed to be under the impression that this 'Neptune Navigation' was a registered firm. It is not quite clear how they received the impression but it must have been under a misapprehension because there was such a registered firm carrying on business at Vivekananda Road. It was not as if that firm was wholly unconnected with the 'Neptune Navigation' which was carrying on business at No. 133, Canning Street. It appears that the Chopras having ceased to carry on business at Vivekananda Road, were for some time carrying on business in partnership at No, 133, Canning Street. This partnership was, however, not registered. It also appears that the Chopras ceased to carry on business at 133, Canning Street. At the relevant time the Rani states that she was carrying on business at No. 133, Canning Street under name and style of 'Neptune Navigation'. Reference may be made to the fact that Messrs. Sandersons and Morgans, solicitors for the plaintiffs, enquired of Messrs. Fowler and Co., solicitors for 'Neptune Navigation' whether they would accept serviceof the writ of summons on behalf of the 'defendant' and they agreed to do so. Obviously Fowler and Co., were known to be acting on behalf of 'Neptune Navigation' and they had no hesitation in agreeing to accept service on behalf of 'Neptune Navigation'. But when the writ was served, Messrs. Fowler and Co., refused to accept service, because they were notified that the writ was being served on Bejoy Lal Chopra and Panna Lal Chopra as partners. They must have done so because the Chopras had ceased to be connected with the firm. In their letter dated 27th June 1961 written to the Sheriff of Calcutta, Messrs. Fowler and Co., said that in fact, none of the said two partners was a partner of the defendant Unfortunately, the plaintiffs persisted in stating that the Chopras were the partners and not the Rani, although the Rani insisted on appearing and defending the suit and actually made an application to enable her to do so when it was found; that the Rani was really the owner of the business at the relevant time, counsel for the plaintiffs asked for an opportunity of amending the plaint. From the authorities cited above, it appears to me that the principle to be applied is this: If you are suing a defendant but owing to some blundering you describe it incorrectly or in a manner not permitted by law, then it is a case of misclescription. But, if you sue one person and then find out later that you have sued a wrong person and the right person to be sued was someone else and try to bring him on record then it is a case of substitution. In this case, the person to be sued was 'Neptune Navigation' which carried the goods and issued the bill of lading. At the relevant time there could not have been two 'Neptune Navigations' which did that. But instead of describing that person correctly, it was described in a manner which is now found to be incorrect. In my opinion, this can only be a case of misdescription and not substitution. The learned counsel appearing on behalf of the Rani has relied strongly on the Bench decision : AIR1956Cal630 . (Supra). In my opinion, that case is clearly distinguishaole. There, what happened was as follows: The plaintiff sued Messrs. M.B. Sirkar and Sons as a partnership firm. There was in existence a registered partnership firm of that name at the relevant time. The contract, however, appears to have been entered into with Messrs. M.B, Sirkar and Sons which had also been incorporated as a limited company, but with a right to drop the word 'limited'. A company is a distinct legal entity. As stated above strictly speaking a partnership firm is not a legal entity. It is however, looked upon as a legal entity in some ways, namely, because commercial men look upon a firm in the same light as lawyers look upon a corporation. But in law, a firm-name is out a compendious way of describing the partners. Ordinarily, it cannot sue or be sued. It is only because special provisions have been made in Order XXX or the Code of Civil Procedure, that such a firm can sue or be sued in its own name. In the case of Messrs. M.B. Sirkar and Sons (Supra), it was amply proved on the facts that the plaintiffs intended to sue, and did sue, the firm. Such afirm actually existed. The mistake was that the contract was with the company which was a distinct legal entity and it had not been sued at all. The company entered appearance and filed a written statement distinctly stating that the contract was with the company and not the firm and yet, the plaintiffs took no notice of it and allowed the claim to be barred by limitation before an application was made for amendment. By the amendment it was intended to substitute the company in place of the firm, but in the meantime the claim against the company had been barred by limitation. This was clearly a case of 'substitution' and not 'misdescription'. In my opinion, the facts in the present case are entirely different. For the purpose of Order XXX no difference is to be made between a partnership firm and an individual carrying on business in a name not his (or her) own. In the present case, the suit was brought against 'Neptune Navigation' on the basis that there was a registered partnership firm. That would mean no more than the names of its partners. What had happened was that at the relevant time the Rani claims to be carrying on business at No. 133, Canning Street under the name and style of 'Neptune Navigation'. The intention was not so much to sue the Chopras as to sue the person or persons carrying on business under the name ana style of Neptune Navigation at No. 133, Canning Street, Calcutta, which 'Neptune Navigation' had entered into a contract of carriage, had issued a bill of lading in respect of which a protection Note and open insurance policy were issued. In 1948-2 All ER 482. (Supra) the suit was filed in the name of a partnership firm but it was found that at the proper time the business had been carried on by the executrix alone. It was held to be a case of misdescription and amendment was allowed. In 1953-1 All ER 149. (Supra) theplaintiff was sued as an incorporated company but it was found that it had not in fact, been incorporated. An amendment was allowed by adding as plaintiffs the names of the individuals who actually carried on business. One of the reasons taken into consideration was that it was the business carried on by these individuals which had in fact traded with the defendants, delivering to them goods and receiving payment in connection of which the action was brought. That being the case, it was held that it was a case of misdescription and not substitution. Similarly, in the case of 1950 W.N. 418 (Supra) the State of Belgium entered into certain transactions, but the action was brought in the name of the 'Belgian Economic Mission', which was neither a corporation nor a firm and therefore, could not sue in its own name. The amendment was allowed on the ground that it was the Belgian Government which entered into the transaction in suit and it was a case of misdescription and not substitution. Coming now to Indian cases, a number of authorities have been mentioned above where a suit was instituted on behalf of the Hindu joint family business which cannot maintain an action in its own name under Order XXX of the Code of Civil Procedure, but amendment was allowed on the ground that it was merely a case of misdescription and thepersons who were carrying on the business might be brought on the record. It was pointed out that although a firm is not in strict law a legal entity, businessmen, when talking about a partnership firm, do look unon it as an entity apart from its partners. It has been rightly stated that whether there is a misdescription or misnomer, is always a question of fact. If the name is already on the record but the description is incorrect it can always be put right. In my opinion, 'Neptune Navigation' is already on record, but has mistakenly been described as a registered partnership firm. There can be no doubt whatsoever as to which 'Neptune Navigation' was intended to be sued. It was the 'Neptune Navigation' which entered into the contract for carriage of goods, which issued a bill of lading in respect of which there was a protection Note and open insurance policy. It was the 'Neptune Navigation' which carried the goods from Gauhati to Howrah and was delivering the goods at the jetty of the Howrah Jute Mills. No other 'Neptune Navigation' is being sought to be sued or made liable for damages. Under the circumstances, I am of the opinion that the case is one of 'misdescription' and not 'substitution' and as such the amendment should have been allowed. I have mentioned above that Mr. Deb has asked for the amendment in the form that appears at pages 16 to 20 of the paper Book. In other words, the only amendment is that the words 'a firm registered under the Indian Partnership Act and' should be struck out from the description of the defendant in the cause title. No other amendment is asked for. In my opinion, this amendment should be allowed in the ends of justice.

11. The result is that the appeal is allowed and the order of the Court below dated April 10, 1962 is set aside. The order will be that the application for amendment is allowed by striking out the words 'a firm registered under the Indian Partnership Act and' after the words 'Neptune Navigation' in the name and description of the defendant in the cause title of the plaint. Rani Jagadamba Kumari Devi is allowed to enter appearance on behalf of the defendant and file a written statement, which should be done within two months from date, after which the suit will proceed in the usual manner. The appellants must pay the cost of the application made in the Court below and of the appeal.

R.N. Dutt, J.

12. I agree.


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