Whether court can permit amendment of plaint if there is misdescription in the name of plaintiff?

Since, however, a firm is not a legal entity the privilege of suing in the name of a firm is permissible only to those persons who, as partners, are doing business in India. Such privilege is not extended to persons who are doing business as partners outside India. In their case they still have to sue in their individual names. If, however, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of their firm they are misdescribing themselves, as the suit instituted is by them, they being known collectively as a firm. It seems, therefore, that a plaint filed in a court in India in the name of a firm doing business outside India is not by itself a nullity. It is a plaint by all the partners of the firm with a defective description of themselves for the purposes of the Code of Civil Procedure. In these circumstances, a civil court could permit, under the provisions 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.

IN THE SUPREME COURT OF INDIA

Civil Appeals Nos. 178 and 179 of 1960

Decided On: 07.10.1960

Purushottam Umedbhai & Co. Vs.  Manilal and Sons

Hon'ble Judges/Coram:

A.K. Sarkar, Raghubar Dayal and Syed Jaffer Imam, JJ.

Citations: 1961 AIR 325, 1961 SCR (1) 982,MANU/SC/0004/1960

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Whether misdescription of party will affect application for appointment of arbitrator as per S 11 of arbitration Act?

Such attention, however, has to be focused on the principal objection of the respondent. The same is to the effect that the two of the sub-agreements were between Taiyo Membrane Corporation and the respondent Company whereas one sub-agreement was between Taiyo Membrane Corporation (India) and the respondent. The applicant is Taiyo Membrane Corporation Pty. Ltd. which is not a party to any of the said sub-agreements. Besides, it is contended that invocation of the arbitration clause was by the applicant who is not a party to the agreements. On the said basis, it is urged that there is no valid invocation of the arbitration clause and consequently there is no failure on the part of the respondent to appoint the arbitrator so as to warrant an order from the Court under Section 11(6) of the Act. It is also urged that one of the sub-agreements being between two Indian entities i.e. Taiyo Membrane Corporation (India) and the respondent Company any appointment of an arbitrator would fall outside the jurisdiction of this Court under Section 11(6) of the Act.

4. The above objections of the respondent have been sought to be met by the petitioner by filing a rejoinder affidavit to point out that the Letters of Intent with regard to the works allotted under the sub- agreements were issued in favour of Taiyo Membrane Corporation Pty. Ltd. That apart, several correspondences exchanged between the respondent Company and the Taiyo Membrane Corporation Pty. Ltd. with regard to the works covered by the sub-contracts have also been referred to and relied upon to contend that there is no doubt and ambiguity with regard to the fact that the Taiyo Membrane Corporation Pty. Ltd. and Taiyo Membrane Corporation are one and the same entity. Insofar as the agreements executed by Taiyo Membrane Corporation (India) is concerned, it is urged that the above position has also been clarified by subsequent communications exchanged between the respondent Company and Taiyo Membrane Corporation Pty. Ltd. with respect to the work covered by the agreement in which one of the parties is Taiyo Membrane Corporation (India).

5. While it is correct that there is some confusion with regard to the description of the parties in the sub-agreements; the legal notice(s); and the letter(s) of invocation; the L.O.Is. issued in respect of the works and the correspondences exchanged by and between the parties make it clear that the applicant Taiyo Membrane Corporation Pty. Ltd. and Taiyo Membrane Corporation are one and the same entity and the works under the sub- agreements had been allotted by the respondent to the said entity. In this regard it may also be relevant to note that under the Australian Corporation Act, 2001 (Section 57A) a Corporation includes a Company and a proprietary Company Limited by shares is incorporated as Pty. Ltd.

6. In the above circumstances the alleged mis-description will not affect the maintainability of the present application. As already observed, the Court does not find any ambiguity or inconsistency in the description of parties so as to non-suit the applicant-petitioner by dismissing its application on the above basis. The ambiguity, if any, in the description of the parties having been explained and the respondent Company itself having issued L.O.Is. and having exchanged subsequent correspondences with the applicant with regard to the works under the sub- contracts, though executed in the name of the Taiyo Membrane Corporation and Taiyo Membrane Corporation (India), the applicant's petition cannot be held to be not maintainable as urged on behalf of the respondent.

Non Reportable

Supreme Court of India

Taiyo Membrance Corp.P.Ltd vs Shapoorji Pallonji & Co.Ltd on 9 September, 2015

Bench: Ranjan Gogoi

Citation:(2016)1 SCC 736  

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Suit by proprietory concern -misdescription of plaintiff whether can be amended?

The counsel for respondent No. 1 cited J. D. Singh and Ors. v. Calcutta Port Trust, . It was held in this cited case that though a plaint in the name of an unregistered firm is legally non est for all purposes, yet, a plaint or a proceeding instituted in the trade or business name of a sole owner is not similarly deemed to be void for all future purppses. In cases of bona fide error where the mistake has been made not for any ulterior purpose that Court permits a rectification of the name so that the person suing is permitted even at a late stage to show himself as the claimant on record. Thus the case cited by the learned counsel for respondent No. 1 also accepts the proposition that the sole owner cannot file a suit in the trade name. However, the authority enables the rectification of the bona fide mistake.

8. The counsel for revision-petitioner cited Neogi Ghose & Co. v. Sardar Nehalsingh and Anr. . This case approves the proposition of permissibility of rectification. In this regard, the relevant facts were that on the objection being raised about the non-maintainability of suit as it was brought in the name of firm, the plaintiff, who was the sole proprietor of the firm, moved an application for amendment of plaint by inserting certain words before the name of firm, so as to indicate that the person carrying on business under the name and style of firm was the plaintiff. The learned Judge opined that the application should not be dismissed but having regard to the arguments, he expressed his preparedness to make the order directing that the amendment should be allowed upon the terms of payment of costs and holding that the plaintiff would be entitled to claim such relief if the suit had gone on from the time of his being joined as plaintiff.

Bombay High Court

Municipal Council vs K. Ravindra And Company And Ors. on 4 February, 2003

Equivalent citations: 2003 (6) BomCR 287, 2003 (2) MhLj 987, 2003(4)ALLMR672, , 2003(2)MhLj986, 

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