JUDGMENT
Sanjib Banerjee, J.
1. The same petitioner has sought winding up of three companies on the ground of the companies being unable to pay their debts. The matters in issue are identical except as to the quantum of claim in the three petitions.
2. The petitioner claims to have supplied divers varieties of Indian Made Foreign Liquor (“IMFL”) to the companies for a substantial period. The petition was filed in the name of a proprietorship concern of which one Erach Medhora was formerly the prop’rietor. The petitions were verified by the widow of the erstwhile proprietor describing herself as the “proprietress of the petitioner-company”. A point was taken in the affidavits filed by the companies that the proprietorship concern was non-existent upon the death of Erach Medhora and that the petitions were not maintainable. Applications were made for amending the cause titles relating to the three petitions. The companies opposed the applications on the ground that the claim being the subject-matter of the petitions, would be barred as on the date of making the application for amendment. The companies also contended that in the absence of a succession certificate of the deceased proprietor being produced, the amendments could not be allowed nor could the petition be taken up.
3. The amendment applications were allowed on the ground that there was misdescription in the cause titles. The objections taken by the companies were, however, permitted to be carried over till the petitions were heard for admission. In one of the matters, the concerned company preferred the appeal which was dismissed with the observation that the amendment was permitted subject to the concerned company being permitted to carry all objections to the hearing stage.
4. At the outset, the company submits that the petition is not maintainable as it is only the order of amendment passed on April 16, 2007, which should be reckoned as the date of filing of the petitions and on such date, the claims in each case would be barred by the laws of limitation. The judgments reported at Neogi Ghose and Co. v. Sardar Nehal Singh 35 CWN 432; Mangharam Rupchand Firm v. Haji Sorik Punhoo AIR 1939 Sind 172 and Bhagvan Manaji Marwadi v. Hiraji Premaji Marwadi AIR 1932 Bom 516, are placed by the company in support of its contention that even if the amendment is allowed, the petition should be deemed to have been filed on the date of the amendment or, at the highest, on the date of the making of the application for amendment.
5. In Neogi Ghose and Co. v. Sardar Nehal Singh 35 CWN 432, a suit was instituted for price of goods sold and for services rendered. The plaintiff carried on business in a name other than his own name. When the suit came for hearing, the defendant objected that a suit instituted by a person in his business name was not maintainable. Upon such objection being taken, the hearing of the suit was adjourned for a fortnight during which the plaintiff applied for amendment. The amendment was allowed with some reservation but it was recorded in such order that the plaintiff would only be entitled to such relief as he would be entitled to claim if the suit had gone on from the time of his being joined as plaintiff.
6. The Sind case (Mangharam Rupchand Firm v. Haji Sorik Punhoo AIR 1939 Sind 172) relied on Neogi Ghose and Co. v. Sardar Nehal Singh 35 CWN 432 principle. In the Bombay case (Bhagvan Manaji Marwadi v. Hiraji Premaji Marwadi AIR 1932 Bom 516), it was held that where there was no evidence that a person was a partner with his father in the business carried on by the father in the name of a firm, he was not entitled after his father’s death to execute a decree obtained by the father in the name of the firm unless he obtained a succession certificate. The companies in the present matter urge that in the absence of any succession certificate having been produced, the petitions cannot be carried any further.
7. The petitioner relies on a Division Bench judgment reported at Manilal and Sons v. Purushottam Umedbhai and Co. , where it was held that the misdescription of the plaintiff and any consequent defects in the signature, verification and presentation of a plaint may be treated as technical defects or irregularities of procedure. Neogi Ghose and Co. v. Sardar Nehal Singh 35 CWN 432 and Mangharam Rupchand Firm v. Haji Sorik Punhoo AIR 1939 Sind 172 referred to above were noticed by the Division Bench and it was held that the Neogi Ghose and Co. v. Sardar Nehal Singh 35 CWN 432, view was too harsh a view in not treating the case as a case of misdescription.
8. The petitioner relies on Purushottam Umedbhai and Co. v. Manilal and Sons , where the Supreme Court noticed a number of instances where the Neogi Ghose and Co. v. Sardar Nehal Singh 35 CWN 432, view was not followed and quoted with approval a dissenting view taken by the Madras High Court. The petitioner also relies on a judgment reported at Jatindra Kumar Dass v. Dhirailal Vrajlal Kanakia :
25. On the basis of the above Mr. Sen argued that in the instant case, admittedly, the firm, i.e., the partners of the firm are joint tenants of the plaintiff in respect of the said godown. The defendant is liable to pay the rent to the plaintiff in respect of the said godown as such a joint tenant, i.e., joint promisor and/or as a partner. The admitted failure of the firm to pay rent to the plaintiff is an act within the meaning of Section 25 of the Indian Partnership Act, 1932, read along with Section 2(a) thereof which reads as follows:
2. In this Act, unless there is anything repugnant in the subject or context,-
(a) An “act of a firm” means any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm’.
9. The petitioner has relied on the licence granted by the excise authorities in favour of the widow of the erstwhile proprietor. The widow also obtained registration in her name from the Commercial Tax Officer, West Bengal and registration under the provisions of the Central Sales Tax (Registration and Turnover) Rules, 1957. It is stated that the deceased proprietor had two heirs, his widow and son. The physically challenged son has not opposed the mother obtaining licence to carry on the business of the firm as proprietress thereof.
10. There is no substance in the technical objection raised by the companies. The companies have not been able to dispute that the only heirs of the deceased proprietor are his widow and son and there is no dispute between the widow and son as to the claims found in the petitions. The Division Bench judgment of this court and the Supreme Court judgment would show that, at the highest, the mistake of the kind sought to be removed by the amendment was in the nature of misdescription that would be a procedural irregularity and not a substantive defect that would rob the opponent of any vital right that may have vested in such party. The companies’ assertion that the matter does not have to be decided conclusively here and that the objection is part of the defence that would warrant the petitions not being received, is also not tenable as this is purely a question of law relating to procedure and can be conclusively answered in proceedings of summary nature without requiring a protracted trial on the issue.
11. The company next relies on the alleged vagueness of the claims, of them being unsubstantiated and a substantial portion thereof being apparently barred by the laws of limitation.
12. There is no vagueness about the claims. Since the goods required excise passes to be issued for their movement, the petitioner has relied on such excise passes. The petitioner has also relied on the documents evidencing delivery of the goods covered by the invoices and the companies have not been able to dispute such documents.
13. It can now be appreciated as to why the companies asserted that the date of the amendment or the date of making of the amendment application should be the date reckoned as the date of institution of the respective petitions. The last payment in each case appears to have been made sometime in the middle of the year 2002. If the company in each case were successful in having it recorded that the date of the amendment or the date of filing of the amendment application were to be reckoned as the date of institution of each petition, it could claim that the petition was filed after a lapse of three years from the last date of payment made by the company in each case.
14. However, as it has been held that the mistakes were in the nature of misdescription and as such the amendments should relate back to the date of institution of the petitions and not the date on which the orders were passed on the amendment “application or the dates on which the amendment applications were filed, there is no merit in the ground of limitation urged. It appears from the statutory notice which has also been relied upon by the companies in the affidavits filed on their behalf, that payments were made from time to time on account of a single bill or a few bills clubbed together. It appears that a running account was maintained by the petitioner and the concerned company in each case and as such, for the purpose of limitation, the last date of payment should be reckoned.
15. In C.P. No. 486 of 2004, the last payment was made by the company on August 30, 2002. The petition was filed on October 5, 2004 and the company has not been able to dispute the outstanding amount of Rs. 2,70,277 by showing that any payments in addition to those recorded in the statutory notice had been made by the company. Accordingly, C.P. No. 486 of 2004 is admitted for the principal sum of Rs. 2,70,277 together with interest thereon at eight per cent, per annum from May 31, 2002, (the day following the last date of payment). If the company makes payment of such sum inclusive of interest within eight weeks from date, Company Petition No. 486 of 2004 will remain permanently stayed. In default, the petition will be advertised once in The Statesman and once in Aajkal. The publication in the official gazette will stand dispensed with. The advertisements should indicate that the matter would be returnable on the next available court day four weeks after the date of publication.
16. In C.P. No. 495 of 2004, the last payment was made by the company on August 3, 2002. The petition was filed on October 7, 2004 and the company has not been able to dispute the outstanding amount of Rs. 3,52,373 by showing that any payments in addition to those recorded in the statutory notice had been made by the company. Accordingly, C. P. No. 495 of 2004 is admitted for the principal sum of Rs. 3,52,373 together with interest thereon at eight per cent. per annum from August 4, 2002 (the day following the last date of payment). If the company makes payment of such sum inclusive of interest within eight weeks from date, Company Petition No. 495 of 2004 will remain permanently stayed. In default, the petition will be advertised once in The Statesman and once in Aajkal. The publication in the official gazette will stand dispensed with. The advertisements should indicate that the matter would be returnable on the next available court day four weeks after the date of publication.
17. In C.P. No. 496 of 2004, the last payment was made by the company on June 21, 2002. The petition was filed on October 7, 2004 and the company has not been able to dispute the outstanding amount of Rs. 3,96,771 by showing that any payments in addition to those recorded in the statutory notice had been made by the company. Accordingly, C.P. No. 496 of 2004 is admitted for the principal sum of Rs. 3,96,771 together with interest thereon at eight per cent. per annum from June 22, 2002 (the day following the last date of payment). If the company makes payment of such sum inclusive of interest within eight weeks from date, Company Petition No. 496 of 2004, will remain permanently stayed. In default, the petition will be advertised once in The Statesman and once in Aajkal. The publication in the official gazette will stand dispensed with. The advertisements should indicate that the matter would be returnable on the next available court day four weeks after the date of publication.
18. Urgent photostat certified copies of this judgment, if applied for, be issued to the parties upon compliance with requisite formalities.