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HIGH COURT OF CALCUTTA
D. N. Sinha, R. N. Dutt
JARDINE MILLS AGENCIES - Appellant
Versus
NEPTUNE NAVIGATION - Respondent
A. F. O. O. 152 Of 1962
Decided On : FEBRUARY 16, 1965
CIVIL PROCEDURE CODE - ORDER 30 RULE 10 - AMENDMENT OF PLAINT - MISDESCRIPTION OR SUBSTITUTION - DISTINCTION - SUIT AGAINST FIRM - FIRM NOT IN EXISTENCE - AMENDMENT TO SUBSTITUTE NAME OF SOLE PROPRIETOR - WHETHER PERMISSIBLE.
Fact of the Case:
Plaintiffs filed a suit against the defendant, described as a firm registered under the Indian Partnership Act, for damages caused to goods carried by the defendant. The defendant was served with the writ of summons, but refused service, stating that none of the partners named in the writ were partners of the defendant. The plaintiffs then applied for and obtained an order for service of the writ of summons upon the manager of the defendant. The manager also refused service, stating that he was not the person having control and management of the business of the defendant. The plaintiffs then applied for leave to amend the plaint to substitute the name of the sole proprietrix of the defendant. The application was contested by the defendant, who argued that it was a case of substitution and not misdescription, and that the claim was barred by limitation. The trial court dismissed the application.
Finding of the Court:
The court held that the amendment should have been allowed. The court found that the plaintiffs intended to sue the person or persons carrying on business under the name and style of Neptune Navigation at No. 133, Canning Street, Calcutta, which "Neptune Navigation" had entered into a contract of carriage, had issued a bill of lading in respect of which a protection Note and open insurance policy were issued. The court held that this was a case of misdescription and not substitution, and that the amendment should have been allowed.
Issues: Whether the amendment of the plaint to substitute the name of the sole proprietrix of the defendant was permissible.
Ratio Decidendi: The court held that the amendment should have been allowed because it was a case of misdescription and not substitution. The court found that the plaintiffs intended to sue the person or persons carrying on business under the name and style of Neptune Navigation at No. 133, Canning Street, Calcutta, which "Neptune Navigation" had entered into a contract of carriage, had issued a bill of lading in respect of which a protection Note and open insurance policy were issued. The court held that this was a case of misdescription and not substitution, and that the amendment should have been allowed.
Final Decision: The appeal was allowed and the order of the trial court was set aside. The court ordered that the application for amendment be allowed by striking out the words "a firm registered under the Indian Partnership Act and" after the words "Neptune Navigation" in the name and description of the defendant in the cause title of the plaint. The defendant was allowed to enter appearance on behalf of the defendant and file a written statement, which should be done within two months from the date of the order.
( 1 ) THIS is an appeal against an order passed by Datta J. on 10th April, 1962 whereby he dismissed an application made by the plaintiff for amendment of the plaint. The facts are shortly as follows: This appeal arises in connection with suit No. 659 of 1961 (Jardine Mills Agencies and another v. Neptune Navigation) which was filed by the plaintiff appellants in this Court on 1st of May, 1961 against the defendant respondents. The cause title as appearing in the original plaint was as follows: 1. Jardine Mills Agencies, a firm registered under the Indian Partnership Act and carrying on business at premises No. 4, Clive Row, Calcutta within the said jurisdiction.
( 2 ) ATLAS Assurance Co. Ltd. a Company duly incorporated in England with limited liability and also carrying on business at 4, Clive Row, Calcutta, within the said jurisdiction--Plaintiffs. Versus Neptune Navigation, a firm registered under the Indian Partnership Act and carrying on business at Premises No. 133, Canning Street, Calcutta, within the said Jurisdiction--Defendant. The subject matter of the plaint is as follows: It is stated that the defendant is a common carrier of goods for hire by inland navigation. On or about 9th April, 1960 the plaintiff No. 1 delivered to the defendant a consignment of 1750 bales of jute at Gouhati and the defendant agreed as such carrier to carry the said goods safely and securely by its steamer m, v. (Rajan) from Gouhati to Calcutta and there to deliver the same to plaintiff No. 1 or its order for hire. It is stated that the defendant issued a bill of lading GAV/c/1393/60 dated April 9, 1960 in respect of the carriage of the said goods. The said vessel arrived at Calcutta on 28th April 1960. It is further stated that on or about 2nd May, 1960 after 1205 bales had been delivered, a fire broke out in the said vessel as a result of which the balance of the goods were destroyed or damaged as a result of the negligence or default of the defendant or its servants or agents. The plaintiffs said that they had suffered damages to the extent of Rupees 45,028. 11 np. less salvage. The claim in the plaint is for a decree for that amount with interest and costs. On 25th May, 1961 M/s. Sandersons and Morgans, solicitors for the plaintiffs enquired of M/s. Fowler and Co. , solicitors, as to whether they would accept service of me writ of summons on behalf of Neptune Navigation, the defendant in the suit. On the 17th June, 1961 Messrs. Fowler and Co. , Solicitors, replied stating that they had received instructions from the defendant to accept service of the writ of summons on their behalf. On or about the 27th June, 1961 the writ of summons along with the copy of the plaint was served on Messrs. Fowler and Co. , by the Sheriff. On the very same day Messrs. Fowler and Co. , wrote to the Sheriff of Calcutta as follows:"in this suit we as Solicitors for Neptune Navigation had informed Messrs. Sandersons and Morgans that we had instruction to accept the service of the writ of Summons on behalf of the defendant. The Writ of Summons together with copy of plaint has today been served on us with a notice that it was being served on Bijoylal Chopra or Pannalal Chopra as partners of the defendant. In fact none of the said two persons is a partner of the defendant and as such we are unable to accept the service on their behalf. We, are, therefore, returning the writ herewith. . . . "2. Thereafter, the plaintiffs applied for and obtained an order under Order 30 Rule 3 of the Code of Civil Procedure, for service of the Writ of summons upon V. M. Sha as manager of Neptune Navigation. On the 27th September, 1961 the Writ of Summons along with the copy of the plaint was sought to be served upon the said V. M. Sha, but as he refused service, it was served by affixation on premises No. 133, Canning Street, Calcutta. On the 5th October, 1961 the said V. M. Sha wrote a letter to the Sheriff enclosing the Writ of Summons, stating that he was not the p
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