B.D.GUPTA,J. - (1.) JUDGEMENT The following question has been referred for being answered :- "Whether a limited company falls within the meaning of the expression person as used in R. 10 of Order 30 of the Code of Civil Procedure?" The circumstances in which this question arose have been set forward in the order of reference dated the 17th of August, 1967, passed by a Division Bench of which I was member, but may again be briefly summarised as follows :
(2.) MURLI Dhar Verma, the predecessor-in-interest of the respondents to this appeal, instituted the suit giving rise to this appeal for recovery of money as damages and interest. The sole defendant to the suit, as originally filed, was described as follow :- "Rajendra Prasad Oil Mills, Kanpur, through the Director Bishan Dayal, son of Lala Kishori Lal......" As a result of an application for amendment, which was allowed, the description of the defendant was modified as follows :- "Rajendra Prasad Oil Mills, Kanpur, through - (1) Bishan Dayal, son of L. Kishori Lal, (2) Rameshwar Prasad, son of Lala Kishori Lal, and (3) Sunder Lal, son of L. Ram Bilas. . . . . Directors of the said Mills." Only one written statement was filed, which, according to the heading, was the written statement of Rameshwar Prasad. At the very beginning thereof stands recorded what has been described therein as the preliminary objection that "Rajendra Prasad Oil Mills, Kanpur, belonged to N. K. Industries Ltd., Kanpur, a limited company registered under the Indian Companies Act, of which Lal Rameshwar Prasad was the Managing Director, and the frame of the suit was bad as it was liable to be dismissed on this ground alone. This objection gave rise to the first issue which was as follows :- "Has the suit been badly framed?" The learned Civil Judge took the view that the suit was not badly framed and after recording his findings on the other issues, which related to the merits of the controversy between the parties, decreed the suit for Rs. 23,743/1/- "against the defendant" together with proportionate costs and pendente lite and future interest. 2A. "Rajendra Prasad Oil Mills" and Rameshwar Prasad thereupon filed this first appeal praying that the decree of the court below be set aside and plaintiffs suit be dismissed. When the appeal came up for hearing the first contention raised by Mr. Jagdish Swaroop for the appellants was that no suit could be filed against "Rajendra Prasad Oil Mills" by reason of the fact that "Rajendra Prasad Oil Mills" was not a legal entity. Keeping in view the arguments raised in support of the above contention the Bench framed the question which is before us. 2B. Rule 10 of Order 30 C. P. C. runs as follows :- "Any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name, and, so far as the nature of the case will permit, all rules under this Order shall apply." There has been no controversy that "Rajendra Prasad Oil Mills" was an undertaking owned by Messrs. N. K. Industries, a limited company functioning under the Indian Companies Act. The learned Civil Judge appears to have relied on the provision quoted above in support of his view that since "Rajendra Prasad Oil Mills" had entered into the disputed contract with Murli Dhar Varma and all dealings relating to the said contract had taken place between Murli Dhar Varma and "Rajendra Prasad Oil Mills" there was no legal bar against the plaintiff instituting the suit against "Rajendra Prasad Oil Mills." The contention on behalf of the appellants, however, is that on a correct interpretation of the provisions contained in Rule 10 of Order 30 C. P. C. the case of a limited company must be excluded from its purview and that notwithstanding that the fact that such a company may be carrying on business in a name or style other than its own, recourse cannot be had to the provisions contained in the aforesaid rule with the result that, in view of the fact that "Rajendra Prasad Oil Mills" was arrayed as the sole defendant, the suit must be dismissed as not maintainable. There is no controversy that "Rajendra Prasad Oil Mills" is not a legal entity and that, unless the provisions contained in Rule 10 of Order 30 C. P. C. may be availed of as applicable, the suit which has given rise to this appeal was not maintainable. The contention on behalf of the appellants is that though a limited company falls within the definition of the expression person, as embodied in the General Clauses Act, it cannot be held to fall within the purview of the expression person in Rule 10 of Order 30 of the Code of Civil Procedure by reason of the limitation contained in the definition itself viz., "Unless there is anything repugnant in the subject or context." Reference has been made to the Companies Act and it has been urged that the provisions contained in Section 147 of that Act are repugnant to the notion of a limited company carrying on business in a name or style other than its own name, Section 147 of the Companies Act need not be reproduced. Suffice it to say that the provisions contained therein provide for the mode in which the name of a company along with the address of its registered office is required to be published in all matters connected with the business carried on by that company either at the registered office or elsewhere. The provisions also declare that failure to comply with the above requirements, as incorporated in clause (1) would constitute an offence and also lay down the penalty for the commission of such offences. It would, therefore, appear that the provisions contained in the Companies Act do not permit a limited company to carry on business in a name or style other than its own name. The said Act further declares that if a company does so, it would constitute an offence punishable with penalty laid down by the Act itself. The relevant part of section 3 of the General Clauses Act (X of 1897) runs as follows :- "In this Act in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context, - (42) person shall include any company or association or body of individuals, whether incorporated or not." Keeping in view the above definition, the question which, to my mind, is pertinent is as to whether the Code of Civil Procedure contains anything in the subject or context which is repugnant to the notion of a limited company falling within the purview of the expression person in Rule 10 of Order 30 of the Code of Civil Procedure. No such thing has been pointed out so far as the Code of Civil Procedure is concerned. Even if, as a result of the provisions contained in Section 147 of the Companies Act, such a notion were held to be repugnant to the provisions contained in that Act, I do not consider it as having any bearing on the question about the meaning to be assigned to the expression person occurring in the Code of Civil Procedure. Learned Counsel for the appellants relied upon the decision of the Supreme Court in the case of Dulichand Luxminarayan v. Commr. of Income Tax, Nagpur, AIR 1956 SC 354 in which it was held that the definition of the word person in the General Clauses Act would not be imported in construing that expression in Section 4 of the Indian Partnership Act because doing so would be totally repugnant to the subject of partnership law. This decision recognises the principle that in interpreting the use of the expression person in an Act the definition of that expression in the General Clauses Act would not apply in case it was repugnant to the content of that Act, It may, therefore, follow that, in construing the expression person whenever used in the provisions contained in the Companies Act, Rajendra Prasad Oil Mills may have to be excluded from the purview of the expression by reason of the fact that the provisions contained in Section 147 of the Companies Act make out that it is not permissible for a company to carry on business in a name or style other than its own name, but it does not follow that, even though the C. P. C. contains nothing to indicate the aforesaid repugnancy, the case of a company carrying on business in a name or style other than its own must be held to be excluded from the purview of the expression person in Rule 10 of Order 30 of that Code. The decision of the Supreme Court in the case of AIR 1956 SC 354 (supra) thus lends no assistance to the contention of learned counsel for the appellants. It does not appear to be the law that the result of the provisions contained in Companies Act, whereby limited companies are prohibited from carrying on business in any name or style other than their own, is that the expression person wherever used in the Code of Civil Procedure must be construed as excluding the case of a company carrying on business in a name or style other than its own. Rule 10 embodies a beneficent provision providing for enforcement of claims against parties which, instead of carrying on business in their own name, may be carrying on business in an assumed name, and there appears no good reason to exclude a limited company from the purview of that rule and deprive a party, which may have dealt with a company which carried on business in an assumed name of the right of enforcing its claim by a suit in which the defendant is described under the assumed name which was used by the real party in its business dealings with the plaintiff of the suit. Significance must be attached to the fact, firstly, that the expression person has not been defined in the Code of Civil Procedure and, secondly, that the expression any qualifies the expression person in rule 10 of Order 30 of that Code. It appears obvious that the legislature did not intend to stultify the powers of a court to grant relief against a party by refusing to treat a claim as maintainable on the ground merely that the suit had been brought against an assumed name, even though that party had been carrying on business in that assumed name.
(3.) AT the time the appeal was heard by the Division Bench which referred the question which is before us today, it was stated by learned counsel for the parties that they had been unable to find any reported decision recorded by any Court in India or any Court in England on the parallel provision contained in Order 48A Rule 11 of the Supreme Court Rules directly bearing on the question whether or not the case of a limited company was excluded from, or included in, the provisions contained in Rule 10 of Order 30 of the Code of Civil Procedure. At the hearing before this Full Bench, however, quite a few cases have been brought to our notice which support the view taken by the learned Civil Judge, as also the decision of a learned single judge of this court holding that a limited company would be included within the meaning of the expression person used in Rule 10 of Order 30 of the Code of Civil Procedure.;