A suit in a trade name of a sole owner is not void for all purposes. In a case of bona fide error, the court permits rectification of the name. The court can permit a person to show himself as the claimant on record even at a late stage.

( 1 ) THESE are two applications, one made on behalf of the Trustees for the Port of Calcutta, inter alia - for recall of an order of attachment dated 18/07/1990 and the other on behalf of the award holder by way of execution of the decree passed upon the award by a garnishee attachment of rs. 3, 21,846. 94 out of the moneys held by the State Bank of India, and payment thereof.

( 2 ) THE award in the instant case was made by an Arbitrator nominated as per agreement between the parties by the President of the Indian Institute of Engineers. The only point in dispute in both the applications is whether the decree passed upon the award in the name of M/s. J. D. Singh and Co. can at all be put into execution in view of the fact that the same is only a business name of one J. D. Singh who is the proprietor and the sole owner of the said business.

( 3 ) MR. S. P. Majumdar, appearing for the Trustees for the Port of Calcutta, has said that under Order 30, Rule 10 of the Civil Procedure Code a person can be sued in the name of the business that he carries on. However there is no such enabling provision either in the Code of Civil Procedure or anywhere else in the general body of law permitting a person to sue, not in his name but abandoning the same, in the name or style of the business which he adopts for commercial purposes.

( 4 ) MR. Mujumdar has relied upon the case of Bhagawan v. Hiraji, being a Division Bench decision of the Bombay High Court reported in AIR 1932 Bombay, page 516. He has placed head-note 'a' thereof and has said that in the said decision it has been laid down that a person trading himself as a firm or in an assumed or trading name may be sued in such name under Order 30, Rule 10 but he cannot sue in that name.

( 5 ) MR. Mujumdar has thereafter submitted that a similar prohibition exists as against an unregistered firm suing in the firm name. He has referred to Section 69 of the Partnership Act and has referred also to the case of Sundarlal and Sons being a decision of Sabyasachi Mukherji, J. reported in AIR 1976 Cal 471 Mr. Majumdar has drawn my attention to the dicta in paragraph 4 of the said decision and the several authorities cited therein. In that paragraph it has been said that a plaint filed by an unregistered firm would not be a plaint at all. Thus all proceedings upon such a plaint would be non-existent and without jurisdiction in the eye of law. A decree passed on the basis of such a plaint cannot be put into execution and any attempted execution thereof can be resisted on a point of nullity or lack of jurisdiction even at the stage of execution itself.

( 6 ) MR. Majumdar next relied upon the Supreme Court decision of a Five Judge Bench in the case of Jagadish Chandra v. Kajaria Traders, reported in AIR 1964 SC page 1882 : (1964 All LJ 971) and submitted on the basis thereof that the bar of Sec. 69 is applicable not merely to suits and plaints in regular civil suits but the said bar is applicable as against all proceedings of whatever nature purportedly sought to be instituted in the firm name by or on behalf of an unregistered firm. Mr. Majumder argued on that basis that a reference attempted to be had at the instance of M/s. J. D. Singh and Co. would be incompetent since the claimant J. D. Singh has not instituted the proceeding before the Arbitrator in his own name.

( 7 ) THE point in the instant case is however not concluded by the above authorities. Though there is a specific bar against a suit in a partnership name by an unregistered firm contained in Sec. 69 of the Partnership Act, there is no such similar express bar against a person suing in his trade or business name.

( 8 ) THE Courts however do not permit such a suit or proceeding to be instituted in the business name where the sole proprietor keeps himself in the back-ground. The point at issue is what should be done in case such an error is committed by a person and a proceeding is instituted by, him not in his name bu