N""""41 1 - Co. LU. Col'""" v. Lif•l- eor & Anr. v. Kumar Ramendra Narayan Roy

A Receiver authorised and appointed by a Court to collect the debts due to the plaintliF-mpondent instituted a suit against the appellant-firm and its alleged partnen for the recovery of the price of tobacco and interest thereon. The right of the receiver to institute a suit in hi• oW.. name was challenged by the appellant. Thereupon the respondent-firm amended the plaint by dcocribing the plaintifl' 81 "M/1. T. R. & Co., represented by I. Surayanarayana Garu receiver appoin kd in 0.S. 275 of 1948 on the file of the District Munsift"'1 Court, Guntur." The appellant-firm amended the written statement and contended that the amendment of the plaint was time barred, that it did not cure the initial defect in the suit and that consequently, die suit was barred by limitation. The trial court diomlssed the wit on the ground that Suryanarayana was not entitled to institute a suit in his capacity 81 Receiver, that the amendment of the plaint was beyond time and that therefore time bam:d. On appeal the High the suit wao 996 SUPREME COURT REPORTS (1963) SUPP. 1961 -K.,apat; Vlllkata Mlll/1J17• v. 1lM<ilpu Ramaswami """Co. Court held that the Receiver waa entitled to institute the suit, that at the most there was a misdescription of the plainti1f- 6:1"m in the cause title of the suit which could be corrected any time, that consequently the suit was within time and that the plainti!Fwaa entitled to a decree with interest from the date of delivery of the goods till realization. is cuatodia that a Receiver invested with full powers to Held, administer /egia or who is the property which expressly authorised by the court to institute a suit for collection is entitled to institute a suit in his own name of the assets provided he does in his capacity as a Receiver. His limited merely to the preservation of the function cannot be if occa'ion demands, to property and it is open to a court, confer upon him the power to take such steps including instituting suits in the i11terest of the parties themselves. The suit as originally instituted, was thus perfectly competent. The High Court rightly held, that where there is a case of misdescrlption of parties it is open to the court to allow an the question of amendment of the plaint at any limitation would not arise in such a case. time and Jagat Tarini Dasi v. Naba Gopal Ohalci (1907) r:L. R. 34 Cal. 305, relied on. Held, further that this court does not interfere with the concurrent findings of the courts below on a pure question of fact, unless there are exceptional circumstances or unusual reasons which induce it to re-examine the entire evidence. Srimati Bibhabali Delli v. Kumar Ramendra Narayan Roy, (1946) L. R. 73 I. A. 246 and Sriniwaa Ram Kumar v. MaliabirPraaad, [1951] S. C.R. 277,referred to. CIVIL APPELLATE jURJSDIOTION : Civil Appeal No. 339/60. Appeal from the judgment and decree dated November 17, 1955, of the Andhra Pradesh High Court in A. S. No. 51/1951. A. Ranganadham Ohetty, A. V. Rangam, A. VedavaUl and K. R. Ohaudhri, for the appellants. R. Gannpathy Iyer, R. 'l'hiagarajan and G. Gapalakrishnan, for the respondent No. 1.

#1962. December 12. The Judgment of the Court was delivered by • ,'l- 1962 KurapJti Venkah MtJllaY.'14 v. Thondepu Romaswami 1111dCo. Mudkolkm. J. 2 S.C.R. SUPREME COURT REPORTS 997 MuDHOLKAR, J. This is an appeal by a certi• ficate granted by the High Court of Andhra Pradesh under Art. 133 (l) (a) of the Constitution. The relevant facts are these : The plaintiff-respondent Ramaswamy & Co. who carry on business in tobacco at Guntur instituted a suit against the appellant-firm which also carries on similar business at that place and its alleged part· ners Kurapati Venkata Mallayya and Mittapalli Abbayya, for the recovery of the price of 112 bales of DB tobacco strips (hereafter referred to as DB strips) sold to them on June 5, 1946, amounting to Rs. 14,099/- and interest thereon from the date of In addition, the respon purchase to the date of suit. dent firm claimed interest from the date of suit to the It is the respondent firm's case date of realization. that the tobacco weighed 28,196 pounds and that the appellant firm purchased it by agreeing to pay its price at 8 annas per pound. Further according to the respondent-firm the appellant firm agreed to pay interest on the amount at 9% per annum. The appellant-firm denied having purchased 112 bales of tobacco from the respondent-firm and denied also having agreed to pay its price at 8 annas per pound or at any other rate. They also denied ilie existence of any agreement to pay any interest. According to the appellant-firm in May, 1946 it secured a contract to supply to the Russian Govern ment 3,000 bales of inferior tobacco at the rate of 8 annas per pound. One Kottamasu Venkateswarlu (who was distantly related to the partners of the appellant firm) was the managing partner of the respondent-firm. This firm had some mferior tobacco and Venkateswarlu pressed the appellant-firm to take over ll2 bales of that tobacco from it and tender them towards the contract with the Russian Govern ment saying that the appellent-firm may deduct one - I IHI Jruropali Vmkata Mollqyyo •• 'I7tond.pu Ram<uwaml ..a Co. 998 SUPREME COURT REPORTS [1963] SUPP. anna per pound from the price received from the Russian Government towards their expenses and· commission. The appellant-firm had reluctantly agreed to this request and despatched 97 out of the 112 bales to Kakinada after getting Agmark certi ficate with respect to them, with the assistance of Venkatcswarlu. The representative of the Russian Government, however, rejected the goods on ground that they were of inferior quality. Five bales out of these 97 bales were rejected by the Agmark authorities after re-inspection of the goods at Kakinada. Those bales were returned to Guntur along with other rejected bales which belonged to the appellant-firm but they were consumed in an accidental fire in the godown of the appellant-firm. The remaining 92 bales are said to be still lying with the shipping agent at Kakinada and that as the tobacco is of very poor quality no purchaser had yet been found for it. Fifteen bales out of the 112 bales which had not been sent to Kakinada got damaged and had to be rebaled. As a result of the rebaling they were reduced to ten bales and these are still lying with the appellant-firm, which the appellant firm was willing to return to the respondent-firm on its paying the godown charges. Thus, the main defence of the appellant· firm is that it never purchased 112.bales of tobacco from the respondent-firm aad, therefore, the respondent-firm could not sue it for the price of those bales. It may be mentioned that before the institution of the suit a Receiver had been appointed in another suit for realization of the debts due to the respondent-firm. The court before which the suit was pending had made an order on June 22, 1949 permitting the Receiver to collect the debts due to the respondent In pursuance of this order the Receiver firm. Suryanarayana instituted the suit out of which this appeal arises, describing himself thus in the plaint: "1, Suryanarayana Garo, Receiver appointed in O.S. - r 1961 Kurapati Y,.kal4 Mall'l)lya •• TMNkpu RamuWllllli ondCo. Mui/aoll:.ir, J, 2 S.C.R. SUPR:EME COURT REPORTS 999 275 of 1948 on the.file of the District Munsif's Court, Guntur". The appellant-firm contended that the suit was untenable because a Receiver has no right to institute a suit in his own name and further that the Receiver had not been expressly authorised by the court to institute the suit in question. The appellant firm also contended that the suit was barred by time. It specifically contended that the respondent-firm was not entitled either to the alleged price or to any interest. The appellant-firm further contended that Mittapalli Abbayya ceased to be a Partner of the firm smce the vear 1942 because as a result of a partition between Abbayya and his sons, Abbayya's interest in the appellant-firm fell to the share of one of his sons, Kotilingam. In consequence of the plea taken by the appel lant-firm that the .suit was not tenable the respondent firm amended the plaint with the leave of the court on December 27, 1949 by describing the plaintiff as "Messrs. Thondepu Ramaswami & Co., represented by f. Suryanarayana Garu receiver appointed in O.S. 275. ofl948 on the file of the District Munsif's Court, Guntur" in place of the original "I. Surya narayana Garu, Receiver appointed in O.S. 275 of 1948 on the file of the District Munsif 's Court, Guntur". Thereupon the appellant-firm filed an amended written statement in which it contended that the amendment was made long after the period of limitation and that it does not cure the initial defect in the suit 0£ having been filed by a person other than the one who was entitled to institute a suit and that consequently the suit was barred by limita tion. The trial court held that the respondent-firm had established the contract alleged by it but that it had not established that the appellant-firm had agreed to pay the price at the rate of 8 annas per It, however, held that the price of tobacco pound. - I .. 1000 SUPREME COURT REPORTS [1963] SUPP. 1961 Kur~i Y lllkal4 Malltru• v. 7iori4*J &m11w..U wlCo. Mlldliollwr, J. was Rs. 5,639·3-0, but it, dismissed the suit on the ground that I, Suryanarayana was not entitled to illstitute a suit in his capacity as Receiver in 0. S. 275 of 1948, that the amendment of the plaint was made beyond the period of limitation and that, therefore, the suit was barred by time. In appeal the High Court held that the Recei ver was entitled to institute the suit having been au thorised by the court to collect the debts of T. Ramaswami & Co., that at the most there was a misdescription of the plaintiff-firm in the cause title of the suit which could be corrected any time and It fur that consequently the suit was within time. ther held that the price of tobacco agreed to between the parties was 8 annas per pound and that the plain tiff was entitled to a decree for Rs. 14,098/ - and inte rest at 6% p.a. from the date of delivery of the goods till realisation. The first point urged before us by Mr. Ranga nadham Chetty on behalf of the appellant·firm is that the High Court, as well as the Subordinate Judge were in error in holding that the bales in ques tion had been purchased by the appellant-firm from the respondent-firm. This, however, is a question of fact and since the two courts below have found agai nst the appellant-firm on this point this court would not ordinarily interfere witli such a finding. Mr. Ranganadham Chetty, however, contended on the authority of the decision in Srimati Bibhabati Devi v. Kumur Ramendra Narayan Roy(') that the practice of the court in appeals by special leave is not a cast iron one and that it, would, therefore, be open to this Court to depart from it in an appropriate case. The aforesaid decision was referred to by this Court in Srinivas Ram Kumar v. Mahabir Prasad(') and it was pointed out that when the courts below have given concurrent findings on pure questions of fact, this court would not ordinarily interfere with them (2) [1951) s.o.a. 211, :za1. c1> (1946) L.a. 73 J.A. 246, 2s9. 1'61 M"'°"1Utlr, J. 2 S.C.R. SUPREME COURT REPORTS 1001 and review the evidence for the third time unless there are exceptional circumstances justifying a depa· rture from the nqrmal practice. Learned counsel contended that this is an unusual case because the reasons given by the High Court for holding that the transaction was a sale are quite different from those given by the trial court and in fact one of the reasons given by the High Court proceeds on a view of an important piece of evidence which is diametri cally opposite to that expressed by the trial court. Mr. Ranganadham Chetty pointed out that in sup port of its claim the respondent-firm relied upon two entries in its account books Exs. A-13 and A-14, that these entries were not relied upon by the trial court, but the· High Court has without giving any reason for regarding tltem as genuine, acted upon them. What the trial court has said in para 14 of its judg ment is as follows : "In order to establish the sale of 122 bales of flue cured \>irginia tobacco strips, Ramaswami relies on certain entries in the account books of his firm. Exhibit A-13 is the katha on page 27 of the day book of Thondepu Ramaswarni & Co.;' containing an entry in respect of 112 bales Weighing 28, 196 pounds at Re-0·8·0 per pound and 'debiting a sum of Rs. 14,098/·. The words "Re. 0-8-0 per pound" are contai ned· in the third line of the entry. The words "112 bales weighing 28,196 pounds at Re. 0-8-0 per pound" appear to be written closely. The sum of Re. 14,098 appears in different ink. Exhibit A•14 is the katha of the 1st defendant firm found on page 111 of the corresponding ledger -Of Thondepu Ramaswami &· Co. On 5-6.1964 ·a: Imm of Rs. 14,098 was debited in respect- ·of 112 bales of barn tobacco weighing at Re. 0-8-0 per pound. 28,196 pounds In the entry the (in Teluguc) and the debit price· therefore line of second 1962 - v. Tltooit;u Ramaswami ondCo. -MudMUr.oT, J. 1002 SUPREME COURT REPORTS [1963] SUPP. of the sum of Rs. 14,098 are found. On 21st August, 1946 interest of Rs. 267·1-9 was added. Exhibit A-17 is the interest Katha of Messrs. Thondepu Ramaswami & Co. Exhibit A-16 is the katha at page 41 of the day book of Thondepu Ramaswami & Co. The katha shows that on 21-8-1946 to balancing entries 21-8-1946 two balancing entries for interest of Rs. 267-13-6 were made in the day book. The entry on the right hand side has been scor- ed out and Ramaswamy, has not been able to explain why and under what circumstances the entry happens to be scored out. The entry on the left hand side however, was not scored out. The .totals do not tally lllliess the sum of Rs. 267-13-6 is included in the ag~egate sum men tioned on the right hand side on page 41. It has been commented on behalf of the defendants that Ramaswamy himself has no personal kno wledge of the entries, that the clerks .who made the entries in the account books have not been examined and that Exhibits A-13, A-14 and A-16 cannot be relied .on in order to come to the conclusion that the transaction relating to 112 bales was a sale and only a sale'. Though Ramaswamy was not present when the entries were made in the several registers of his firm, it is not disputed that the accounts have been maintained 1n the usual course of business." !'__. - ,. .. It is no doubt true that in para 28 while dea· ling with the question of price the trial court has ob- served: "Much reliance cannot be placed on the rate mentioned in Exhibits A-13 and A-14 and the price has to be determined independently having regard to the fact that the price 1>f tobacco depreciates gradually with its age." It will thus be seen that the trial court has not rejected these entries outright but only rejec· ted them in so far as they were intended to establish the price agreed to be paid to the respondent-firm. 2 s.c.R. SUPREME COURT REPORTS - - ' . . ,,_.. 1()93 1961 Kura/Mii Y...W. M<ll41JO v. ~-i """Co. Mu/Mllat, J, Dealing with this matter the High Court has observed thus: Co. per pound. Though "Exhibit A-13 is the entry in the day book of Thondepu . Ramaswami & date 5-6-1946 wherein a sum of Rs. 14,098 is debited tci the defendant firm in respect of 112 bales.of tcibacco weighing 28,196 pounds at 8 figures "Rs. 14,098" were written in a different ink from th,e re~t of the entry, this is not a suspicious circumstance because the rest of the entry which is in the same ink and which is written in a nor mal manner contains reference to the sale of 28,196 pounds at 8 annas per pound. The resul tant total is entered in the column on the right hand side as Rs. 14,098. It may be that the figure of Rs. 14,098 was entered a little later before the accounts for the day were closed. Exhibit A -14 is tl, ie cerresponding ledger of Thondepu Ramaswami & Co. and the entries in the day book are duly incorporated in the ledger." Then later on the High Court has observed : "At the same time the entries in the regularly kept boqks of the plaintiff firm cannot be thrown oyerboard particularly when no chall enge was .made of their genuineness." The High 'Goutt has also stated : "It is apparent from Exhibit A,23· ·that the defendant firm was shown to be a debtor not-merely with respect to Rs. 14,098 the price of 28,196" pounds but also in respect of the interest due upon the sum, arid the plaintiff firm has paid income-tax thereon." All this shows. that for accepting the entries in toto the High Court has given certain reasons and even though we.may not agree with them it cannot be said tqat t]lere is any unusual circumstance which would warran~ our reviewing afresh the evidence on ' . , 1004 SUPREME COURT REPORTS [1963) SUPP. 1962 Kurapati Y1nkata Moll'!YY• v. Tliondepu Ramaswami and Co. Mudh•lkor, J. the point as to whether the transaction in question was a sale or not. Mr. Ranganadham Chetty next contended that the courts below have not borne in mind the true significance of the words "no price" occurring in the entry relating to the 112 bales in question in the verification register Ex. A-28. The Entry reads thus : "5-6-46 For 112 bales of Baru tobacco no price at Re. 0-8·0 per pound ...... 14,090-0-0" The entries were in Telugu and the actual words used are " " and according to Mr. Ranganadham Chetty they mean that there was no sale. The Courts below, however, which were conver· sant with the language, have understood the entry to mean "no price" and that is how the expression has been translated in the paper book and it is not open to Mr. Ranganadham Chetty to say that the meanmg is otherwise than this. Mr. Chetty then contended that even accepting that the meaning is only "no price" the proper inference to be drawn is that there was no transaction of sale and that the rate of 8 annas per pound stated in the entry is given merely for valuing the 112 bales. That may be so but it does not nega· tive the effect of the other entries which clearly point to the transaction being a sale. Some. point was also sought to be, made by Mr. Ranganadham Chetty from the fact that no copy of the transport permit required to be taken for the transfer of excisable articles from one bonded warehouse to another was placed on record. We fail to see the significance of this because the appellant-firm admits that 112 bales of tobacco were actually received by it from the It will thus be seen that there are respondent firm. no exceptional circumstances or unusual reasons which would induce us to re-examine the entire evidence on the point ourselves. We, therefore, decline to do so. .1962 _..._ Kurajhlti V111kato ,/l(all'!)'ya v. Tfwn4epu R....,wami 'f"d Co. Mudlrolkar, J, 2 S.C.R. SUPREME COURT REPORTS 1005 . The next question is whether the suit was in proper form ;iQd was within time .. Thougl:i the case of section for t):ie suit arose on June 5, 1945, it is admitted bef O\'I! · us that the courts ·were closed on June 5, 19!9 #rid the suit was filed on the day on It wo~ld, therefore, be within ~hich they reopened. time if it w~ properly constituted on the date on In Jagat Tarini Dasi v. Naba which it w~s filed. Go pal Gha.kj (1) which is the leading case on the point it was held by the Calcutta High Court that a court mu~t !!-µtfic:>risefo.,Receiver to sue in his own name and a RecC,~ver~ho As. authorised to sue t~?ugh no.t ex pressly 1n his own .name, may do so by virtue of his ap pointment with full powers under s. 503 of the Code of Civil Proced.ure ·(Act XIV of 1882). · ·In coming tot~ conclusi9n the learned Judges pointed out that though, the obJec;:t and purpose of the appointment of a Receiver Jµay. Jje generally stated to be the Prefer vation of tJ.ie sul:iject·matter of thi;,litigation pending judicial determination of the rights of the parties it does not neces{aryly follow that if he is au(ljorised to sue, he cannot ~U:e ·iri his own name. Then the learned Judges poipte~ on,t :~ _ .. "Though he· is in one sense• a custodian of the property of:'the person, whom in certain.respects he is· i:ilade: -.to supplant, ·there" seems to be no reason why his power should not be•· held to be It is•clear that co-extensive with his functions. he cannot conveniently perform those functions, unless upon the theory that he has sufficient intere!it"in !the subject-matter committed to·him, to enable him to sue in respect thereof by virtue oT his office, iri his 'own 'name. · .. -. On,!he whol,e, we are disposed to take the yiew that, although a receiver is not the assignee or benefj.cial <iwner of the property entrusted. to his care, it is an incomplete and inaccurate . state ment o[ his relations to the property to say that (I) (1907) I.Lil. !K Col. ll05. iHJ Kwo/Nfli V...t.lo MJUi.,,. y, Titaeitpu R-.iW4111i adC1. Mwlltolkor, I. 1006 SUPREME COURT REPORTS [1963] SUPP. f he is merely its custodian. When a Court has taken property into its own charge and custody for the purpose of administration in accordance with the ultimate rights _of the Parties to the litigation, it is in auatodia legis. The title of the property for the time being, and· for the purposes of the administration, may, in a sense, be said to be in the Court. The receiver is appointed for the benefit of all concerned; he is the representative of the Court, and of all Parties interested ii) the litigation, wherein he is appointed. He is the rightarm ofihe Co'urt in exercising the jurisdiction invoked in such cases for.administering the property; the Court can only administer through a receiver. For this reason;'allsuits to collect .. or obtain possession . ,of the ',property must be prosecuted by ,the · receiver, and the proceeds received and con· trolled' by him alone. If the suit hali to be noniinaUy prosecuted in the riame of the true o~ers of the property, it is 'an inconvenient as well as useless fortn-inc::onvenient, beca.lise in many cases, the title of the owners ·may be the subject; matter of the litigation in which the receiver has been .appointed ---,useless, because the true .owners have no discretion as to the insti tution of the suit, no contro! over its manage- ' .ment, and no right to the posse; sion of the proceeds;" (pp. 316-317). learned Judges pointed out, that Later the the time being and for the purpose of administration of the assets the real party interested in the litigation is the Receiver and, therefore, there is no reason why the suit could not be i~tituted in his own name. The learned Judges then referred to a number or It seems to us cases in support of their conclusion. 'that the view of the Calcutta High Court that a Recl'iver . who is appointed With administer the property which is GUBtodia legis or full powers 1961 Kurapatl Y.....,. Mal~ •• Thondfpa &zmllUNlllti ""'c.. Mutllllllku, J. -. 2 S.C.R •. sumME·coURT REPORTS 1007 to a court who is expressli authorised by the court to institute a suit for collection of the assets is entitled to institute a suit in his own name provided he does so in his capa city as a Receiver. If any property is in CUBtodia legis the contesting parties cannot deal with it in a~y manner; and, thetefore, there must be some authonty competent> to deal.with it, in the interest of the parties themselves.· A ·Receiver 'Who is placed in charge of the property ·~nc.·behalf of a court can be the only lippropriate·persO'tl who could do so. His functiori cannot be Lm1ited merely to the preservation of the property an·ci; · it is open if -occasion demands, to confer upon him the power to take such steps includirlg·'ilrstituting suits in the interest of the parties themselves. Here apparently the Receiver was not a person with full powers but by its order datedJune 26, 1949 the court authorised him to collect debts, particularly as some debts were liable to get barred by time. The Receiver, therefore, had the right to institute the suit in question. It is, the order does not say however, contended that specifically that he should institute a suit. In our opinion, the authority given to the Receiver "to collect the ·debts" is wide enough to empower the Receiver to take such legal steps as he thought nece ssary for collecting the debts including instituting a suit. The suit· as originally instituted, was thus perfectly competent. The High Court has observed that even assuming that it would have been more appropriate for the Receiver to show in the cause title that it-was the firm which was the real plaintiff and that the firm was suing through him it was merely a case of misdescription and that the plaint could be amended at any time for the purpose of showing the correct description of the plaintiff. We agree with the High Court that where there is a case of misdescription of parties it is open to the court to allow an amendment of the plaint at any time and the question of limitation would not arise in such a case. 1008 SUPREME COURT REPORTS [1963) SUPP. 1161 [His Lordship then dealt with the point regard· Kor¥a# Vmkola MallaJJ• •• T""""Pu Ranuuwami •MCo. Mudliolkor, /, ing the rate of interest.] . x x x x x x x x x Accordingly we set aside the decree of the High Court, allow the appeal in pan and pass a decree in favour of the respondent-firm for Rs. 5,639/3/- with interest at 6,per cent per annum from the date of the transaction till realization. The respondent-finn, wjll get proportionate costs throughout from the appe• Hant-firm, which would bear its own costs. Appeal allowed in parl. '. . ' l '