TMI Blog1960 (10) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... (now the appellant)-a firm registered under the Indian Partnership Act, 1932-carrying on business at No. 55 Canning Street, Calcutta. In July, 1949, there was a contract between the plaintiff and the defendant under which the defendant was to sell to the former, subject to certain conditions, 950 bales of Heavy Cees gunny bags c. i. f. Singapore to be shipped from Calcutta in August, 1949. It was also agreed between the plaintiff and the defendant in July-August, 1949, that the latter would sell, subject to certain conditions, 600 bales of Heavy Cees gunny bags c. i. f. Hong Kong to be shipped from Calcutta in August, 1949. According' to the plaintiff, the defendant did not perform the contract entered into by the parties and as a result of the default on the part of the defendant the plaintiff had suffered loss. The plaintiff accordingly claimed compensation to the extent of ₹ 2,73,864 and ₹ 7,850 towards expenses incurred, in all ₹ 2,81,714. The breach of the contract is alleged to have taken place in October and November, 1949. The suit was instituted on April 2, 1951. The defendant's written statement was filed on or about May 21, 1951. The petition f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various decisions of the High Courts in India and the courts in England that the description of a plaintiff by a firm name in a case where the Code of Civil Procedure does not permit a suit to be brought in the firm name should properly be considered a case of description of the individual partners of the business and as such a misdescription, which in law can be corrected and should not be considered to amount to a description of a non-existent person . It also rejected the contention on behalf of the defendant that the Power of Attorney in favour of Dunderdale was insufficient. The contention had been that this Power of Attorney did not authorize Dunderdale to act on behalf of the the firm far less the individual members of the firm. The Division Bench accordingly allowed the amendment prayed for and permitted the names of the individual partners of the firm Manilal Sons to be substituted as plaintiffs in the place of Manilal Sons. The individual partners were permitted either to sign the plaint themselves or through their constituted attorneys. The Division Bench allowed this amendment on the condition that all the costs of the appellant before us incurred upto the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Oil Mill Co. v. N. V. Velamahomed, A.I.R. 1928 Bom. 191 where the learned Judge held that the suit was brought by an entity which had no legal existence in the eyes of Indian law and there being no mode of procedure whereby such an entity was permitted to sue in India, the suit, as framed, was not maintainable at all. It followed therefore that the amendment asked for could not be treated as an amendment following upon a mere misdeseription but must be treated as an application for the substitution of the individual persons who composed the entity which the law did not recognize. This view of Mr. Justice Blackwell was not accepted by Beaumont, C. J., in the case of Amulakchand Mewaram v. Babulal Kanalal Taliwala, A.I.R. 1933 Bom. 304, 305 where he expressed himself as follows: I must confess that I have some difficulty in following both the reasons and the conclusions of the learned Judge in that case. It was a case of a suit brought in the name of a firm carrying on business outside British India, and therefore not justified by the terms of O. 30, Civil P. C. and the learned Judge expressed the view that the plaintiff firm was a nonexistent entity. But the order which he sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ona fide vide 0.1, R. 10, C.P.C. Such an amendment does not involve the addition of a party so as to attract S. 22(1), Limitation Act. Suits by or on behalf of dead persons stand in a different category. The principle that a misdescription could be corrected by amendment could not obviously be applied to such a case but this is far from saying that merely because the law does not recognise the firm as being a legal entity, the firm name could not indicate or designate the individuals Composing the firm. To sum up, the situation is analogous to a case where an individual who has an alias or an abbreviated name by which he is sometimes called initially describes himself in that name but subsequently applies to have it rectified so as to describe in the manner in which he is most generally known. There cannot be any doubt that by the correction in the name, a new plaintiff is not added so as to attract s. 22(1), Limitation Act. A trade name either of a person or a group of individuals carrying on business in partnership is in true an alias for the person or the group. Before the introduction of O. XXX in the Code of Civil Procedure apparently suits were instituted, particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his provision of the Act that the word firm or the firm name is merely a compendious description of all the partners collectively. It follows, therefore, that where a suit is filed in the name of a firm it is still a suit by all the partners of the firm unless it is proved that all the partners had not authorized the suit. A firm may not be a legal entity in the sense of a corporation or a company incorporated under the Indian Companies Act but it is still an existing concern where business is done by a number of persons in partnership. When a suit is filed in the name of a firm it is in reality a suit by all the partners of the firm. If O. XXX had not been introduced into the Code and a suit had been filed in the name of a firm it would not be a case of a suit filed by a nonexistent person. It would still be a suit by the partners of a firm, the defect being that they were described as a firm. In order to clarify matters a court would permit an amendment by striking out the name of the firm and replacing it with the name of the persons forming the partnership. It would be a case of misdescription. Even if the provisions of O. 1, r. 10 and O. VI, r. 17 did not strictly appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the names of the partners are declared in the manner referred to in sub-rule (1), the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint: Provided that all the proceedings shall nevertheless continue in the name of the firm . This makes it obligatory, in the case of a suit instituted by the partners in the name of the firm, on demand in writing by or on behalf of any defendant, to declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted. If the plaintiffs fail to comply with the demand made under sub-r. (1) of this rule, all the proceedings in the suit may be stayed on such terms as the court may direct. Under sub-r. (3) if the names of the partners are declared in the manner referred to in sub-r. (1) the suit shall proceed in the same manner and the same consequences in all respects shall follow as if they had been named in the plaint, provided that all the proceedings shall nevertheless be continued in the name of the firm. Rule 1 of O. XXX is a general provision. Rule 2, however, is confined to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of s. 153 of the Code (or possibly under O. VI, r. 17, about which we say nothing), an amendment of the plaint to enable a proper description of the plaintiffs to appear in it in order to assist the court in determining the real question or issue between the parties. Strictly speaking O. 1, r. 10(1) has no application to a case of this kind because the suit has not been instituted in the name of a wrong person, nor is it a case of there being a doubt whether it has been instituted in the name of the right plaintiff. The provisions of O. I, r. 10(2) also do not apply because it is not a case of any party having been improperly joined whose name has to be struck out or a case of adding a person or a party who ought to have been joined or whose presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The suit has been from its very inception a suit by the partners of the firm and no question of adding or substituting any person arises, the partners collectively being described as a firm with a particular name. One of the partners Manubhai Maganbhai Amin was the Manager o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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