Can the managing director of company fight the own case in a court of law without engaging a lawyer?
Dr. MPS RAMANI Ph.D.[Tech.]
(Querist) 07 July 2012
This query is : Resolved
Generally to fight a case in a court of law one has to be a qualified and accredited lawyer. But as far as I know an individual can fight his own case without appointing a lawyer. Correct me if I am wrong. Now instead of an individual, if the litigant is a judicial entity like, say, a Company, can the Managing Director or any other official of the Company fight without appointing a lawyer?
ashutosh mishra
(Expert) 07 July 2012
An interesting question to which my answer is in negative.
Guest
(Expert) 07 July 2012
Your question is quite contradictory in itself, as own case (personal) and managing director's case (for and on behalf of a company) are two distinct issues. So, please make your query clear. Replies based on individual guesses of the experts can only confuse you.
ashutosh mishra
(Expert) 07 July 2012
Dhingra Sir!
I have not guessed.
y answer is based on understanding that a company is a separate judicial entity for which a director can engage a lawyer and sign vakalatnama on behalf of company BUT DIRECTOR
HIMSELF CAN NOT REPRESENT COMPANY IN COURT OF LAW.
Khaleel Ahmed Mohammed
(Expert) 07 July 2012
Yes,the managing director of the company can represent him self on behalf of the company in any case,provided the same should be empowered the managing director in the company's Memorandum of association.
ashutosh mishra
(Expert) 07 July 2012
The Answer is devoid of merit.Sorry to differ
Khalil sir?????????
ashutosh mishra
(Expert) 07 July 2012
It must be understood that MOA is like
constitution yet not above legislation under which it is prepared.
Am i RIGHT KHALEEL SIR??????????????????
Guest
(Expert) 07 July 2012
Dear Ashutosh,
Probably you have not observed two different things, i.e., "OWN case" and "Managing Director." If he is referring to a company's case, that cannot be his own (personal) case. If he is referrring to his personal case, his being a managing director is irrelevant for the purpose of his own case. That is why, I have asked him to clarify what he wanted to convey.
About yourself, anyone can understand that you have considered the case as a company's case. But, if the querist mentions the case to be his own personal case, that would prove your consideration merely as a guess without making yourself sure about the position.
ashutosh mishra
(Expert) 07 July 2012
Dhingra Sir!
I opined on his This PART" Now instead of an individual, if the litigant is a judicial entity like, say, a Company, can the Managing Director or any other official of the Company fight without appointing a lawyer?"
Dr. MPS RAMANI Ph.D.[Tech.]
(Querist) 08 July 2012
I forgot that I was addressing lawyers. Some are dwelling on the meaning of the word 'own'.
An individual is a person, who can sue and can be sued. In either case he can talk, write and communicate on his own behalf.
A company is a judicial entity, which also can sue and can be sued. But a Company cannot talk, write and communicate and an individual has to represent it. Even when a lawyer is appointed an individual has to be designated to represent the Company. With my limited knowledge I think that in the court the designated individual is the Company itself. So can he fight in a court of law himself as the Company? If there are any judgments or any specific enacted law I would like to be enlightened.
Dr. MPS RAMANI Ph.D.[Tech.]
(Querist) 08 July 2012
To Mr. Ashutosh Misra
"It must be understood that MOA is like
constitution yet not above legislation under which it is prepared."
Please tell me the legislation you are referring to. Is it Company Law or any other law stipulating appointment of a lawyer to fight a case.
ashutosh mishra
(Expert) 08 July 2012
yes! it is Company Law where under MOA is prepared but it can not be so framed that provisions of other enactments are defeated by it.
If any MOA provides that the co.would have power to authorize it director to plead for cases filed by or against the company the such a clause would be in violation of section 33 of Advocates Act which alone entitles right to practice in courts. Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act.
This is also evident from Section 29 of the Act.
A natural person can, of course, appear in person and argue his own case personally but he cannot give a power of attorney to anyone other than a person who is enrolled as an advocate to appear on his behalf.
Section 32 of the Advocates Act, however, vests discretion in the court, authority or person to permit any person who is not enrolled as an advocate to appear before the court and argue a particular case.But this Section 32 of the Act is not the right of a person (other than an enrolled advocate) to appear and argue before the court but it is the discretion conferred by the Act on the court
to permit any one to appear in a particular case even though he is not enrolled as an advocate.
I hope Sir Your problem is resolved now.
you may go with a case law Goa Antibiotics & Pharmaceuticals Ltd. Versus R.K. Chawla & Another
delivered on July 04, 2011 by [MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.] reported in [2011] 7 SCR 846
Guest
(Expert) 08 July 2012
Dear Ashutosh,
Can you please quote any particular section of any law that may clearly stipulate that the company should be represented only through an advocate?
Everyone knows, a company is an artificial person and cannot represent on its own, while a real person can represent himself anywhere and to request a judge to represent his own case.
So the arificial person, i.e., a company, represents itself through its manager, as duly authorised by its Board of Directors. As per section 2(24) of the Companies Act, a manager has been defined as --
"manager" means an individual (not being the managing agent) who, subject to the superintendence, control and direction of the Board of directors, has the management of the whole, or substantially THE WHOLE OF THE AFFAIRS of a company, and includes a director or any other person occupying the position of a manager, by whatever name called and whether under a contract of service or not."
Further, as per definition under section 2(26) a Managing Director is also one of the Directors with substantial powers of management.
Accordingly, being an artificial person, a company is represented by its Manager duly authorised by its Board of Directors, and MD duly authorised by MOA or Board of Directors.
Further to it, As per section 10GD, right to legal representation has been allowed to the applicant or the appellant to appear either in person or authorise one or more chartered accountants or company secretaries or cost accountants or legal practitioners or ANY OFFICER to present his or ITS case
So, a crucial question arises, if the Board of Directors consider that only the Managing Director of the company, not an Advocate, can represent the company effectively, would you like to quote relevant section of any Act that prohibits a judge not to allow the company to be represented through its Manager/MD, while the Company (an artifical person) cannot present itself before the judge to request to allow to represent its case?
Any law is not perfect in itself and is always subject to the provisions of one or the other law. Similarly, case laws are also not of permanent nature and are always subject to change depending upon the effectiveness of presentations by the advocates of the clients or the interpretations of the individual judge from time to time that too depending upon the circunstances of the individual cases.
So, in my opinion, beating the line is not beneficial for the point of natural justice. According to my opinion, a Managing Director can represent his company (artificial person), as a real person duly authorised by the company.
Moreover, by presenting on behalf of his company, the managing Director cannot be said to be practising law as of a profession to represent other clients also, which could have violated provisions of Sec.33 of the Advocates Act.
My dear, advocacy is not a profession meant for circling within a very limited range, it should be made innovative, objective and justice oriented.
ashutosh mishra
(Expert) 08 July 2012
yes SIR! i can.
And that is your 10GD it self .
10GD(d) reads as “legal practitioner” means an advocate, a vakil or any attorney of any High Court, and includes a pleader in practice.
Guest
(Expert) 08 July 2012
Dear Ashutosh,
I did not expect you (as a promising advocate) to read between the lines, merely the clarification on "legal practitioner" by ignoring the main provision of the section, which clearly states about right to legal representation of the applicant or the appellant to appear either in person or authorise one or more chartered accountants or company secretaries or cost accountants or ANY OFFICER also to present his or ITS case.
Naturally, the words, "legal practitioner" preceded by the word "OR" in the section does not tend to exclude the other authorities of the companies, as mentioned in the section. The word, OR, denotes, a legal practitioner can also be one amongst others to be considered.
Khaleel Ahmed Mohammed
(Expert) 08 July 2012
Un necessary Mr.Ashutosh created controversy.The Managing Director can represent the company in any court of law.
Dr. MPS RAMANI Ph.D.[Tech.]
(Querist) 10 July 2012
@Ashutosh Misra
I gather the following from what you have quoted
Under Section 35 of the Advocates Act a Managing Director or any other officer approved by competent authority in the company can argue the the Company's case, if so permitted by the court at its sole discretion. Now if an individual wants to argue his own case without appointing a lawyer, can the court say 'No" at its discretion under the same Section 35?
ashutosh mishra
(Expert) 10 July 2012
YourQ.Now if an individual wants to argue his own case without appointing a lawyer, can the court say 'No" at its discretion under the same Section 35?
My ANSWER..NO!(section is however 32 and not 35)
Kindly Take care of my this part of earlier answer which reproduced below.
"A natural person can, of course, appear in person and argue his own case personally but he cannot give a power of attorney to anyone other than a person who is enrolled as an advocate to appear on his behalf. "
To me it is simple.
A natural person has citizenship as well as Constitutional rights and as an individual have right to do every thing every where of course within ambit of law and he can do it either on his own or by
an agency we call Power of Attorney.Then when he decides to file a suit or defend a suit or any court proceeding,he has right to go on his own but when he decides to create an agency for it ,such an agency must be an advocate as none other is allowed to practice law says advocates Act (S.33).
But when it comes to a company,it is not a natural person but an artificial person whom law confers juristic personality,so it is legal fiction that a company is a person in law.It should be understood that this artificial personality does not enjoy citizenship rights or constitutional rights and for its' each and every activity it requires a HUMAN agent competent to enter into contracts(see Contract Act) (I mean a natural person)who can be any one as its directors but when it comes to court cases,the agency can be only an advocate on behalf of the company,the director manager etc.could be authorized to sign VAKALATNAMA only.
As and when its' director manager desires to conduct a case going in court filed by or against the company,simply because there is a rule laid in company's MOA or there is a majority resolution passed in that regard, no right shall ipso facto flow in him to conduct a court case unless permission is sought and granted by the court itself as envisaged by s.32 0f Advocates Act,is the simple point to understand which i do not know why Khalil sir is reluctant to follow.
G N SHARMA
(Expert) 11 August 2012
The power of attorney holder can not argue a case regularly on behalf of different persons,if, he/she argues on behalf of others regularly, then it becomes practice of law, hence, violates section 29 and 33 of the Advocates Act' 1961 as well Section 2 of the Indian Power of attorney Act' 1882 also, it is further stated that any power of attorney holder can not play role in dual capacities at the same time i.e. as a party, replacing to power of attorney doner and a pleader. in this way it is clear that a power of attorney holder can not argue a case before the court without having prior permission of the court under section 32 of the Advocates Act' 1961.
