JUDGMENT :

Arijit Banerjee, J.

1. This appeal is directed against the Judgment and order dated June 22, 2022 whereby the appellant’s writ petition being W.P. 619 of 2018 was dismissed. The writ petitioner had challenged the refusal on the part of Kolkata Municipal Corporation (in short, ‘KMC’) to refund the Earnest Money Deposit (in short, ‘EMD’) on the ground that the same stood forfeited in terms of Clause 13 of the notice inviting the tender in question.

2. Although a point of law was not argued by the parties either before the learned Single Judge or before us, for the sake of completeness, I wish to briefly discuss the same. The writ petition was filed in the name of Esssem Enterprise which has been described as the petitioner in the cause title of the writ petition. In paragraph 1 of the writ petition it is stated that the petitioner is a sole proprietorship. In the affidavit affirmed in support of the writ petition, the deponent, Santanu Mukherjee, has stated that he carries on business in the name and style of ‘Essem Enterprise’.

3. It is settled law that a proprietorship concern is not a legal entity. No legal proceeding is maintainable in the name of such a concern. Any legal proceeding has to be instituted in the name of the proprietor of the business. In this connection one may refer to the following decisions:

(i) Svapn Constructions v. IDPL Employees Co-operative Group Housing Society Ltd. & Ors.; reported at 2005 SCC OnLine Del 1392.

(ii) Miraj Marketing Corporation v. Vishaka Engineering and Anr.; reported at 2005 (79) DRJ 209 (DB).

(iii) Bhagvan Manaji Marwadi v. Hiraji Premaji Marwadi.; reported at (1932) 34 BOM LR 1112.

(iv) Neogi Ghosh & Co. v. Sardar Nehal Singh & Anr., reported at (1930-31) 35 CWN 432.

(v) Jamunadhar Poddar Firm v. Jamunaram Bhakat & Ors., reported at (1943-44) 48 CWN 203.

(vi) Samrathrai Khetsidas v. Kasturbhai Jagabhai, AIR 1930 Bom 216.

Learned Advocate for the appellant relied on a decision of the Hon’ble Supreme Court in the case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, reported at 1969 (1) SCC 869. In that case the plaintiff had sued in his individual name. Subsequently he sought leave to amend the plaint to sue as proprietor of a Hindu Joint Family business. The Trial Court allowed the amendment. The High Court reversed such order. The matter having been carried to the Supreme Court, setting aside the order of the High Court, the Hon’ble Apex Court held:

(i) A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission and however late the proposed amendment, the amendment may be allowed if it can be made without causing injustice to the other side. Amulakchand Mewaram and Ors. v. Babulal Kanalal Teliwala, 35 Bom LR 569 and Purushottam Umeddiar and Co. v. M/s. Mani Lal and Sons, (1961) 1 SCR 982, followed.

(ii) There is no rule that unless in an application for amendment of the plaint, it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint.

(iii) Since the name in which the plaintiff instituted the action was merely a misdescription of the original plaintiff, no question of limitation arises and the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff, on the date on which it was originally instituted.

Learned Counsel also relied on the decision of a learned Judge of this Court in the case of J.D. Singh and Ors. v. Calcutta Port Trust repo