Ram Babu Gupta vs M/S. Aditya Birla Group & Another
2014 Latest Caselaw 1713 Del

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     IN THE HIGH COURT OF DELHI AT NEW DELHI

                   Order Reserved on: 20 th February, 2014
                   Order Pronounced on: 31 st March, 2014

                        CS(OS) 632/2013

R AM B ABU G UPTA                                     ..... P LAINTIFF

                         Through:    Mr. Rajesh Rai, Advocate
                                     with Plaintiff in person.

                              versus
M/ S . A DITYA B IRLA G ROUP & ANOTHER             .....D EFENDANTS

                         Through:    Mr.    Navin           Chawla,
                                     Advocate

       CORAM:

       HON'BLE MR. JUSTICE SANJEEV SACHDEVA



       SANJEEV SACHDEVA, J.

1. The Plaintiff has filed the present suit for recovery of

Rs. 50,00,000/- as damages for illegal termination of

employment, arrears of salary, etc. The suit ha d

originally been filed only against M/s. Aditya Birla

Group.

2. The contention of the Plaintiff is that the interview for

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the appointment of the Plaintiff was conducted by Mr.

Arun Guar and the Plaintiff was appointed by the

Defendant with a subsidiary company of the Defendant

M/s. Liaoning Birla Carbon Co. Ltd. at China. As per

the Plaintiff, the Plaintiff was wrongfully terminated

and accordingly suffered a loss. The Plaintiff thus filed

the present suit.

3. The Defendant has not filed any written statement.

The counsel appearing for the Defendant has taken an

objection that the Defendant Aditya Birla Group is not

a legal entity and as such, cannot be sued in such

name and form. As per the Defendant, Aditya Birla

Group contains about 50 companies and the relevant

company M/s. Liaoning Birla Carbon Co. Ltd. had not

been arrayed as a party.

4. By the order of 22.11.2013, M/s. Liaoning Birla Carbon

Co. Ltd. was impleaded as the Defendant No. 2 and

the matter was set down for hearing on the question

whether the suit would be maintainable against the =====================================================================

Defendant No. 1 i.e. Aditya Birla Group .

5. Learned counsel for the Plaintiff submitted that the

Plaintiff had given an interview before an officer of the

Defendant Aditya Birla Group and, accordingly, he

was appointed by the Defendant Aditya Birla Group

and was placed in one of its subsidiary companies.

6. He further submitted that in the Aditya Birla Group, the

selection process is normally conducted by the

Defendant Aditya Birla Group and after the selection of

an individual, the person is placed in one of the

subsidiary companies. In the present case also, the

interview of the Plaintiff was conducted by an officer

who claimed himself to be an officer of the Defendant

Aditya Birla Group . The Plaintiff had been selected by

the Defendant Aditya Birla Group and was placed with

M/s. Liaoning Birla Carbon Co. Ltd. The interview was

conducted in Delhi in the office of one of the

subsidiary companies of M/s Aditya Birla Group.

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7. Learned counsel for the Plaintiff submitted that in view

of Order XXX Rule 10 of the Code of Civil Procedure

since the Defendant Aditya Birla Group was carrying

on business under the name and style of Aditya Birla

Group, the Defendant Aditya Birla Group can be sued

in such name.

8. Learned counsel for the Defendant No. 1 Aditya Birla

Group submitted that there was no such legal entity as

Aditya Birla Group and as such, the suit was not

maintainable. Learned counsel for the Defendant No.

1 further submitted that the Plaintiff was well aware

that he had been placed in the company M/s. Liaoning

Birla Carbon Co. Ltd. and as such, being aware of the

entity in which the Plaintiff had been appointed to, the

suit in the name of Aditya Birla Group was not

maintainable.

9. Order XXX Rule 10 of CPC lays down as under:

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10. Suit against person carrying on business in name other than his own Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under this Order shall apply accordingly.

10. Order XXX Rule 10 stipulates that if any person

carries on business under the name and style other

than his own name, then that person can be sued in

such name or style as if it were a firm name. What is

relevant to be considered in the present case is

whether the Defendant Aditya Birla Group ever

represented to the Plaintiff or to the public that there is

an entity by the name of Aditya Birla Group. If the

Defendant Aditya Birla Group was trading or carrying

on business or representing to people that there was

an entity by the name of Aditya Birla Group then it

could be sued in such name. If there was no such

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representation of Aditya Birla Group then a suit would

not lie in the name of Aditya Birla Group.

11. The merits of the claim of the Plaintiff is not relevant to

be considered at this stage. What is relevant is

whether the Defendant Aditya Birla Group had any

point of time ever represented that there was an entity

by the name and style of Aditya Birla Group .

12. It is the case of the Defendant No. 1 that there are

about 50 group companies. They are separate legal

entities but are collectively referred to as the Aditya

Birla Group. The interview for selection of employees

and officers at times is also held centrally and after the

selection, an individual is appointed in one of the

group companies.

13. The Defendant admits that the interview of the Plaintiff

was conducted by Mr. Arun Gaur and on selection, the

Plaintiff was placed with M/s. Liaoning Birla Carbon

Co. Ltd., one of the companies of Aditya Birla Group.

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14. The Plaintiff has relied on various emails exchanged

prior to the interview and the offer letter dated

24.08.2010 by which the Plaintiff was given an offer of

appointment. The emails in their body refer to "Aditya

Birla Group'. The letter of 24.08.2010 is titled as an

offer letter. The letter is on the letterhead of 'Aditya

Birla Group'. The letter mentions that the Plaintiff was

being appointed at the position of Deputy General

Manager - Engineering with M/s. Liaoning Birla

Carbon Co. Ltd. of the Aditya Birla Group. The letter is

signed by Arun Gaur and his designation is shown as

'Chief People Officer' and a 'CC' is marked to

'Personal Dossier'.

15. Learned counsel for the Plaintiff conceded that Mr.

Arun Gaur was not an employee of M/s. Liaoning Birla

Carbon Co. Ltd. He could not point out of which

company that was part of Aditya Birla Group, was Mr.

Arun Gaur an employee of. He submitted that probably

Mr. Arun Gaur was a senior officer in Personnel

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Department of Aditya Birla Group who conducted

interviews and issued appointment letters and placed

people in various entities that were subsidiary or

comprised in the Aditya Birla Group.

16. The offer letter and the above facts clearly indicate

that the Defendant is representing to people that there

is an entity by the name and style of Aditya Birla

Group. The interview and the selection of the Plaintiff

is by an officer of Aditya Birla Group . The offer letter

has been issued on the letterhead of Aditya Birla

Group and the Plaintiff has been placed in one of the

subsidiary companies i.e. M/s. Liaoning Birla Carbon

Co. Ltd. of Aditya Birla Group. These facts show that

that the Defendants are carrying on business under an

assumed name i.e. Aditya Birla Group and are

representing to people that there is an entity by the

name and style of Aditya Birla Group. Such an entity

thus can be sued in the assumed name even if the

Defendant No. 1 Aditya Birla Group is not a juristic

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person.

17. The Full Bench of the Allahabad High Court in

R AJENDRA P RASAD OIL M ILLS , K ANPUR A ND A NR . VS .

S MT. C HUNNI D EVI & ORS ., AIR 1969 A LLAHABAD 1 has

held as under:-

"There is nothing in Rule 10 or elsewhere to indicate that the provisions contained in Rule 10 did not apply to cases where the identity of the real party was known to the Plaintiff. The object of framing Rule 10 may have been to protect the unwary, but there is nothing in Rule 10 which might indicate that in case the Plaintiff knew the real person the provisions contained in Rule 10 would be inapplicable. Rule 10 can be availed of whenever a person factually carried on business under a name or style other than his (or its) own name and the provision being a beneficent one cannot be construed strictly and in a manner not warranted by the language of the statute.

In that case, R.P. Oil Mills was the assumed name under which M/s. N.K. Industries Limited

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a company incorporate was carrying on business and this fact was known to the Plaintiff. It was held that even though R.P. Oil Mills Kanpur was not a juristic person, yet the Defendant could be sued in their assumed name in view of the provisions of O. 30 R.10 CPC. In AIR 1944 Calcutta 138, the Division Bench observed that individuals who carry on business under a firm name or assumed name cannot sue as Plaintiff in a assumed name, but he can be sued in the assumed name as a Defendant. In this connection, the Division Bench has observed as under:

There is no inconvenience or injustice, if a person carrying on business under a firm name or any other assumed name is made to sue in his real name, but different and weighty considerations would apply when he is sued by another person in the assumed name in which he carries or has carried on business. Business may be carried on by correspondence and orders may be, and are usually, placed from one part of the world to another through post and goods may be supplied on credit on such =====================================================================

orders. A producer or merchant living in one part of the globe cannot be expected to know or to make enquiries and in some cases it is not possible for him to know or to make enquiries as to who is the owner of the business that is being carried on in an assumed name, and in most cases he would only know the name of the real owner after he had brought his suit, for the Defendant must then appear in his own name. (Order 30, Rule 6). It is to be held that a decree obtained by such a producer or merchant in a suit instituted against the assumed name is void decree, it would lead to manifest hardship, would open up a wide door to fraud and would sap the credit on which commercial dealings largely rest. In our judgment Order 30 Rule 10 Civil P. C., rests on these considerations and they must be kept in view in construing that rule."

18. The Full Bench of the Allahabad High Court in

R AJENDRA P RASAD O IL M ILLS CASE (S UPRA ) has laid

down that if a person carries on business under a firm

name or any other assumed name then he can be

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sued in the assumed name. The Allahabad High

Court relied on the judgment of the Division Bench of

the Calcutta High Court in J AMUNADHAR P ODDAR F IRM

VS J AMUNARAM B HAKA T A ND ORS . AIR 1944 C ALCUTTA

138 wherein the Division Bench had noticed that

people carry on business through correspondences

and orders and are placed from one part of the world

to another through post and in certain cases it may not

be possible for a person to know the actual nature of

the entity with whom the business was being carried

on and, in such a situation, to relegate the Plaintiff to

make an inquiry prior to the institution of the suit would

lead to manifest hardships. The Allaha bad High Court

went on to hold that Order XXX Rule 10 was

applicable even in cases where the identity of the real

party was known to the Plaintiff and Order XXX Rule

10 could be availed of whenever a person factually

carrying on business under the name and style other

than his (or its) own name and the provision being a

beneficent one could not be construed strictly. =====================================================================

19. The Judgment of the Allahabad High Court has been

followed by our own High Court in W OCHARDT LIM ITED

VS . C HEMETAC P HARMACEU TICA LS , 2004 (77) DRJ 435.

The single Judge of our High Court has laid down that

in cases where the Defendant puts in appearance and

it is brought to the notice of the Court that the

Defendant is not a juristic person and some other legal

entity is carrying on business under the assumed

name of the Defendant, the Court may ask the Plaintiff

to incorporate such facts in the plaint although it is not

necessary in view of the provisions of Order XXX Rule

10 CP C and further to insist that the plaintiff must

carry out necessary investigations right at the initial

stage and incorporate facts disclosing the identity,

legal character and status of the defendant even

before issuance of process is clearly un-called for.

20. The admitted position is that the interview was

conducted by an officer of Aditya Birla Group. The

Defendants, by the letter of 24.08.2010 issued on the

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letterhead of Aditya Birla Group, have shown and

represented that there is an entity by the name of

Aditya Birla Group and they are trading in an assumed

name. The presumption thus arises is that the

companies collectively carry on business and

represent to the public that there is an entity called

'Aditya Birla Group '. In the present case, the

Defendant ha s not yet filed a written statement nor is it

indicated as to which is the company which conducted

the interview and appointed the Plaintiff in the

Defendant No. 2 company. Since the Defendants

carry on business under the assumed name and

represent to public that there is an entity by the name

of Aditya Birla Group they can be sued in the said

name also.

21. I find no merit in the objection raised by the

Defendants. The question of law raised is accordingly

decided in favour of the Plaintiff and the suit is held to

be maintainable against the Defendant No. 1 Aditya

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Birla Group. Nothing stated herein shall amount to an

expression of opinion on the merits of the case.

SANJEEV SACHDEVA, J

MARCH 31, 2014 st

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