Legal entity of Proprietorship firm
vishal
(Querist) 22 June 2011
This query is : Resolved
respected seniors,
in my one case of recovery of amount, Plaintiff was the Proprietorship firm and the Plaint has been verified by the Proprietor of said Firm Mr. Suresh Motwani and i am counsel for the defendant.
at the time of framing of issue Mr. Suresh Motwani has expired and the Plaintiff has move the Application u/o 6 Rule 17 of CPC TO amend the Plaint.
In said Applicantion in relief para the Adv for Plaintiff stated that the name of proprietor Mr. Suresh Motwani be deleted and in his place Mrs Meena Suresh Motwani be added/substituted.
My question is that whether Plaintiff can add/substitute the Legal Representatives of Deceased Mr. Motwani without filing Application u/o 22 Rule 3 of CPC. whether the Application u/o 6 R 17 is maintainable at this stage.
Ravikant Soni
(Expert) 22 June 2011
In relation to a party being a partnership of proprietorship concern the provisions of order 30 shall be applicable. i.e.
order 30 rule10 . Suit against person carrying on business in name other than his own— Any person carrying on
business in a name or style other than his own name, or a Hindu undivided family carrying on business
under any name, may be sued in such name or style as if it were a firm.
Ravikant Soni
(Expert) 22 June 2011
Full text of order 30 .............
ORDER XXX- SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES
OTHER THAN THEIR OWN
1 . Suing of partners in name of firm— (1) Any two or more persons claiming or being liable as partners and
carrying on business, in India may sue or be sued in the name of the firm (if any) of which such persons were
partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to
the Court for a statement of the names and addresses of the persons who were, at the time of the accruing
of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may
direct.
(2) Where persons sue or are sued partners in the name of their firm under sub-rule (1), it shall, in the case
of any pleading or other document required by or under this Code to be signed, verified or certified by the
plaintiff or the defendant, suffice such pleading or other document is signed, verified or certified by any one
of such persons.
2 . Disclosure of partners' names— (1) Where a suit is instituted by partners in the name of their firm, the
plaintiffs or their pleader shall, on demanding writing by or on behalf of any defendant, forthwith declare in
writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is
instituted.
(2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1) all
proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the Court
may direct.
(3) Where the names of the partners are declared in the manner referred to in sub-rule (1) the suit shall
proceed in the same manner, and the same consequences in all respects shall follow, as if they had been
named as plaintiffs in the plaint:
[323] [Provided that all proceedings shall nevertheless continue in the name of the firm, but the name of the
partners disclosed in the manner specified in sub-rule (1) shall be entered in the decree.]
3 . Service— Where persons are sued as partners in the name of their firm, the summons shall be served
either—
(a) upon any one or more of the partners, or
(b) at the principal place at which the partnership business is carried on within India upon any person having,
at the time of service, the control or management or the partnership business, there,
as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all
or any of the partners are within or without India:
Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before
the institution of the suit, the summons shall be served upon every person within India whom it is sought to
make liable.
122
4 . Rights of suit on death of partner— (1) Notwithstanding anything contained in section 45 of the Indian
Contract Act, 1872 (9 of 1872) where two or more persons may sue or be sued in the name of a firm under
the foregoing provisions and any of such persons dies, whether before the institution or during the pendency
of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit.
(2) Nothing in sub-rule (1) shall limit or otherwise effect any right which the legal representative of the
deceased may have—
(a) to apply to be made a party to the suit, or
(b) to enforce any claim against the survivor or survivors.
5 . Notice in what capacity served— Where a summons is issued to a firm and is served in the manner
provided by rule 3 , every person upon whom it is served shall be informed by notice in writing given at the
time of such service, whether he is served as a partner or as a person having the control or management of
the partnership business, or in both characters, and, in default of such notice, the person served shall be
deemed to be served as a partner.
6 . Appearance of partners— Where persons are sued as partners in the name of their firm, they shall
appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the
name of the firm.
7 . No appearance except by partners— Where a summons is served in the manner provided by rule 3 upon
a person having the control or management of the partnership business, no appearance by him shall be
necessary unless he is a partner of the firm sued.
[324][8 . Appearance under protest— (1) Any person served with summons as a partner under rule 3 may
enter an appearance under protest, denying that he was a partner at an material time.
(2) On such appearance being made, either the plaintiff or the person entering the appearance may, at any
time before the date fixed for hearing and final disposal of the suit, apply to the Court for determinig whether
that person was a partner of the firm and liable as such.
(3) If, on such application, the Court holds that he was a partner at the material time, that shall not preclude
the person from filing a defence denying the liability of the firm in respect of the claim against the defendant.
(4) If the Court, however, holds that such person was not a partner of the firm and was not liable as such that
shall not preclude the plaintiff from otherwise serving a summons on the firm and proceeding with the suit;
but in that event, the plaintiff shall be precluded from alleging the laibility of that person as a partner of the
firm in execution of any decree that may be passed against the firm.]
9 . Suits between co-partners— This Order shall apply to suits between a firm and one or more of the
partners therein and to suits between firms having one or more partners, in common; but not execution shall
be issued in such suits except by leave of the Court, and, on an application for leave to issue such execution,
all such accounts and inquiries may be directed to be taken and made and directions given as may be just.
[325][10 . Suit against person carrying on business in name other than his own— Any person carrying on
business in a name or style other than his own name, or a Hindu undivided family carrying on business
under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of
such case permits, all rules under this Order shall apply accordingly.
Ravikant Soni
(Expert) 22 June 2011
What happen in situation of Death of partner:::as well as proprietor:::
4 . Rights of suit on death of partner— (1) Notwithstanding anything contained in section 45 of the Indian
Contract Act, 1872 (9 of 1872) where two or more persons may sue or be sued in the name of a firm under
the foregoing provisions and any of such persons dies, whether before the institution or during the pendency
of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit.
(2) Nothing in sub-rule (1) shall limit or otherwise effect any right which the legal representative of the
deceased may have—
(a) to apply to be made a party to the suit, or
(b) to enforce any claim against the survivor or survivors.
prabhakar singh
(Expert) 22 June 2011
mention of wrong provision is not fatal.substitution shall be allowed
Jitendar Kumar gupta
(Expert) 22 June 2011
Suit by proprietorship is like an individual suit and LRS has to be impleaded in the case.
