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High Court Of Delhi
ELECTRIC CONSTRUCTION AND EQUIPMENT COMPANY LIMITED - Appellant
Versus
JAGJIT ELECTRIC WORKS - Respondent
REGULAR FIRST APPEAL 105 of 1978
Decided On : 04/03/1984
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.
The words are "executed before, and authenticated by". Both these conditions must be satisfied.
2) Evidence Act - Section 85 : Value of.
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 me rely to prove the execution of the documents and, thereforee the value of Section 85 of the Evidence Act for the purpose of proving such documents becomes obvious.
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.
3) Evidence Act - Section 85 : A document purporting to be a Power of attorney executed by the company and stating that the common seal has been affixed in the presence of a Director and Chief-Accountant who had been authorised by a resolution to authenticate it, but does not state that it was executed before and authenticated by a Notary Public. Does Section 85 apply to raise the presumption in favor of Power of attorney ? No.
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, thereforee, 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 favor of this power of attorney.
4) Power of Attorney : Can a power of attorney be proved other than under Section 85 Evidence Act ? Yes : by establishing due execution by producing the witnesses and resolution of the company containing the same.
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 witnesses as well as the resolution of the Board of Directors of the company concerning the same.
( 1 ) 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, Public Witness. 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 Public Witness. 1/3 and came to the conclusion that it purported to have been executed by the Electric Cons- truction 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 attor- ney 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 authentic ated. ".
( 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. M/s. 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 ex-tense 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. M/s. Globe Motors Limited, Suit No. 68/69, decided on 19th - April, 1974, and the judgment of Hardy J. (as be then was) in M/s. Qberoi Hotels (Indict) Private Ltd. v. M/s. 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 Evi. dence 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 and 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
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