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2003 DIGILAW 348 (HP)

RANBAXY LABORATORIES LTD. v. JERATH ELECTRONICS & ALLIED INDUSTRIES (P) LTD.

2003-11-27

A.K.GOEL

body2003
JUDGMENT Arun Kumar Goel, J. (Oral) - This suit has been filed by the plaintiff for recovery of Rs. 25, 51700/- against the defendant. 2. Facts as they emerge from the pleadings of the parties are being briefly noted. Those are as under: 3. Plaintiff -claims to be a company duly incorporated under the provisions of the Indian Companies Act, 1956, having its registered office at A-11, Sahibzada Ajit Singh Nagar, District Ropar, Punjab And its corporate office is at Nehru Place, New Delhi. It is further pleaded that Shri S.K. Patwari is the Company Secretary and has been fully authorized to file this suit and similar proceedings. 4. According to plaintiff, it wanted to install a TOC Analyzer at its plaint situated at village Ganguwala, Tehsil Paonta Sahib in the State of H.P. Defendant had agreed to supply TOC Analyzer of STIP make. Plaintiff placed supply order with the defendant for this vide its purchase order No. 97/5325 dated 7.7.1997 (Ex. PW-2/B), for a price of Rs. 17 lacs only. Defendant was to install and commission this Analyzer at the aforesaid plant at Ganguwala. As per terms of payment, 50% of the agreed price was payable to the defendant with order and in fact, this amount was paid as detailed in paragraph-4 of the plaint. Further, 40% of the total amount of Rs. 17, 00,000/- was payable to defendant against proof of dispatch of the Analyzer. Balance 10% of the agreed price was payable after installation as noted above. 5. Here it may be appropriate to mention that so far receipt of 90% of Rs. 17 lacs is concerned, it is neither disputed in the written statement nor was disputed when DW-1, Jogesh Jerath appeared as witness in the Court. This fact is being noted so as not to repeat it against that this amount had been received by the defendant from the plaintiff, of course, subject to other pleas of parties set up in their pleadings as well as in the documents and the oral evidence. 6. Plaintiff claims that in terms of the purchase order dated 7.7.1997, delivery of the Analyzer in question was to be made by 8.8.1997; needful was not done by this date. 6. Plaintiff claims that in terms of the purchase order dated 7.7.1997, delivery of the Analyzer in question was to be made by 8.8.1997; needful was not done by this date. Plaintiff also alleges that it was further agreed that in case needful was not done at the plant of the plaintiff at village Ganguwaia, Tehsil Paonta Sahib, the defendant had further agreed to pay liquidated damages @ 0.5% per week subject to a maximum of 5% to the plaintiff. Despite having received Rs. 15, 30,000/- the matter remained as it was because of non-supply of the analyzer. 7. Correspondence was exchanged between the parties when analyzer was not supplied. According to plaintiff, defendant regretted delay being caused for non-supply, as well as installation of the Analyzer in question. Because of custom clearance problem Vide its letter dated 12.9.1997, defendant informed the plaintiff that needful will be done with in one week. 8. Plaintiff claims that on 3.10.1997 defendant informed, that the equipment was badly damaged and was not likely to be repaired. This was damaged in handling and transit at the IGI, Airport at New Delhi. Plaintiff claims that defendant further had informed that the equipment is being sent back to Germany for necessary rectification or replacement. It was further informed that equipment had been shifted back to Germany on 30.9.1997 and was likely to be delivered back after two or three weeks. On 21.11.1997, defendant again informed the plaintiff that Analyzer was under custom clearance in New Delhi and there seems to have been some mishandling of documents and that the consignment will be released and consigned to Paonta Sahib. At this juncture, defendant also asked the plaintiff to ensure that pre-installation work was complete as per the instructions of the service engineer of the defendant. Despite non-supply of the Analyzer, plaintiff claims to have got pre-installation work completed, as desired by the defendant. This was followed by another letter of the defendant dated 5.2.1998. After receipt of this communication, plaintiff asked the defendant to give a confirmed date for the supply*of the Analyzer. None was give by the defendant, however, plaintiff agreed to a further reasonable period of five months for the supply of the Analyzer in question. 9. For remains that till the date of filing of the suit, Analyzer had not been supplied/installed. In these circumstances, present suit has been filed for recovery of Rs. None was give by the defendant, however, plaintiff agreed to a further reasonable period of five months for the supply of the Analyzer in question. 9. For remains that till the date of filing of the suit, Analyzer had not been supplied/installed. In these circumstances, present suit has been filed for recovery of Rs. 15, 30,000/- along with liquidated damages of Rs. 85,000/- and interest @ 24% per annum on this amount till payment. 10. Plaintiff claims that cause of action accrued to it on 7.7.1997, when purchase order was placed by it with the defendant, then on 8.8.1997, the date when the Analyzer in question was to be installed by the defendant and then on 12.9.1997, 3.10.1997, 21.11.1997 and 5.2.1998 when defendant wrote different letters to the plaintiff seeking extension of time to supply and install Analyzer. It also arose on 21.7.1998, when the plaintiff as a last resort had to terminate the contract for the supply of Analyzer and asked for the refund of the money. Cause of action is also claimed to have arisen on 7.8.1998 when a notice under Section 434 of the Companies Act was issued. 11. Another fact that needs to be noted here is that the plaintiff had initiated Company Petition No. 2 of 1999. This was dismissed on 5.1.2000 by the learned Company Judge of this Court as according to him disputed questions were involved in the Company Petition, which could not be decided in it. Plaintiff preferred Company Appeal No. 1 of 2000 against the said order passed by the learned Company Judge. When the matter was came up before a Division Bench of this Court, learned Counsel also stated that the plaintiff withdrew the Company Petition No. 2 of 1999 out of which Company Appeal arose. As a result of which, said appeal became in fructuous. It may also be appropriate to notice that OMP No. 394 of 2002 was filed by the defendant for the stay of this suit under Section 10 of the Code of Civil Procedure etc. Vide detailed order of dated 14.11.2002, this was dismissed. O.S.A. No. 17 of 2002 was filed by the defendant. Both, this O.S.A. as well as Company Appeal No. 1 of 2000 was taken up together by the Division Bench in view of the disposal of the Company Appeal No. 1 of 2000, O.S.A. was also dismissed as withdrawn. 12. Vide detailed order of dated 14.11.2002, this was dismissed. O.S.A. No. 17 of 2002 was filed by the defendant. Both, this O.S.A. as well as Company Appeal No. 1 of 2000 was taken up together by the Division Bench in view of the disposal of the Company Appeal No. 1 of 2000, O.S.A. was also dismissed as withdrawn. 12. When put to notice defendant filed detailed written statement. By way of preliminary objections it was pleaded that suit is time barred. It is not properly constituted. Plaintiff was alleged to have been guilty of acts of omission and commission. The supply order was unilaterally canceled, manufacturers stopped supply and a huge sum of money paid by the defendant to the manufacturer had been withheld. Suit was bad for non-joinder of necessary party i.e. the manufacturer oi the equipment which formed the subject matter of the supply. On merits of the case, status of the plaintiff, or that the suit having been filed by a duly authorized person was denied. 13. It was also denied that defendant agreed to supply the equipment as alleged. Plaintiff having placed the purchase order, and the same having been accepted by the defendant was not admitted. Defendant having accepted the supply of Analyzer in question for Rs. 17, 30,000/- was also denied. In reply to Paragraph 3, it is the specific stand of the defendant that it had informed the plaintiff that the said equipment is to be imported from Germany, as such, its payment would be in foreign currency at international exchange rates. Therefore, due to uncertain and fluctuating exchange rates, the plaintiff had to bear all additional expenses, which were to be incurred while importing the said equipment. Further case of the defendant was that, it had refused to accept any of the terms for the supply of the equipment in question as detailed in the supply order. Similar is the stand of the defendant in its para-4 of the written statement that it ever agreed to supply TOC Analyzer and/or having had given its acceptance to the purchase order. Payment of Rs. 8.50.000/- was admitted, but at the same time defendant pleaded that it did not constitute 50% of the cost of the supply order. Similar is the stand of the defendant in its para-4 of the written statement that it ever agreed to supply TOC Analyzer and/or having had given its acceptance to the purchase order. Payment of Rs. 8.50.000/- was admitted, but at the same time defendant pleaded that it did not constitute 50% of the cost of the supply order. Rather it is pleaded that total amount for the supply of the equipment was to be much higher in view of the foreign exchange rates which were fluctuating and other transit and incidental expenses. Therefore, the defendant had refused to sigh any agreement etc. with the plaintiff for any supply, or to have incurred any liability for any liquidated damages at the rate of 5% per week as alleged was also denied. Payment to the tune of Rs. 15, 30,000/- having been made by the plaintiff to the defendant was not disputed. But it was denied that the said amount constituted 90% (50% + 40%) of amount of the supply order. Other averment regarding defendant having agreed to supply Analyzer on or before 8.8.1997 or any such commitment having been made, were denied. It was however admitted, it was damaged in transit and this resulted in delay in its supply. It is further case of the defendant that due to certain differences over exchange rates and mishandling of the documents, the equipment could not be released and the plaintiff was duly intimated in this behalf. However, defendant did not incur any liability to any amount at any stage. Liability for the suit amount was disputed. According to defendant all money paid by the plaintiff to the defendant, has already been remitted by the latter to the German Company. Defendant was under no obligation to pay any interest as alleged. Machinery on the part of the plaintiff. Thus entire fruit was of the plaintiff. Therefore, defendant as claimed. Plaintiff had no cause of action to maintain the suit. 14. In the replication to the written statement, plaintiff reiterated its stand as set up in the plant and at the same time has denied the averments which were contrary to the facts pleaded in the suit and has further reiterated all the averments made in the plaint. 15. Following issues were framed by this Court on 21.6.2002:- 1. Whether the suit is time barried? OPD 2. 15. Following issues were framed by this Court on 21.6.2002:- 1. Whether the suit is time barried? OPD 2. Whether the suit is not properly constituted and as such not maintainable? OPD 3. Whether the suit is bad for non-joinder of necessary parties? OPD 4. Whether the plaintiff is a duly incorporated Company and Shri S.K. Patwari is entitled to file the present suit? OPP 5. Whether there was an agreement between the parties whereby the defendant had agreed to supply TOC Analyzer of STIP Make to the plaintiff for a sum of Rs. 17,00,000/- ? OPP 6. Whether the defendant failed to supply the above equipment within the stipulated time? OPP 7. Whether the supply order was validly cancelled on 21.7.1998? OPP 8. Whether the plaintiff is entitled to refund of Rs. 15, 30,000/-? OPP 9. Whether the plaintiff is entitled to liquidated damages of Rs. 85,000/- ? OPP 10. Whether the plaintiff is entitled to interest? If so at what rate? OPP 11. Relief. 16. Plaintiff has examined two witnesses namely S.K. Patwari, PW-1, as well as Surinder Kohli, Senior Manager (Materials) PW-2, and closed its evidence. Whereas defendant has examined Jogesh Jerath, one of its Directors. In addition to oral evidence parties had placed reliance on documentary evidence also. 17. Evidence of the parties is also being briefly noted, which is necessary for determination of the issue involved in this case. 18. PW-1 is S.K. Patwari. According to this witness he was working as Company Secretary of the plaintiff since 1996. Per him, plaintiff is a Company incorporated and registered under the Companies Act. Ext. PW-1/A was the memorandum of articles of association along with certificate of its incorporation. Further according to this witness, he was General Power of Attorney-holder of the plaintiff Company. He has placed on record a copy of the said Attorney Ext. PW-1/B. He had also brought the original. Plaint had been signed and verified by him in this suit. In cross-examination, he admitted that original of Ext. PW-1/B was executed by Dr. Parvinder Singh, who died in July, 1999. Said Mr. Singh had signed the power of attorney on behalf of the plaintiff Company. 19. PW-2 is Surinder Kohli. Per this witness, he was working with plaintiff Company since December, 1992 and in the year 1996 he was its Purchaser Manager. PW-1/B was executed by Dr. Parvinder Singh, who died in July, 1999. Said Mr. Singh had signed the power of attorney on behalf of the plaintiff Company. 19. PW-2 is Surinder Kohli. Per this witness, he was working with plaintiff Company since December, 1992 and in the year 1996 he was its Purchaser Manager. Thus, he was dealing with the purchase activities on behalf of the plaintiff. Numbers of plaints of the plaintiff are located in different States of the country. One such plant is in this State, at Paonta Sahib. 20. Plaintiff intended to purchase one TOC Analyzer. It is meant primarily for testing effluents emitted from an industrial plant like the one that was set up by the plaintiff. 21. For the purchase of this plant, plaintiff had negotiated with defendant through Jogesh Jerath (DW-1), who was Director of the defendant Company. Offers for supply of this analyzer was received on 17.2.1997 vide Ext. PW-2/A. This was accompanied by terms and conditions offered by the defendant for the supply of the Analyzer, (such terms were ordered by the Court to be a part of Ext. PW-2/A). He further stated that after receipt of Ext. PW-2/A, order was placed with the defendant for the supply of the Analyzer as per the communication dated 7.7.1997. Ext. PW-2/B is a copy of this communication. This was objected to on the ground of admissibility as well as mode of proof. Document was admitted subject to objection. 22. Per this witness, further defendant was required to supply the analyzer by 8.8.1997 and the terms of payment are as under:- (a) 50% of the cost was to be paid b/the plaintiff to the defendant along with purchase order; (b) 40% of the price was to be paid By the plaintiff to the defendant on proof of despatch of the analyzer from the principal of the defendant; and (c) 10% of the price was payable after commissioning of the TOC Analyzer. 23. He has given the details of the amount having been remitted towards 50%, followed by another remission1 of 40%. Amount of 40% was remitted on receipt of communication Ext. PW-2/C. 24. Witness has further stated that a correspondence was exchanged between the parties. This is exhibited as Exts. PW-2/D to Ext. PW-2/K. These documents were admitted in evidence without formal proof, as they were admitted by the parties. 25. Amount of 40% was remitted on receipt of communication Ext. PW-2/C. 24. Witness has further stated that a correspondence was exchanged between the parties. This is exhibited as Exts. PW-2/D to Ext. PW-2/K. These documents were admitted in evidence without formal proof, as they were admitted by the parties. 25. Witness further stated regarding intimation having been received from the defendant that the Analyzer was damaged at the Airport and was beyond repair. As such it was conveyed to the defendant to get it replaced from its principal. Meetings in this behalf were held between the parties by their representatives. Further according to the PW1, despite communications and telephonic discussions equipment was not received. However, a fax message Ext. PW-2/L along with two other fax messages Exts. PW-2/M arid PW-2/N was received. Production of these documents by this witness was also objected to on the ground of admissibility and mode of proof. 26. It was stated by PW-2 that he along with other officers of the plaintiff Company had a meeting with DW-1 on 7.4.1998 regarding the supply of the Analyzer in question. Per him, DW-1 had agreed on behalf of the defendant to supply the analyzer by 30.5.1998. Minutes of this meeting were Ext. PW-2/P. These were signed by DW-1, the witness and others on behalf of plaintiff. Contents of these minutes were in the hand of this witness. Despite having agreed to supply the analyzer by 30th May, 1998 needful was not done. This resulted in issuance of notice Ext. PW-2/G, when the supply order was cancelled. At the same time defendant was called upon to refund the amount to the extent of Rs. 15, 30,000/- with interest and liquidated damages. On its failure to do so plaintiff was forced to file this suit. Interest is also claimed at (his rate of 24% per annum from the date of filing of the suit to the date of its realization, since defendant failed to do the needful despite having agreed originally and thereafter within the extended time. 27. In his cross-examination, PW-2 admitted that he was dealing with defendant on behalf of the plaintiff exclusively, for the supply of the Analyzer. He also admitted that Ext. PW-2/A was a revised offer. He further admitted that in Ext. PW-2/A as permits clause-8 validity period was seven days from the date of issue of the letter. 27. In his cross-examination, PW-2 admitted that he was dealing with defendant on behalf of the plaintiff exclusively, for the supply of the Analyzer. He also admitted that Ext. PW-2/A was a revised offer. He further admitted that in Ext. PW-2/A as permits clause-8 validity period was seven days from the date of issue of the letter. He also admitted that value of the Analyzer was Rs. 18, 34,502.80 on the basis of calculation in DM currency. To a specific question on behalf of the defendant that when supply order vide Ext. PW-2/B was placed with the defendant period of validity of offer made by the defendant vide Ext. PW-2/A had already expired, this witness replied that before placing order vide Ext. PW-2/B negotiations and correspondence had preceded. One such communication is Ext. PW-2/R, (an admitted document by the defendant). ^ 28. He had denied that when order Ext. PW-2/B was placed with the defendant, there was any dispute regarding the final price of the TOC Analyzer, much less whether it was Rs. 18 lacs or Rs. 17 lacs. He, however, volunteered that so far plaintiff was concerned, its offer was firm and final in the sum of Rs. 17 lacs that too in Indian currency. He admitted that defendant did not return Ext.PW-2/B after having accepted the terms thereof. This also applied to the terms and conditions attached to this document. 29. To another question as to without having verified about the analyzer having been actually damaged at the Airport, why the plaintiff still released the amount, witness replied that there was no question of the plaintiff having verified the fact of damage to the Analyzer. As after the payment of 50% of the price, rest of 40% was to be released on proof of despatch. It was only on providing of such proof that 40% of Rs. 17 lacs was released and the question of equipment being damaged or not had not arisen at that point of time. He denied that plaintiff agreed for repair/replacement of the damaged analyzer from its principal i.e. of the defendant. Similarly, he denied that damaged analyzer was sent to Germany. He further, admitted that in some of the communications, the defendant had informed the plaintiff, that for repairs the analyzer had been sent to Germany and it was likely to take some time. Similarly, he denied that damaged analyzer was sent to Germany. He further, admitted that in some of the communications, the defendant had informed the plaintiff, that for repairs the analyzer had been sent to Germany and it was likely to take some time. But there was no actual proof of its having been in fact sent to Germany. Regarding Exts. PW-2/M, PW-2/N and PW-2/O having been sent by the defendant, witness stated that those were faxed from the defendants machine. Regarding encircled portion in red i.e. Ext. DA, in Ext. PW-2/P, the witness stated that he did not recollect that under the circumstances correction had been carried out. He further denied the suggestion that no assurance was given as mentioned in Ext. PW-2/P. He admitted that Ext. DB is signed by him. This is dated 27.4.1998. He however, denied that the defendant did not owe any money to the plaintiff and it was willing to supply the machine. 30. On the other hand, DW-1 Jogesh Jerath, Director of the defendant Company stated that he was aware regarding the transaction between the parties for the supply of the Analyzer in question. It was some where in the year 1996. Per him, one of the Directors of the plaintiff, Shri Sudhir Valid contacted the witness on telephone for the supply c* the Analyzer in question. It was required by the plaintiff for its plant at Paonta Sahib. On receipt of this inquiry defendant took up the matter with STIP at Germany for its supply. After receipt of Ext. PW-2/A from the defendant to the plaintiff, latter wanted the defendant to given an offer in Indian currency instead of DEM. However, he informed the plaintiff that since this transaction relates to purchase in foreign currency, as such it is not possible to give offer in Indian currency Plaintiff held out that there was some internal problem regarding foreign exchange with the plaintiff, therefore they wanted the offer in Indian currency. He further stated that at the instance of the plaintiff, defendant Company made offer for supply of the Analyzer in Indian currency. Supply order Ext. PW-2/B was received by the defendant. But thereafter no formal agreement was entered into between the parties regarding the terms and conditions for such supply. He admitted the receipt of Rs. 15, 30,000/- out of total amount of Rs. 17 lacs. Supply order Ext. PW-2/B was received by the defendant. But thereafter no formal agreement was entered into between the parties regarding the terms and conditions for such supply. He admitted the receipt of Rs. 15, 30,000/- out of total amount of Rs. 17 lacs. This was transferred to M/s. STIP for supply of the Analyzer, as per DW-1. Rs. 5, 80,000/- was received by the defendant after intimation that the machine has landed in India. Clearing agent of the defendant had informed DW-1, that it was found in damaged state by the Custom authorities. This resulted in communication Ext. PW-2/I. He further stated that the analyzer was sent back to Germany for repair/replacement. M/s. STIPS, was reluctant to replace the damaged analyzer. However, on persistent demand by the defendant they agreed, though reluctantly. Witness further admitted that the supply of machine from M/s. STIPS was taking time. Then all of a sudden, Ext. PW-2/J was received, thereby the supply order was cancelled by the plaintiff. He asked plaintiff to revalidate the supply order keeping in view the exchange rate and also to give time for the supply. Such communications according to him were Ext. PW-2/K and Ext. PW-2/0. Per this witness, plaintiff agreed for extension of time and nothing more. But for want of revalidation of the supply order, analyzer could not be supplied. Witness after seeing Ext. PW-2/P, denied his signatures on it encircled portion in red as Ext. PW-2/P-1. He stated that he had not signed Ext. PW-2/M and PW-2/N. According to him, both these fax messages purport to have been fixed by the defendant Company. But he voluntarily stated, that fax number could be programmed into any fax machine, and print out will come automatically. According to him, plaintiff is not entitled to the suit amount or any other amount or liquidated the damages. 31. In cross-examination the stated that after receipt of supply order Ext. PW-2/B dated 7.7.1997 by the defendant, he was dealing with PW-2 on behalf of the plaintiff Company and also with other Officers. What transpired during telephonic discussion with the plaintiff Company, he did not put any thing in black and white. However, according to him, relevant points were noted and he had placed all such points on record. He further admitted that the revised offer was made on behalf of the defendant to the plaintiff vide Ext. What transpired during telephonic discussion with the plaintiff Company, he did not put any thing in black and white. However, according to him, relevant points were noted and he had placed all such points on record. He further admitted that the revised offer was made on behalf of the defendant to the plaintiff vide Ext. PW-2/A, it is in Indian rupee. He admitted the correctness of Ext. PW-2/R on behalf of the defendant. He also admitted that Ext. PW-2/A was accompanied by two sheets. According to him, there was no concluded contract between the parties. In his further cross examination, the witness had admitted the contents of Ext. PW-2/C. He also admitted that reference to supply order in Ext. PW-2/C was in fact to Ext. PW-2/B. He also admitted that after receipt of supply order, followed by payment of Rs. 8, 50,000/- as 50% of the cost price and then 40% of the cost price on landing of the machine, defendant never intimated the plaintiff in writing that there is no concluded contract between the parties for the supply of the Analyzer. (Emphasis supplied) 32. He further admitted that this stand was taken up by the defendant for the first time in the written statement, though he orally explained this position and had brought it to the notice of the plaintiff during the course of discussion even prior to the filing of the written statement. He also further admitted having mentioned to the Officers of the Plaintiff Company that machine duly replaced will be made available to them within 2 to -3 weeks. But voluntarily stated that at such point of time, only matter relating to repair of machine and not its replacement was discussed. He admitted copy of letter dated 3.10.1997 from the defendant to the plaintiff. According to him, Ext. PW-2/H had been signed by R.N. Chaudhary on behalf of the defendant. Witness maintained that it was he alone who was signing all the communications addressed by the defendant to the plaintiff Company. He admitted that fax No. 6473471, was the fax number of the defendant at New Delhi. He further admitted that for using the fax machine of No. 6473471, defendant Company used to receive telephone bills from M.T.N.L. Regarding Ext. PW-2/O he stated that it was received by the defendant from the plaintiff Company. He admitted his signatures on different documents as detailed in his cross-examination. He further admitted that for using the fax machine of No. 6473471, defendant Company used to receive telephone bills from M.T.N.L. Regarding Ext. PW-2/O he stated that it was received by the defendant from the plaintiff Company. He admitted his signatures on different documents as detailed in his cross-examination. 33. Further according to DW1, he was not in a position to support his statement in examination-in-chief that amount received from the plaintiff was remitted to M/s STIPS, West Germany. He clearly admitted that the Analyzer had not been supplied till date (i.e. 4.9.2003 when his statement was recorded). Defendant was ready to supply the Analyzer at the current rate. He denied the suggestion of the plaintiff that the amount of Rs. 15, 30,000/- having been pocketed by the defendant. In the context of defendants evidence, it may be noted that except producing Ext. DB, no other documentary evidence has been produced by it. 34. Issues No. 1, 5, 6 and 8 are being taken up together for decision first. 35. Ext. PW-2/A is the first communication dated 17.2.1997. Vide this an offer was made by the defendant to the plaintiff. This letter was accompanied by three sheets. Its perusal shows that though it contains an offer in DM, however, under terms and conditions payment was to be made as under:- . ; "Payment in Indian currency. 50% along with order. 40% One week before delivery. 10% on installation and commissioning. The prices quoted are C&F Ponta (H.P.)." 36. At page 3 of the terms and conditions, there is a calculation made in Indian Currency at Rs. 18, 24,502.80. Though it is a part of Ext. PW-2/A, defendant while admitting (i.e. Ext. PW-2/A) and its two accompanying sheet had denied the third one. An important condition in this 3rd sheet was in the following terms:- "These terms and conditions arc valid only if letter of Credit is opened in Douche Mark". (Emphasis supplied) 37. It appears that thereafter matter remained under correspondence between the parties. 38. One such letter is Ext. PW-2/R, and Jogesh Jerath as DW-1 has admitted his signatures on it as Ext.PW-1/R. Despite this communication, defendant accepted Ext. PW-2/B from the plaintiff, though during admission and denial of documents, it was denied. However, when DW-1 appeared in the witness box, he categorically admitted that reference in Ext. 38. One such letter is Ext. PW-2/R, and Jogesh Jerath as DW-1 has admitted his signatures on it as Ext.PW-1/R. Despite this communication, defendant accepted Ext. PW-2/B from the plaintiff, though during admission and denial of documents, it was denied. However, when DW-1 appeared in the witness box, he categorically admitted that reference in Ext. PW-2/C to was to the terms of payment was also correct in the context of supply order Ext. PW-2/B. 39. Shri B.N. Misra, learned Counsel for the defendant submitted that no benefit can be derived by the plaintiff from the supply order Ext. PW-2/B. It makes reference to defendants communication dated 17.2.1997, (Ext. PW-2/A), so it cannot be read by isolating the same from it i.e. Ext. PW-2/A. 40. Admitted evidence produced by the parties clearly proves that defendant received Rs. 15, 30,000/-. Thrust of the submission of Mr. Mishra was that since Analyzer had to be imported from Germany, therefore its payment was to be made in DM currency and not in Indian currency. 41. For the reasons to be recorded hereinafter, this plea is not only and afterthought, but is patently false also. It was stated by DW-1 in Court that plaintiff wanted the offer in Indian currency, because it did not have the internal budgetary sanction for foreign exchange. As such offer was given in Indian currency. But when PW-2 (who was admittedly dealing with this matter), was in the witness box, no such suggestion was given to him. There is overwhelming, oral and documentary evidence besides statement of DW-1, to suggest that the machine had not been supplied (ill the date he made statement in court. 42. Vide Ex.PW-2/C defendant had asked the plaintiff to make 40% i.e. Rs 6, 80,000/-. This amount was payable on proof of despatch of Analyzer. Airways bill Ex. PW-2/D was sent by the defendant. It was then that this amount was paid. In case the supply order Ext. PW-2/B had not been accepted by the defendant, 40% of what had been asked for from the plaintiff. Learned counsel for the defendant was not able to explain this fact. 43. On record there are different various given by the defendant in its written statement, as well as by DW-1. Sometimes it is claimed by the defendant that the goods hand landed but were damaged. Learned counsel for the defendant was not able to explain this fact. 43. On record there are different various given by the defendant in its written statement, as well as by DW-1. Sometimes it is claimed by the defendant that the goods hand landed but were damaged. On another occasion, it is the case of the defendant it was informed by their Custom Agent that, there is some problem regarding calculation of the amount in question. 44. For ready reference contents of some of these documents are extracted herein below:- Ex. PW-2/C "This has reference to Purchase Order No. PO97/5325/O dated 7.7.1997 for purchase of 1 no. TOC Analyzer for your Paonta Unit. As per the Purchaser Order payment terms we received 50% along with order. You are kindly requested now for release of another 40% that is Rs. 6, 80,000/- (Rs. six lacs, eighty thousand only) against proof of despatch for the same. Please find enclosed herewith Airway Bill No. FRA-0225-7524-074-3121-0981 dated 22.7.1997 of the despatch of TOC Analyzer from our Principal M/s. STIP, Germany. You are kindly requested to have the payment release at the earliest as any delay would attract a demurrage from Customs and Airport Authority as goods have already landed at IGI Airport on 24.7.1997." (Emphasis supplied) Ex. PW-2/F "This is to inform you that the said equipment (TOC Analyzer) is under custom clearance. Due to certain customs complications for wrong custom duty assessment there has been a delay in releasing of the equipment. We have been assured by custom authorities that the equipment will be released in next one week. We regret the delay caused on account assuring you that we are doing our best for having the release done at the earliest." "Our company has had discussions at length with STIP and we have been able to get them to agree to our suggestion for a complete new replacement as it no fault of the buyer and why should the buyer be penalized for the transit damages. They have agreed to have the same done and the necessary is being done for replacement. The equipment has been forwarded back to Germany for the same after very lengthy clearances from the Indian customs department. The same has been shipped out on the 30th of September, 1997. They have agreed to have the same done and the necessary is being done for replacement. The equipment has been forwarded back to Germany for the same after very lengthy clearances from the Indian customs department. The same has been shipped out on the 30th of September, 1997. It is expected that the replacement would take about 2/3 weeks before it redelivered to India and then sent over to your plant at Paonta. We do hope that you would be appreciative of problem and the efforts we are putting in have this problem resolved. We are confident that the same would be shipped out with the expected time and be installed in Ponta within this month. We regret the delay for the same as it is something beyond us as it is Force Majure." Ex. PW-2/H "We wish to inform you that the above said Analyzer is now under custom clearance in Delhi. There seems to have been some mishandling in Documents for which customs asked us to. get original copy from M/s. STIPS, Germany and action has been taken. As soon as we submit the original document, the consignment will be released and despatch to Poanta (your works). You are requested to ensure that pre-installation work is completed as per the instructions left by your Service Engineer when he last visited your works." (Emphasis supplied) Ex. PW-2/1 "As also explained earlier in personal meetings we had run into the following problems:- (A) Total damage of equipment. (B) Documentation and clearances through customs authority. (C) Have the equipment replaced for new one from our principle STIP which was done against all norms of company as they insisted that transit damages should be taken care of through insurance. (D) The delays and replacement from STIP. (E) Internal confusion between STIP and JEPL on documentation for replacement, i.e. German Chamber of Commerce etc. We wish to bring to your notice that after personal discussion of the undersigned with the management of STIP the internal documentation issued have been resolved and we have approached the Indian custom for doing necessary procedure for immediately releasing our Analyzer for supply. Detailed list of documents are being collected and sent to you along with details of above report. We sincerely regret the situation and seek you co-operation to have the present crises resolved as soon as possible. Detailed list of documents are being collected and sent to you along with details of above report. We sincerely regret the situation and seek you co-operation to have the present crises resolved as soon as possible. Please feel free to get back to us for any information as and when required. Assuring you of our best services." 45. DW-1 while in witness box, has stated that Ext. PW-2/L PW-2/M and PW2/N were not faxed by the defendant to the plaintiff. According to him, it was he alone who was corresponding with the plaintiff right from the beginning. Further according to him, Fax No. which on all these communications, could be programmed into in Fax Machine, and the documents in question could be prepared. 46. Further in his cross-examination, DW-1 admitted that Fax No. contained in these documents (Ex. PW2/L, PW2/M and PW2/N), is correct. Defendant had been receiving bills for this Fax No. from the department concerned. Despite having come to know, no inquiry was made, nor any other evidence was produced to sustain the plea that there documents were sent by defendant to the plaintiff. In view of this admitted position, adverse inference needs to be drawn against the defendant for such non-production of its bills as well as its correspondence file wherein other admitted documents are on the record of this suit. 47. Another document which was denied on behalf of the defendant is Ext. PW-2/P. It contains the minutes of the meeting, dated 7.4.1988. According to PW-2, a meeting took place on 7.4.1998 where discussions were held with defendant. Meeting having taken place and the same having been attended by DW-1 was not disputed by this witness. What is disputed is that no minutes were drawn up. Therefore, while in witness box DW-1, denied his signatures on Ext. PW-2/P, as also over-writing in it i.e. Ext. DA. As per Ext. PW-2/P, Mr. Jerath (DW-1) agreed to deliver and install a TOC Analyzer against Order No. PO97/5325 dated 7.7.1997 (Ext., PW-2/B) by 30.5.1998. RLL requested to cover up bank guarantee for part advance of Rs. 15.40 lacs paid which Mr. Jogesh assured to look into the possibility after checking their bankers or to deposit part of it with RLL within one week i.e. 15.4.1998. (Part deposit of Rs. five lacs). In addition to above letter, giving the delivery schedule was to be submitted in a weeks time. 15.40 lacs paid which Mr. Jogesh assured to look into the possibility after checking their bankers or to deposit part of it with RLL within one week i.e. 15.4.1998. (Part deposit of Rs. five lacs). In addition to above letter, giving the delivery schedule was to be submitted in a weeks time. Besides PW-2, there are number of other signature is. According to PW-2, it is signed by Jogesh Jerath on behalf of the defendant. But in this connection when a reference is made to Ext. DB, a letter from plaintiff to the defendant, put up by the defendant to PW-2, it completely belies the stand of the defendant so far Ext. PW-2/P is concerned. Ext. DB reads as under:- Ex.DB. "This has reference to the minutes of meeting on 7.4.1998, wherein you have agreed to deposit the bank guarantee as well as a letter from your principals, giving delivery schedule by 15.4.1998. We have not received the same till today. Kindly take necessary action immediately as discussed with you over phone also last week." 48. Mr. Misra submitted that no minutes were drawn up, as such Ext. PW-2/P being a forged document is of no consequence and suit merits dismissal being time barred. 49. This plea has no merit. Reason being that Ex. DB relied upon by the defendant speaks of minutes and not of any discussion. Ext. DB is dated 27.4.1998. What happened thereafter, there is nothing on record placed by the defendant. It will not lie in the mouth of the defendant that what is stated in this document is not correct and/or no such minutes of meeting of 7.4.1983 were there. It appears that with a view to overcome Ext. PW-2/P, false defence of no minutes having been drawn up, has been cooked up by the defendant. Once this conclusion is arrived at, what further falls from this is that the Analyzer was to be supplied by 30.5.1998? Admittedly needful was not done. Suit as filed on 16.5.2001, this is within three years of the agreed dated of supply of T.O.C. Analyzer in question. Therefore, it is held that the suit is within time. 50. Again a plea urged on behalf of the defendant that Ext. PW-2/B was not a concluded contract, as in token of its acceptance, defendant did not return it duly signed. Therefore, it is held that the suit is within time. 50. Again a plea urged on behalf of the defendant that Ext. PW-2/B was not a concluded contract, as in token of its acceptance, defendant did not return it duly signed. This is a plea, again which cannot be raised by the defendant. Firstly there is no basis in law on which it can raised by defendant in the facts of this case, and secondly if this is upheld, it will permit the defendant undue enrichment. This is a case where there was firm offer in Indian currency of Rs. 17 lacs for the supply of Analyzer made by the plaintiff to the defendant vide Ext. PW-2/B. 90% of this amount was admittedly received by the defendant. But without any consequence, though there were numerous assurances for the supply of Analyzer, but without any result. 51. Again, plea of the defendant that machinery could only be supplied on the basis of DM currency and not on the basis of Indian currency needs to be rejected. Despite offer of the defendant vide Ext. PW-2/A on 17.2.1997; no order was placed by the plaintiff on its basis with the defendant. On the other hand, Ext. PW-2/B, the supply orders having been placed by the plaintiff as per what is mentioned in it. In case what was offered vide Ext. PW-2/B was not acceptable to the defendant, noting prevented it to have turned down the same. Instead of doing so, defendant admittedly received money in its terms. This clearly establishes that the offer made by the plaintiff vide Ext. PW-2/B was not only accepted, but was also duly acted by it (defendant). 52. Another reason to reject the plea of Mr. Misra is that the offer made vide Ext. PW-2/A, its-terms and conditions of offer in DM currency was to be valid only, if letter of credit was opened in D.M. currency. Admittedly, this was not done. But supply order was placed vide Ext.. PW-2/B in terms of Indian currency. There is noting on record to hold that the Analyzer was to be supplied on the basis of D.M. Currency at the fluctuating foreign exchange rate as was urged by Shri Misra. This plea is belied by the overwhelming evidence on record and the conduct of the defendant. 53. PW-2/B in terms of Indian currency. There is noting on record to hold that the Analyzer was to be supplied on the basis of D.M. Currency at the fluctuating foreign exchange rate as was urged by Shri Misra. This plea is belied by the overwhelming evidence on record and the conduct of the defendant. 53. There is an apparent reason for the defendant to have denied third page of terms and conditions, those formed part of and accompanied Ext. PW-2/A, while admitting its first two pages, and no Letter of Credit was opened by the plaintiff in D.M. currency as was required as per third page of this document. To the contrary, the amount was received as noted in this judgment. 54. In view of the aforesaid discussion, what follows is that defendant had agreed on the basis of Ext. PW-2/B and subsequent correspondence exchanged between the parties (as referred to hereinabove), that there was a concluded agreement for the supply of TOC Analyzer between the parties at an agreed price of Rs. 17 lacs, out of which a sum of Rs. 15.30 lacs was admittedly received by the defendant. It is also held that defendant despite repeated assurances, failed to supply the same within the time originally stipulated and also within the extended period by 30.5.1998. In these circumstances, in addition to issue No. 1, issues No. 5, 6 and 8 are also decided in favour of the plaintiff and against the defendant. 55. Now coming to issue No. 7. From the narration of evidence, as well as the documents produced by the parties, it is clear that defendant admittedly received a sum of Rs. 15.30 lacs. Vide its letter Ext. PW-2/H, dated 21.11.1997 (as extracted hereinabove), defendant has asked to ensure that installation work is completed as per instructions left by defendants service engineer when he had last visited the works of the plaintiff. Even from other correspondence exchanged between the parties after July, 1997, it is evident that plaintiff did whatever was required of it to be done to fulfill its obligation in terms of the purchase order Ext. PW-2/B. Despite having paid the sum of Rs. 15.30 lacs, plaintiff remained in correspondence with the defendant and also accepted its (defendants) word that machinery had landed in Delhi and was having custom problem and/or it was damaged. Except for intimating plaintiff vide Ext. PW-2/B. Despite having paid the sum of Rs. 15.30 lacs, plaintiff remained in correspondence with the defendant and also accepted its (defendants) word that machinery had landed in Delhi and was having custom problem and/or it was damaged. Except for intimating plaintiff vide Ext. PW-2/C along with air-way bill Ext. PW-D, there is nothing proved from contemporaneous official record of either the Custom Department of the Government of India or the Airport Authority. In these circumstances, there was no course left with the plaintiff except for canceling the order. No doubt DW-1 has stated in the witness box that money received from the plaintiff was advanced to M/s. STIPS. That does not justify the non-supply of the analyzer in question. Plea to the contrary by Mr. Mishra that his client was ready and willing to supply the analyzer in question even today, but no fresh negotiated terms and in DM payment basis, is neither tenable in law nor in the facts and circumstances of this case. Admittedly, in the circumstances of this case, there is no default on the part of the plaintiff so as to justify the action of defendant to either not supply the equipment after having accepted 90% of the agreed price arid/or to have delayed its supply. Once this conclusion is arrived at, the Court has no option, but to decide issue No. 7 in favour of the plaintiff. 56. Now coming to issue No. 9. In this behalf, when a reference is made to the terms of supply order as contained in Ext.PW-2/B, it is clear that for late delivery, liquidated damages are specified if delivery is delayed beyond 8.8.1997. What to talk of late delivery, analyzer was never supplied. An admitted fact of this case is that rather defendant has taken the stand that Ext.PW-2/B along with its terms and conditions was not a concluded contract. This aspect of the case has been detailed in the preceding paras of this judgment. Suffice it to say that learned Counsel for the defendant could not justify as to what is the legitimate ground oh which his client could withhold the amount received by it and also at the same time not to supply the analyzer. As such, under issue No. 9, it is held that plaintiff is entitled to liquidate damages of Rs. 85,000/- as claimed in the plaint. 57. As such, under issue No. 9, it is held that plaintiff is entitled to liquidate damages of Rs. 85,000/- as claimed in the plaint. 57. Transaction between the parties was admittedly commercial in nature. The amount of Rs. 8.50 lacs and 6.80 lacs was received long ago. Plaintiff got noting in return except entering into correspondence as well as assurances from the defendant. In addition to this, I am further satisfied that on the basis of the evidence on record produced by the parties, plaintiff was deprived of the use of this amount. In these circumstances, it is held that the plaintiff will be entitled to get interest from the defendant. Though it has been claimed at the rate of 24% per annum from the date of filing of the suit till the date of actual payment, however, while allowing the claim of interest to the plaintiff, it will be entitled to interest at the rate of 9% per annum on Rs. 15.30 lacs from the date of filing of the suit, i.e. 16.5.2001 till the date of actual payment. It is, however, clarified that there will be no interest on the amount of Rs. 85,000/-. 58. Now coming to issue No. 3. Mr. Mishra learned Counsel for the defendant urged that suit is bad for non-joinder of M/s. STIPS of Germany which was the supplier of the analyzer to the plaintiff-Company. He further pointed out that a sum of Rs. 15.30 lacs stands paid to this company. This is purely a word of mouth said by DW-1, otherwise there is no proof placed on record by the defendant of the payment having been made to the said Company. 59. Assuming for the sake of argument that this is the correct position, even then there is noting on record to prove that there was anything on the basis whereof, it can be said that there was a tri-partite agreement between the plaintiff, defendant as well as M/s. STIPS of Germany. Because plaintiff had placed a firm order vide Ext. PW-2/B for the purchase of TOC Analyzer at the cost of Rs. 17 lacs as per terms and conditions attached with this order. Plaintiff fulfilled its part and released the amounts in question. In case Ext. Because plaintiff had placed a firm order vide Ext. PW-2/B for the purchase of TOC Analyzer at the cost of Rs. 17 lacs as per terms and conditions attached with this order. Plaintiff fulfilled its part and released the amounts in question. In case Ext. PW-2/B was either not acceptable to it, or terms as contained in it were not agreeable, then there was noting that prevented the defendant to have refused to accept the amount at once. Admittedly this was not done. What transpired between the defendant and M/s. STIPS, was no concern of the plaintiff as it purely between these two and plaintiff had nothing to do with both of them. However, with a view to give maximum leverage to the defendant, despite negotiations, meetings and extension of time, plaintiff got nothing, what to talk of supply of the Analyzer in question. 60. In view of the aforesaid discussion, as well as there being noting on record produced by the defendant to establish that the manufacturer-supplier had anything to do with the plaintiff so far supply of analyzer was concerned. Under issue No. 3, it is held that the suit of the plaintiff is not bad for non-joinder of necessary parties as alleged. 61. Now coming to issues No. 2 and 4. Suit has been filed through Shri S.K. Patwari PW-1. He appeared as PW-1. He stated that he is the company secretary of the plaintiff-Company. According to him, vide Ext. PW-1/A attached with the Memorandum and Articles of Association, is the certificate of plaintiffs incorporation. A perusal of this document shows that this is a certified copy of the Memorandum of Articles of the plaintiff-Company and contains certificate as envisaged under the Companies Act, 1956. On its basis, it is held under issue No. 4 that plaintiff is a duly incorporated Company under the Companies Act. To this extent, issue No. 4 is decided against the defendant. 62. So far entitlement of Shri S.K. Patwari to file and maintain this suit on behalf of the plaintiff is concerned; it is being dealt with herein below. 63. While appearing as PW-1, Shri S.K. Patwari stated that he is also general power of attorney holder of the plaintiff-Company. Its copy is Ext. PW-1/B. Its original was produced in Court. He further stated having signed and verified the plaint. 63. While appearing as PW-1, Shri S.K. Patwari stated that he is also general power of attorney holder of the plaintiff-Company. Its copy is Ext. PW-1/B. Its original was produced in Court. He further stated having signed and verified the plaint. In cross examination, he stated that general power of attorney was executed by the then Chairman and Managing Director Dr.Parvinder Singh. It is dated 30.12.1998. This was executed by Dr. Singh on behalf of plaintiff-company. This witness admits that Dr.Parvinder Singh expired in the month of July, 1999. 64. While challenging the locus standi of Shri S.K.Patwari, Mr. Mishra submitted that looking to the Articles of Association of the plaintiff-company, coupled with the provisions of the Companies Act by virtue of Ext. PW/B, at best if it can be said that PW-2 was authorized only to sign and verify the pleadings. According to Mr. Mishra, Secretary of a Company like the plaintiff i.e. PW-1 can only perform such ministerial and administrative acts besides carrying out statutory duties under the Companies Act, 1956 and nothing more. Filing of a suit is not an administrative/ministerial act. He laid great emphasis is on different Articles out of Ext.PW-/A, to which, reference will be made hereinafter. 65. First reference was made by him to Clauses (1) and (2) of the Articles of Association contained in Ext. PW-/A. Challenge on behalf of defendant to the filing of the suit through PW-1 was controverted by learned counsel for the plaintiff. According to him, PW-2 is a principal officer of the plaintiff as envisaged under Order 29, Rule 1 C.P.C. This fact coupled with power of attorney, Ext. PW-B, dislodges the challenge to his authority to maintain this suit. He further pointed out that in the statement of PW-1, there is no question put to this witness challenging either the authority of Dr. Parvinder Singh who executed Ext. PW-1/B on behalf of the plaintiff or of this witness as Secretary to file this suit. Reference was made by Mr. Gupta to a decision of the Supreme Court in United Bank of India v. Naresh Kumar and Others, (1996) 6 SCC 660. 66. Respective pleas, as well as case law cited at the Bar will be dealt with hereinafter in the light of the Memorandum and Articles of Association of the plaintiff-company Ex. Reference was made by Mr. Gupta to a decision of the Supreme Court in United Bank of India v. Naresh Kumar and Others, (1996) 6 SCC 660. 66. Respective pleas, as well as case law cited at the Bar will be dealt with hereinafter in the light of the Memorandum and Articles of Association of the plaintiff-company Ex. PW1/A. It was not disputed at the time of hearing on behalf of the parties that so far Ext. PW-1/A is concerned, in addition to the provisions of Companies Act, it is the magna carta of the plaintiff-company. "Board" in the articles of association is defined as under:-""Board" means a meeting of the Directors duly called and constituted or as the case may be, the Director assembled at a Board, or the requisite number of Directors entitled to pass a resolution by post and/or circulation in accordance with these Articles." 67. In addition to this, as per Article 143, Managing Director is defined. Relevant portion of this Article 143-A is extracted as undergo Regulations contained in Table A in the First Schedule to the Companies Act, 1956, or in the Schedule to any previous Companies act, shall apply to this Company, but the regulations for the management of the company and for the observance of the members thereof and their representatives shall , subject to any exercise of the statutory power of the company with reference to the repeal or alteration of or addition to its regulation by Special Resolution, as prescribed by the said Companies Act, 1956 be such as are contained in these Articles." 68. According to above, the Board can by a resolution vest such powers and functions was it may think fit and such powers can be made exercisable for such a period upon such terms and conditions as may be determined by the Board. Managing Director on ceasing to hold office of Director by virtue of the same ceases immediately to be the Managing Director. 69. Per clause 151 of the Articles of Association, Directors may from time to time elect anyone from themselves, their members, a Chairman of the Board and determine the period for which he is to hold office and in case Chairman is not present within 15 minutes, they can chose one of their member to be the Chairman also of their meeting. 70. 70. Board has specific powers, these are without prejudice to the general powers of the Board conferred under the Article of Association of the plaintiff. In this behalf, relevant Article No. 160, 160(8), 160 (17-C) and 160 (17-d) have material bearing on this case, and these are being extracted herein below:- "160. Without prejudice to the general powers conferred by the last preceding Article and so as not in anyway to limit or restrict those powers and without prejudice to the other powers conferred by these Articles, but subject to the restrictions contained in the last preceding Articles, it is hereby expressly declared that the Board shall have the following powers, that is to say, powers:- 160(8). To institute, conduct, defend, compound or abandon any legal proceedings by or against the Company or its officers or otherwise concerning the affairs of the Company and also to compound and allow time for payment or satisfaction of any debts due and of any claims or demands by or against the Company and to refer any differences to arbitration, and observe and perform any award made thereon. 160(17-c). Subject to Section 292 of the Act, from time to time and at any time to delegate to any person so appointed any of the powers, authorities and discretions for the time being vested in the Board, other than their power to make calls or to make loans or borrow money; and to authorize the members of the time being of any such local Board or any of them to fill up any vacancies therein and to act notwithstanding vacancies; and any such appointment or delegation may be made on such terms and subject to such conditions as the Board may think fit and the Board may at anytime remove any person so appointed and may annual or vary any such delegation. 160(17-d). 160(17-d). At any time and from time to time by power of attorney under the seal of the Company, to appoint any person or persons to be attorney or attorneys of the Company, for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Board under these presents and excluding the power to make calls and excluding also except in their limits authorized by the Board the power to make loans and borrow moneys) and for such period and subject to such conditions as the Board may from time to time think fit; and any such appointment may (if the Board think fit) be made in favour of the member or any of the members of any Local Board, established as aforesaid or in favour of any Company or the share-holders, Directors, nominees or Managers of any Company or firm or otherwise in favour of any fluctuating body of persons whether nominated directly or indirectly by the Board and any such power of attorney may contain such powers for the protection convenience of person dealing with such Attorneys as the Board may think fit, and may contain powers enabling any such delegates or attorneys as aforesaid to sub delegate all or any of the powers, authorities and discretions for the time being vested in them." 71. In the like manner, under Article 161, Secretary is appointed in the discretion of the Directors to perform any function which by the Act or the Articles for the time being of the Company are to be performed by Secretary and to execute any other duties which may from time to time be assigned to the Secretary by the Director. Secretary is to keep the registers and other documents which are required to be maintained according to Companies Act in his custody. 72. Plaintiff in order to succeed, that the then Managing Director (Dr. Parvinder Singh), had been duly authorized by the Board of Directors to have executed the power of attorney in favour of PW-1 Mr. Patwari, was required to place on record not only copy of the power of attorney, but also copy of the resolution duly approved by the Board in accordance with law when the plaintiff-company had authorized him (Dr. Parvinder Singh) to further delegate and/or execute any power of attorney/authority given to him by the Board. Patwari, was required to place on record not only copy of the power of attorney, but also copy of the resolution duly approved by the Board in accordance with law when the plaintiff-company had authorized him (Dr. Parvinder Singh) to further delegate and/or execute any power of attorney/authority given to him by the Board. No doubt in PW-1/B in Clause (1), there is a mention to Dr. Parvinder Singh, the plaintiff having executed power in favour of PW-1 S.K. Patwari. Clause (1) authorizing him to do among other things is as under:- "1. To file, institute, defend all kinds of litigation(s) by or against the Company like civil suits, writs, petitions, interlocutory applications, appeals, revisions, representations, judicial proceedings in any Court of law of Original or Appellate jurisdiction, Arbitrator, Tribunals, Judicial/Quasi-judicial Bodies or Authority(s) established any-where in India; to sign, verify and file plaints, petitions, interlocutory applications, complaints, affidavits, written statements, counter-claims, replies/rejoinder(s), statement of facts, grounds of appeal etc. including all pleadings in any form whatsoever, to file documents, to appear before any court(s) Arbitrators), Tribunal(s), Judicial Quasi-judicial/Body/Authority(s); to give evidence either on oath or otherwise; to compromise any matter out of court and to file compromise petition(s) in the Court(s); agree to refer any matter to Arbitration to invite order(s) or judgment(s) or compromise; to give consent to the appointment of ARbitrator(s), file statement of facts, claim(s), counter-claim(s) before the Arbitrator(s); to file execution petition(s); and to take all such steps, as may be deemed necessary and expedient by the Attorney(s), in the facts and circumstances of a particular matter. 2. To engage, appoint and remove Advocates, Counsels, Solicitors and Attorney and to do acts and things as may be considered necessary/proper for defending and/or safeguarding affairs and interest of the Company. 73. Mr. Gupta on the basis of these Clauses of Ex. PW-1/A urged that the Company had authorized PW-1 to institute the present suit. However question, as already observed, would be who had authorized Dr. Parvinder Singh to execute Ext. PW-1/B. There is no evidence produced on record by the plaintiff in that behalf in the statements of PWs 1 and 2. 74. Here submission based on the decision of the Supreme Court of India in United Banks case (supra), needs to be noted. In this case suit was filed by the Bank through the Principal Officer of the Bank. PW-1/B. There is no evidence produced on record by the plaintiff in that behalf in the statements of PWs 1 and 2. 74. Here submission based on the decision of the Supreme Court of India in United Banks case (supra), needs to be noted. In this case suit was filed by the Bank through the Principal Officer of the Bank. Trial Court dismissed the suit by holding that plaint was not duly signed and verified by the competent person. In addition to this, some of the issues in this case were decided against the Bank. In appeal, findings on some of the issues decided against the Bank qua the liability in favour of the Bank were held in favour of the Bank. But the suit was dismissed under issue No. 1. in second appeal did not interfere. 75. In this background, when the matter was taken up to the Supreme Court, it observed that "since the suit had been filed long ago by Shri L.K. Rohatgi on its behalf, Supreme Court felt that he must have been empowered to sign the plaint on behalf of the Bank. In the alternative, Supreme Court also held that it would have been legitimate to hold that the manner in which the suit was conducted showed that the Bank had ratified the action. 76. On the basis of paragraph No. 11 from this judgment of the Supreme Court, Mr. Gupta urged that his client need to be directed to prove ratification or to prove the authority. 77. Mr. Gupta made an oral prayer when the decision was being dictated that his client may be allowed to place on record some material to establish ratification of the act of PW-1 having filed this suit. This prayer is declined. In this view of the matter and also keeping in view the provisions of the Memorandum and Article of Association of the plaintiff-Company, i.e. Ext. PW-1/B under second part of issue No. 4 and also under issue No. 2, it is held that S.K. Patwari was not entitled to file and maintain the present suit on behalf of the plaintiff either on the basis of Ext. PW-1/A or Order 29 Rule 1 C.P.C. It is also held that filing of suit is not a ministerial act so as to authorize PW-1 to file and maintain the same. 78. No other point is urged. 79. PW-1/A or Order 29 Rule 1 C.P.C. It is also held that filing of suit is not a ministerial act so as to authorize PW-1 to file and maintain the same. 78. No other point is urged. 79. Keeping in view the findings recorded above, particularly, those under second part of issue No. 4 and also under issue No. 2, the authority of S.K. Patwari to file the present suit having been found lacking from the plaintiff, suit of the plaintiff merits dismissal and it is ordered accordingly. Parties are left to bear their own costs.