STATE OF ORISSA Vs. NEELACHAL SERVICE STATION

JUDGEMENT

(1.) EX parte ad interim temporary injunction at the instance of the plaintiff having been made absolute, this appeal has been filed by the defendants.

(2.) DEFENDANT No. 1 is the State of Orissa and defendants Nos. 2 to 4 are its officers. Suit has been filed in the trade name of a business carried on by Jaya Krushan Brahmachari. A business carried on in a trade name is neither an individual nor a juristic person and accordingly, the suit by the trade name is incompetent. However, on perusal of the plaint I find that in fact Jaya Krushan has filed the suit. The question of competency to file the suit ought to have been examined before admitting the plaint. Since the plaint has been admitted, the trial court shall give an opportunity to the plaintiff to amend it, by correctly describing the plaintiff and making consequential amendments in the body of the plaint if necessary.

(3.) PLAINTIFF has admitted that he has been assessed under the Act for the years 1978-79 to 1983-84 as an unregistered dealer demanding a sum of Rs. 1,20,488 from him. Recovery of the said amount is sought to be resisted in the suit alleging essentially that on account of mala fides of defendant No. 4 who is the Sales Tax Officer defendant No. 3 to ruin the plaintiff, actions have been taken. Defendant No. 4 is annoyed with the plaintiff. Since being rigid in principles, the plaintiff did not oblige the unreasonable request of defendant No. 4. Accordingly, defendant No. 4 became hostile and defendant No. 2 being a personal friend of defendant No. 4 acted in concert to put the plaintiff to unnecessary loss and harassment to strangle and ruin his business and otherwise defame and discredit him. Plaintiff claims that he was not given any notice to produce accounts for assessment and demands were made for six years by manipulating and antedating records to make a show of procedural regularity. It was also challenged that the demand under the Orissa Additional Sales Tax Act is not justified since that Act is ultra wires. Added to it, the plaintiff claimed damages of Rs. 2,00,000 from defendant No. 4.