A company cannot institute a suit unless the plaint is signed and verified by a duly authorized person, such as a Director or Principal Officer of the company.

Manmohan Sarin, J.

( 1 ) APPELLANT has preferred TO this appeal against the judgment of the learned Additional District Judge, dismissing their suit for recovery. The learned Additional District Judge held that the appellant was entitled to recovery, but dismissed the suit on the ground that the appellant had failed to prove that the plaint had been signed, verified and instituted by a duly authorised person.

( 2 ). During the pendency of the appeal, appellant s application for change in name from M/s. India Linoleum Ltd. to M/s. Birla DLW Ltd. had been allowed.

( 3 ). The Trial Court record had been called for and has been perused. Learned Counsel for the appellant submitted that the learned Additional District Judge erred in deciding the Issue No. 1 against the appellant, viz. "whether the plaintiff firm is duly incorporated under the Indian Companies Act and the plaint has been signed, verified and instituted by a duly authorised person. "

( 4 ). At this stage, it may be noticed that the original power of attorney, Public Witness PW. I/ 2, is purported to have been executed by Shri M. D. Poddar, Director of the plaintiff Company, on 17. 7. 1981, in the presence of one Shri G. K. Sureka of Calcutta, on the basis of a Resolution of the Board of Directors of the plaintiff Company dated 14. 7. 1981. The Power of Attorney, Ex. PW. 1/2 carries a notarial endorsement dated 18. 7. 1981. The notarial endorsement mentions that the notary, after due enquiry, has verified that the signatures on the Power of Attorney are that of Shri M. D. Poddar, Director of the plaintiff company.

( 5 ). Learned Counsel for the appellant submitted that the original Power of Attorney had been produced and duly exhibited. The respondent had not objected to the mode of proof. A presumption of validity and due execution of power of attorney under Section 85 of the Indian Evidence Act should have been raised. It was urged that the notarial endorsement mentioned that the notary had duly verified the factum of signatures of Shri Poddar and on this basis the benefit of Section 85 should not have been denied to the appellant. Learned Counsel further submitted that the respondent had, apart from bald denials, not really questioned or objected to the mode of proof of the Power of Attorney. Learned Counsel for the appellant relied on United Bank of India v. Naresh Kumar and Others, AIR 1997 SC 3, in support of his contention that procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. He urged that in this case the liability of the defendant was clear and it would be a travesty of justice if the appellant was to be non-suited due to technical defects.

( 6 ). Learned Counsel for the appellant also relied on Gopal Das and Another v. Sri Tilakurji and Others, AIR (30) 1943 Privy Council 83, in support of his contention that where the objection is not to the in admissibility of the document but to the mode of proof, the objection should be taken at the trial before the document is marked as an exhibit and admitted on record.

( 7 ). Learned Counsel for the respondent, on the other hand, submitted that the Trial Court had rightly returned the finding on Issue No. 1 against the appellant. It was urged that the appellant had miserably failed to prove that the plaint had been signed, verified and instituted by a duly authorised person. Learned Counsel relied on Electric Construction and Equipment Co. Ltd. . v. Jagjit Works, 1984 RLR 549,and Syndicate Bank v. M/s. S. A. Trading Corporation and Others, 1990 (3) Delhi Lawyer 356, to which we will have occasion to refer a little later.

( 8 ). We have perused the Power of Attorney on record as well as the evidence recorded in support thereof. Theoriginal Power of Attorney is stated to beexecuted by Shri M. D. Poddar in the presence of one Shri G. K. Sureka. It is based on a Resolution of the Board of Directors dated 14. 7. 1981. Appellant has neither produced on record the Res

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