Siya Ram Kumar Eng. Works Pvt. Ltd. vs Sandhaya Adlakha and others

J.M. Malik, J.

CM No. 11284/2007 (delay) in CRP No. 144/2007

This is an application for condonation of delay in refiling the petition. For the reasons stated therein, the application is allowed.

CRP No. 144/2007

CRP No. 145/2007

This order shall dispose of above said two revision petitions, which arise out of the common order passed by the learned Civil Judge dated 15.03.2007 wherein the applications under Order 1 Rule 10 CPC moved by the petitioner/defendant were allowed but it was held that the case was squarely covered u/s 21(2) of the Limitation Act. In the applications, it was averred that the name of the defendant stood changed from M/s Siya Ram Kumar Eng. Works Pvt. Ltd. to M/s KEW Precision Parts Pvt. Ltd. w.e.f. 05.02.2002. The respondent/plaintiff was intimated about the same vide letter dated 08.04.2002. It was prayed that since the respondent/plaintiff did not amend the plaint accordingly, therefore, the plaint against a dead firm was not maintainable. It was further prayed that plaintiff be asked to amend the plaint and name of M/s KEW Precision Parts Pvt. Ltd. be substituted/added in the array of defendant.

The plaintiff/respondent contested these applications. It was objected that the complete record to show the change of the name was withheld. Again, no proper information was conveyed to the respondent/plaintiff for the change of the name.

During the pendency of this case, the petitioner/defendant placed on record the memorandum and article of association of KEW Precision Parts Pvt. Ltd. The certificate of incorporation which was issued on 05.02.2002, mentioned that the name of M/s Siya Ram Kumar Engg. Works Pvt. Ltd. stood changed to M/s KEW Precision Parts Pvt. Ltd. Provisions of Section 21 of Companies Act were complied with. Approval of Central Govt. was also obtained.

The trial court came to the conclusion that this case is not covered by the proviso appended to Section 21(1) rather this is a case which is squarely covered by Section 21(2) of the Limitation Act.

I have heard the counsel for the petitioner at the admission stage. The learned counsel for the petitioner vehemently argued that this case comes within the purview of the proviso appended with Section 21 of the Limitation Act. He opined that Section 21(2) has got no application to the present case. Section 21 in its entirety is reproduced as follows:-

Effect of substituting or adding new plaintiff or defendant �" (1) Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:

Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.

(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.

The counsel for the petitioner also argued that in case the court comes to the conclusion that this case is covered within the above said proviso in that eventuality the order passed by the lower court is not legally tenable. He drew my attention towards an authority reported in Ramalingam Chettiar Vs. P.K. Pattabiraman and Another, , wherein it was held:-

Thus, under the proviso, if the court is satisfied, it can direct that the suit as regards newly added or substituted plaintiff or defendant shall be deemed to have been instituted on an earlier date. In such a case, the court after substituting or adding a party in the suit is required to pass a separate/further order that the suit as regards the newly added defendant or plaintiff shall be deemed to have been instituted with effect from the date the suit was laid. Merely adding or substituting a plaintiff or defendant by the court is not enough. In the absence of any order that the impleadment of newly added or substituted party shall take effect from the date of institution of a suit, the period of limitation so far as the newly added or substituted shall run from the date of their impleadment in the suit. We have looked into the records but do not find any order having passed under the proviso to Section 21 of the Limitation Act that the impleadment of the State of Tamil Nadu would take effect from the date of institution of the suit. In the absence of such an order by the trial court, the suit filed by the respondent was barred by limitation as contemplated u/s 59 of the Act.

All these arguments are lame of strength. The above said authority does not dovetail with the facts of this case. In the above cited case State of Tamil Nadu, an altogether new defendant was impleaded. The facts of the instant case are entirely different.

The petition itself mention that intimation was given by the petitioner to the respondent on 08.04.2002, which intimation reads as under:-

Dear Sir,

This is to inform you that name of our company has been changed from Siya Ram Kumar Engg. Works Pvt. Ltd. to Kew Precision Parts Pvt. Ltd. w.e.f. 05.02.2002 as approved by Deputy Registrar of Companies, NCT of Delhi and Haryana (JLNS) vide letter No. ROC/Approval/21/55-3280/1016 dated 05.02.2002.

Please note there is no other change except Company name. Management, constitution, address, telephone numbers remain the same. Please ensure all future correspondence in the new Company name.

Thanking you,

Yours faithfully,

For Siyaram Kumar

Engg. Works Pvt. Ltd.

Sd/-

M. Kumar

Managing Director

By no stretch of imagination it can be held that a new defendant was substituted. This case is clearly covered within Section 21(2) of Limitation Act. Mere change of name does not affect the parties when there is no change in management, constitution, address, telephone numbers etc. This case appears to be the case of substitution owing to assignment of interest during the pendency of this case. According to "New Shorter Oxford" English dictionary Edition 1994 the word assignment means, "legal or other formal transference of a right or property". According to American "Heritage" dictionary and "Dictionary Com Unabridged" the legal meaning of "Assignment" is "the transfer of a claim right, interest, or property". The petitions are without merit and are dismissed at the admission stage.

CM No. 11283/2007(stay)

CM No. 11285/2007(stay)

No further orders are required to be passed in these applications in view of the dismissal of the petitions.

Dismissed.