JUDGMENT : 1. The suit was filed by the respondents-plaintiffs with the averments that the plaintiffs-Company is private Limited Company incorporated under Companies Act, 1956. The suit is filed through Mr. Ravish Trehan, Managing Director of the Company. The case of the plaintiffs is that the Company supplied 852 cases of MONTY XXX RUM to the appellants-defendants in the month of March, 2004. The defendants received the supply of the same but only DIGP (CRPF), Doda made payment of Rs.15007/-through a cheque whereas the defendant Nos. 2 to 6 did not make due payment of Rs.3,21,488/-for 814 cases of RUM though even legal notice was issued for liquidating the amount. 2. The defendants appeared through counsel and contested the case of the plaintiffs. The stand taken by the defendants was that the plaintiffs had infact supplied the article to the defendants as pleaded and that the payment was also made to the plaintiff-Company through its authorised Manager Sales, Sh. O.P. Katoch through different receipts. No payment is due to the plaintiffs from the defendants is the stand taken in the written statement. The suit has not been filed by the authorised person is also the objection taken in the written statement. 3. The suit was initially assigned to the court of learned Second Additional District Judge, Jammu. The case was later on transferred to the court of Principal District Judge, Samba vide order dated 23.10.2008 by the said Court in view of the notification issued by the High Court. 4. The original record of the trial court is before the court. The suit stands decreed in favour of the plaintiff. Hence, the appeal by the defendants. 5. The Court vide order dated 23.01.2008 framed Issues in the suit which read as under:- “1. Whether the suit has not been filed by a competent person and is so liable to be dismissed? OPD 2. Whether the suit is bad for non-joinder of necessary parties? OPD 3. Whether Sh. O.P.Katoch was manager sales of plaintiffs concern and was competent to receive the payment on behalf of the plaintiffs concern? OPD 4. If Issue No.3 is proved in affirmative, whether the defendants liquidated the entire outstanding amount on account of receipt of various consignments of monty Rum XXX from plaintiffs concern from time to time through Sh. O.P.Katoch? OPD 5. Relief.” 6. OPD 4. If Issue No.3 is proved in affirmative, whether the defendants liquidated the entire outstanding amount on account of receipt of various consignments of monty Rum XXX from plaintiffs concern from time to time through Sh. O.P.Katoch? OPD 5. Relief.” 6. The learned counsel appearing for the appellants has argued that the learned trial court did not decide the issues as per the evidence that came on record. The defendants paid the requisite amount for the article purchased by them and evidence on record amply shows the same. The suit was not filed by the proper person and the plaintiffs never appeared in the witness box to prove the case which should have resulted into dismissal of the suit. 7. Mr. L.K.Sharma, learned Senior counsel appearing for the plaintiffs-respondents has argued that the alleged payment has been made by the defendants to the person who was not authorised to receive the same. Even the receipts on which the defendants rely upon are not proved by the defendants. The suit has been filed by the authorised person and the attorney holder has appeared as witness in the case which itself shows that the plaintiffs have authorised the competent person to appear on behalf of the plaintiffs and depose in the matter of which he had personal knowledge. 8. It may be mentioned herein that the burden of proof framed by the Court on all the issues was placed upon the defendants. 9. The supply of 482 cases of MONTY XXX RUM by the plaintiff-Company to the defendants is not in dispute. The plaintiffs are entitled to the amount as mentioned in the plaint is the issue which indeed requires consideration by the Court. 10. The court in the first instance takes up Issue No.3 framed in the case for consideration. The case set up by the plaintiffs is that the defendants have not paid the amount due to the plaintiff-Company as projected in the plaint. The defendants averred that the payment has been made to Mr. O.P.Katoch, Manager of the plaintiff-Company. The stand of the defendants is that the said Mr. Katoch had placed the quotation for supply of the RUM and the articles came to be supplied at different locations of the defendants. The defendants have filed the document regarding the quotation filed by the Company through Mr. Katoch. The purported original document of which the plaintiff-Manager, Mr. The stand of the defendants is that the said Mr. Katoch had placed the quotation for supply of the RUM and the articles came to be supplied at different locations of the defendants. The defendants have filed the document regarding the quotation filed by the Company through Mr. Katoch. The purported original document of which the plaintiff-Manager, Mr. O.P.Katoch is the author is placed on record. It cannot be denied in view of the evidence that has come on record that it was Mr. Katoch who had given the tender on behalf of the Company for supply of the item mentioned therein. PW-R.K.Koul has also deposed about the quotation given by Mr. Katoch on behalf of the Company. It is pertinent to mention that the plaintiffs in the suit had not mentioned as to how they got the supply order from the defendants. The learned counsel for the plaintiffs has sought to convince the court that Mr. Katoch was never authorised to deal on behalf of the plaintiff-Company and thus the payment, if any, made to him does not mean that the plaintiffs have received the due amount from the defendants. The plaintiffs have produced Ramesh Kumar Raina, Amarjeet Singh and R.K.Koul as witnesses in support of their case. 11. The argument of the defendants is that as Mr. Katoch had given the tender on behalf of the Company and was dealing with the affairs of the Company, therefore, the payment had also been made to him on various occasions. The so called document i.e. the quotation dated 13.02.2004 given by Mr. O.P.Katoch does not by itself mean that he is the authorised person to receive the payment, if any, on behalf of the plaintiffs in case the defendants have to pay any amount to the plaintiffs on the supply of RUM to the defendants. The court is not convinced of the argument raised by the counsel for the defendants that the said Mr. Katoch was the person to whom the payment could be made by the defendants in pursuance to the supply of the articles to them. The defendants’ witnesses, Khajoor Singh and Arvind Negi have deposed that they have not seen any authority letter of Mr. O.P.Katoch or that the said Mr. Katoch used to obtain the payment on behalf of the Company as authorised person. It has also come in the statement of Mr. The defendants’ witnesses, Khajoor Singh and Arvind Negi have deposed that they have not seen any authority letter of Mr. O.P.Katoch or that the said Mr. Katoch used to obtain the payment on behalf of the Company as authorised person. It has also come in the statement of Mr. Arvind Negi that the payment was also been made through cheque as well as in cash. The payments made were being reduced into writing has also come in the statement of said DW-Arvind Singh Negi. DW-Kuldeep Singh had also deposed in his statement that Mr. Katoch had not produced any authority letter. He has also deposed that the payment was being paid through cheques. In the absence of any authority letter from the Company and acknowledgement proved by the defendants through receipts though the same are placed on files, it cannot be said that said Mr. Katoch was competent to receive the amount, if any, to be paid by the defendants for the supply of article by the plaintiff-Company. The Court finds no reason to interfere with the finding given by the trial court that the defendants had failed to prove the Issue. The Issue is, accordingly, decided against the defendants and in favour of the plaintiffs. 12. Issue No.4 : This issue pertains to the liquidation of the amount on account of the receipts if proved by the defendants. The trial court has decided the issue in favour of the plaintiffs and against the defendants on the ground that the defendants have failed to prove Issue No.3 in their favour. However, this Court will consider the issue independently of the finding given by the trial court. The defendants have produced Ashok Kumar, Kuldeep Singh, Khajoor Singh and Arvind Singh Negi in support of their case. The decision on Issue No.3 itself negates the case of the defendants as the court had held while deciding the said issue that Mr. Katoch cannot be said to be an authorised person to accept the amount which may be paid by the defendants on account of supply of RUM to the defendants. However, the court taking into consideration this issue independently of what has been held in Issue No.3, the Court is of the view that the defendants have failed to discharge the burden which has been placed upon the defendants to prove the same. However, the court taking into consideration this issue independently of what has been held in Issue No.3, the Court is of the view that the defendants have failed to discharge the burden which has been placed upon the defendants to prove the same. The defendants have placed on record three receipts to show that the payment has been made to the plaintiffs by the defendants. The stand of the defendants is that through these receipts, it is amply proved that the amount of Rs.43380/-, Rs.25000/-and Rs.14402/-have been paid to the plaintiff-Company. The signature of Mr. Katoch is stated to be on the receipts of which the mention is made above. The witnesses of the defendants have mentioned of some of the receipts in their statements recorded before the court. DW-Khajoor Singh has deposed that he has seen payment receipts and no Letter Pad was seen by him. DW-Kuldeep Singh has produced the so called original bills which are placed on record subject to objections of counsel for the plaintiffs. He has not stated anything about the actual payment made by the defendants to Mr. O.P.Katoch. DW-Khajoor Singh has deposed that he had paid Rs.25000/-to the Chairman, J.D.Singh, who in turn had handed over the amount to Mr. Katoch. The said witness claims that he remained posted at Group Centre CRPF, Bantalab from 2003 to 2005. Mr. O.P.Katoch has issued receipts to the Chairman and which were signed by him. He has also stated that he used to make the payments on the basis of Authority Letter though he has not seen such Authority Letter with Mr. Katoch. DW-Arvind Singh Negi was posted in the office of IGP, CRPF Bantalab as Company Quarter Master Havaldar. On 15.11.2004, Mr. Katoch was paid Rs.21224/-and receipt was also received from said Mr. Katoch on the Letter Pad of Kashmir Distillers which bears the seal and signature of ADIG (Adm.) and CRO. The witness does not know whether the payment was made through cheque or cash. The receipt dated 15.09.2004 was issued by Mr. Katoch has also come in the statement of said witness. This witness has only mentioned of the payment made and the receipt issued by Mr. Katoch on 15.11.2004. No reliance can be placed upon the statement of the witness that aforesaid amount of Rs.21224/-was received on behalf of the plaintiffs. The receipt dated 15.09.2004 was issued by Mr. Katoch has also come in the statement of said witness. This witness has only mentioned of the payment made and the receipt issued by Mr. Katoch on 15.11.2004. No reliance can be placed upon the statement of the witness that aforesaid amount of Rs.21224/-was received on behalf of the plaintiffs. The receipts on the file do not reflect the so called payment made to Mr. Katoch on 15.11.2004. The plaintiffs have stated in the plaint that amount of Rs. 15007/-through cheque dated 23.12.2005 issued by DIGP (CRPF), Doda at Channi Himmat was received as part payment of the supply made by the plaintiff-Company to the defendants and, therefore, the same is admittedly not in dispute. It may be noticed that the so called receipts issued by Mr. Katoch though not proved by the defendants, yet the same are doubtful as it may not be acceptable that in normal course the amounts are being paid by the defendants-officials to Mr. Katoch in cash and not through cheque or such like mode. The payment, if any made through receipts as claimed by the defendants, is otherwise doubtful and cannot be accepted. In any case as the court has held in the earlier part of the judgment that Mr. Katoch is not authorised to receive any amount on behalf of the defendants. Even if any payment has been received, the same cannot be said to have been received on behalf of the Company. The Court is convinced that the defendants have not been able to prove this issue in view of the aforesaid discussion. The issue is, accordingly, decided against the defendants and in favour of the plaintiffs. 13. Issue No.1 : The suit has been filed by a competent person is the issue which requires determination. Counsel for the appellants submits that the burden of proof of this issue has been wrongly placed on the defendants as the same was required to be proved by the plaintiffs who had filed the suit against the defendants. Learned senior counsel appearing for the plaintiffs has submitted that as the burden of proof of this issue was placed upon the defendants, the same was required to be proved by the defendants. The burden of proof cannot be shifted so as to allow the defendants to wriggle out of it. 14. Learned senior counsel appearing for the plaintiffs has submitted that as the burden of proof of this issue was placed upon the defendants, the same was required to be proved by the defendants. The burden of proof cannot be shifted so as to allow the defendants to wriggle out of it. 14. The Court is of the view that the trial court has wrongly placed the burden of proof upon the defendants. It is for the plaintiffs who had filed the suit to prove the Issue. In any case the plaintiffs have led the evidence to prove that the suit was filed by the competent person. The perusal of the plaint reveals that the suit had been filed by the Company through its Managing Director, Ravish Trehan and also by Ravish Trehan as Managing Director of the Private Limited Company. It is pleaded that the plaintiff No.2 has been duly authorised by the plaintiff-Company to file and pursue the suit. The plaintiffs did not place on record any document in support of this assertion made in the plaint. Admittedly, the plaintiff who claims to have been authorised by the Company to file the suit and pursue the matter has also not appeared in support of the claim filed in the suit. It appears from the record that Special Power of Attorney has been filed along with Resolution from the Company authorising Mr. R.K.Koul, Manager of the Company, by way of attorney to represent the plaintiffs in the suit filed by the Company. These two documents apparently reveal that the so called resolution of the Company and the attorney in favour of the said Mr. Koul have been given after the suit was filed on 24.04.2006 as the said documents are of 26.02.2008. Mr. R.K.Koul has appeared as a witness on behalf of the plaintiffs as a competent person to depose in the suit. The said Mr. Koul has deposed before the Court that he has been working as Manager with the Company. He has been given power of attorney by the Company and there is a resolution also in respect of the same. The original resolution has not been filed as the same is produced in another case. He is working with the Company for the last twenty two years. It has also come in the statement of the said witness that he does not know Mr. O.P.Katoch. Mr. The original resolution has not been filed as the same is produced in another case. He is working with the Company for the last twenty two years. It has also come in the statement of the said witness that he does not know Mr. O.P.Katoch. Mr. Katoch is the person who is stated to have tendered quotation on behalf of the Company for supply of the article and also received the amount for the said supply as per the stand taken by the defendants. Why Mr. Ravish Trehan who claims to have been authorised by the Company to file the suit has not appeared before the witness box is not made known to the court. 15. The defendants submit that the Power of Attorney and the resolution even if considered for the purposes of discussion the same do not absolve the so called authorised person Mr. Ravish Trehan to appear in the witness box and depose for the Company. The other side has contended that Mr. R.K.Koul, who was the Manager of the Company who had been with it for a long time was in the know of the affairs of the Company and, therefore, the attorney and resolution though authorised Mr. R.K.Koul after the filing of the suit did not come in the way of Mr. Koul to appear as duly authorised person for the Company. The perusal of the statement by the said Mr. Koul reveals that he had admitted in his statement before the Court that the quotation had been given on the letter pad of the firm by Mr. O.P.Katoch. At the same time, he has also deposed that Mr. Katoch was not an employee of the firm. He has further deposed that he does not know Mr. Katoch. The statement made by Mr. Koul should have prompted Mr. Ravish Trehan to appear and depose in the case who claims to have been authorised by the Company to institute the suit. It cannot be said that attorney Mr. R.K.Koul was in the know of the case fully and, therefore, depose in the matter on the basis of attorney purportedly given in his favour by the Company. 16. Ravish Trehan to appear and depose in the case who claims to have been authorised by the Company to institute the suit. It cannot be said that attorney Mr. R.K.Koul was in the know of the case fully and, therefore, depose in the matter on the basis of attorney purportedly given in his favour by the Company. 16. In AIR 2005 (2) SCC 217 titled “Janki Vashdeo Bhojwani vs. Indusind Bank Ltd.”, the Hon’ble Supreme Court dealt with the issue of power of attorney on behalf of the party filed in the case and the said attorney deposing in the suit for the concerned party and held that the attorney was not competent to appear and depose for the principal for the acts done by the principal and not by him or depose in respect of the matter which only the principal has a personal knowledge and in respect of which the principal is to be cross-examined. 17. In AIR 2011 (11) SCC 524 titled “State Bank of Travancore vs. M/s Kingston Computers(I) P. Ltd.”, the Apex Court held that the plaintiffs had failed to prove that the so called person was authorised by the Company to file the suit when no such evidence is produced by the plaintiffs to this effect. 18. In AIR 1991 (Delhi) 25, the Court dismissed the suit also on the ground as it was not proved by the plaintiffs that the suit had been instituted by the competent person on behalf of the Company. 19. The Court is of the view that the so called power of attorney in favour of Mr. Koul and the statement given by Mr. Koul to support that he was competent to depose in the matter on behalf of the Company cannot be accepted. As the plaintiffs have led evidence on the issue of the competency of the person to file the suit and the defendants had taken specific plea about the competency of the person filing the suit, therefore, the burden of proof though was on the defendants yet it can be said that the plaintiffs were required to initially discharge their burden of establishing that the suit was filed by the competent person but the plaintiffs have failed to do so which goes to the root of the case. It cannot be said that the suit has been filed the competent person. It cannot be said that the suit has been filed the competent person. The issue is, accordingly, decided against the plaintiff and in favour of the defendants. 20. Issue No. 2 : The Issue No.2 has been decided vide order dated 30.04.2011 and the Court finds no reason to set aside the findings of the trial court. 21. Thus, the issues framed in the case except the issue as to whether the suit has been filed by competent person stands decided in favour of the plaintiffs and against the defendants. 22. In view of the finding given on Issue No.1, the suit is liable to be dismissed. The appeal filed by the appellants-defendants is allowed and the judgment and decree passed by the trial court is set aside. Decree sheet to be prepared by the office. 23. The original record received from the trial court be sent back.