- (1.) Appellant/plaintiff filed a suit for recovery of price of goods sold and delivered in 2004. The defendant was sued in the name of the firm "Ball Roll Corporation". The firm was, however, described as a sole proprietorship concern of one Gopal Rathi. The appellant/plaintiff applied in 2009 for amendment. Mr. Gopal Rathi also applied for striking out of his name. He contended, he had no nexus with Ball Roll Corporation and Ball Roll corporation was a partnership concern of which the proposed defendants were partners. By the application for amendment the appellant/plaintiff the sole defendant was sought to be described as a partnership firm and the partners of such firm were sought to be brought on record as the defendant nos. 2 to 4. The learned Single Judge disallowed the application for amendment giving rise to the present appeal.
(2.) Mr. Swarnendu Ghosh, learned Counsel appearing in support of the appeal, contended, the suit was filed against Ball Roll Corporation. He contended, Ball Roll Corporation was misdescribed as a sole proprietorship concern of Mr. Gopal Rathi which in fact was not so. He sought to rely on the documents annexed to the plaint to demonstrate that the appellant/plaintiff had dealings and transactions with Ball Roll Corporation and not Mr. Gopal Rathi as the sole proprietor of Ball Roll Corporation. In support of his contention that a misdescription could be allowed to be amended, he relied on (Mohideen v. V.O.A. Mohomed, 1955 AIR(Mad) 294).
(3.) Mr. Ghosh relied on (T.P. Palaniswami & Anr. v. Deivanaiammal & Ors, 1984 AIR(Mad) 19) to contend that negligence or carelessness or belatedness need not be put against a party seeking amendment if the facts and circumstances of the case would warrant allowing of the amendment for the purpose of adjudicating the controversy between the parties comprehensively in the same lis.;