ORDER
S.K. Agarwal. J.
1. This appeal is directed against the judgment and decree dated 31st October, 1995 dismissing the suit of the appellant/plaintiff against the respondent/defendant for recovery of Rs. 38,186.75.
2. The appellant filed the suit alleging therein that during the period 3.9.83. to 17.19.84 they supplied goods to the respondent and sum of Rs. 19.782/- was payable to them together with interest @ 18% amounting to Rs. 11. 350/- and Rs. 7054.75 as sales tax for not sending the sales tax declaration and that despite notice the said amount was not paid. The respondent contested the suit on merits denying the allegations in the plaint. A preliminary objection was also taken that the plaint was not signed and verified by a duly authorised person. Following issues were framed on the basis of the pleadings of the parties:-
(i) Whether the plaintiff company is limited a company duly incorporated under the Indian Companies Act and the suit has been signed and verified by a duly authorized perosn? OPP
(ii) Whether the suit of the plaintiff is barred under Order 2 Rule 2 of CPC 2 OPO.
(iii) Whether the present suit is liable to be stayed under Section 10 CPC? OPD
(iv) Whether the suit is barred by them ? OPD
(v) Whether the plaintiff is entitled to recover interest If so, at what rate and for what period ? OPP
(vi) To what amount is the plaintiff entitled ?
(vii) Relief.
3. The appellant in support of its case examined PW1, Brajendra Sharma, Director of the company, who in addition to his oral testimony also proved various documents on record. Respondent examined DW1, Mohinder Kumar in support of its case.
4. Trial court decided issue no.1 against the appellant, holding that the plaint was not signed on behalf of the plaintiff and verified by a duly authorised person. However issues 2, 3, and 4 were decided in favour of the appellant holding that the suit was neither barred by Limitation Act, nor under the provisions of Order 2 Rule 2 of the Code of Civil procedure, 1908, on rest of the issues, no finding was recorded and the suit was dismissed in view of the findings on issue no 1.
5. We have heard learned counsel for the parties. and have been taken through the record.
6. Shri Vijay Kishan, learned counsel for the appellant contended that the plaint was filed, signed and verified by one of the Directors of the company. He has brought to our notice the statement of PW1, Brijendra Sharma, wherein he has stated that the plaintiff company is duly incorporated under the Indian Companies Act and proved copy of the incorporation certificate as Exhibit P1; that he was one of the directors of the plaintiff company, and holder of General power of Attorney, Ex. P2 duly signed by other directors of the company and that he was duly authorised to file, institute and verify the suit and pursue the same. It was also argued that the appellant has moved an application (CM 1345/96) out of abundant caution wherein it is clarified that the appellant – company at present is having only two Directors, namely, PW1, Brajendra Sharma who is also the Managing Director of the company and Mrs. Hemlata Sharma widow of late Shri Devendra Sharma, who has since died: he referred to a duly certified copy of the resolution dated 6th September, 1996 passed at a meeting of Board of Directors ratifying the filling of the suit and the appeal and prayed that in the interest of justice the same may be permitted to be taken on record and may be read as part of the evidence. This application was ordered to be heard along with the appeal. In support of his submissions he relied on the decision of the Supreme Court in United Bank of India Vs. Naresh Kumar Air 1997 SC 3.
7. Mr. Mohit khanna, learned counsel for the respondent argued that the law laid down by the Supreme Court in Union Bank of India (supra) was applicable only in cases of ‘public corporations’ and not to the private litigants; that the power of attorney Ex. P2 was merely attested by notary public. It was not authenticated as the twin requirements of execution and authentication by a notary public are not fulfillled and therefore no presumption under section 85 of the Evidence Act, 1872 could be drawn. Relying on Electric Construction & Equipment Co. Ltd. Vs. Jagjit Electric Works, , he argued that no resolution of the Board of Directors was proved on record, which authorised the appellant to institute the suit or execute a power of attorney in favour of the Counsel. It was further argued that the essential conditions justifying the exercise of the power under Order 41 Rule 27 CPC are not satisfied in this case. He relied on the decision of this court in M/s Birla DLW LTD, Vs. Prem Engineering Works (DB).
8. We have considered the rival contentions of the parties and have been taken through the record. In United Bank of India Vs. Naresh Kumar & Ors. AIR 1997 SC 3, the Supreme Court observed as under:
“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 got to the root of the matter should not be permitted to defeat a just cause. 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. 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.”
9. In the present case the plaint was signed by Brajendra Sharma. It was also verified by him, PW 1, Brajendra Sharma, deposed as under:-
‘I am one of the directors of the plaintiff company. I am power of Attorney holder of the plaintiff company. I have brought original power of attorney and copy of the same is Exhibit P2. All the directors have given me the power of attorney. The plaint and the vakalatnama bear my signatures.’
10. It may be noted that Ex. P2, which was permitted to be proved without any objection. Perusal of this power of attorney reveals that Narendra Sharma, Rajendara Sharma and Brajendra Sharma, Directors of the appellant-company had appointed Brajendra Sharma, one of its directors residing at Delhi to institute, civil suits, appeals, revisions etc. to sign and verify the pleadings etc. He was authorised to do all other acts and exercise all such powers which could be exercised by them. This attorney was executed on 25th November, 1985 and was attested by a Notary on the same day. Thus question of raising any presumption under Section 85 of the Evidence Act is not requited to be considered in this case. It is not a case where the appellant-company had authorised some third person to exercise powers on behalf of the company. In this case one of the Directors himself was the power of attorney holder; all the three directors were signatory to the power of attorney; he himself has signed the plaint and verified the suit; he himself appeared as a witness and stated on oath that the plaint was duly signed and verified by him. In Electric Construction & Equipment case (supra) there was no evidence on record to come to a conclusion that the power of attorney was duly executed or that it was supported by a resolution of the Board of Directors and similarly in Birla DLW Ltd. (supra) case also there was no averment in the plaint that the same was signed by the principal officer or the director of the plaintiff company and the plaint was filed on the basis of the power of attorney only as Constituted attorney. Under Order 29 Civil Procedure Code, 1908 suits by or against the Corporations or any pleadings can 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. The company or the Corporation does not have its own body or limbs so as to enable it to walk to the court. It has to act through one of its officers. As per the law laid down by the Apex court in United Bank of India (supra) case suits cannot be permitted to be defeated on mere technicalities which does not go to the root of the matter.
11. In view of the above we allow the appeal. Findings of the trial court on issue No. 1 recorded against the appellant/plaintiff are set aside. It is held that the plaint has been signed and verified by a duly authorised person. The application (CM 1345/96) of the appellant is also allowed.
12. As the trial court has not recorded any finding on other issues, we remand the suit to the trial court for its disposal in accordance with law as expenditiously as possible. The appellant will be entitled for refund of the court fees in accordance with the provisions of Section 13 of the Court Fees Act for which necessary certificate be issued in accordance with law.
13. No order as to costs.