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2008 DIGILAW 1691 (PNJ)

Food Corporation of India v. Bhagat Singh

2008-09-30

VINOD K.SHARMA

body2008
JUDGMENT Vinod K.Sharma, J. (Oral) - Present revision petition is directed against the orders passed by the learned courts below vide which application moved by the petitioner for making the award rule of the court has been ordered to be dismissed. 2. The petitioner moved an application under sections 14(2) of the Indian Arbitration Act (for short the Act) for filing the award in the Court. The application was filed through the District Manager, Hisar. 3. A specific objection was taken that the application has not been moved by the competent person as the District Manager, Hisar was not authorised to move the said application on behalf of the petitioner. 4. Learned trial court in this regard framed an issue which is reproduced as under : "i) Whether application under section 14(2) of the Arbitration Act has been filed by competent duly authorized person ? OPR" 5. The parties were allowed to contest the application. Evidence was led in support of their respective contentions. 6. Learned Sub Judge First Class, Hisar on appreciation of evidence recorded a finding that there was no resolution in favour of the District manager, Hisar to act on behalf of the Food Corporation of India as the authority was with the Senior Regional Manager. Resolution brought on record further shows that delegatee was not further authorised to delegate his authority. Consequently, a finding was recorded in favour of the respondent and it was held that the application was not moved by the competent person. Consequently, the application moved was dismissed. 7. The petitioner preferred an appeal. The appeal also stands dismissed 8. The only contention raised by the learned counsel for the petitioner is that now the act of the petitioner in filing the application through the District Manager stands rectified by way of resolution dated 17.8.2007. The contention of the learned counsel for the petitioner, therefore, is that once the act has been rectified the impugned orders deserve to be set aside. 9. Learned counsel for the petitioner placed reliance on the judgment of Honble Supreme Court in the case of United Bank of India v. Naresh Kumar and others, (1996) 6 SCC 660 wherein Honble Supreme Court was pleased to lay down as under :- " A company like the appellant can sue and be sued in its own name. 9. Learned counsel for the petitioner placed reliance on the judgment of Honble Supreme Court in the case of United Bank of India v. Naresh Kumar and others, (1996) 6 SCC 660 wherein Honble Supreme Court was pleased to lay down as under :- " A company like the appellant can sue and be sued in its own name. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 CPC, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 CPC. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer. In this case it is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion would be that R must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of R in signing the plaint and thereafter it continued with the suit. The only reasonable conclusion would be that R must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of R in signing the plaint and thereafter it continued with the suit. It will be a travesty of justice if the appellant is to be non-suited for a technical reason which does not go to the root of the matter. The suit did not suffer from any jurisdictional infirmity and the only defect which was alleged on behalf of the respondents was one which was curable. The courts below could have held that R must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant Bank must have ratified the action of R in signing the plaint. If, for any reason whatsoever, the courts below were still unable to come to this conclusion, then either of the appellate courts ought to have exercised their jurisdiction under Order 41 Rule 27(1)(b) CPC and should have directed a proper power of attorney to be produced or they could have ordered R or any other competent person to be examined as a witness in order to prove ratification or the authority of to sign the plaint. Such a power should be exercised by a court in order to ensure that injustice is not done by rejection of a genuine claim. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable." 10. However, the authority relied upon by the petitioner would have no application as it mentions that the act can be ratified and person who is duly authorised can depose in court. 11. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable." 10. However, the authority relied upon by the petitioner would have no application as it mentions that the act can be ratified and person who is duly authorised can depose in court. 11. In the said case competent person had, in fact, appeared before the trial court and therefore, the Honble Supreme Court came to the conclusion that the act of filing the plaint by an incompetent person stood ratified by the competent person. 12. Honble Supreme Court also observed that the relief cannot be denied on technical grounds. However, this judgment would not be applicable to the facts of the present case. 13. It may be noticed that in the present case a specific objection was taken and an issue was also framed by the learned trial court. The petitioner had opportunity to ratify the said act or give authority to the District Manager during the pendency of the proceedings. However, no steps were taken. Instead of getting it ratified and correct the mistake, the petitioner chose to contest the appeal on merit by asserting that the District Manager was, in fact, competent to institute the proceedings on behalf of the petitioner. 14. The revision cannot be said to be continuation of proceedings in order to ratify the defect in the suit. Powers under section 115 of the Code of Civil Procedure are limited to check the error in the judgments passed by the learned courts below. By passing resolution on 17.8.2007 it cannot be said that the orders would stand vitiated in any manner. The very fact that the petitioner has now chosen to pass a resolution in favour of the District manager would itself show that he was not competent person to file the suit on the date of filing the suit. The defect can not be cured during the pendency of revision in this court. Order accordingly.