IN THE HIGH COURT OF DELHI AT NEW DELHI. RFA No. 583/2004. Baker Oil Tools(India) Pvt.Ltd.

Transcription

1 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: Judgment delivered on: RFA No. 583/2004 Baker Oil Tools(India) Pvt.Ltd. Appellant. Through: Mr. Chetan Sharma, Sr. Advocate with Mr. Siddharth Mittal and Mr. Shashi Mohan for the appellants. Vs. Baker Hughes Ltd.& Anr. Respondents Through: Mr. Ajay Gupta, Sr. Advocate with Ms.V. Mohini for the respondents. AND RFA No. 22/2005 Mr.Hiroo Khushalani Through: Appellant. Mr. Chetan Sharma, Sr. Advocate with Mr. Siddharth Mittal and Mr. Shashi Mohan for the appellants. Vs. Baker Hughes Ltd., U.K. & Ors. Respondents Through: Mr. Ajay Gupta, Sr. Advocate with Ms.V. Mohini for the respondents. RFA No. 583/2004 Page 1 of 71

2 CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? KAILASH GAMBHIR, J. * 1. This is an appeal filed under section 96 of the Code of Civil Procedure, 1908 to challenge the judgment and decree dated passed by the learned ADJ whereby the suits filed by the respondents herein for specific performance, permanent injunction and damages were decreed in favour of the respondents and against the appellants. 2. The short point involved for adjudication at this juncture is on the preliminary issue of maintainability of the suits and thus this judgment only deals with the said issue, without having any bearing on the merits of the matter. 3. Challenging the maintainability of the suits, Mr.Chetan Sharma, learned Senior counsel appearing for the appellants submitted that the trial court has wrongly decided the issue no.1 in RFA No. 583/2004 Page 2 of 71

3 favour of the respondents. Mr. Sharma further submitted that no Board Resolution was passed by the respondents so as to authorize any persons to execute the two Power of Attorneys and, therefore, Mr.Sameer Oberoi had no competence or authority to sign, file and verify the suits on behalf of the respondent/companies. Counsel for appellants further submitted that as per the settled legal position, a lawyer cannot act in dual capacity of being that of a constituted attorney of the party as well as an advocate in the same matter. 4. Counsel for appellants also submitted that the notarial certificate filed along with the two Power of Attorneys and proved on record by the respondents is vague due to blanks in the certificates and the notarial certificates also have no sanctity or validity in the eyes of law as the same were not authenticated by the Indian Consulate in terms of the provisions of Section 4 and 11 of the Notaries Act, 1952 read with Section 85 of the Indian Evidence Act, Counsel also submitted that the constituted attorney Mr. Sameer Oberoi, who had signed and verified the plaint also did not enter the witness box to prove his Power of Attorney and also his signatures on the plaint. Mr. Chetan Sharma, learned counsel for the appellants further submitted that even PW1 Mr.Philip Jackson in RFA No. 583/2004 Page 3 of 71

4 his cross-examination candidly admitted the fact that there was no resolution or notation in the minute book authorizing any person to file the said suits or to give Power of Attorney in connection with the said suits. Counsel also submitted that even the evidence of PW-2 Mr.R. Sampath Kumar is also on the same lines as that of PW1. Counsel also submitted that Mr.R. Sampath Kumar deposed as a witness in the capacity of his being a partner in M/s Remfry and Sagar Solicitor Concern. Counsel also submitted that the Power of Attorneys filed on record by the respondents/plaintiffs were not sufficiently stamped as per the requirement of Indian Stamps Act, Counsel also submitted that even in the said Power of Attorneys, there is no reference to any Board Resolution through which the executants of Power of Attorneys could derive their authority. Counsel further submitted that the executants of the Power of Attorneys did not enter the witness box to prove the said Power of Attorneys. Counsel thus submitted that the executants of the Power of Attorneys had no legal competence to further give any authority to nominate or appoint any Advocate or Advocates on behalf of the respondent/companies. Counsel for the appellants further argued that the plea of dual capacity being a legal plea can always be raised at the stage of appeal as such a plea goes to the RFA No. 583/2004 Page 4 of 71

5 very root of the matter. Counsel for the appellants also submitted that the principle of constructive res judicata will not be attracted to the facts of the present case as the appellants are well within their right to challenge the findings of the learned trial court on any ground at the stage of appeal and the said vested right of the appellants cannot be defeated by the principle of constructive res judicata on the premise that no such plea to attack the maintainability of the said suits filed by the respondents was earlier taken by the appellants when the matter had travelled twice to the Hon ble Supreme Court at the interlocutory stage. In support of his arguments, counsel for the appellants placed reliance on the following judgments: Konda Lakshmana Bapuji v. Govt. Of Andhra Pradesh AIR 2002 SC 1012 Janki Vashdeo Bhojwani v. Indusind Bank Ltd. AIR 2005 SC 439 State of Punjab v. Bua Das Kaushani AIR 1971 SC 1676 Nedunuri Kameshwaramma v. Sampati Subba Rao AIR 1963 SC 884 Swamy Atmananda and Ors. V. Sri Ramakrishna Tapovanama & Ors. AIR 2005SC2392 Nibro Ltd. V. National Insurance co. Ltd. 41 (1990) DLT 633 M/s Rajgharia Paper Mills ltd. V. General Manager, Indian Security Press AIR 2000Delhi 239 Lucas Indian Services ltd. V. Sanjay Kumar Agarwal. 173(2010) DLT 438 RFA No. 583/2004 Page 5 of 71

6 Ai-amin Seastrans ltd. V. Owners and Party interested in vessel M.V. Loyal Bird AIR 1995 Calcutta Mr. Ajay Gupta, learned senior counsel appearing for the respondents, refuting the submissions of the counsel for the appellants submitted that the issue No.1 which was framed by the learned Trial Court based on the objection taken by the appellants in their written statement confined to the institution of the plaint by a validly constituted attorney. To confine his arguments only to satisfy this court that the plaint was properly instituted by a validly constituted attorney holder, the counsel submitted that the respondents have proved on record the two Power of Attorneys as Ex. PW- 2/3 and PW- 2/4. Counsel further submitted that the enquiry with regard to the existence or otherwise of the Board Resolution was not taken up by the appellants in their written statement and, therefore, Issue No.1 framed by the learned trial court has to be read in context of dispute raised by the appellants in terms of paragraph-18 of the written statement. Counsel thus submitted that the institution of the suits was challenged by the appellants on the sole ground of the invalidity of the Power of Attorneys and not on any other ground. Counsel for the respondents further submitted RFA No. 583/2004 Page 6 of 71

7 that both the Power of Attorneys were duly signed by the competent officer of the respondents and the notarial certificate appended with both the Power of Attorneys clearly discloses that the Notary Public duly satisfied himself about the identity of the persons who had executed the said Power of Attorneys and also their authority to execute the same. Counsel further submitted that so far the sufficiency of stamps on the said Power of Attorneys is concerned, the same carried stamp of more than Rs.100 each and as per the Indian Stamp Act, the stamp required to be affixed as on the relevant date was Rs.10+1 (Rs.11/-). Counsel further submitted that the said Power of Attorneys were executed in the year 1995 i.e. much prior to the amendment in the Indian Stamp Act whereby the stamp duty on the Power of Attorney was raised to Rs.50/-. Counsel thus stated that the said Power of Attorneys were properly and sufficiently stamped. Coming to the arguments of authentication of the said Power of Attorneys, counsel submitted that once the Power of Attorneys were duly authenticated by a Notary, there was no requirement to get it authenticated by the office of the Consular General. RFA No. 583/2004 Page 7 of 71

8 7. Inviting attention of this court to Section 57 (6) and Section 85 of the Evidence Act, the counsel submitted that under Section 85 there is a presumption that the court shall presume every document purporting to be power of attorney and to have been executed before, 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. The contention of the counsel for the respondent was that an authentication by Notary Public is sufficient to draw the said presumption and there is no additional requirement for authentication by either the Magistrate or Judge of the court or the Consular General. The counsel for the respondents also placed reliance on Section 33 of the Registration Act, 1908 and Section 14 of the Notaries Act, 1952 in support of his arguments. Counsel for the respondents also placed reliance on Section 3 of the Diplomatic and Consular Officers (Courts Fee Act) Counsel for the respondents further argued that both the said Power of Attorneys carried a ratification clause and if any of the Power of Attorneys is found not valid in the eyes of law then through the second Power of Attorney the acts of the previous attorney holder can be ratified. Counsel for the respondents further submitted that the appellants RFA No. 583/2004 Page 8 of 71

9 are estopped to raise the challenge at this stage about the nonfiling of the Board Resolution and the Minutes Book by the principle of constructive res judicata as the matter had travelled twice to the Hon ble Supreme Court and no such plea was ever raised by the appellants to attack the maintainability of the suits filed by the respondents due to lack of filing of the Board Resolution giving authority to the executants to execute the said Power of Attorneys. 8. Answering the arguments of counsel for the appellants on the issue of dual capacity, learned counsel for the respondents submitted that the law does not bar institution of suits instituted by an Advocate as it only frowns upon the situation when an Advocate acts in dual capacity i.e. both as an Advocate and also as a client. Counsel also submitted that the appellants have raised this plea of dual capacity for the first time during the course of hearing of these appeals and as per the settled legal position any new plea depending on further investigation of facts cannot be allowed to be taken for the first time in appeal before the High Court or the Supreme Court. Counsel also submitted that the objection with regard to the dual capacity was never raised by the appellants either in their written statement or in the grounds of appeal of the RFA No. 583/2004 Page 9 of 71

10 two instant appeals. Counsel also submitted that M/s Remfry and Sagar Solicitor Concern was the sole proprietorship firm under Dr.Vidya Sagar and Mr.R.Sampath Kumar was one of the constituted attorneys of the respondents No.1 & 2. Counsel further submitted that Mr.Sameer Oberoi left the said Solicitor company sometime in May, 2000 and thereafter from June, 2001 the said company became a partnership firm where Mr.R.Sampath Kumar was one of the partners. The contention of counsel for the respondents was that the suits which were good in the eyes of law in the year 1995 cannot become bad in the year Counsel thus submitted that the judgments relied upon by counsel for the appellants of the Bombay High Court in the cases of Oil & Natural Gas Commission (supra) and of this Court in Columbia Pictures Industries (supra) will not apply to the facts of the present case, as at the time of institution of the said two suits, M/s Remfry and Sagar Solicitor Concern was a proprietorship firm and not a partnership firm. Learned counsel placed reliance on the following judgments in support of the legal proposition urged by him: Jugraj Singh v. Jaswant Singh AIR 1971 SC 761 Rajesh Wadhwa v. Sushma Govil AIR 1989 Delhi 144 United Bank of India v. Naresh Kumar AIR 1997 SC 3 RFA No. 583/2004 Page 10 of 71

11 National and Grindlays Bank ltd. V. World Science News and Ors. 12(1976) DLT69 Oil & Natural Gas Commission v. Offshore Enterprises Inc. AIR 1993 Bombay 217 Crocodile int. PTE Ltd & Anr v. Lacoste S.A & Anr FAO(OS)110/2007 (Delhi) La Chemise Lacoste & Anr. V. Crocodile Indl. Pte ltd. MANU/DE/7485/2007 Columbia Pictures Industries, Inc. & Ors v. Siti Cable Network Ltd. 94(2010)DLT177 Karpagathachi and Ors v. Nagarathinathachi AIR 1965 SC 1752 Hope Plantations Ltd. V. Taluk Land Board, Peermade and Anr. (1999)5 SCC I have heard learned counsel for the parties at considerable length and given my thoughtful consideration to the arguments advanced by them. 10. Before I proceed to deal with the rival contentions raised by the learned Senior Advocates representing both the parties, it would be pertinent to refer to some of the admitted facts which would be relevant to decide the preliminary objections raised by the counsel for the appellants. 11. Two separate suits for permanent injunction and damages were preferred by M/s. Baker Hughes Ltd. as plaintiff no.1 RFA No. 583/2004 Page 11 of 71

12 which was having its principal place of business at Hammersley House, 5-8 Warwick Street, London WI/1R 5RA, United Kingdom and it is stated to be a subsidiary of M/s. Baker Hughes Incorporated impleaded in the suit as plaintiff no.2. The plaintiff no.2 M/s. Baker Hughes Incorporated was organized under the laws of the State of Delaware, United States of America, having its principal place of business at 3900 Essex Lane, Suite 1200, Houston, Texas , USA. The appellants before this court are the defendants in both the suits. The said suits have been instituted by the respondents/plaintiffs through one Mr. Sameer Oberoi, who has claimed to be the constituted attorney on behalf of both the respondents/plaintiffs. Mr. Sameer Oberoi in his capacity as a constituted attorney has signed and verified the plaint on behalf of both the respondents. 12. The appellants in para 18 of the written statement took a preliminary objection to the very maintainability of the suit on the ground that Mr. Sameer Oberoi has no proper authority to sign, verify or execute the suit on behalf of the plaintiffs. The same is reproduced as under: Without prejudice to the foregoing the Defendant states that, even otherwise, the Suit is not-maintainable, Mr. Oberoi who has signed the Plaint purportedly on behalf of the Plaintiffs has no proper RFA No. 583/2004 Page 12 of 71

13 authority to sign, verify, file or institute the present Suit. The purported Power of Attorney filed before this Hon ble Court is unstamped and is not authentic. The Power of Attorney has not been authenticated by the Consular Sector of the Indian High Commission in U.K. The Power of Attorney is, therefore, invalid and Mr. Oberoi has no power in the eyes of law to represent the plaintiffs. The Suit is, therefore, not properly instituted and has to be dismissed on this short ground alone. 13. Based on the said objection raised by the appellants, the learned trial court framed Issue No.1 as: 1. Whether the plaint has been properly instituted by a validly constituted attorney? OPD 14. Two separate Power of Attorneys were placed on record by the respondents. The first power of attorney which was proved on record as Ex.PW-2/3 was executed on behalf of the plaintiff no.1 i.e. Baker Hughes Ltd. and the same is signed by Peter John Woolley, Director and by Jeremy Andrew Aron, Secretary of the said company. The said Power of Attorney is notarized by one Mr. John David Woodward, Notary Public, City of London. The said Power of Attorney carries the certification and attestation of the Notary Public in the following manner: I, JOHN DAVID WOODWARD, Notary Public of the City of London and elsewhere in England, duly admitted and sworn, practicing in the said City, RFA No. 583/2004 Page 13 of 71

14 DO HEREBY CERTIFY AND ATTEST: THAT the hereunto annexed Power of Attorney was this day signed and executed in my presence for and on behalf and as the Deed of the English Company styled BAKER HUGHES LIMITED, a Company duly incorporated and existing in accordance with the laws of England, registered at the Companies Registration Office for England and Wales under No and having its Registered Office at 2 nd Floor, Hammersley House, 5-8 Warwick Street, London W1R 5RA, England, by PETER JOHN WOOLLEY and JEREMY ANDREW ARON, whose identities I attest, one of the Directors and the Secretary, respectively, of the said Company. AND THAT the said Power of Attorney being so signed, is duly executed by the said Company in pursuance of a Resolution of the Board of Directors thereof passed on the 27 th day of March 1995 and in accordance with the regulations thereof and the provisions of English Law relating to Companies. IN TESTIMONY WHEREOF I have hereunto set my hand and affixed Seal of Office in the City of London aforesaid, this twenty-seventh day of which one thousand nine hundred and ninetyfive. 15. The other Power of Attorney has been executed on behalf of the respondent no.2 i.e plaintiff no.2 M/s. Baker Hughes Incorporated and the same has been signed by Lawrence O Donnell, III in his capacity as Corporate Secretary. This second Power of Attorney was proved on record by the respondents as Ex. PW2/4 and the same carries the Notarial Certificate as under: RFA No. 583/2004 Page 14 of 71

15 NOTARIAL CERTIFICATE On the 22 nd day of March, 1995, before me, a Notary Public, personally appeared Lawrence O Donnell, III, known to me to be the person who executed the hereunto annexed instrument on behalf of BAKER HUGHES INCORPORATED. I have seen the Constitution of the said Company and certify that Lawrence O Donnell, III is authorized to execute the annexed Power of Attorney on behalf of the said Company and that the Power of Attorney so executed is binding on the said Company under its Constitution and the laws of. 16. In both the Power of Attorneys, nomination has been made in favour of Shyam Sunder Iyer, R. Sampath Kumar, Vidya Bhushan Mehrish, G. Nataraj, Ranjan Negi, Sameer Oberoi, Vidya Sagar, Hariharan Subramaniam and Yang Yen-Thaw, Advocates and V. Seetharaman and Prasanna K. Rajan, Trade Mark Agents, all of Remfry & Sagar, Remfry House, 8, Nangal Raya Business Centre, New Delhi , to be jointly and severally as attorneys of the appointers to do and perform all or any of the acts, deeds, matters or things as detailed in the said power of attorneys. 17. On behalf of the respondents/plaintiffs, Mr. Phillip S.R. Jackson and Mr. R. Sampath Kumar adduced their evidence as PW1 and PW2 respectively. The relevant portion of the deposition given by Mr. Phillip S.R. Jackson, so far the controversy in hand is concerned, is reproduced as under: RFA No. 583/2004 Page 15 of 71

16 3. I am the Legal Counsel Asia Pacific for the Plaintiffs. 4. I say that I have full and easy access to the records of the Plaintiffs relative to the case and am conversant with the facts and circumstances of the case, I say that the Power of Attorney of Baker Hughes Limited has been signed and executed by Mr. Peter John Woolley (Director) and Mr. Jeremy Andrew Aron (Secretary) and the Power of Attorney of Baker Hughes Incorporated has been signed and executed by Mr. Lawrence O Donnell, III(Corporate Secretary) all of who, I have worked with in the Plaintiff company and I have seen them writing and signing the said documents and I can, as such, identify their signatures on the Powers of Attorney. 5. The suit on behalf of the Plaintiffs was filed and instituted by Mr. Sameer Oberoi by virtue of the said Power of Attorney attached to the affidavit of Mr. R. Sampath Kumar as Exhibit PW1/ The relevant portion of the cross-examination of PW 1 Phillip S.R. Jackson is also reproduced as under: Q. Whether John Waldron Byrne a Notary Public recognized by the Indian Consular. A. I cannot say whether John Waldron Byrne is recognized by Indian Vice Consular at Perth. Vol. He is very senior legal practitioner and has been notary public for many many years. I did not get my affidavit legalized by Indian Consular Officer because I was not advised by my counsel in India to do so. I am legal counsel to Baker Asia Pacific from I qualified as a lawyer in I am not getting any retainer fee or adhoc fee from Baker Asia Pasific but I am an officer arid employee of the Baker Asia Pacific, I am also the President of Baker Hughes Asia Pacific Ltd. I am receiving salary from Baker Hughes Australia Pty Ltd. Baker Hughes incorporated does not have articles of association but it has byelaws and I have not brought the byelaws with me. RFA No. 583/2004 Page 16 of 71

17 I have not brought any minute book or any resolution of Baker Hughes Incorporated authorizing the filing of this action or for the giving of a power of attorney in connection with this action. Vol. There is no such notation in the minute book and no such resolution. I am not aware if there power of attorney granted by Baker Hughes Incorporated expired long long ago. All the records relating to the negotiation between the plaintiffs and deft. No.1 are kept in my office at Perth. I met Peter John Wolley in I met him in the Foyer in Double Tree Hotel in Houston. I interested and met him from 1996 to I met Jeremy Andrew Aron in July, 1996 in Houston, Texas. It is incorrect to suggest that I have never seen them writing or signing any document. Mr. Sameer Oberoi is the practicing lawyer and he was employed by the firm of Remfy and Sagar who are our lawyers at Delhi, Baker Hughes Ltd. entered into an agreement with deft. No.1. Again said, corrected himself and say that it was novated, originally it was entered in Baker Oil Tools UK Ltd. Plaintiff no.2 ultimate holding company of plaintiff no The relevant extract from the affidavit of PW2, Mr. R Sampath Kumar is also reproduced as under: Plaintiff No.1 is a company organized under the laws of United Kingdom having its principal place of business at Hammersley House, 5-8 Warwick Street, London WIR 5RA. The original certified copy of registration of Plaintiff No.1 from the Registrar of Companies, United Kingdom, duly legalized by the Consulate General of India, United Kingdom is attached to my affidavit as Exhibit PW2/1. Plaintiff no.2 is a company organized under the laws of the State of Delaware. United States of America having its principal place of business at 3900 Essex Lane, Suite 1200, Houston, Texas , United States of America. The original certified copy of registration of Plaintiff No.2 from the Secretary of State, RFA No. 583/2004 Page 17 of 71

18 duly legalized by the Consulate General of India, United States of America is attached to my affidavit as Exhibit PW2/2. I am the Constituted Attorney of the Plaintiffs under notarized Power of Attorney dated March 27, 1995, the original whereof is attached to my affidavit as Exhibit PW2/3. I say that I have full and easy access to the records of the Plaintiffs relative to the case and am conversant with the facts and circumstances of the case. I say that the Plaint has been signed and verified by Mr. Sameer Oberoi who used to work with me in Remfry & Sagar and I have seen him writing and signing and I can as such identify his signature on the plaint, replication, vakalatnama and other documents related to this suit. The suit on behalf of the Plaintiffs was filed and instituted by me by virtue of the said Power of Attorney attached as Exhibit PW2/ The relevant extract of cross-examination of PW-2 Mr. R. Sampath Kumar is also reproduced as under: I have filed affidavit C-2 signed by me and attested by Oath Commissioner on I also identify signature of Sh. Sameer Oberoi. Some documents mentioned in my affidavit have been placed on record. Let the witness may be cross-examined by Ld. Cl for Defendants. XXX by Ld. Cl. For Defendants. I am an advocate. I am advocate working as partner with Remfy and Sagar. Remfry & Sagar are Solicitor and Advocate of Plaintiff. I am deposing as witness in the capacity of partner of Remfry and Sagar. Vol. I am constituted attorney of Plaintiff. My recollection is power of attorney has been produced. My power of attorney was executed most probably in USA. I do not remember as to under which law of the state of USA the attorney was executed. I also do not remember as to before which Notary Public of USA the power of attorney was produced. The attorney was not attested by Indian Counsel or Officers. The facts of RFA No. 583/2004 Page 18 of 71

19 the case were told to me by Plaintiff and I was not personally involved in the negotiation or agreement between parties. It is incorrect to suggest that I have sworn the facts in my affidavit on the basis of information given to me by my client. I went through record and papers of this case in Remfy and Sagar Office approximately in Mr. Sameer Oberoi was associated with Remfy and Sagar in his capacity as lawyer. He was obtaining retainer fee. He was working full time with Remfy and Sagar. The verification by Mr. Oberoi was on the basis of his personal knowledge. Mr. Oberoi was having knowledge of the documents executed between parties and abut the facts of the case on the basis of documents/record perused by him. He was not witness to the execution of any document. Plaintiff No.1 and Plaintiff No.2 are affiliated with each other as common company and both belong to parent company. I do not know as to which of the plaintiff is parent company of other company. I am not aware if there are so many companies in the name of Baker who are subsidiary company of the holding company. I am aware about the names of the company concerning Baker and the same are plaintiffs company and hence, I cannot tell how many companies are there in USA and UK in the name of Baker. I do not remember where plaintiff no.1 company is incorporated. I also cannot say if plaintiff no.2 was incorporated earlier to plaintiff no.1. It is incorrect to suggest that I have not gone through the record and papers of this case and not giving correct information. I do not know where the record of negotiation was executed between parties in I have seen the records of negotiation between both parties. I have seen some of the records of Negotiations were about a joint venture between the plaintiff and defendant. The record of are with plaintiff no.1 and 2. Photocopies of some of the record are also in Remfy and Sagar. I have seen all pertinent record supplied by both plaintiffs to Remfry and Sagar in photocopies. It is incorrect to suggest that plaintiff no.1 and 2 have not sold their goods for last 10/12 years in dollar or in pound sterling in India. I cannot tell orally of what amount the plaintiffs have sold the goods in India. I do not remember whether plaintiff no.1 was incorporated in I might have referred in my affidavit to document dated I do not know what the company by the name Legious Five Ltd. has got anything to do with the plaintiff. I do not know as to what is has to do with Bakers Energy Holding Ltd, with any of the plaintiffs company. RFA No. 583/2004 Page 19 of 71

20 Without looking the certificate of incorporation, I cannot tell difference between Baker International Ltd. and Bakers Huge Incorporated. I am aware about the fact that plaintiff no.2 applied for registration of the trade mark Baker in India first time in I was ill service of Remfry and Sagar in I was full time assistant in Remfry and Sagar. I was not aware whether if deft. No.2 was registered owner of trade mark Baker before in India. In Dec I was with Remfry and Sagar as full time assistant as advocate. I do not remember as to where I was physically present on I was in India on that date. Q. Are you aware about any resolution of the Board of Directors for General Body of the plaintiff no.1 or plaintiff no.2 authorizing the institution of the suit or granting the power of attorney for that purpose. A. I do recall Board Resolution but I do not know the date of resolution. I do not remember if any copy/certified copy of the Board Resolution has been placed on record or not. It is incorrect to suggest that there is no such resolution passed by plaintiff company on record. It is also correct that the power of attorney filed by Mr. Oberoi has not been attested by any Indian Counsellor Officer. I once went to Hongkong in I went there in connection with International Buyer Association Conference. 21. The appellant in RFA 583/04 in para 66 and 67 of the appeal has raised the objection attacking the very institution of the suit by Mr. Sameer Oberoi without any authority of corporate resolutions. The said paras are also reproduced as under: 66. Because the non-application of mind of the learned Trial Court is also clear from the wrong statement in the Impugned Judgment at internal page 2 that the Suit has been instituted by Shri I.R. Sampath Kumar on behalf of Plaintiff Company. As the record will show no suit was RFA No. 583/2004 Page 20 of 71

21 instituted by Shri I.R. Sampath Kumar. The Trial Court record shows at page 1:021-1:022 that the Plaint was signed and verified by one Sameer Oberoi. The annexed Plaint may be seen for signature and verification. Neither Shri I.R. Sampath Kumar nor Shri Sameer Oberoi had the authority under any corporate Resolution to file the Suit. Respondent Nos 1 and 2 s witness PW1 Phillip S R Jackson admitted that there was no Resolution of the Plaintiffs whatever. 67. Because the learned Trial Court wrongly entertained the Suit which was filed by an Advocate retained by the Respondents Nos. 1 and 2 who admittedly had no personal knowledge of the facts and who was not authorized by any Resolution to institute the Suit on behalf of the Corporations. 22. In the aforesaid factual background, the legal and factual issues which have been raised by the counsel appearing for the parties can be formulated in terms of the following questions:- 1. Whether the respondents succeeded in proving the authority of Mr. Sameer Oberoi to sign, file, verify and institute the suit on behalf of the respondents based on the two Power of Attorneys filed by him? 2. Whether the respondents had duly proved the execution and authentication of two Power of Attorneys by notary public so as to claim raising of presumption in their favour under Section 85 of the Indian Evidence Act? 3. Whether the appellants can be allowed to raise a new plea so as to challenge the maintainability of the suit filed by the respondents before the learned Trial Court on the ground of dual capacity of an Advocate i.e. one as an attorney holder for a client and other as an Advocate? RFA No. 583/2004 Page 21 of 71

22 4. Whether the appellants are estopped to challenge the maintainability of the suit by the principle of constructive res judicata after having failed to raise the issue earlier when the matter had travelled twice to the Supreme Court? ` QUESTION NO.1& It is well settled that under Section 291 of The Companies Act, 1956 except where express provision is made that the powers of a company in respect of a particular matter are to be exercised by the company in general meetings, in all other cases the Board of Directors are entitled to exercise all its powers and to do all such acts and things, as the company is authorized to exercise and do. Individual Directors have such powers as are vested in them by the Memorandum and Articles of Association of the company. In Nibro Limited vs. National Insurance Co. Ltd. 41 (1990) DLT 633 this Court had drawn a clear distinction between the authority to sign, file and verify the suit and the authority to institute the suit. Referring to the provisions of Order 3 Rule 1 and Order 29 Rule 1 of the Code of Civil Procedure, the Court in the said judgment in the following paras held as under:- RFA No. 583/2004 Page 22 of 71

23 10. It will be useful to reproduce the two provisions of the Code of Civil Procedure, namely, Order 3, rule 1 and Order 29, rule 1, on which the plaintiff relies. 11. Order 3, rule 1 of the Code of Civil Procedure reads thus : "Any appearance, application or act in or to any court, required or authorised by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent or by a pleader appearing, applying or action, as the case may be, on his behalf: Provided that any such appearance shall, if the court so directs, be made by the party in person." 12. Order 29, rule 1 of the Code of Civil Procedure reads thus : "In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or be any director or other principal officer of the corporation who is able to depose to the facts of the case." 13. Order 3, rule 1 provides that any appearance, application or act in or to any court required or authorise by law can be made or done by the party in person or by his recognized agent or by a pleader appearing, applying or acting, as the case may be, on his behalf. Provided of course, such an appearance, application or act in or to any court is required or authorised by law to be done or done by a party in such court. Where, however, there is an express provision of law, then that provision will prevail. Thus, if an authority is given to a pleader or a recognised agent as provided by law, the recognised agent or pleader can file an appearance or file a suit in court if the party himself is not in a position to file it. In my view, if a party is a company or a corporation, the recognised agent or a pleader has to be authorised by law to file such a plaint. Such an authority can be given to a pleader or an agent in the case of a company by a person specifically authorised in this behalf. In other words, a pleader or an agent can be authorised to file a suit on behalf of a company only by an authorised representative of the company. If a director or a secretary is authorised by law, then he can certainly give the authority to another person as provided under Order 3, rule Order 29, rule 1 of the Code of Civil Procedure provides for subscription and verification of pleadings and states that in suits by or against the corporation, any pleadings may be signed and verified on RFA No. 583/2004 Page 23 of 71

24 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 It is well-settled that under section 291 of the Companies Act except where express provision is made that the powers of a company in respect of a particular matter are to be exercised by the company in general meeting, in all other cases the board of directors are entitled to exercise all its powers. Individual directors have such powers only as are vested in them by the memorandum and articles. It is true that ordinarily the court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far-reaching effects. It often affects the policy and finances of the company. Thus, unless a power to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company. Needless to say such a power can be conferred by the board of directors only by passing a resolution in that regard. Chapter IV of the Delhi High Court (Original Side) Rules deals with the question of presentation of suits. Under this rule, a suit can be presented by a duly authorised agent or by an advocate duly appointed by him for the purpose. This authorisation, in my view, in the case of a company can be given only after a decision to institute a suit is taken by the board of directors of the company. The board of directors may in turn authorise a particular director, principal officer or the secretary to institute a suit. 30. The plaintiff has not placed on record any resolution passed by the company authorising Shri G. Jhajharia to institute the suit. Shri G. Jhajharia did not come forward to make a statement that he was in a position to depose to the facts of the case. In the plaint signed by him, he claims to be a principal officer and director, but there is no evidence on record to indicate that he had the authority to institute the suit. The memorandum and articles of association of the plaintiff company are also not placed on record. Even after the suit was instituted by Shri G. Jhajharia, no resolution was passed by the company ratifying this action. No such decision of the board of directors is placed on record in the present case. The plaintiff has examined Shri Ashok Kumar Jhajharia. He has placed on record, exhibit PW-2/1, which is the resolution of the board of directors reappointing Shri G. Jhajharia as the director but this resolution does not empower Shri G. Jhajharia as a director to institute the present RFA No. 583/2004 Page 24 of 71

25 suit. Shri Ashok Kumar Jhajharia has stated that he was handling the day-to-day management of the plaintiff company including the insurance part of it. He, however, does not state that Mr. G. Jhajharia was handling the day-to-day management or was in charge of the insurance claim. 31. Thus, there is no evidence to prove that Shri G. Jhajharia had the authority to institute the present suit. 32. Issue No.4 is thus decided against the plaintiff and in favor of the defendant. 24. The said position was reiterated by this Court in the matter of M/s Rajghria Paper Mills Ltd. vs General Manager, Indian Security Press & Anr. AIR 2000 Delhi 239. I had also the occasion to deal with the a similar issue in the matter of Lucas Indian Services Ltd. vs. Sanjay Kumar Aggarwal 173(2010) DLT 438 and it would be useful to refer following paras therefrom: 11. Order 6 Rule 14 mandates that every pleading shall be signed by the party and its pleader. So far the singing of a plaint on behalf of a company is concerned, a company being a corporate body or a juristic person has to act through somebody and that person has to be specifically authorized either under its Articles of Association or through a Board Resolution to sign, file and verify the suit. So far Order 29 Rule 1 of CPC is concerned, it authorizes the Secretary, Director or other Principal Officer of the Corporation to sign and verify the pleading on behalf of the corporation. In the case of Nibro Ltd. v. National Insurance Co. Ltd. : AIR 1991 Delhi 25 this Court held that Order 29 Rule 1 CPC does not authorize persons mentioned therein to institute the suits on behalf of the corporation. Relevant para of the said judgment is referred as under:.. RFA No. 583/2004 Page 25 of 71

26 27. On the analysis of the judgments, it is clear that Order 29, Rule 1 of the Code of Civil Procedure does not authorise persons mentioned therein to institute suits on behalf of the corporation. It only authorises them to sign and verify the pleadings on behalf of the corporation. 12. Coming back to the facts of the present case, the appellant has placed on record certified true copy of the Board Resolution wherein authority was given to Mr. S. Ramanathan, Financial Controller, to institute legal proceedings on behalf of the company with further authority to authorize and nominate and appoint any other Officer of the company to do all such acts and deeds on behalf of the Company. Based on the said resolution Mr. S. Ramanathan, had given the authority to Mr. K.K. Sen vide authority letter dated It is an admitted fact between the parties that the said Board Resolution was not proved on record and even Mr. S. Ramanathan also did not enter the witness box to prove the said authority letter dated proved on record as Ex. PW-2/1. It is also an admitted fact that Mr. K.K. Sen has signed, filed and verified the plaint on behalf of the appellant company. The appellant herein is a private company and is not a public body or corporation as it was in the case of Naresh Kumar (Supra). It is also not the case of the appellant that Mr. K.K. Sen was one of the principal officers of the appellant company in terms of Order 29 Rule 1 CPC. Admittedly Mr. S. Ramanathan derived his authority to nominate an officer of the company under the Board Resolution dated The question therefore arises is that once the appellant failed to prove the said Board Resolution in favour of Mr. S. Ramanathan then how the authority of Mr. S. Ramanathan to appoint further officer could be established. No explanation has come forth from the appellant as to why Mr. S. Ramanathan himself was not produced in the evidence as he being the principal officer of the company could validly prove not only his own authority but the said authority conferred by him in favour of Mr. K.K. Sen. At no stage of the trial, the appellant company also took any steps to rectify the said defect and even at the appellate stage as well no such request has been made in this regard. 14. The facts of the present case are more near to the facts of the case of Nibro Ltd. (Supra). Here it would be useful to refer to paras 30 & 31 of the said judgment as under:. RFA No. 583/2004 Page 26 of 71

27 In the facts of the present case, the Resolution of the Board empowering Mr. S. Ramanathan (Financial Controller) was not proved on record. Mr. S. Ramanathan himself did not enter the witness box to prove the said authority letter issued by him in favour of Mr. K.K. Sen. Mr. K.K. Sen admittedly was not the principal officer of the appellant company. Further as per the certificate issued by Mr. S. Ramanathan in his favour no authority was given to him to institute the said suit. Taking into consideration all these facts this Court is of the considered view that Ld. Trial Court has rightly and correctly decided the issue No. 2 in favour of the respondent and against the appellant. 25. Coming to the facts of the case at hand, the respondents have filed the suits in question through one Mr. Sameer Oberoi in his capacity as constituted attorney for both the respondents/plaintiffs. Admittedly, Mr. Sameer Oberoi is neither a principal officer nor Director or Secretary of the respondent companies and he derives his authority not only to sign, file and verify the suits, but to institute the same by virtue of two separate Power of Attorneys executed by respondents No. 1 and 2 in his favour. It is not in dispute that Mr. Sameer Oberoi was one of the Advocates working for the Solicitor Concern M/s Remfry and Sagar. Hence, the crucial question for determination is that: Whether the respondents/plaintiffs were required to prove on record the authority of the executants of the said Power of Attorneys through the Board Resolution or Articles of Association or there was no need to prove the authority of the executants of the Power of Attorneys once the respondents/plaintiffs had succeeded to prove the due execution and authentication of the said Power of Attorneys by duly appointed Notary Public entitling the respondents to the benefit of Section 85 of the Indian RFA No. 583/2004 Page 27 of 71

28 Evidence Act for raising a presumption for the due execution and authentication of the said attorneys? 26. It is an admitted case between the parties that the respondents did not place on record any certificate, copy of the Board Resolution or the copy of the minutes book wherein such a Board Resolution was passed to support the authority of the executants of the said two Power of Attorneys. The first Power of Attorney, which was proved on record as Exhibit PW2/3 was executed by Mr. Peter John Woolley, Director and by Jeremy Andrew Aron, Secretary of respondent No. 1 company while the second Power of Attorney proved on record as Exhibit PW2/4 was executed by Lawrence O Donnell, III in his capacity as Corporate Secretary. Both the said Power of Attorneys are attested by the Notary Public and a separate notarial certificate can be seen appended with both the said Power of Attorneys. In the first Power of Attorney, Ex. PW2/3, the Notary Public has referred to the Resolution of the Board of Directors passed by them in their meeting held on 27 th day of March, The notarial certificate of first Power of Attorney also refers to the presence of both the executants i.e. Peter John Woolley, and Jeremy Andrew Aron whose position in the company the Notary Public has duly attested; one being Director and other RFA No. 583/2004 Page 28 of 71

29 being Secretary. Similarly in notarial certificate certified by the Notary Public in respect of the second Power of Attorney he also duly acknowledges the presence of executants Lawrence O Donnell, III besides referring to the constitution of company wherein due authority has been given to the said officers to execute the Power of Attorney on behalf of the company. Section 57(6) of the Indian Evidence Act provides that the Court shall take judicial notice of all the seals of which English Courts take judicial notice and the seals of Notary Public. Under Section 85 of the Indian Evidence Act, the Court shall presume that every document purporting to be Power of Attorney, which has been duly executed before and authenticated by Notary Public can be taken to have been so executed and authenticated. Section 8 of The Notaries Act, 1952 describes the functions of notaries as under:- 8. Function of Notaries.- (1) A notary may do all or any of the following acts by virtue of his office, namely:- (a) verify, authenticate, certify or attest the execution of any instrument. (b) Present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security. (c) note to protest the dishonour by non acceptance or non payment of any promissory note, hundi, bill of exchange or protest for better security or RFA No. 583/2004 Page 29 of 71

30 prepare acts of honour under the Negotiable Instruments Act, 1881, or serve notice of such note or protest. (d) note and draw up ship's protest, boat's protest or protest relating to de moorage and other commercial matters. (e) administer oath to, or take affidavit from, any person, (f) prepare bottom and respondent bonds, charter parties and other mercantile documents. (g) prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as many conform to the law of the place where such deed is intended to operate. (h) translate, and verify the translation of, any document from one language to another. (i) any other act which may be prescribed. (2) No act specified in sub-section (1) shall be deemed to be a notaries act except when it is done by a notary under his signature and official seal. 27. The decision of the Hon ble Apex Court in the matter of Jugraj Singh and Anr. vs Jaswant Singh and Ors. AIR 1971 SC 761 is a landmark judgment which helped to clear the air surrounding the legal proposition with regard to the presumption arising under section 85 and relevant para of the same is reproduced as under:- 7. The short question in this case is whether Mr. Chawla possessed such a power of attorney for executing the document and for presentation of it for registration. Now, if we were to take into account the first power of attorney which was executed in his favour on May 30, 1963, we would be forced to say that it did not comply RFA No. 583/2004 Page 30 of 71

31 with the requirements of the law and was ineffective to clothe Mr. Chawla with the authority to execute the sale deed or to present it for registration. That power of attorney was not authenticated as required by Section 33 of the Indian Registration Act which in the case of an Indian residing abroad, requires that the document should be authenticated by a Notary Public. The document only bore the signature of a witness without anything to show that he was a Notary Public. In any event there was no authentication by the Notary Public (if he was one) in the manner which the law would consider adequate. The second power of attorney however does show that it was executed before a proper Notary Public who complied with the laws of California and authenticated the document as required by that law. We are satisfied that that power of attorney was also duly authenticated in accordance with our laws. The only complaint was that the Notary Public did not say in his endorsement that Mr. Chawla had been identified to his satisfaction. But that flows from the fact that he endorsed on the" document that it had been subscribed and sworn before him. There is a presumption of regularity of official acts and we are satisfied that he must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. This makes the second power of attorney valid and effective both under Section 85 of the Indian Evidence Act and Section 33 of the Indian Registration Act. 28. This Court in the matter of Citibank N.A., New Delhi vs Juggilal Kamlapat Jute Mills Co. Ltd. AIR 1982 Delhi 487 had the benefit of examining a similar issue where also the authority of the Power of Attorney holder was questioned in the absence of proving the Board Resolution. Answering the controversy, the Court in the following paras held as under:- 20. Section 85 of the Evidence Act reads as under : "Presumption as to powers of attorney. - 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, RFA No. 583/2004 Page 31 of 71