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TMI Blog2021 (11) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... the person who executed the power of attorney was not described in any manner to be the person authorised either by the Articles of Association of the company or by a valid resolution to represent the company. The judgment of this Court in BASHEER M.K. VERSUS STATE OF KERALA AND ORS. [ 2015 (11) TMI 1853 - KERALA HIGH COURT] also takes the view (though in slightly facts and circumstances) that the power of attorney holder has to clearly establish the delegation of authority to represent the company. The power of attorney holder representing the company in the proceedings before the court below had failed to establish that he was duly authorised to represent the company. This is because the person who executed the power of attorney hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore a notary has been properly executed and authenticated, the court should not have held that the complaint was not maintainable. It is also contended that the complaint was perfectly CRL.A NO.713 OF 2006 maintainable at Kayamkulam and further that the finding of the trial court that Ext.P2 cheque was not supported by consideration is completely fallacious. It is submitted that the complainant was entitled to the statutory presumption under Section 139 of the Negotiable Instruments Act. 3. Section 85 of the Indian Evidence Act has no application. While Section 85 of the Evidence Act, no doubt, provides that a power of attorney executed before and authenticated by a notary public or other officials mentioned in Section 85 is deemed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be represented by persons who may be authorised terms of provisions contained in the Articles of Association of the company or in terms of a resolution duly passed by the Board of Directors of the Company. It is clear from a reading of the impugned judgment that the person who executed the power of attorney was not described in any manner to be the person authorised either by the Articles of Association of the company or by a valid resolution to represent the CRL.A NO.713 OF 2006 company. In Dale and Carrington's case (supra), it was held in paragraph 15 as follows:- 15. At this stage it may be appropriate to consider the legal position of directors of companies registered under the Companies Act. A company is a juristic perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portant matters relating to the company. It follows that in the matter of issue of additional shares, the directors owe a fiduciary duty to issue shares for a proper purpose. This duty is owed CRL.A NO.713 OF 2006 by them to the shareholders of the company. Therefore, even though S.81 of the Companies Act which contains certain requirements in the matter of issue of further share capital by a company does not apply to private limited companies, the directors in a private limited company are expected to make a disclosure to the shareholders of such a company when further shares are being issued. This requirement flows from their duty to act in good faith and make full disclosure to the shareholders regarding affairs of a company. The acts of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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