IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 637 of 2006()
1. MANGALAM PUBLICATION INDIA (PVT.)LTD.,
... Petitioner
2. BIJU VARGHESE, AGED ABOUT 38 YEARS,
Vs
1. M/S. DESIGN DIFFERENCE, 35/1586,
... Respondent
For Petitioner :SRI.GEORGEKUTTY MATHEW
For Respondent :SRI.V.L.SHENOY
The Hon'ble MR. Justice P.BHAVADASAN
Dated :09/06/2010
O R D E R
P.BHAVADASAN, J.
————————————-
RSA No.637 of 2006
————————————-
Dated 9th June 2010
Judgment
The defendants, who suffered a decree at the
hands of the lower Appellate Court, are the appellants
herein. The parties and exhibits are hereinafter referred to,
as they are available before the Trial Court.
2. It appears that the defendants had, by an
agreement evidenced by Ext.A1, engaged the plaintiff to
redesign their lay out and model. The work order was
issued by the defendants through the second defendant.
The remuneration agreed was Rs.1,75,000/- which had to
be paid in five instalments. According to the plaintiff, a sum
of Rs.50,000/- was outstanding from the defendants. In
spite of several demands made, that was not paid and
hence the suit was laid.
3. The defendants resisted the suit. One of their
contentions was that the suit was not filed by a competent
RSA 637/06 2
person and so, the suit was not maintainable. Another
contention was that the plaintiff was to prepare the re-
design of the lay-out to the satisfaction of the defendants,
but he was unable to do so. It was also contended that
Rs.50,000/- was to be paid only after the design was
accepted by the defendants and therefore, they denied the
liability to pay the said amount also. In the light of the
above contentions, they prayed for dismissal of the suit.
4. The Trial Court raised necessary issues for
consideration. The evidence consists of the testimony of
PW1 and documents marked as Exts.A1 to A8 from the
side of the plaintiff. The defendants examined DW1. No
documents were marked from their side.
5. The Trial Court found that the defendants are
liable to pay the amount as per Ext.A2 agreement, but
dismissed the suit on the ground that the plaintiff was not
competent to file the suit.
6. The plaintiff took up the matter in appeal as
AS No.184/04 before the District Court, Kottayam. The
RSA 637/06 3
District Court took the view that the finding of the Trial
Court that the suit was not filed by a competent person,
was unsustainable in law and accordingly reversed the
Judgment and decree of the Trial Court. The lower
Appellate Court also found that the appellant was entitled
to recover the amount claimed with 6% interest.
Accordingly, a decree was granted to the plaintiff.
7. The substantial question of law formulated in
the Second Appeal reads as follows :
“A. Whether the lower Appellate Court is justified in
holding that the suit by the plaintiff in its business name
is maintainable in view of Order XXX Rule 10 C.P.C.
Which has application only to a proprietary concern
being sued in its business name ?”
8. The learned counsel for the appellants
contended that the lower Appellate Court was not justified
in reversing the findings of the Trial Court. It is also
contended that there is no provision in the CPC enabling a
proprietary concern to institute a suit in its name against
RSA 637/06 4
the appellants.
9. The above contention is without any basis
whatsoever. It is well settled that a proprietary concern is
not a separate entity distinct from that of the
proprietor/proprietrix. It is always identified by its
proprietors. The lower Appellate Court has referred to the
decision in Ashok Transport Agency v. Awadhesh
Kumar (1998) 5 SCC 567) wherein a similar issue was
considered and it was held that a proprietary concern is
only a business name in which the proprietor of the
business carries on the business and a suit by or against a
proprietary concern is by or against the proprietor of the
business himself.
10. In the light of the above authoritative
pronouncement by the apex court, there is no merit in the
contentions taken by the appellants. The suit is filed by a
competent person. As far as the decree regarding the
amount is concerned, both the courts have concurrently
RSA 637/06 5
fond that the amount as claimed is due. That is a finding on
facts. It is not shown that the said finding is perverse. No
grounds are made out to interfere with the lower Appellate
Court’s Judgment and decree. The appeal is accordingly
dismissed. No order as to costs.
P.BHAVADASAN, JUDGE
sta
RSA 637/06 6
