MAHESH KR. YADAV vs THE AHMED TEA COMPANY

1.Heard Mr. D. Mozumder, learned senior counsel for the petitioner and Mr. KN Choudhury, learned senior counsel for the respondent.

This revision is directed against the judgment and decree dated 13.11.2007 passed by learned Addl. District Judge, Dibrugarh, in Title Appeal No.

9/2014, whereby the appeal filed by the defendant against the judgment and decree dated 16.01.2014 passed by learned Munsiff No. 2, Dibrugarh, in

Title Suit No.78/2007(N) was dismissed and suit of the plaintiff was decreed.

As agreed by learned counsel for both the parties, this revision is taken up for disposal at the stage of admission.

The respondent instituted the T.S. No.78/2007 under the Urban Areas Rent Control Act for ejectment of the defendant/appellant on the ground of

defaulter. The defendant contested the suit denying all averments of the plaintiff. The defendant, however, in his written statement did not deny the

relationship of landlord and tenant with the respondent/plaintiff, though denied the factum of being defaulter. On the basis of the pleadings of the

parties, learned trial court framed the following issues :-

1) Whether the suit is maintainable in its present form and manner ?

2) Is there any cause of action ?

3) Whether the plaintiff was ever the owner of the suit premises ?

4) Whether the defendant is a tenant under the plaintiff ?

5) Whether the defendant is a defaulter ?

6) Whether the defendant is liable to the evicted from the suit premises ?

7) Whether the plaintiff is entitled to any relief as prayed for ?

Both the parties adduced evidence in support of their respective claims and after hearing the parties, learned Munsiff decreed the suit of the

plaintiff.

Aggrieved, the defendant preferred an appeal before the learned Addl. District Judge, which also stood dismissed. Hence, the defendant/petitioner

has filed the present revision petition challenging the propriety and legality of the judgment impugned.

Though initially several pleas were raised in the revision petition, learned Senior Counsel, Mr. D. Mozumder pressed only one issue being the

maintainability of the suit. Mr. Mozumder submits, that the learned courts below acted without jurisdiction, while deciding the issue of maintainability of

the suit, inasmuch as, the plaintiff failed to establish, that the person, namely, Smt Nazrana Ahmed Islam, who represented the plaintiff company,

purportedly as the director of the plaintiff company, had any authority to represent the plaintiff company and to sign and verify the plaint. In absence

of such authority on the part of the person, who signed and verified the pleadings, the suit was not maintainable and therefore, the courts below by

decreeing the suit in favour of the respondent/plaintiff fell in grave error. In support of his submission, learned senior counsel Mr. D. Mozumder placed

reliance on the following decisions:-

1) 2011 SCC 524, State Bank of Travancore Vs. Kingston Computers India Private Ltd.

2) 1972 4 SCC 165, State of Rajasthan Vs. Rao Raja Kalyan Singh (Dead by his LRS)

3) 2017 0 (SUPREME) (Mah 986), Majgaonkar Vs. Smt. Meenakshi.

Refuting the above submission, learned Senior Counsel, Mr. KN Choudhury submits, that no plea was taken by the defendant in his written

statement challenging the status of Mrs. Nazrana Ahmed Islam, who signed and verified the plaint on behalf of the company as director of the

plaintiff. No factual foundation having been laid in the pleadings, the defendant is not entitled to raise such objection, on the maintainability of the suit in

a revision petition, submits Mr. Choudhury.

Mr. Choudhury placing reliance on United Bank of India-VS- Naresh Kumar, AIR 1997 (SC) 3 further submits that Order VI Rule 14 read with

Order XXIX Rule 1 of CPC provides that any officer, referred to in Order XXIX Rule 1 CPC by virtue of his office, even in absence of any formal

authority can sign and verify the pleadings on behalf of the company. It is further submitted that such issues being merely technical, the substantial

cause should not be made to suffer for such technicality, more particularly when no such plea was raised in the pleadings. It is also submitted that

though at a later stage the defendant sought to amend the written statement in order to raise the plea with regard to maintainability of suit disputing the

status of the person, who signed and verified the plaint, the prayer for amendment of the written statement was rejected by the learned trial court and

eventually by the apex court, leaving the defendant with no pleadings as to maintainability.

The Hon’ble Mumbai High Court in Majgaonkar Vs. Smt. Meenakshi, relied by Mr. Mozumdar, while dealing with the authority of a person to

institute a suit on behalf of the company, observed that question of authority to institute a suit on behalf of a company is not a technical matter which

has far reaching effects, as it often affects the policy and finance of the company. The Mumbai High Court held as under :-

“Institution of the suit requires a decision to be taken in that regard by a Company and since the Company, for carrying on its affairs, acts through

its Board of Directors and in certain cases, well through the directors and secretaries too, provided their authority springs forth from the Articles of

Association or some decision taken in the annual general meeting or a resolution passed by the Board of Directors.â€​

Mr. Mozumder submits that the plea of maintainability being a legal plea can be raised at any stage and in support of his submission, placed

reliance on State of Rajasthan Vs. Rao Raja Kalyan Singh (supra), where the Apex Court held as under :-

“Though this issue is not very specific but undoubtedly it covers the plea taken by the respondent in paragraph 1 of his written statement. That

apart the plea of maintainability of the suit is essentially a legal plea. If the suit on the face of it is not maintainable, the fact that no specific pleas were

taken or no precise issues were framed are of little consequence.â€​

Order VIII Rule 2 CPC requires that the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the

transaction is either void or voidable in point of law, and all such grounds of defence, as, if such plea is not raised, would be likely to take the opposite

party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release,, payment, performance or facts

showing illegality.

It is no doubt true, that when the question of maintainability of a suit relates to pure question of law, for example the suit is barred by any statute,

such plea of maintainability which is only a pure question of law, can be raised at any stage. But when the question of maintainability relates to or

depend upon particular facts or certain contingencies, the party raising the plea of maintainability is under obligation, in view of the provision of Order

VIII Rule 2 CPC to raise such plea in the pleadings. Unless such facts are pleaded or the foundation of the plea is laid in the pleadings, the plea of

maintainability on such factual basis cannot be raised subsequently in revision or in second appeal. In the instant case, the plea of maintainability raised

by the defendant was based on the fact as to whether the person who signed and verified the plaint was competent to do so or not. Admittedly no

such plea was raised in the written statement except making a bald statement that the suit was not maintainable. The maintainability of the suit having

been based on certain specific facts and foundation of such facts having not been laid in the pleadings of the defendant, in my considered view, such

plea cannot be raised subsequently at the revisional stage. The Apex Court in National Textile Corporation Ltd. Vs. Naresh Kumar Badrikumar Jagad

& Ors., 2011 12 SCC 695 relied by Mr. Choudhury, while dealing with the requirement of laying down the factual basis in respect of plea of

maintainability held as under : -

“It is a settled legal proposition that an agent cannot be sued where the principal is known. In the instant case, the appellant has not taken the plea

before either of the courts below. In view of the provisions of Order VIII Rule 2 CPC, the appellant was under an obligation to take a specific plea to

show that the suit was not maintainable which it failed to do so. The vague plea to the extent that the suit was bad for non-joinder and, thus, was not

maintainable, did not meet the requirement of law. The appellant ought to have taken a plea in the written statement that it was merely an “agentâ€

of the Central Government, thus the suit against it was not maintainable. More so, whether A is an agent of B is a question of fact and has to be

properly pleaded and proved by adducing evidence. The appellant miserably failed to take the required pleadings for the purpose.â€​

The Apex Court in Shivaji Balaram Haibatti â€"Vs- Sri Avinash Maruthi Pawar, Civil Appeal No. 19421 of 2017 (arising out of SLP (C) No.

22894/2014) also held that unless the factual foundation is laid in the pleadings relating to maintainability of the suit, the plea cannot be raised

subsequently in absence of pleadings.

It may profitably be referred here the observations made by this Court in Niyoti Dev & ors. Vs- Ahmed Tea Co. (Pvt.) Ltd., 2017 (4) GLT 57

while dealing with the identical issue in respect of another suit, which was also filed by the plaintiff of the present suit against some other tenant. Let

me quote the following paragraphs :-

On the issue arising out of filing of the plaint by Smt. Nazrana A. Islam, the learned Senior Counsel for the respondent has produced the certified

copy of the Board Resolution (Ext.1), which shows that the said Mrs. Nazrana A. Islam had attended the meeting as a Director. By referring to the

provisions of section 266-A and section 266-E of the Companies Act, 1956 it was submitted that every Director is required to have a Director

Identification number (DIN), and the said DIN can be verified from the website of the Ministry of Corporate Affairs, Govt. of India and also from the

jurisdictional Registrar of Companies and there fore, the information as to whether a person is Director or not, is no longer a private information of the

parties concerned, but such information is available in the public domain and anyone interested can identify a Director of a Company registered under

the Companies Act, 1956 through his Director Identification Number. The statement made in paragraph 6 of the written statement, which was in

response to statements made in paragraph 1 of the plaint, was read to show that the issue now being raised was not even pleaded in the written

statement, for which no issue was framed by the learned Trial Court on the competence of said Smt. Nazrana A. Islam to represent the Company and

therefore, at this revisional stage, the respondent cannot be non-suited on a issue which was not specifically raised before the Trial Court. It is further

submitted that as the respondent had pleaded about the incompetence of Smt. Nazrana A. Islam to institute the suit, as such, after the initial burden

was discharged by the respondent, the burden to disprove the same was on the petitioner and the same was not discharged.

24.........This Court has to agree to the arguments advanced by the learned Senior Counsel for the respondent that a Director of a Company can be

identified by his unique Director Identification Number(DIN for short), which can be found out by visiting the website of the Ministry of Corporate

Affairs, Govt. of India. Therefore, notwithstanding that this issue was not raised by the petitioner, they did not prove this information to disprove that

Smt. Nazrana A. Ahmed was not the Director of the respondent Company and therefore, the plea of someone had unauthorizedly filed by the plaint is

not found sustainable.â€​

It appears from the verification of the plaint, where it was clearly mentioned that Smt. Nazrana Ahmed Islam was the director of the plaintiff

Ahmed Tea Company Pvt. Ltd. and she was acquainted with the facts and circumstances of the case and was empowered to sign and verify the

plaint. While deposing in court also it was specifically stated, by Smt. Nazrana Ahmed Islam, that she was the director of the plaintiff company and

was fully acquainted with the facts and circumstances of the case. It was also brought on record that in NJ Cases which was proved as Ext- 19 (6) in

the suit, contained a resolution of the Board of Directors showing that Smt. Nazrana Ahmed Islam was the director of the plaintiff co. Though learned

senior counsel, Mr. Mazumder submits that, the document referred to in Ex-19 (6) was only a photostat copy, and the defendant raised objection as to

the admissibility of such document when produced in the NJ Case. However, nothing was indicated to show that any objection was raised while

admitting the Ex-19(6) in the suit.

Be that as it may, Order XXIX Rule 1 CPC provides that in a suit by or against a corporation any pleading may be signed and verified on behalf of

the corporation by the secretary or by any director or other principal officer of the corporation, who is able to depose to the facts of the case. What is

abundantly clear from the provision of Order XXIX Rule 1 CPC is that a director or such principle officer of the company by virtue of his office is

entitled to sign and verify the pleadings, however, dehors the provision of Order XXIX Rule 1 CPC, if anyone under Order XXIX files the suit on

behalf of the company, necessarily he has to be authorised as per mandate of Order VI Rule 14 CPC. Therefore, the status or position of the director

or principal officer of a company cannot be equated with any other person, not holding any specific office of the company, in filing a suit on behalf of

the company. If the suit is filed on behalf of the company by any other person, not being a director or officer of the company, certainly he has to show

his authority in view of Order VI Rule 14 CPC. But a director or the principal officer of the company, by virtue of his/her office, is entitled to sign and

verify the pleadings. Thus combined reading of the provision of Order VI Rule 14 and Order XXIX Rule 1 CPC would show that in case of a suit filed

by companies, the plaint can be signed and verified either by secretary or a director of other principal officer or by any person duly authorised by the

company. When the plaintiff had categorically mentioned in the verification of the plaint that Nazrana Ahmed Islam was the director of the plaintiff

company, who was also acquainted with the facts and circumstances of the case and able to depose on the facts of the case and adduced evidence to

that effect, it cannot be said that there was nothing on record showing, that the person, who signed and verified the pleadings was the director of the

plaintiff company. This apart, as indicated above, that a particular person is/was a director of a company registered under the Companies Act, no

longer a private information of the party and such information is available in the public domain. What therefore, transpires from the pleadings and

evidence of the plaintiff’s side, coupled with the attending facts and circumstances, is that the plaintiff discharged its initial burden to show that

Mrs. Nazrana Ahmed Islam as director of the plaintiff company signed and verified the pleadings. In view of the above, if, the defendant wants to

challenge the status of the person as director or his/her competence to sign and verify the pleadings, burden would invariably lie on the defendant to do

so, by raising necessary pleadings and adducing evidence to that effect, which was totally absent in the present case.

It will be profitable to reproduce here the observation made by the Apex Court in United Bank of India-VS- Naresh Kumar, AIR 1997 (SC) 3

relied by learned counsel for both the sides, as to the compliance of the provision of Order XXIX Rule 1 CPC. Apex Court observed as follows :-

“It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order VI 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 XXIX Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by 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 XXIX 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 de hors Order XXIX 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 VI 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 it's officers a

Corporation can ratify the said action of it's 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 it's officer.â€​

In the instant case, plaintiffs side having discharged its initial burden showing that Nazrana Ahmed Islam was the director of the company and

such information also being available in the public domain, it is not open for the defendant to raise the plea of maintainability of the suit in absence of

any pleading laying factual foundation for such plea.

In view of what has been discussed herein before, the finding of the learned courts below, holding that the suit was maintainable, in my considered

view, has not suffered from any illegality or irregularity requiring interference by this Court sitting in revisional jurisdiction. Therefore, the lone question

raised in the instant revision petition, whether the courts below committed irregularity or illegality by deciding the issue of maintainability in favour of

the plaintiff is answered in negative and in favour of the plaintiff.

For the reasons stated supra, this revision is found to be devoid of merit and stands dismissed.

Since the defendant/petitioner is in the premises as tenant, he is allowed three months time from this date, to vacate the premises.

The revision petition is disposed accordingly.