Motion before high court
V.N.K. MENON
(Querist) 08 May 2012
This query is : Resolved
Dear L.C. friends,
I would be grateful if Ld. Friends throw light on the essentialities including case category for filing a written motion, besides oral motion, in the High Court (Delhi) to dismiss suit/pleadings/ w.s. etc of other party on account of subscription & verification by duly unauthorized person in accordance with Order 6 Rule 14 and Order 29 Rule 1 of the Code.
Thanks
ajay sethi
(Expert) 08 May 2012
Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6, Rule 14 together with Order 29, Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29, Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6, Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example, by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favor of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.
ajay sethi
(Expert) 08 May 2012
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
Date of reserve : 02.02.2007.
Date of decision : 09.02.2007.
FAO 833/2003
Indian Oil Corporation Ltd. .... Appellant
Versus
Union of India .... Respondent
Advocates who appeared in this case :
For the appellant : Mr. M.M. Kalra, Advocate.
For the respondent : Mr. A. Mohan, Advocate
J.M. MALIK, J.
1. Although, the Railway Claims Tribunal vide its order dated 20.10.2003 held
that two tank wagons bearing no. WR-42619 and NR-74156 containing 22150 and
22260 litres of furnace oil, respectively, were not delivered at the destination station
and the appellant had suffered a loss in the sum of Rs. 2,76,525/-, yet, it proceeded to
dismiss the claim of the appellant on the ground that the application had not been
signed, verified and filed by a duly authorised person. Again no proper claim notice
was served upon the respondent. For these reasons, the compensation petition was
dismissed. Aggrieved by that order, the claimant has filed the above said appeal.
2. The first objection taken by the counsel for the respondent was that this
matter should be referred to High Power Committee.
3. I see no merit in this argument because in an authority reported in Steel
Authority of India Ltd. v. Life Insurance Corporation of India & Ors., J.T. 1997(6)
S.C. 24, it was held that disputes under Public Premises (Eviction of Unauthorised
Occupants) Act are petty disputes and are not directed to be dealt with High Power
Committee appointed to resolve disputes between public sector undertakings and
Govt. of India in the Ministry. It was held that :-
“3. The object of issuing direction in those matters was to decide the fiscal
disputes in case of major policy matters to save the public money and court's
valuable time, and disputes could amicably be settled between the Public Sector
Undertaking and the Government of India or the State Governments. The intention
was not to resolve the disputes like eviction of a company or Public Undertaking
under Public Premises (Unauthorised Occupants)Act; such petty disputes are not
directed to be dealt with by the High level officers whose otherwise duty and time is
of very important nature. Under these circumstances, the High Court has not
committed any error warranting interference.”
4. In Canara Bank & Ors. v. National Thermal Power Corporation & Anr.,
(2001) 1 SCC 43, it was held :-
“In the present litigation there does not appear to be a genuine dispute between
the Government of India undertakings. In this case one of the public sector
undertaking is shown to be acting not as an undertaking but as Trustee of a Trust.
The Board was, therefore, justified in holding “that the real litigation in this case,
therefore, is between the Mutual Fund and NTPC” and not between the two
undertakings. The claim preferred on behalf of the CBMF was not denied by the
Corporation but in turn a counter-claim with respect to the liability of a subsidiary of
the Bank was raised. The dispute raised is without laying any basis or placing on
record any evidence in support thereof. Imaginative disputes raised only to defeat
the undisputed claim of the Trustee could not be made the basis to deprive the
Trustees and ultimately the public at large, of the value of the bonds which hand,
admittedly, been received by the Corporation with unambiguous undertaking to
repay back the same.”
Under these circumstances, it is not essential for the Court to send the case to the
High Power Committee to give permission for filing this case.
5. The second argument urged by the learned counsel for the respondent
was that the petition for compensation was not properly signed and the power of
attorney was not duly proved. He pointed out that only photocopy of general power
of attorney was placed on the record and the original was not placed on the record.
He did not raise any other argument.
6. This is not the requirement of law that the original power of attorney
should be placed on the record. Normally photocopy of general power of attorney is
exhibited and the general power of attorney is given back to the party concerned. If
the Court or Tribunal has any doubt about the general power of attorney it can ask
the party concerned to produce the original general power of attorney. In United
Bank of India v. Naresh Kumar, AIR 1997 SC 3, it was held :-
“9. In cases like the present where suits are instituted or defended on behalf
of a public corporation, public interest should not be permitted to be defeated on a
mere technicality. Procedural defects which do not go to the root of the matter
should not be permitted to defeat a just case. There is sufficient power in the Courts,
under the Code of Civil Procedure, to ensure that injustice is not done to any party
who has a just case. As far as possible a substantive right should not be allowed to
be defeated on account of a procedural irregularity which is curable.
10. It cannot be disputed that a company like the appellant can sue and be
sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a
pleading is required to be signed by the party and its pleader, if any. As a company
is a juristic entity it is obvious that some person has to sign the pleadings on behalf of
the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides
that in a suit by or against a corporation the Secretary or any Director or other
Principal Officer of the corporation who is able to depose to the facts of the case
might sign and verify on behalf of the company. Reading Order 6, Rule 14 together
with Order 29, Rule 1 of the Code of Civil Procedure it would appear that even in the
absence of any formal letter of authority or power of attorney having been executed a
person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds,
sign and verify the pleadings on behalf of the corporation. In addition thereto and
dehors Order 29, Rule 1 of the Code of Civil Procedure, as a company is a juristic
entity, it can duly authorise any person to sign the plaint or the written statement on
its behalf and this would be regarded as sufficient compliance with the provisions of
Order 6, Rule 14 of the Code of Civil Procedure. A person may be expressly
authorised to sign the pleadings on behalf of the company, for example, by the Board
of Directors passing a resolution to that effect or by a power of attorney being
executed in favour of any individual. In absence thereof and in cases where
pleadings have been signed by one of its officers a Corporation can ratify the said
action of its officer in signing the pleadings. Such ratification can be express or
implied. The Court can on the basis of the evidence on record, and after taking all
the circumstances of the case, specially with regard to the conduct of the trial, come
to the conclusion that the corporation had ratified the act of signing of the pleading
by its officer.”
7. It is, thus, clear that the respondent has raised copious objections merely for
the sake of cavil. There is no dispute about the gut issue. Instead of throwing down
the quanlet, it should have thrown in the towel from the very word go. It would have
gone a long way to save time and expenses incurred on this litigation. In the light of
this discussion, I accept the appeal and the appellant is awarded compensation in the
sum of Rs. 2,76,525/- with costs and I also grant interest @ 8% per annum from the
date of loss i.e. 27.01.1998 till the realization of the said amount. Copy of this order
be sent to the Trial Court.
Sd/-
J.M. MALIK, J.
R.K Nanda
(Expert) 08 May 2012
No more to add.
V.N.K. MENON
(Querist) 09 May 2012
dear mr sethi
i am attaching for reference an order by H/C in the matter, for valued comments of members. since it is in PDF format I do not whether it displays properly, but i feel reference would be OK.
rgds
menon
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
Date of Judgment: 22.03.2011
RSA No.116/2006
TATA SONS LTD. ………..Appellant
Through: Mr.Shraman Sinha, Advocate.
Versus
SHRI MANISH PAJAN & ANR. ……….Respondents
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 This appeal has impugned the judgment and decree dated 08.11.2005
which had endorsed the findings of the trial Judge dated 18.08.2004 whereby
the suit filed by the plaintiff had been dismissed. The reason for the
dismissal of the suit was the finding on issue No. 3 which reads as follows:-
“3. Whether the suit is not signed, verified and filed by duly
authorized and competent person? OPD.”
2 Trial Judge was of the view that the plaintiff has failed to prove that
the suit has been signed, verified and filed by a duly authorized and
competent person. This finding of the trial Judge was endorsed in appeal
vide the impugned judgment.
3 This is a second appeal. It had been admitted and on 11.03.2010, the
following substantial question of law was formulated. It reads as under:-
“Whether the courts below erred on facts and law while construing
General Power of Attorney executed by appellant in favour of Mr. Phiroze
A. Vandreval?”
4 On behalf of the appellant, it has been urged that only provisions
available in the Code of Civil Procedure (hereinafter referred to as the
‘Code’) for the verification of pleadings by a competent person are
contained in Order 6 Rule 14 and Order 29 Rule 1 of the Code. Attention has
been drawn to the aforenoted provisions. It is stated that a pleading is
required to be signed by a party or in his absence by a duly authorized
person. It is submitted that in the instant case, the pleadings had been signed
by Mr. Phiroze A. Vandreval who was a principal officer of the company
and fits into the parameters of Order 29 Rule 1 of the Code. Mr. S.S.
Eashwaran, Executive of the plaintiff company had come into the witness
box to depose on behalf of the company in terms of a power of attorney Ex.
PW-1/1. He had the authority to do so and his deposition was to the effect
that he was deposing on behalf of the company in terms of a power of
attorney Ex. PW-1/1.
5 Record shows that the pleadings had been signed and verified by Mr.
Phiroze A. Vandreval. He has described himself in the plaint as Senior Vice-
President of the company; it is nowhere his case that he was either the
Secretary, Principal Officer or the Director of the company which are
categories of persons who can sign and verify the pleadings in terms of
Order 29 Rule 1 of the Code. On behalf of the plaintiff, Mr. S.S. Eashwaran
had come into the witness box. He was the Assistant Officer of the
company; his deposition was to the effect that he has the authority to depose
on behalf of the company in terms of a power of attorney Ex. PW-1/1. This
power of attorney had been produced in his examination in chief. The
original was seen and returned. In the course of examination, he had
admitted that he has original power of attorney and he can bring it in Court.
This was specifically recorded in the testimony of the witness. Thereafter, in
his cross-examination which was effected on 12.11.2003 he has admitted
that Ex. PW-1/1 is no longer with him; it stands redeposited back with the
company. A lengthy cross-examination had been effected of this witness. He
had deposed that the suit had been filed by Mr. Phiroze A. Vandreval and he
had authority to verify the plaint in terms of Ex. PW-1/2. He could not
produce Ex. PW-1/2. The authority of PW-1 to depose on behalf of the
company vide Ex. PW-1/1 was also not produced.
6 These are admitted facts and have come on record. PW-1 inspite of
opportunity could not produce either Ex. PW-1/1 or Ex. PW-1/2. Ex. PW-
1/1 was the authority given by the company to PW-1 to depose on behalf of
the company. This has not been proved. Ex. PW-1/2 was the authority given
to Mr. Phiroze A. Vandreval to verify and institute the pleadings on behalf
of the company. This document was also not proved.
7 Both the fact finding courts have returned concurrent findings that the
suit was thus not filed through a duly authorized person. These findings do
not in any manner call for any interference.
8 Reliance by learned counsel for the appellant upon the judgment
reported in AIR 1997 SC 3 United Bank of India Vs. Naresh Kumar &
Others and the judgment reported in RFA No. 567/1994 Syndicate Bank
through nemo Vs. M/s Marwah Electronics decided on 16.08.2000 are
misplaced. The proposition that a co-joint reading of Order 29 Rule 1 read
with Order 6 Rule 14 of the Code shows that even in the absence of any
formal letter of authority or power of attorney, a person referred under Order
29 Rule 1 of the Code can by virtue of the office which he holds, sign and
verify the pleadings on behalf of the Corporation is not a disputed
proposition. However, Mr. Phiroze A. Vandreval who had chosen to file,
sign and institute the suit on behalf of the company had nowhere stated that
he falls in any of the three categories as aforenoted in Order 29 Rule 1 of the
Code. The Judgment of United Bank of India is thus not applicable. The
judgment reported in Marwah Electronics is also distinct. In that case, the
testimony of PW-2 had been examined wherein it had been noted that the
original power of attorney executed by the company in his favour had been
brought to the Court; which is not so in the instant case.
9 There is no merit in this appeal. Substantial question of law is
answered accordingly. Dismissed.
Sd./-
INDERMEET KAUR, J.
MARCH 22, 2011
ajay sethi
(Expert) 09 May 2012
in the present case the vice president was unable to produce authorsation by the company for verifying the plaint . further he has not stated in plaint that he is pricnipal officer , secretary or director and can sign and verify plaint on behalf of company .
the appeal was dismissed on thwe ground of failure to produce authorisation for filing plaint
Shonee Kapoor
(Expert) 09 May 2012
This order is good in law.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
