Tata Sons Ltd. vs Shri Manish Pajan and Another

Indermeet Kaur, J.—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:

Whether the suit is not signed, verified and filed by duly authorized and competent person? OPD.

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.

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?

On behalf of the Appellant, it has been urged that only provisions available in the CPC (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.

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.

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.

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.

Reliance by learned Counsel for the Appellant upon the judgment reported in United Bank of India Vs. Naresh Kumar and others, . and the judgment reported in RFA No. 567/1994 Syndicate Bank through Nemo v. 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.

There is no merit in this appeal. Substantial question of law is answered accordingly. Dismissed.