Ajay Kumar Banerji, J. - (1.) THIS revision filed by the defendant is directed against the order of the Civil Judge, Hapur dated 15 -10 -1990 whereby the said court has allowed the plaintiffs application (paper No. 52 -A) for amendment of the plaint by changing the name of the plaintiff in the suit, after its amalgamation. Brief facts so far as relevant for the purpose of the present revision, are, that M/s. Hindustan Brown Boveri Ltd. instituted suit No. 1050 of 1980 for recovery of certain sum of money as price of goods alleged to have been sold to the defendant. The suit is being contested by the defendant -applicant who is denying the contract for purchase and also denying that any goods were delivered to the defendant in pursuance of the alleged contract. The suit is still pending before the trial court. The plaintiff filed an application on 21 -1 -1990 for amendment of the plaint on the ground that in pursuance to the amalgamation of M/s. Asea Limited with the plaintiff the name of the Company has been changed from Hindustan Brown Boveri to Asea Brown Boveri Ltd. from 13 -10 -1989 and a fresh certificate of incorporation consequent, on the change of the name had been issued by the Registrar of Companies Maharashtra, Bombay. It was, therefore, prayed that the title of the plaint be changed and the word "Asea" be substituted in place of "Hindustan". An objection was filed on behalf of the defendant to the said application, inter alia, on the ground that the plaintiff Hindustan Brown Boveri Ltd. has no existence after this amalgamation. Besides, the said application was time barred as the same was filed after 90 days, of the amalgamation order.
(2.) THE said application and the objection were considered by the court below and by the order dated 15 -10 -1990, the said court has allowed the plaintiff's application for amendment of the plaint by changing the name of the plaintiff from Hindustan Brown Boverie Ltd. to Asea Brown Boveri Ltd. The court repelled the objection of the defendant that the application was time barred or that the application was not legally verified. It was held that amalgamation or merger of one corporate body cannot be equated with the death of a natural person and therefore, the provision of Order 22 R.3 C.P.C. does not apply to the present case. It was also held that the application was duly verified by Sri C.P. Pandit who has a power of attorney in his favour. Aggrieved by the said order, the defendant has filed the present revision in this court. Notice of this revision was issued to the plaintiff -respondent prior to admission and I have heard the learned counsel appearing for the defendant applicant as well as the learned counsel for the plaintiff respondent at the admission stage.
(3.) THE main submission of Shri S.P. Gupta, the learned senior counsel for the defendant -applicant is that the original plaintiff had no legal rights to file any application for amendment of the plaint as after the amalgamation the old plaintiff became non -existence and a new entity Asea Brown Boveri Ltd. came into being on 13 -10 -1989. The new plaintiff has no legal rights as that of the old plaintiff. The contrary view in the order of the court below was, therefore, manifestly illegal. In support of his submission, the learned counsel placed reliance upon the decisions: 1. Saraswati Industrial Syndicate Ltd. v. C.I.T. Haryana, Himahcal Pradesh Delhi 3, N. Delhi, : AIR 1991 SC 70. 2. Sri Chaudhary Cold Storage v. Ruby General Insurance Company Ltd., : AIR 1982 Cal. 124. 3. M/s. Economic Investment Corporation Ltd v. Commissioner, Income Tax, : AIR 1970 Cal. 389. In the case of Saraswati Industrial Syndicate (supra) the Supreme Court was considering the question whether the amalgamated company was not liable to pay tax under Section 41(1) of the Income Tax Act, 1961. In that case the Company M/s. Indian Sugar and General Engineering Corporation amalgamated with M/s. Saraswati Industrial Syndicate Ltd. Prior to amalgamation the former Indian Sugar Company had been allowed expenditure of certain amount in its earlier assessment. After amalgamation the later company claimed exemption of the said amount. The Supreme Court upheld the order of the Tribunal that the Saraswati Industrial Syndicate was a separate entity and a different assessee, therefore, allowance made to Indian Sugar Company could not be held to be the income of the amalgamated company for the purposes of Section 41(1) of the Act. In the course of the judgment it was observed as follows: The true effect and the character of the amalgamation largely depends on the terms of the scheme of merger. But there can be any doubt that when two companies amalgamate and merge into one the transferor company looses its entity as it ceases to have its business. However, their respective rights or liabilities are determined under the scheme of amalgamation but the corporate entity of the transferor company ceases to exist with effect from the date of amalgamation is made effective.;