JARDINE MILLS AGENCIES Vs. NEPTUNE NAVIGATION

JUDGEMENT

(1.) This is an appeal against an order passed by Datta J. on 10th April, 1962 whereby he dismissed an application made by the plaintiff for amendment of the plaint. The facts are shortly as follows: This appeal arises in connection with suit No. 659 of 1961 (Jardine Mills Agencies and another v. Neptune Navigation) which was filed by the plaintiff appellants in this Court on 1st of May, 1961 against the defendant respondents. The cause title as appearing in the original plaint was as follows: 1. Jardine Mills Agencies, a firm registered under the Indian Partnership Act and carrying on business at premises No. 4, Clive Row, Calcutta within the said jurisdiction.

(2.) Atlas Assurance Co. Ltd. a Company duly incorporated in England with limited liability and also carrying on business at 4, Clive Row, Calcutta, within the said jurisdiction--Plaintiffs. Versus Neptune Navigation, a firm registered under the Indian Partnership Act and carrying on business at Premises No. 133, Canning Street, Calcutta, within the said Jurisdiction--Defendant. The subject matter of the plaint is as follows: It is stated that the defendant is a common carrier of goods for hire by inland navigation. On or about 9th April, 1960 the plaintiff No. 1 delivered to the defendant a consignment of 1750 bales of jute at Gouhati and the defendant agreed as such carrier to carry the said goods safely and securely by its steamer m, v. (Rajan) from Gouhati to Calcutta and there to deliver the same to plaintiff No. 1 or its order for hire. It is stated that the defendant issued a bill of lading GAV/C/1393/60 dated April 9, 1960 in respect of the carriage of the said goods. The said vessel arrived at Calcutta on 28th April 1960. It is further stated that on or about 2nd May, 1960 after 1205 bales had been delivered, a fire broke out in the said vessel as a result of which the balance of the goods were destroyed or damaged as a result of the negligence or default of the defendant or its servants or agents. The plaintiffs said that they had suffered damages to the extent of Rupees 45,028.11 nP. less salvage. The claim in the plaint is for a decree for that amount with interest and costs. On 25th May, 1961 M/s. Sandersons and Morgans, solicitors for the plaintiffs enquired of M/s. Fowler and Co., solicitors, as to whether they would accept service of me writ of summons on behalf of Neptune Navigation, the defendant in the suit. On the 17th June, 1961 Messrs. Fowler and Co., Solicitors, replied stating that they had received instructions from the defendant to accept service of the writ of summons on their behalf. On or about the 27th June, 1961 the writ of summons along with the copy of the plaint was served on Messrs. Fowler and Co., by the Sheriff. On the very same day Messrs. Fowler and Co., wrote to the Sheriff of Calcutta as follows:

(3.) In the said application, the petitioners asked for an amendment of the cause-title in one of two alternative ways. In the first, they merely prayed that the words "a firm registered under the Indian Partnership Act and" in the description of the defendant in the cause-title should be struck off. Alternatively, they prayed that the name and description of the defendant should be altered as "Rani Jagadamba Kumari Devi carrying on business under the name and style of Neptune Navigation at premises No. 133, Canning Street, Calcutta, within the said jurisdiction". This application was contested by Rani Jagadamba Kumari Devi and Shantilal Mehta in his affidavit affirmed on March 1962 inter alia stated as follows;