# N""""41 1-- Co. LU. Col'""" v. Lif•l-- eor, of r.m. HillrJ"""'411, /

- **Citation:** [1963] Supp. 2 S.C.R. 995
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-41-1-co-lu-col-v-lif-l-eor-of-r-m-hillrj-411-2874
- **Pages:** 14

## Headnote

2 S.C.R.
SUPREME COURT REPORTS
995
of the Corporation is dismissed with costs. There
will be a right to set-off the costs in the two appeals.
0. A. No. 551 of 1960 diamisse,d, ezupt for interest. 0. A. No. 652 of 1960 di8mis1e,d,.
KURAPATI VENKATA MALLAYYA
AND -ANOTHER
"·
THONDEPU RAMASWAMI AND CO.
AND ANOTHER
(S. J. IMAM, J. L. KAPUR, K. SUBBA RAo and
J. R. MUDHOLXAR, JJ.) .
RtuitJ<r-'--ApPoimment bg 0""'1-1/ emo -
M. Ail OID9
fllJfrlt-lnter/eronu-Oonetll'f'tflt finding o//ad-Praclica-OOIH
of Oiml Procedtirt, 1908 (Vo/ 1908), o_ 40, r_ 1.
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 appoinkd 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 timebarred, 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
the suit wao therefore time bam:d. On appeal the High
1962
N""""41 1--
Co. LU. Col'"""
v.
Lif•l--
eor,.. of r.m.
HillrJ"""'411, /.
1962
D1t1mbn, IZ.
1961 -
K.,apat; Vlllkata
Mlll/1J17•
v.
1lM<ilpu Ramaswami
"""Co.
996 SUPREME COURT REPORTS (1963) SUPP.
Court held that the Receiver waa entitled to institute the suit,
that at the most there was a misdescription of the plainti1f6:1"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.
Held,
that a Receiver invested with full powers to
administer the property which is cuatodia /egia or who is
expressly 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 capacity as a Receiver. His
function cannot be limited merely to the preservation of the
property and it is open to a court, if occa'ion demands, to
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
amendment of the plaint at any time and the question of
limitation would not arise in such a case.
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-
-I
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 Const

## Text

2 S.C.R.
SUPREME COURT REPORTS
995
of the Corporation is dismissed with costs. There
will be a right to set-off the costs in the two appeals.
0. A. No. 551 of 1960 diamisse,d, ezupt for interest. 0. A. No. 652 of 1960 di8mis1e,d,.
KURAPATI VENKATA MALLAYYA
AND -ANOTHER
"·
THONDEPU RAMASWAMI AND CO.
AND ANOTHER
(S. J. IMAM, J. L. KAPUR, K. SUBBA RAo and
J. R. MUDHOLXAR, JJ.) .
RtuitJ<r-'--ApPoimment bg 0""'1-1/ emo -
M. Ail OID9
fllJfrlt-lnter/eronu-Oonetll'f'tflt finding o//ad-Praclica-OOIH
of Oiml Procedtirt, 1908 (Vo/ 1908), o_ 40, r_ 1.
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 appoinkd 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 timebarred, 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
the suit wao therefore time bam:d. On appeal the High
1962
N""""41 1--
Co. LU. Col'"""
v.
Lif•l--
eor,.. of r.m.
HillrJ"""'411, /.
1962
D1t1mbn, IZ.
1961 -
K.,apat; Vlllkata
Mlll/1J17•
v.
1lM<ilpu Ramaswami
"""Co.
996 SUPREME COURT REPORTS (1963) SUPP.
Court held that the Receiver waa entitled to institute the suit,
that at the most there was a misdescription of the plainti1f6:1"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.
Held,
that a Receiver invested with full powers to
administer the property which is cuatodia /egia or who is
expressly 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 capacity as a Receiver. His
function cannot be limited merely to the preservation of the
property and it is open to a court, if occa'ion demands, to
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
amendment of the plaint at any time and the question of
limitation would not arise in such a case.
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-
-I
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
purchase to the date of suit. In addition, the respondent firm claimed interest from the date of suit to the
date of realization. It is the respondent firm's case
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 Government 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 Government saying that the appellent-firm may deduct one
1962
KurapJti Venkah
MtJllaY.'14
v.
Thondepu Romaswami
1111dCo.
Mudkolkm. J.
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 certificate with respect to them, with the assistance of
Venkatcswarlu. The representative of the Russian
Government, however, rejected the goods on the
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 appellantfirm 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 respondentfirm.
In pursuance of this order the Receiver
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
-

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 appellantfirm 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 appellant-firm that the .suit was not tenable the respondentfirm 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. Suryanarayana 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 limitation.
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
pound. It, however, held that the price of tobacco
1961
Kurapati Y,.kal4
Mall'l)lya
••
TMNkpu RamuWllllli
ondCo.
Mui/aoll:.ir, J,
1961
Kur~i Y lllkal4
Malltru•
v.
7iori4*J &m11w..U
wlCo.
Mlldliollwr, J.
1000 SUPREME COURT REPORTS [1963] SUPP.
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 Receiver was entitled to institute the suit having been authorised 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
that consequently the suit was within time. It further held that the price of tobacco agreed to between
the parties was 8 annas per pound and that the plaintiff was entitled to a decree for Rs. 14,098/ - and interest at 6% p.a. from the date of delivery of the goods
till realisation.
The first point urged before us by Mr. Ranganadham 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 question 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 against 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 castiron 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
c1> (1946) L.a. 73 J.A. 246, 2s9.
(2) [1951) s.o.a. 211, :za1.
..
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 diametrically opposite to that expressed by the trial court.
Mr. Ranganadham Chetty pointed out that in support 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 judgment 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 contained· 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
28,196 pounds
at Re. 0-8-0 per pound.
In the
second
line
of
the entry the
price· therefore (in Teluguc) and the debit
1'61
M"'°"1Utlr, J.
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 scored 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 mentioned on the right hand side on page 41. It
has been commented on behalf of the defendants
that Ramaswamy himself has no personal knowledge 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 observed: "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
-
' . ,,_..
.
-
Dealing with this matter the High Court has observed
thus:
"Exhibit A-13 is the entry in the day book of
Thondepu . Ramaswami
&
Co.
under
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
annas
per
pound.
Though
the 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 normal manner contains reference to the sale of
28,196 pounds at 8 annas per pound. The resultant 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 challenge 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
1961
Kura/Mii Y...W.
M<ll41JO
v.
~-i
"""Co.
Mu/Mllat, J,
1962
Kurapati Y1nkata
Moll'!YY•
v.
Tliondepu Ramaswami
and Co.
Mudh•lkor, J.
1004 SUPREME COURT REPORTS [1963) SUPP.
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
respondent firm. It will thus be seen that there are
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.
_
..
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
~hich they reopened. It wo~ld, therefore, be within
time if it w~ properly constituted on the date on
which it w~s filed. In Jagat Tarini Dasi v. Naba
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 expressly 1n his own .name, may do so by virtue of his appointment 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 Prefervation 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
co-extensive with his functions. It is•clear that
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 . statement o[ his relations to the property to say that
(I) (1907) I.Lil. !K Col. ll05.
.1962
_..._
Kurajhlti V111kato
,/l(all'!)'ya
v.
Tfwn4epu R....,wami
'f"d Co.
Mudlrolkar, J,
iHJ
Kwo/Nfli V...t.lo
MJUi.,,.
y,
Titaeitpu R-.iW4111i
adC1.
Mwlltolkor, I.
1006 SUPREME COURT REPORTS [1963] SUPP.
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 institution of the suit, no contro! over its manage-
' .ment, and no right to the posse;sion of the
proceeds;" (pp. 316-317).
Later the learned Judges pointed out, that for
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
cases in support of their conclusion. It seems to us
'that the view of the Calcutta High Court that a
Recl'iver . who is appointed With full powers to
administer the property which is GUBtodia legis or
f
-.
2 S.C.R •. sumME·coURT REPORTS 1007
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 capacity 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 to a court 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,
however, contended that the order does not say
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 necessary 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.
1961
Kurapatl Y.....,.
Mal~
••
Thondfpa &zmllUNlllti
""'c..
Mutllllllku, J.
1161
Kor¥a# Vmkola
MallaJJ•
••
T""""Pu Ranuuwami
•MCo.
Mudliolkor, /,
1008 SUPREME COURT REPORTS [1963) SUPP.
[His Lordship then dealt with the point regard·
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'