D.K Kapur, J.:— The appellant's Suit for the recovery of Rs. 28,326.45 was dismissed by the trial Court (Additional District Judge), on the ground that the Suit was not instituted by a duly authorised person; no point was decided in the Suit.
2. Though a number of issues were framed in the Suit, the judgment was confined on Issue No. 2—“Whether the suit has been signed, verified and filed by a duly authorised person? OPP”.
3. On this issue, the Court referred to the statement of Shri Ram Pershad, P.W 1, who relied on the fact that he was entitled to file the suit as Secretary and General Attorney of the Company. The Court referred to the photostat copy of the power of attorney, Exhibit P.W 1/3 and came to the conclusion that it purported to have been executed by the Electric Construction and Equipment Company Limited under its common seal and was executed by a Director and the Chief Accountant on the basis of a resolution of the Board of Directors dated 29th June, 1973, but that resolution had not been produced. The Court held that mere execution of the power of attorney was not enough; the authority to execute the same on behalf of the Company had also to be proved. Hence, the issue was decided against the plaintiff, and the suit dismissed.
4. Before us, in appeal, learned counsel for the appellant relies on Section 85 of the Evidence Act, 1872, which reads:
“The Court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice Consul, or representative of the Central Government, was so executed and authenticated.”.
5. According to learned counsel's submissions, this power of attorney has to be presumed to be duly executed by the company as it is attested by a Notary Public. He relies on several judgments of this Court, namely, National and Grindlays Bank Ltd. v. Mis. World Science News and Others, A.I.R 1976, Delhi 263, Yogesh Singh Sahota… v. Niranjan Lal Gupta…., 1981 (2) DRJ 175, and Citibank N.A, New Delhi v. Juggilal Kamlapat Jute Mills Co. Ltd. Kanpur, A.I.R, 1982, Delhi 487. In all these three cases which were decided by Singh Judges of this Court, reliance was placed on the fact that the powers of attorneys in question had been executed before a Notary Public and were duly authenticated. The authentications are reproduced in extense in the judgments and have been examined by the Court to come to the conclusion that the powers of attorneys in question were duly executed and stood proved.
6. On the other hand, reference was made by learned counsel for the respondent to the judgment relied upon by the trial Court, viz., the judgment of Prakash Narain J. (as his Lordship then was) in South India Insurance Company Ltd. v. Globe Motors Limited, Suit No. 68/69, decided on 19th April, 1974, and the judgment of Hardy J. (as he then was) in Qberoi Hotels (India) Private Ltd. v. Observer Publications (P) Ltd., Suit No. 469/66, decided on 26th November, 1968. In both these cases, the Court found that it had not been proved that the person instituting the suit was authorised by the company to file the suit.
7. In this case, the decision turns on whether Section 85 of the Evidence Act is applicable to the facts of the case. No attempt was made in the trial Court to rely on this Section, so we have examined the facts and circumstances to see whether the power of attorney is valid in the present circumstance.
8. The power of attorney contains the following statement at the end:
“IN WITNESS WHEREOF the Common Seal of Electric Construction & Equipment Company Limited, has been affixed this 27th day of November, One thousand nine hundred seventy three”.
9. It bears the signatures of Shri L.P Shah, a Director and Shri Ram Prasad, a Chief Accountant, and states that the common seal has been affixed pursuant to a resolution of the Board of Directors dated 28th June, 1973. There is then an attestation by a Notary Public of Delhi, Shri Ram Tej Lal Bhatia, which is dated 13th December, 1973. From the body of the power of attorney, the registered office of the company is shown at 9, Kali-prasanna Singhee Road, Calcutta and the power of attorney is in favour of six persons—(1) Shri Ram Niwas Jaju, (2) Shri Umesh Narayan Vajpeyi, (3) Sri Jugal Kishore Ladia, (4) Shri Narayan Das Daga, (5) Shri Ram Prasad and (6) Shri Kashi Prasad Ji Harlalka and the attorneys are to manage the Company's Central Office and to perform various acts, deeds, things, etc., set out in the power of attorney. As the power of attorney shows that the seal was affixed on 27th November, 1973, and the attestation is on 13th December, 1973, it does not seem that it was executed before a Notary Public.
10. Turning to the oral evidence in this case, only two witnesses were examined on behalf of the plaintiff. They were Shri Ram Pershad, Secretary and Shri Rajesh Ojha, Branch Incharge. Neither of them have stated that the General Power of Attorney was executed before a Notary Public, so there is no evidence to show that the document was executed before a Notary Public and certainly, there is no authentication appearing on the face of the document.
11. It is useful to note that Section 85 raises a presumption about the execution of a Power of attorney provided two conditions are satisfied. Firstly, it must be executed before a Notary Public and secondly, it must be authenticated by a Notary Public. In this case, there is no authentication at all. There is no statement of facts by the Notary Public regarding the manner of execution or the persons executing the document. If reference is made to the judgments cited before us, the contrast is striking. In the Case of the City bank, the authentication made by the Notary Public in New York covers nearly two printed pages of the Report and quotes extensively the circumstances in which the General Power of Attorney was executed. Similarly, in the case of the National & Grindlays Bank Ltd., the authentication shows that the seal of the Bank was impressed on the power of attorney in the presence of the Notary and the same was the genuine seal of the Bank. Thus, it Was the authentication that proved both the execution as well as the due execution of the power of attorney and, therefore, satisfied the test laid down in Section 85 of the Evidence Act.
12. It was necessary to refer to these two cases because foreign Banks had to prove their respective powers of attorneys which had been executed before Notaries in New York and London respectively. It is unquestionable that these Banks would have had to suffer huge costs and expense to get the witnesses from abroad merely to prove the execution of the documents and, therefore, the value of Section 85 of the Evidence Act for the purpose of proving such documents becomes obvious.
13. The same applies to other public institutions like Insurance Companies and other Corporations which may have several branches. A duly executed power of attorney satisfying the test laid down in Section 85 can be proved without undue expense on the basis of the execution and authentication.
14. These cases are very different from the one before us. Here, we have a document stated to be a power of attorney purported to have been executed by the Electric Construction and Equipment Company Ltd. It states that the common seal has been affixed in the presence of a Director and Chief Accountant and it also states that these persons have been authorised by a resolution of the Board of Directors to authenticate this. However, it does not state that it was executed before a Notary Public and nor does it bear any authentication by a Notary Public regarding the manner of execution, etc. It is, therefore, very essential to stress the two ingredients which are contained in Section 85 of the Evidence Act, viz., execution before the Notary Public and the authentication by the Notary Public. The words are “executed before, and authenticated by”. Both these conditions must be satisfied. It appears that neither condition is satisfied in this case because the common seal was affixed on 27th November, 1973, and there is merely an attestation by a Notary Public on 13th December, 1973. There is no authentication at all. So, Section 85 of the Evidence Act does not apply to raise any presumption in favour of this power of attorney.
15. The next question is, can this power of attorney be proved in any other way? And the answer is that even if a power of attorney is not executed before a Notary Public and is not authenticated by a Notary Public, it can still be proved by establishing due execution by producing the necessary witnessed as well as the resolution of the Board of Directors of the company concerning the same. Unfortunately, there is no evidence on the record of the present case to come to the conclusion that the power of attorney was duly executed or that it was supported by a resolution of the Board of Directors. We have examined the question whether we should remand the case to give an opportunity to lead evidence to establish the due execution of the power of attorney and to prove the resolution of the company, but seeing the result of the two cases cited at the Bar by learned counsel for the respondent, we think that a remand would not be justified as the conditions of Order 41, Rule 27 of the Code of Civil Procedure are not satisfied in this case. We have, therefore, no choice but to dismiss the appeal. But, as the case has been decided on a preliminary point, we do not make any order as to costs.