9911796707
TMI Blog2016 (12) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... ements are issued, the balance, if any, shall be refunded to the Petitioner; A copy of this order shall forthwith be served on the Company by hand delivery and by Registered Post AD by the Advocate for the Petitioner. On the application of Mr. Andhyarujina, learned Counsel for the Respondent, the Petitioner is directed not to advertise the petition for a period of four weeks from today. - Company Petition No. 380, 751 of 2015 - - - Dated:- 14-12-2016 - S. C. Gupte, J. Mr. Shyam Kapadia, a/w. Mr. Darshan Mehta and Ms. Pooja Kane, i/b. Dhruve Liladhar Co., for the Petitioner Mr. Zal Andhyarujina, a/w. Ms. Akansha Agrawal and Mr. C.N. Mehta, i/b. MMK Law Associates, for the Respondent ORDER P. C. This petition seeks winding up of the Respondent Company on the ground of inability to pay its debts. The Petitioner's debt arises out of a contract of sale of goods. The Petitioner claims to have sold, supplied and delivered goods described in the invoices annexed as Exhibits B1 to B3 to the petition. The aggregate invoice value works out to USD 574,640. There is no dispute between the parties as to either receipt of or quality of goods or correctnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cument, which purports to be a power of attorney and to have been executed before and authenticated by a Notary Public, shall be presumed to be so executed and authenticated and further, the Court has to take judicial notice of seals of Notaries Public. It is submitted that Section 14 does not, in any way, control the interpretation of Section 85 read with Section 57 of the Evidence Act. 3. In the present case, the power of attorney is executed by the Petitioner, who is a body corporate, through its duly authorized officer. The officer has been authorized to execute such power of attorney by virtue of a resolution of the board of directors of the Petitioner Company passed on 2 September 2014. The Officer, so authorized, has on 17 September 2014 executed the power of attorney in favour of one Pankaj Sachdeva. The power of attorney specifically authorizes the constituted attorney to sign and verify all claims, including winding up petitions and pleadings in connection with the outstanding amount due from the Respondent along with overdue interest and costs, etc. There is a Company seal affixed unto the power of attorney and it is attested by Notary Public. A notarial certificate i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also by making of an affidavit. Inasmuch as there is no legal requirement for creation of an authority by a power of attorney executed before a Notary Public, we are not really concerned in this matter with the validity of the authority as such. This is particularly so since the authority is created in People's Republic of China and the question whether or not the authority was duly conferred or created has to be answered with reference to the law applicable in that country. No arguments were advanced in this behalf before me. Considering, however, that the authority in the present case is claimed on the basis of a duly executed power of attorney before a Notary Public in China, the question that we still need to answer is whether or not the Petitioner can rely on the particular power of attorney in evidence. It is only in that context that we need to consider the provisions of the Evidence Act and the Notaries Act cited before me. 6. Section 85 of the Evidence Act creates a legal presumption in favour of execution and authentication of a document purporting to be a power of attorney executed before, or authenticated by, a Notary Public. There are a number of judgments of di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of the Evidence Act. In the first place, Sections 85 and 57 particularly deal with powers of attorneys executed before and authenticated by Notaries Public which are presumed to have been duly so executed and authenticated, with the seals of the notaries being judicially noticed, whereas Section 14 generally provides for recognition of notarial acts . There is no reason why, as far as powers of attorney with notarial seals are concerned, we should not go by the provisions of Sections 85 and 57, which particularly deal with such matters, rather than the general provisions of Section 14 which bear on recognition of notarial acts generally. (There are various other notarial acts which fall for recognition within India.) For raising the statutory presumption, Sections 85 and 57 do not require any recognition of notarial acts of the country or place, as the case may be, where such power of attorney is executed or authenticated. Secondly, there is nothing in the language of Section 14, which requires that only those notarial acts, which are declared as recognized by the Central Government by notification in the Official Gazette, are to be recognized in India. Delhi High Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments of Calcutta High Court cited by Mr. Andhyarujina discusses the existing law on the subject, particularly on the interpretation of Section 85 of the Evidence Act, as noted by several other High Courts as I have indicated above. These two judgments rather approach the subject on a first principle basis. The judgments do not elaborate on why recognition by Indian Courts is impermissible in the absence of recognition of reciprocity as contemplated under Section 14 of the Notaries Act. The only reason, broadly stated, is that if it is otherwise, the sanctity of the sovereign power being exercised by an Indian Court will be compromised . One is at a loss to understand why it should be so. After all, it is by law made by the Indian legislature, namely, Section 85 of the Evidence Act, that the Indian Courts recognise all powers of attorney led in evidence in India. The judgment of Allahabad High Court cited by Mr. Andhyarujina does not deal with a power of attorney in connection with verification of a petition. The authority to verify the petition was claimed in that case by a pairokar , who was said to be well acquainted with the facts deposed to below. The Court found that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
