Balwantrao Ambaram vs Baldeodas Manilal and Co.

Samvatsar, J.—This revision-application is filed by the defendants Balwantrao Ambaram-

Messrs Baldeodas Manilal & Company was a partnership firm carrying on business at Ujjain and bad dealings with Messrs Balwantrao Ambaram. In course of these dealings, the defendants executed two Hundies each for Rs. 1,500 in favour of Baldeodas Manilal and Company which were to mature in the year 1948. It appears that before the date of the maturity, the partnership of Baldeodas Manilal and Company was dissolved and all the recoveries were assigned to one Baldeodas Manilal; that a farther right was specifically given to him to carry on business in future in the old firm-name:

Baldeodas Manilal thereafter associated his two brothers Natvarlal and Jivanbhai in the business and carried on business in the old name Baldeodas Manilal and Company.

The plaintiffs filed a suit against the defendants to recover a sum of Rs. 3,000 and interest due from them on the basis of the Hundies which they had executed. The plaintiff filed this suit in the name of Baldeodas Manilal and Company. The defendants contested the claim on the ground that the consideration for the Hundies was the balance due on wagering transactions and therefore not recoverable through the court of law. They also contended that the firm Baldeodas Manilal and Company was dissolved before the suit was filed and the suit which was filed under the signature of Baldeodas Manilal alone was not maintainable and that the plaint should be signed by all the former partners.

The trial court framed issues and recorded evidence which the parties adduced. In the end, the trial Court held that the suit was properly framed but dismissed the claim holding that the consideration for Hundies was balance due on wagering transactions.

The plaintiffs preferred an appeal to the District Judge, Ujjain. During the pendency of the appeal, the plaintiffs applied for amendment of the title of the plaint. They stated that the plaintiff firm was, on the date of the institution of the suit, a joint business of Baldeodas and his two brothers, all of whom were members of a joint Hindu family; that technically a suit by the joint family firm could not be filed in the firm-name under the provisions of Order 30, Rule 1, C.P.C.; that the names of the owners viz. Baldeodas, Natvarlal and jivanbhai may therefore be allowed to be added as co-plaintiffs.

The prayer for amending the plaint was opposed by the defendants, but it was eventually allowed by the learned District Judge, Ujjain on payment of Rs. 100 as costs. Aggrieved by this order allowing amendment, the defendants have preferred this revision-application.

Mr. Waghmare, learned counsel for the petitioners, contended that the plaintiffs were not entitled to file a suit in the firm-name as Messrs Baldeodas Manilal and Company was dissolved before the suit was filed and was no longer in existence; that the prayer of the plaintiffs for addition of the names of the three individuals Baldeodas, Natvarlal and Jivanbhai was belated and was made after the claim was barred by time; that Sec. 22 of the Indian Limitation Act applied to the ease and St was not permissible to allow the plaintiffs'' prayer to add the individual partners as co-plaintiffs at this late stage.

The first question to be considered, is whether it is really case of addition of new plaintiffs or the plaintiffs are merely seeking to correct the description in the plaint.

A firm like a corporation or a company, is not a juristic person but is only compendious expression of the names of the individuals who for the time being are its partners. A firm is entitled to file a suit either in its own name or in the names of its partners. Under the provisions of Order 30, Rule 1, it is a partnership firm alone which is entitled to file a suit in the firm-name. A suit by a Joint Hindu Family firm can either be brought in the name of the manager or in the individual names of the co-parceners.

In this case, the original partnership firm carrying on business in the name of Baldeodas Manilal and Company has been dissolved, but its recoveries have been assigned to the plaintiff Baldeodas, Under the terms of the deed of dissolution Baldeodas is also allowed to carry on business in the name of the dissolved firm, Baldeodas associated his brothers and carried on business in the name of Baldeodas Manilal and Company jointly with them. From this, it is clear that Baldeodas Manilal and Company, as it existed on the date of the suit was a different concern from the dissolved partnership firm carrying on business in that name, but as assignees of the claim due to that firm they are certainly entitled to maintain the suit.

Baldeodas Manilal and Company existed on the date of the suit as a concern of the three brothers Baldeodas, Natvarlal and Jivanbhai, the names of all of whom were disclosed in para No. 6 of the plaint. Messrs Baldeodas Manilal and Company was therefore not a non-existing concern when the suit was filed but it was the business of three brothers who were members of the Joint Hindu Family, though not being a partnership firm, it could not maintain the action in its business-name. The proposed amendment was intended to remove the defect in the description in the title of the plaint and in my opinion the appellate court, has not acted illegally or with material irregularity in allowing the plaintiffs to do so.

A similar case came up for consideration before the Bombay High Court in Amulakchand Mewaram Vs. Babulal Kanalal Taliwala, In that case also a joint Hindu Family firm filed a suit in the firm-name and as this could not be done under the provisions of Order 30, Rule 1, C.P.C. applied to amend the plaint by substituting the names of the individual proprietors. The amendment was allowed. It was held by the Division Beach, that it was only a case of mis-description of the plaintiff and not a case where it could be said that the action was commenced by a non-existing person. The learned Judges of the Division Bench observed 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 the none-existent person, or whether it is merely a mis-description of existing person. 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.

Mr. Waghmare, learned counsel for the petitioners distinguished the Bombay case on the ground that the suit in that case was brought by a firm which was in existence and it was not a dissolved firm. The distinction suggested to me is without difference so far as the facts of the present are concerned. Messrs Baldeodas Manilal and Company are in existence and are carrying on business which belongs to three individuals Baldeodas, Natvarlal and Jiwanbhai. The suit filed by them in the firm-name cannot therefore be said to be a suit filed by non-existing persons.

Mr. Waghmare laid emphasis on the fact that the original partnership firm was dissolved and no longer in existence. No material difference is made in the situation by this fact. Baldeodas Manilal who was a partners in that firm and to whom the assets of the firm were assigned is, one of the persons whose name is added by the amendment and even in the absence of the assignment he could have brought a suit to recover the money due to dissolved firm in his own name or in the firm-name. I am supported by the observations of Vivian Bose J. in AIR 1937 314 (Nagpur) which are as under:--

It is argued on behalf of the defendants that Order 30, Rule I C.P.C. indicates that a suit can be filed in the name of the firm by some of the partners only if the partnership is existing at the date of the filing of the suit. The argument has no force in view of the finding that the firm was not dissolved by reason of the insolvency of one of its partners. But even if it has been dissolved, the effect of dissolution is not to render the firm non-existent. It continues to exist for all purposes necessary for its winding up. One of these is of course the recovery of money due to it by (sic) or other wise.

It is however unnecessary to pursue the matter further as I am of the opinion that Baldeodas Manilal and Company was on the date of the suit not a non-existing firm but was the name in which the three brothers Baldeodas, Natvarlal and jiwaobhai carried on business. The lower Court was therefore justified in allowing the amendment prayed for. Section 22 of the Indian Limitation Act does not, apply to such a case.

There is no force in this revision-application and it is hereby dismissed with costs.