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National Industries Vs. Sassoon Rice Mills Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 987 of 1945
Judge
Reported inAIR1953Cal381
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10 and 10(2) - Order 6, Rule 17
AppellantNational Industries
RespondentSassoon Rice Mills Ltd.
Appellant AdvocateSisir K. Mukherjea, Adv.
Respondent AdvocateA.N. Sen, Adv.
Cases ReferredCharandas v. Amir Khan
Excerpt:
- .....mills limited and that the plaintiff bona fide believing on the said representation sued them as a limited company. in that affidavit reference is made to correspondence and documents, some of which were produced at the time of the hearing of this application and learned counsel appearing in opposition has also seen them. i find from the disclosed documents in the suit that there are rubber stamps and letter heads describing the defendant as sassoon rice mills ltd.3. on behalf of the defendant an affidavit in opposition has been filed which is affirmed by one nagarmul jajodia on 3-3-1951. nagarmul jajodia describes himself in that affidavit as one of the directors of the 'now defunct sassoon rice mills ltd.' in a letter of their solicitor for the defen-dant dated 17-12-1946, addressed to.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is the plaintiff's summons for an amendment of the plaint by deleting the word 'Limited' and the word 'Company' from the plaint. It is stated that the description of the defendant as Sassoon Rice Mills Limited was an error and the proper defendant is Sassoon Rice Mills. This summons was taken out by the plaintiff's Solicitor on 21-2-1951.

2. In the affidavit of Laburam Jain, a partner of the plaintiff firm, affirmed on 21-2-1951, in support of the summons, the allegation is that the defendant at all material times represented themselves as a limited concern or held themselves out as such and in fact in the correspondence and documents they described themselves as Sassoon Rice Mills Limited and that the plaintiff bona fide believing on the said representation sued them as a limited company. In that affidavit reference is made to correspondence and documents, some of which were produced at the time of the hearing of this application and learned counsel appearing in opposition has also seen them. I find from the disclosed documents in the suit that there are rubber stamps and letter heads describing the defendant as Sassoon Rice Mills Ltd.

3. On behalf of the defendant an affidavit in opposition has been filed which is affirmed by one Nagarmul Jajodia on 3-3-1951. Nagarmul Jajodia describes himself in that affidavit as one of the Directors of the 'now defunct Sassoon Rice Mills Ltd.' in a letter of their Solicitor for the defen-dant dated 17-12-1946, addressed to Messrs. S.C. Bose & Co., supplying particulars under orders of Court the Director Nagarmul Jajodia is stated in para 2 as (since deceased). Learned counsel for the applicant naturally has been anxious to explain to me how it was possible for a dead man to make an affidavit. I direct that this letter of the Solicitor of the defendant be filed with the records of this application. There is, therefore, really no proper affidavit in opposition.

4. Nevertheless, I have heard learned counsel Mr. Amarendra Sen appearing on behalf of the defendant. It was difficult and embarrassing for him to say whom he represented. On the one hand he was supporting the affidavit of a person who it transpires had died before the affidavit was made by him and on the other he was disputing the identity of the defendant. In the written statement filed in this suit, it is stated 'written statement on behalf of the defendant company (now defunct) abovenamed'. In para 2 of the written statement it is alleged that the name and description of the defendant as given in the cause title are wrong inasmuch as the name of the defendant company which was incorporated and registered as limited company at the office of the Registrar Joint Stock Company, Calcutta, had been struck off the register of companies under S. 247, Indian Companies Act before March 1943, and long before the institution of the suit. It is further alleged in para 2 of the written statement that the company was dissolved and ceased to have any registered office since the date of the dissolution of the company. It is difficult to understand how the written statement was filed and if so on whose behalf. Either the company exists or it does not.

5. The main point which was argued by Mr. Sen is that the amendment will introduce a new party and will, therefore, mean altering the whole suit. The basis of his argument is that the Sassoon Rice Mills Ltd. is an incorporated concern and was entirely different from Sassoon Rice Mills, which is the substitute intended to be introduced by the amendment. The argument is plausible but unsound specially in the fact and context of this case.

6. In my judgment, this is not introducing a new party or altering the whole suit but making the parties proper so as to bring the controversy between the proper parties into clearer relief. This is a case of misnomer or misdescription of the defendant. Under Sub-rule 2, Order 1, Rule 10, as well as Order 6, Rule 17, Civil P.C., the Court has in my view ample powers to make those amendments. The recent decision of the English Court of Appeal reversing the decision of Lord Goddard the Lord Chief Justice of England is relevant on this point. That decision is of --'Alexander Mountain & Co. v. Rumere Ltd.', (1948) 2 All E R 432 (A). This was an appeal from the decision of Lord Goddard C.J. refusing an application by the executrix of Mr. Alexander Mountain that the writ in this action should be amended by substituting for the description of the plaintiff, 'Alexander Mountain & Co', the words 'Doris Mountain, widow, executrix of Alexander Mountain, deceased'. There learned Lord Chief Justice refused the application on the basis of the decision of Russel J. in -- 'Tetlow v. Orela, Ltd', (1920) 2 Ch 24(B). That decision of the Lord Chief Justice was set aside by the Court of Appeal and Cohen L. J. after quoting from the Law Journal of 9-5-1942 at page 150, on misnomer of plaintiff observed:

'That the statement of law, with which I respectfully agree, was not brought to the attentionof the Lord Chief Justice, and I cannot help thinking that, if it had been, a different result might have ensued. Having regard to the affidavits, I think we can properly treat this case as one of misnomer, and allow the writ to be amended by substituting the executrix as plaintiff.'

Scott, L.J., observes:

'It is a case of misnomer and that passage in that judgment of Russel J., shows that he was not addressing his mind to the question which arises in this case.'

7. On the facts here before me, I have no doubt in my mind that it is the clearest possible case of misnomer or mis-description of the defendant. There can, in my opinion, be no difference on this account between a case of misnomer or mis-description of the plaintiff and a case of misnomer or mis-description of the defendant. I can discover no principle by which the Court will have power to amend a mis-description of the plaintiff but will not have the equal power to amend the misdescription of the defendant. The defendant was sued as a company and the persons who are contending to appear in pursuance to the writ state in the written statement that the company is defunct and have come forward to oppose this application. There is, therefore, no doubt about the defendant the plaintiff intended to mean or indicate. It was, therefore, a case of misdescription or misnomer of the defendant. I consider that the express and clear language of Order 1, Rule 10(2), Civil P.C. gives power to the Court to amend any misdescription of the defendant. Under that sub-rule the name of a defendant improperly join--ed can be struck out and the name of any person who should have been joined as a defendant or whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit, can be added by the Court. That being so I do not see any reason why the amendment should not be allowed. Mr. Sen referred me to the case of --'Krishnaji v. Hanmaraddi', reported in AIR 1934 Bom 385 (C), but that case does not deal with this question of misnomer or misdescrip'ion of the party. That authority, therefore, is of no assistance to Mr. Sen.

8. The other argument advanced by Mr. Sen is one of limitation. Mr. Sen has rightly criticised the delay in moving this application for amendment. This is a commercial cause instituted in the year 1945 and is still pending. The point was taken in the written statement which was filed on 19-11-1945. That criticism is perfectly justified but the delay in his case should not be allowed to defeat this application for amendment. Delay will ordinarily defeat an application for amendment when any question of limitation arises. It has been contended by Mr. Sen that here the question of limitation does arise and I believe he is right in that contention. But then again that is the ordinary rule and there are exceptions to it. The Judicial Committee of the Privy Council points out in --'Charandas v. Amir Khan', AIR 1921 PC 50 at p. 52 (D) that amendment may be allowed even after the period of limitation in special cases. I cannot imagine a more special case on the facts as this one. It is not an error which was deliberate on the part of the plaintiff. The documents which have been shown indicate that the defendants described themselves as a limited concern. But when the written statement was filed the point was taken but then again written statement need not be taken on its face value by the plaintiff. Added to this, I find that it is only a case of misnomeror mis-description of the defendant and I am satisfied that it is one of those special cases where amendment can be allowed in spite of limitation. But having regard to the delay the applicant will have to pay the costs of this application which I would otherwise have reserved because of defendant's conduct having misled the plaintiff in describing the defendant as a limited company.

9. There will, therefore, be an order allowingthe amendment in terms of Clauses 1, 2, 3, 4 and 6of the summons. This order should be expeditedand the amendment will be effected after the completion of the order. Certified for counsel.


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