ARORA ENTERPRISES Vs. VIJAY POWER GENERATOR LTD

JUDGEMENT

(1.) C .M. No.20356/2014 (for delay) This is an application seeking condonation of one day delay in filing the appeal.

(2.) THE learned counsel for the appellant has contended that the substantial question of law which arises from the present appeal is 'as to whether the appellate judge could have decided the appeal on a point with regard to which issue has not been framed.' In this regard, the learned counsel for the appellant has placed reliance on case titled Kalyan Singh Chouhan vs. C.P. Joshi, 2011 2 CivCC 1 (SC). It has also been contended by the learned counsel that in United Bank of India vs. Naresh Kumar and Others, 1997 AIR(SC) 3, any action of the official who had signed, verified and instituted the suit could be ratified subsequent to filing of the suit by a party. In the said case, the suit for recovery was filed by a person who was not authorized. During the pendency of the suit, the United Bank of India has testified before the court that the action of their employee was ratified and therefore, that ratification was held to be a valid ratification of signing, verifying and instituting the suit. Both these judgments which are relied upon by the appellant are not applicable to the facts of the instant case.

(3.) IN the present case, the appellant had filed a suit bearing CS No.207/13 for recovery of Rs.1,77,539/ - along with pendente lite and future interest @ 24 per cent per annum with effect from 27.9.2009 against the respondent/defendant. The aforesaid suit was contested by the respondent/defendant. Apart from merits, preliminary objections were taken with regard to maintainability of the suit on the ground that the appellant was a proprietary concern and hence not a legal entity and the suit could not have been filed in the firm's name. The frame of the suit was also contested. The learned trial court framed two issues (i) as to whether the appellant was entitled to decree of recovery; and (ii) relief.