Titan Engineering Co.Pvt.Ltd. Vs. M/S. Super Gases and Appliancespvt. - Court Judgment

SooperKanoon Citationsooperkanoon.com/68189
CourtKolkata High Court
Decided OnFeb-03-2016
JudgeArindam Sinha
AppellantTitan Engineering Co.Pvt.Ltd.
RespondentM/S. Super Gases and Appliancespvt.
Excerpt:
cs no.550 of 1998 in the high court at calcutta ordinary original civil jurisdiction original side titan engineering co.pvt.ltd.-versusm/s.super gases & appliances ltd.& ors.pvt.appearance: mr.chayan gupta, adv.ms.pallovi gagoi, adv...for the plaintiff. mr.aritra basu, adv...for the plaintiff no.1. mr.p.k.sengupta, (in person) ...the defendant no.2. before: the hon'ble justice arindam sinha date : 3rd february, 2016. the court : the preliminary additional issue being whether the suit is maintainable in its present form as framed by order dated 7th january, 2016 has been argued by the parties. the argument made by mr.sengupta, the defendant no.2, appearing in person, had been recorded in the order dated 7th january, 2016. he had relied upon the evidence led on behalf of the plaintiff which carried an admission that the board resolution dated 7th may, 1993 was, indeed, a general instruction and the cause of action for the suit did not arise in 1993. the plaint case is that the cause of action arose on 29th february, 1996. the plaint case being that the cause of action arose on 29th february, 1996, mr.sengupta had demonstrated that prior to that date, the board of directors had been reduced to have only one director. hence, he had submitted, by applying the ratio of the decision in the case of nibra ltd.–versus national insurance co.ltd., reported in 70 company cases 388, it should be held that specific authorisation was necessary for the purpose of instituting a suit in addition to a person being authorised to sign and verify the pleadings. thus, according to him, the preliminary issue should be answered in his favour and the suit dismissed as not maintainable in the present form. mr.gupta, learned advocate appeared on behalf of the plaintiff and made his submissions which were recorded in the order dated 20th january, 2016. mr.gupta had relied on a decision of the supreme court in the case of united india –versus naresh kumar, reported in air1997sc3 in paragraph 10 thereof as was reproduced in the said order. he had submitted that the decision in nibra ltd.(supra).was per incurium the provisions of, inter alia, section 26 and order 4 rule 1 of the code of civil procedure. it would be convenient to reproduce paragraph 10 of the judgment in naresh kumar (supra).“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 cpc 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 cpc, 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 cpc 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 an de hors order 29 rule 1 of the cpc, as a company is a juristic entity, it can duly authorize 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 cpc. a person may be expressly authorised to sign the pleadings on behalf of the companky, 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.” the said court was of the view, as would appear from a reading of the paragraph reproduced above, that 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 office which he holds, sign and verify the pleadings on behalf of the corporation. in addition to such view, the supreme court expressed its further view regarding a situation dehors order 29 rule 1 of the code of civil procedure upon which latter view mr.sengupta placed reliance for application to his case on the issue. on a perusal of the evidence or the portions of it that have been pointed out by the parties to the court, this court has not been able to find that the person who had signed and verified the pleadings on behalf of the plaintiff was not authorised to do so by virtue of not being the director of the plaintiff who as such was permitted to sign and verify the pleadings under order 29 rule 1 of the code. thus, in following the view of the supreme court expressed in paragraph 10 of naresh kumar (supra)and there being nothing in the evidence to show that the person who had signed and verified the plaint was not a director of the plaintiff, this court answers the preliminary issue in favour of the plaintiff and against the defendant no.2. mr.sengupta wanted to hand up and rely on a written notes of argument regarding his submissions made and recorded on the issue dealt with. the court was not inclined to accept the note in view of his submissions having been recorded. list the suit on 1st march, 2016 marked at 3.30 p.m.(arindam sinha, j.) a/s/tk.
Judgment:

CS No.550 of 1998 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE TITAN ENGINEERING CO.PVT.LTD.-VersusM/S.SUPER GASES & APPLIANCES LTD.& ORS.PVT.Appearance: Mr.Chayan Gupta, Adv.Ms.Pallovi Gagoi, Adv...for the plaintiff.

Mr.Aritra Basu, Adv...for the plaintiff No.1.

Mr.P.K.Sengupta, (in person) ...the defendant No.2.

BEFORE: The Hon'ble JUSTICE ARINDAM SINHA Date : 3rd February, 2016.

The Court : The preliminary additional issue being whether the suit is maintainable in its present form as framed by order dated 7th January, 2016 has been argued by the parties.

The argument made by Mr.Sengupta, the defendant no.2, appearing in person, had been recorded in the order dated 7th January, 2016.

He had relied upon the evidence led on behalf of the plaintiff which carried an admission that the Board Resolution dated 7th May, 1993 was, indeed, a general instruction and the cause of action for the suit did not arise in 1993.

The plaint case is that the cause of action arose on 29th February, 1996.

The plaint case being that the cause of action arose on 29th February, 1996, Mr.Sengupta had demonstrated that prior to that date, the board of directors had been reduced to have only one director.

Hence, he had submitted, by applying the ratio of the decision in the case of Nibra LTD.–versus National Insurance Co.Ltd., reported in 70 Company Cases 388, it should be held that specific authorisation was necessary for the purpose of instituting a suit in addition to a person being authorised to sign and verify the pleadings.

Thus, according to him, the preliminary issue should be answered in his favour and the suit dismissed as not maintainable in the present form.

Mr.Gupta, learned Advocate appeared on behalf of the plaintiff and made his submissions which were recorded in the order dated 20th January, 2016.

Mr.Gupta had relied on a decision of the Supreme Court in the case of United India –versus Naresh Kumar, reported in AIR1997SC3 in paragraph 10 thereof as was reproduced in the said order.

He had submitted that the decision in Nibra Ltd.(supra).was per incurium the provisions of, inter alia, section 26 and Order 4 Rule 1 of the Code of Civil Procedure.

It would be convenient to reproduce paragraph 10 of the judgment in Naresh Kumar (supra).“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 CPC 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 CPC, 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 CPC 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 an de hors Order 29 Rule 1 of the CPC, as a company is a juristic entity, it can duly authorize 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 CPC.

A person may be expressly authorised to sign the pleadings on behalf of the companky, 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.” The said Court was of the view, as would appear from a reading of the paragraph reproduced above, that 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 office which he holds, sign and verify the pleadings on behalf of the Corporation.

In addition to such view, the Supreme Court expressed its further view regarding a situation dehors Order 29 Rule 1 of the Code of Civil Procedure upon which latter view Mr.Sengupta placed reliance for application to his case on the issue.

On a perusal of the evidence or the portions of it that have been pointed out by the parties to the Court, this Court has not been able to find that the person who had signed and verified the pleadings on behalf of the plaintiff was not authorised to do so by virtue of not being the director of the plaintiff who as such was permitted to sign and verify the pleadings under Order 29 Rule 1 of the Code.

Thus, in following the view of the Supreme Court expressed in paragraph 10 of Naresh Kumar (supra)and there being nothing in the evidence to show that the person who had signed and verified the plaint was not a director of the plaintiff, this Court answers the preliminary issue in favour of the plaintiff and against the defendant no.2.

Mr.Sengupta wanted to hand up and rely on a written notes of argument regarding his submissions made and recorded on the issue dealt with.

The court was not inclined to accept the note in view of his submissions having been recorded.

List the suit on 1st March, 2016 marked at 3.30 p.m.(ARINDAM SINHA, J.) A/s/tk.