M/s ACC Limited vs M/s Kamal Tyre & Building Material Suppliers

Through this revision under Article 227 of the Constitution of India, defendant has laid challenge to order dated 22.01.2018 of the trial Court allowing

the amendment of title of the suit by respondent-plaintiff.

Put pithily, respondent-plaintiff filed a suit for recovery of `28,50,541/- against the petitioner by affixation of ad valorem court fee of stamp of

`1,18,500/-. From the pleadings of the petitioner-defendant, it transpired to the respondent-plaintiff that correct name of the petitioner was “M/s

Associated Cement Companies Ltd.â€, which amalgamated into “M/s ACC Limitedâ€. Therefore, respondent-plaintiff moved an application for

making necessary correct qua name of the petitioner and nothing else.

After hearing both the sides, trial Court vide impugned order permitted the respondent-plaintiff to correct the name of the petitioner-defendant in the

title of the suit.

Learned counsel for the petitioner relying upon the judgments in K. Raheja Constructions Ltd. v. Alliance Ministries, 1995 AIR 1768, Prithi Pal Singh

and another v. Amrik Singh and others 2013(9) SCC 576, Sampath Kumar v. Ayyakannu and another, 2002(4) R.C.R.(Civil) 566, Shiv Gopal Sah @

Shiv Gopal Sahu v. Sita Ram Saraugi and others , 2007(2) R.C.R.(Civil) 679 and Sunil and others v. Jai Prakash and another in Civil Revision No.3147

of 2012, decided on 02.11.2012 inter alia contends that the respondent-plaintiff had filed the suit in the year 2008, but moved the application for

correction in the name of the petitioner-defendant at a very belated stage in the year 2017, which ought not to have been allowed by the trial court

appreciating the fact that cause of action of the respondent-plaintiff against the petitioner-defendant had become time-barred. The trial Court also

failed to appreciate that application for correction of the name of the petitioner was moved by the respondent at extremely belated stage to fill up

lacuna causing great prejudice to the petitioner. In case, respondent-plaintiff would have exercised due diligence, in that eventuality, could move such

application for correction in the name of the petitioner much earlier in time.

Having given considerable thought to the submissions made by learned counsel for the petitioner, I find the instant revision completely devoid of any

merit for the reasons to follow.

Respondent-plaintiff has not claimed any change in his relief. His simpliciter suit is for recovery of certain amount against the petitioner upon which he

has paid ad valorem court fee at the initial stage. Even from the proposed correct of the name of the petitioner, allowed by the trial Court, nature of

the suit has not been changed. Therefore, no prejudice is being caused to the petitioner.

At the time of filing of the2of 5suit, there was mis-description of the name of the petitioner, which may be a typographical mistake also. The trial

Court has specifically observed that the petitioner-defendant has raised a self-contradictory plea inasmuch as it has alleged that suit of the respondent-

plaintiff is against a non-entity, whereas at the same time, it is appearing on behalf of the alleged non-entity.

For ready reference, relevant observations of the trial Court are reproduced herein under:

“14. The contention of the defendant is not that it has been wrongly impleaded and some other company had transactions with the plaintiff. The

defendant admits that it is the firm with which the plaintiff had transaction. In such a case even if the plaintiff has wrongly spelled the name of the

defendant firm and now wants to get the same corrected, even at a belated stage of evidence of the defendant, such an amendment would not cause

any prejudice to the defendant. The same does not cause any change in the nature of the suit. It is simply an effort to correct the nomenclature of the

parties. The defendant has raised a self contradictory plea by alleging that the suit has been filed against a non-entity and at the same time the

defendant has been appearing on behalf of the said nonentity and has been strongly contesting the suit. In fact the name of the defendant has kept on

changing on account of amalgamation of business and the defendant cannot be allowed to outsmart the course of justice by raising a contention that at

present the name of the company is different or there was a spelling mistake in the name. If A company merges into B Company, then both cannot be

said to be separate legal entities. If the plaintiff has wrongly named all the 3 Companies as defendant, the defendant should be honest enough to point

out the correct name. But even at this stage the defendant is trying to play hide and seek, which is not permissible in the Court of Law. essentially the

same and only nomenclature is different would not cause any prejudice to the rights of the parties and would assist in correct identification of the

parties. Also, the same would not change the nature of the suit, in any manner, as held in Hanif's case (supra). Also, the same would not prejudice the

rights of the defendant as held in Baljeet's case (supra). Hence, the amendment deserves to be allowed. Also, as held in M/s Marble Art's case

(supra) relied upon by the defendant, the amendment deserves to be allowed as it does not injustice to the defendant and is necessary for the purpose

of determining the real question in controversy between the parties. The test of due diligence as held in Sunil's case (supra) and Ajmer's case (supra),

relied upon by the defendant, is not applicable in the present case, as the defendant is bent upon, not to clarify the correct nomenclature with which it

should be impleaded.

For the reasons recorded above, the amendment in the title deserves to be allowed. The same is hereby allowed.â€​

Application of the respondent-plaintiff though was filed at a belated stage, but the same by in itself does not give any legal right to the petitioner to

object it, more particularly, when the same would help the Court in effective adjudication of the real controversy between the parties.

As far as argument of the learned counsel for the petitioner qua point of limitation is concerned, the same has also no force for the simple reason that

no new relief being time-barred has been claimed by the respondent- plaintiff, rather simple correction in the name of the petitioner was sought.

Facts and circumstances of the judgments, referred to above, relied upon by learned counsel for the petitioner are not identical to the facts of the

present case, therefore, no benefit of the same can be given to the petitioner.

I have gone through the impugned order dated 22.01.2018 of the trial Court and find no illegality or perversity in the same. Hence, the petition is

dismissed.