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TMI Blog1968 (2) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... ating the debt of his father because the petitioner was contemplating legal action against his father to recover the amount outstanding against him and that out of the amount thus borrowed by the respondent a sum of Rs. 350 only" was returned by him in various instalments. As the respondent had failed to pay the balance of Rs. 700 in spite of service of notice of demand, the petitioner brought the present suit against him. The respondent contended that Sri Labhaya Ram Pahuja, who had instituted the suit and signed and verified the plaint on behalf of the petitioner company, had no authority to do so. He also contended that no amount had actually been borrowed by him from the petitioner. All that had happened was that his father, Shri Jai Chand Sud, had gone to East Africa in December, 1956, for a few months. During his absence, the respondent was running the depot and with a view to avoiding litigation in respect of a sum of Rs. 1,050 which the petitioner represented was due from Shri Jai Chand Sud, the respondent agreed to have the said amount debited to his account subject to the condition that if his father returned within six months he would not be liable to pay the same. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of Order 29, Civil Procedure Code, which lays down that in suits by or against a corporation any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or any principal officer of the corporation who is able to depose to the facts of the case Shri Labhaya Ram Pahuja being the general manager of the petitioner company, who according to the respondent himself had entered into the arrangement alleged by the respondent, was obviously the principal officer of the company and he was also able to depose to the facts of the case. There could thus be no doubt about the suit having been instituted and the plaint having been signed and verified by a person duly empowered to do so on behalf of the petitioner company. Mr. Vohra, learned counsel for the respondent on the other hand contended that the learned trial judge had given a finding that the petitioner had failed to establish the factum of the resolution, exhibit P.W. 3/1, having been passed by the board of directors. The petitioner had no doubt examined its accountant, Shri Suraj Bhan (P.W. 3), to establish that such a resolution had been passed and that the minutes book of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shoulders. Wherever the court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the court can interfere. But, in my opinion, the court ought not to interfere merely because it thinks that possibly the judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.' " It however seems to me that in the present case the finding of fact recorded by the learned trial judge on this point is vitiated by his having laid an impossible burden of proof on the petitioner. Learned judge appears to have been of the view that for the purpose of proving the resolution it was necessary that the petitioner company should have produced its secretary who, according to the Companies Act, was required to maintain the minutes book. It was not disputed that the book had come from proper custody. Shri Suraj Bhan (P.W. 3) had also deposed that the book produced by him was the minutes book of the company. He also identified the signature of R. Sharma, chairman of the meeting, who had signed the resolution in question. The witness stated that he had worked with Shri R. Sharma and could, therefore, identify his si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar (P.W. 1), who stated that the amount of Rs. 1,050 was paid in cash to the respondent by the cashier of the petitioner company and that he had thereupon made over the said amount to the assistant cashier of the company. To reinforce the position thus taken by the petitioner company, the petitioner's general manager, Shri Labhaya Ram Pahuja (P.W. 2), also supported the statement of Shri P. N. Kakkar and they both denied that the sum of Rs. 350 for which credit had been given by the petitioner to the respondent had actually been paid by the respondent's father, Shri Jai Chand Sud, till they were forced to admit the vouchers, exhibits P-10 to P-15, which were initialled by Shri Labhaya Ram Pahuja and showed that a sum of Rs. 50 was deducted from the commission payable to the depot-holder, Shri Jai Chand Sud, and it was that very amount which was credited to the account of the respondent. It also transpired that all those vouchers were signed by Shri Jai Chand Sud. Shri Labhaya Ram Pahuja was put a specific question in cross-examination as to whether the amount sought to be recovered from the respondent was still shown in the books of the company to be outstanding against Shri Jai Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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