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TMI Blog1984 (4) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... this issue, the Court referred to the statement of Shri Ram Pershad, Public Witness . 1, who relied on the fact that he was entitled to file the suit as Secretary and General Attorney of the Company. The Court referred to the photostat copy of the power of attorney. Exhibit Public Witness . 1/3 and came to the conclusion that it purported to have been executed by the Electric Construction and Equipment Company Limited under its common seal and was executed by a Director and the Chief Accountant on the basis of a resolution of the Board of Directors dated 29th June, 1973, but that resolution had not been produced. The Court held that mere execution of the power of attorney was not enough; the authority to execute the same on behalf of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent to the judgment relied upon by the trial Court, viz., the judgment of Prakash Narain J. (as his Lordship then was) in South India Insurance Company Ltd. v. M/s. Globe Motors Limited, Suit No. 68/69, decided on 19th - April, 1974, and the judgment of Hardy J. (as be then was) in M/s. Oberoi Hotels (Indict) Private Ltd. v. M/s. Observer Publications (P) Ltd., Suit No. 469/66, decided on 26th November, 1968. In both these cases, the Court found that it had not been proved that the person instituting the suit was authorised by the company to file the suit. (7) In this case, the decision turns on whether Section 85 of the Evi.dence Act is applicable to the facts of the case. No attempt was made in the trial Court to rely on this S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amined on behalf of the plaintiff. They were Shri Ram Pershad, Secretary and Shri Rajesh Ojha, Branch in charge. Neither of them have stated that the General Power of Attorney was executed before a Notary Public, so there is no evidence to show that the document was executed before a Notary Public and certainly, there is no authentications appearing on the face of the document. (11) It is useful to note that Section 85 raises a presumption about the execution of a Power of attorney provided two conditions are satisfied. Firstly, it must be executed before a Notary Public and secondly, it must be authenticated by a Notary Public. In this case, there is no authentication at all .There is no statement of facts by the Notary Public regarding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be proved without undue expense on the basis of the execution and authentication. (14) These cases are very different from the one before us. Here, we have a document stated to be a power of attorney purported to have been executed by the Electric Construction and Equipment Company Ltd. It states that the common seal has been affixed in the presence of a Director and Chief Accountant and it also states that these persons have been authorised by a resolution of the Board of Directors to authenticate this. However, it does not state that it was executed before a Notary Public and nor does it bear any authentication by a Notary Public regarding the manner of execution, etc. It is, Therefore, very essential to stress the two ingredients whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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