Singer Sewing Machine vs Uttar Pradesh Export Corporation ...
1992 Latest Caselaw 237 Del

JUDGMENT

Usha Mehra, J.

(1) Singer Sewing Machines Co., a Corporation under the laws of the State of New Jersey, United States of America, is carrying on business of marketing domestic and industrial sewing machines of various kinds in India.lt's principal office is at Bombay and branch of it is at Delhi. Plaintiff No.2 is a company incorporated under the Companies Act. It is the case of the plaintiff that U.P. Export Corporation Ltd., defendant No. 1 herein decided to set up garment complex at Loni for which purposes it had discussion with the plaintiff for the supply and installation of various kinds of industrial Sewing machines. Quotations were exchanged and ultimately the defendant No. 1 placed an order on the plaintiff for supply of 210 numbers of plain machines at the rate of Rs.l400.00 per unit and 60 numbers of motorised machines at the rate of Rs. 2,225.00 per unit. Per that order, the plaintiffs were to supply these machines to defendants 2 to 7 as per the manner set out in the said order. After the successful inauguration of the garment complex, defendant No. 1 placed further order desiring the plaintiff to keep 100 plain machines and 50 motorised machines ready for supply. Pursuance to the additional order, plaintiffs supplied the machines. Subsequently, some modifications in the orders were made which were also carried out by the plaintiff. Defendant No. 1 further required the plaintiff to arrange delivery of 30 plain machines to M/s. Nouvella Nutan which was effected. When there was a delay in payment of these machines, the fact was brought to the notice of defendant No. 1, who in turn assured the plaintiff that on receipt of the certificate of delivery the arrangement for payment of bills will be made. The certificates of delivery were given to defendant No. I who acknowledged the same. So much so the defendant No. 1 not only acknowledged the liability but assured the plaintiff that payment will be remitted through its Delhi office. Defendant No.7 issued a cheque for Rs.43,680.00 but that was also dishonoured. On demand the defendant No. 1 did not make the payment of the amounts on account of supply ofthemachines. A sum ofRs.l,83,085.00 is outstanding against the defendant No. 1 severally and jointly with other defendants. The plaintiff is also entitled to interest at the rate of 18% and thus this suit has been filed for recovery of Rs.2,73,882.00

(2) This suit has been contested by defendant No. 1 inter alia on the grounds that it is bad for misjoinder of parties. Defendants 2 to 7 are separate and independent parties. Therefore, separate suit ought to have been filed against them. The suit is also bad for non-joinder of necessary party like financial institutions in Uttar Pradesh. That no cause of action arose against defendant No. 1 because the supplies of machines were made by the plaintiff to the entrepreneurs namely defendants 2 to 7. It is in fact they who are individually liable to pay the price of machine to the plaintiff. The bills were also raised in their respective names, therefore, also the defendant No. 1 is not liable to pay any amount. That the suit has not been signed and filed by a duly authorised person nor any cause of action has been shown against defendants 2 and 3. On merits it has been contested that since the invoices were drawn up in the individual names of the entrepreneurs followed by the bills, the liabilities to pay, therefore, rest with the individual enterpreneur and not on the defendant No. 1 who acted as agent of defendants 2 to 7. On behalf of defendant No.2, written statement was filed taking the objection that there was no privity of contract between the said defendant and the plaintiff. The liability to pay is that of the defendant No. 1. On the pleadings of the parties, the following issues were framed:

ISSUES1. Whether the plaint has been insufficiently stamped? If so, to what effect? 2. Whether there is no cause of action against defendant No.1? 3. To what amount on account of interest is the plaintiff entitled? 4. To what amount is the plaintiff entitled and from which of the defendants towards the price of the goods supplied? 5. Whether the suit is bad for mis-joinder and non-joinder of parties? 6. Whether the suit has been signed, verified and filed by a duly authorised person? 7. Relief.

(3) I have heard Mr. Ashok Kumar, counsel for the plaintiff and Mr. Jagdeep Kishore, counsel for defendant No. 1.1 have also perused the oral and the documentary evidence placed on record. My considered decision on these issues are as under: Issue NO. 1

(4) Objection of the defendant is that since the plaintiff has joined separate causes of action arising out of separate supplies made to defendants 2 to 7, therefore, separate court fee ought to have been paid with respect to each of the said transaction and in this regard the defendant has placed reliance on the decision of our own High Court in the case of Asian Art Printers Vs.Photophone Ltd. Rlr 1988 (Note) 47, and in the case of Invest - Import Vs. K.G. Khosla & Co. 1972, R.L.R.(N) 90. According to Mr. Jagdeep Kishore, the "distinct subject" means distinct causes of action and the court fee has to be paid in respect of each cause of action. In this regard he has further placed reliance on the decision of our own High Court in the case of Bank of IndiaVs.Vinod Kumar Bhalla and in the case of The Punjab & Sindh Bank Ltd. Vs. M/s.Kavisa Exports Pvt. Ltd. etc. Delhi High Court Digest, 1980 item No.213. Sofaras proposition of law laid down in these decisions, there cannot be any quarrel. But I am afraid these judgments are of no help to the defendant No. 1. The facts of this case are totally different. In the case of Asian Art Printers (supra) plaintiff had two distinct reliefs namely, (i) refund of amount paid and damages on account of reputation. Court treated those reliefs as distinct and separate. But in this case, plaintiff is only asking price of the machines supplied to defendant No.1 for use of defendants No.2 to 7. Hence, in the present case no separate reliefs are sought nor different causes of action have been pleaded. Similarly, in the case of Invest-Import (supra), facts were totally different and in the case of Bank of India, the party borrowed various amounts in respect of three different accounts of the bank from its different branches. Hence, the Court came to the conclusion that these were different transactions and, therefore, separate court fees was payable. In the case of Punjab & Sind Bank, the facts were that plaintiff bank Filed suit for recovery on the basis of two separate transactions from two separate accounts of the bank. These two transactions entered into were distinct subjects. That is not the case in hand. In this case, there is only one transaction i.e. placing of the order vide dated 28th August, 1976 by defendant No.1 on the plaintiff and followed by additional orders which are not separate transactions nor delivering the machines to defendants 2 to 7 at the instance of plaintiff can be called separate cause of action. Per Ex.P.3, the number of machines to be supplied by the plaintiff was ordered by defendant No. 1 and even the rates were fixed by the said defendant with assurance that money would be arranged. These machines instead of being Supplied at the office of defendant No.1, were placed at the site of defendants 2 to 7 and that at the asking of defendant No. 1 invoices were prepared in their name. Therefore, it cannot be said that these are seven separate transactions. Simply because the defendant No.1 asked the plaintiff to deliver these machines as per schedule in the sheds of the individual entrepreneurs under intimation to defendant No. 1, it would not amount to separate transactions or distinct subjects. Punjab High Court in the case of D.M. Kaushik Vs. Graduate Gas Service, Amritsar & Others Air 1978, Punjab 213 dealt with Section 17 of the Court Fee Act, (hereinafter called as the 'Act') and while interpreting the said section, came to the conclusion that wherein a suit more than one causes of action are combined, the Act will be clearly attracted but it will be stretching the language of the Act a little too far to bring suit based on one cause of action within the ambit of this provision. In fact the use of the qualifying adjective "distinct" with the word "subjects" in the Act is with a purpose and is quite significant and material. "Distinct Subjects" clearly mean such subjects which are quite independent of each other and do not arise out of or relate to the same set of facts or circumstances. The subjects arising out of the same cause of action, that is, the same bundle of facts will be obviously interconnected and intimately allied. Therefore, "distinct subjects" must arise out of different causes of action. In order to attract the provisions of Section 17, the suit should embrace two or more "distinct subjects" and in case the suit embraces only one subject then no separate court fees is payable. In fact the court fees is to be determined on the basis of the averment made in the plaint. In substance, in the present case the suit is based on the order placed by the defendant vide Ex .P.3 and subsequent additional orders and it thus does not embrace distinct subjects. Even though in the plaint, plaintiff has claimed alternatives claims against defendant No. 1 with defendants 2 to 7, but sofaras the responsibility of defendant No.1 is concerned that remained on account of its placing the order and assuring payments. I am supported by the decision of our own High Court in the case of Smt. Kaushalya Devi & Others Vs. Mis. National Insulated Cable Co of India 1976, Delhi High Court Digest, page 91 item No. 64. It was held in that case that the test whether a suit embraces distinct subjects does not depend upon the cause of action on which the plaint of the suit is based, but depends on the basis of the claim and the right under which the claim is made. The claim in this case, made in the suit, entirely arises out of the order placed by the defendant No. 1 for supply of machines. The right under which this claim is made again is the order and directions issued by defendant No. 1. Rest of the reliefs claimed in the suit are ancillary and incidental to it. Therefore, I find no merits in the submission of the defendant and hold that the suit has been properly valued and requisite court fee has been paid. Issues NO. 2 & 4

(5) These are interconnected issues, therefore, are disposed by one order. It is the case of the defendant No.1 that as per plaintff's own showing all the defendants are jointly and severally liable. This means the defendant No. 1 was acting as a agent of defendants 2 to 7 who were principals. The principal was known and disclosed to the plaintiff at the time of placing the order. They are defendants 2 to 7. The plaintiff cannot in this suit implead both the principal as well as the agent. This argument, I am afraid, is contrary to admitted facts on record. In this case, the order was placed by the plaintiff vide Ex.P.3 dated 28th August, 1976 indicating clearly that the goods needed by the defendant No.1 for installing at the site of its entrepreneurs. These machines were to be supplied on behalf of defendant No. 1 to its entrepreneurs i.e. defendants 2 to 7 under intimation to defendant No.1. Therefore, it cannot be said that defendant No.1 was the agent of defendants 2 to 7. On the contrary, the principal is defendant No.1 because the privity of contract for the supply of machines was between the plaintiff and defendantNo.1. Defendant No.1 wanted those machines to be installed in the sheds of defendants 2 to 7 for and on behalf of defendant No. 1 as they happened to be its entrepreneurs. At best one can say that defendants 2 to 7 were the representatives of defendant No.1. This conclusion is strengthened from the correspondence exchanged between the parties. For example letter dated 3rd September, 1986, Ex.P.4 which indicates that after having placed the order vide Ex.P.3, the defendant No.1 communicated the requirement of the machines and as to where these were to be installed. It was also conveyed that release of machines will be confirmed by the said defendant. That the machines be released and till then, the plaintiff was to keep the stock ready. Reading of Ex.P.6 would indicate that the decision of allocation of machines was with the defendant No.1. DefendantNo.1 was to decide to which of the enterpreneur how much machines were to be supplied and of what category.

(6) Mr. Ashok Kumar, learned counsel for the plaintiff contended that if the defendant No.1 had been the agent it had no power to re-allocate the machines from one enterpreneur to another nor could fix the price and number of machines to be supplied. Perusal of the letter dated 15th September, 1986 would show that the power of allocation, re-allocation, withdrawal of the already allocated machines vested with defendant No.1. Hence defendant No.1 was the principal. Vide Ex.P.6, the defendant No.1 stopped supply of machines to M/s. Nouvella Nutan,Unit No. 10.Vide ExP.6 directions were also issued by defendant No. 1 that till such time the clearance is obtained from defendant No.1, no machine was to be supplied to the said firm. Such like directions, according to Mr. Ashok Kumar, cannot be given by an agent. Therefore, the argument of Mr. Jagdeep Kishore, that defendant No.1, was agent of defendants 2 to 7 is belied from the facts on record. From the contents of the documentary evidence placed on record and in particular Ex.P.7 dated 28th September, 1976 the defendant No.1 gave instructions to the plaintiff that only 30 machines were to be supplied to M/s. Nouvella Nutan. Therefore, the cause of action has arisen against defendant No. 1 as the privity of contract was also with defendant No.1. The plaintiff is, therefore, entitled to recover this amount from defendant No.1. Since the privity of contract was with the said defendant as principal hence the said defendant is liable to pay the price of the machines. The defendant No. 1 had been acknowledging its liability when it assured the plaintiff that the amounts will be arranged and paid shortly. In this regard reference was drawn to the letter written by defendant No.1 dated 5th April, 1977, Ex.P.16, where it was admitted that on adhering the supply schedule and on intimating the bills, the said defendant would make speedy arrangements for payments. It was also mentioned that plaintiff was to obtain receipt of delivery from defendants 2 to 7 and get the invoices countersigned as a token of their satisfaction so that payment could be arranged by the Corporation. It was further indicated in the said letter that the Corporation was arranging payments and in one or two cases, payments were being released. Prior to Ex.P.16, defendant No.1 videEx.P.18 intimated that on plaintiff's producing satisfaction of the installation of the machines the said defendant would take steps for early settlement of plaintiff's bills. Plaintiff in pursuance to Ex.P.18 produced the satisfaction certificates from the entrepreneurs which are Ex,P.8, Ex.P.9, Ex.P.W.1/4, Public Witness 1/5, Public Witness 1/6. Thereafter letter Ex.p.16 was issued by defendant No.1. The import of this letter was that payment would be made by the Corporation. And this fact was brought to the notice of the defendant No. 1 by the plaintiff vide letter Ex.P.22 when it was made clear that the whole transaction was with the said defendant based on its solemn assurance that plaintiffs payment would be cleared maximum within 2/3 weeks by defendantNo.1. If the payment was to be made by individual entrepreneurs then plaintiff would have charged normal terms of supply by taking 25% value as advance and balance against delivery. But since the supply was made to defendant No. 1 hence this normal term was waived. It is also apparent from various letters exchanged between the parties that defendant No. 1 used to give directions for supply of machines and even when objections were raised by enterpreneur, directions were given by defendant No. 1 to remove those machines from such an enterpreneur and supply the same to some other enterpreneur. Therefore, now the defendant No. 1 cannot turn around and say that by "arranging" it meant making arrangement by way of contacting other parties i.e. the enterpreneur to make the payment or that by arranging it meant that it will collect from the entrepreneurs and then give it to the plaintiffs. In fact, the language of Ex.p.16 makes it clear that on a satisfaction certified being produced by the plaintiff, the Corporation would make arrangement for making the payment. It was for defendant No. 1, Corporation to receive this amount either from the Financial institutions or from the entrepreneurs. The plaintiff was not concerned with the same. It was the internal arrangement between the defendant No. I and its enterpreneur or with the Financial Corporation. But by no reasoning, the defendant No. 1 can disown its responsibility. The plaintiff can not be made to suffer for no fault of its. Since the privity of contract of supply of machines was with the defendant hence it is the defendant No. 1 who is liable to pay the amount due against the outstanding bills. The defendant vide Ex.P.IOandEx.P.11 did mention that it was making concerted efforts with its entrepreneurs as well as with Financial institutions for early settlement of the plaintiff's bills. But that was an internal arrangement of the defendants with which the plaintiff was not concerned. If that was the correct position.then defendant No.1 at the time of placing the order ought to have made it clear that payments would be made by individual entrepreneurs. Had it been made cleared thereafter it was for the plaintiff to supply or not to supply with and without taking advance. In none of the letters issued by the defendant No. 1 its liability to pay was denied. It is only for the First time in the written statement that this plea has been taken. In fact, the privity of contract being with defendant No. 1 and the order having been placed by defendant No. 1 and the machines were delivered to defendants 2to7attheinstanceofdcfendantNo.1underitssupervision and guidelines. Hence it is the defendant No. 1 who is in fact liable to make the payment. In this regard, reference can also be had to the letter written by defendant No.4 to the plaintiff EX.P.1/ 5 wherein it was pointed out that the plaintiff should approach for payment to defendant No. 1 because the privity of contract for the supply of these machines was between the plaintiff and defendant No. 1 and not with any other defendant.

(7) Mr. M.M. Bajaj, appearing as Public Witness 2 stated that the machines were supplied at the instance of defendant No.1. Similarly, Mr. M.P. Virmani, Public Witness I testified that the machines were supplied under the instructions of defendant No. 1. That defendant No.1 alone was liable to pay the suit amount because the supply of machines was under the instructions and guidelines of the said defendant, It is the said defendant,who had been giving assurance that the payment would be made within a shortest possible time and even before supply of the machines, the assurance was given by the said defendant that the payment would be made within a month from the date of the receipt of die goods. The plaintiff all along had been demanding the money from defendant. No. 1 knowing fully well that it is defendant No. 1, who was responsible for the payment of the amount. Therefore, Mr. Ashok Kumar, counsel for the plaintiff, contended that since all along assurance had been given by defendant No. 1 .therefore, it is the defendant No.1 who was liable for making the payment of the suit amount. It had never been the case of the defendant No. 1 that it was acting as agent of defendant No.2 to 7 or that on their behalf, the said defendant was placing the order. Mr. Jagdeep Kishore then contended that no payment was made by the defendant No.1, all payments were made by- defendants 2 to 7 hence defendant No. 1 is not liable. Direct contract came into being between plaintiff and defendants 2 to 7. In this regard he drew my attention to Supreme Court decision in the case of Haji Mohd. Ishaq Wd Sk Muhd. & others V.v. Mohd. Ishaq andMohd.Ali&Co. . The facts of that case are totally different. In that case, respondent supplied goods on its own account to the appellants. Not only the goods were supplied by the respondents to the appellants but even the demand for payment of the price of the goods were also made by the respondent from the appellants and not from the appellant to die respondent and no demand was made from the witness. In that case, it was observed shall the appellants by their conduct of accepting the goods and never repudiating any of the numerous letters and telegrams of the respondent demanding the money from them on the assertion that the goods were dispatched by the respondent and that the appellant should pay the money, a direct contract was brought about between the parlies. It was in this background, the Supreme Court observed that whatever might have been the jural relationship between the respondent and the appellant's witness and in what ever manner, he acted as a go-between man, between the parties, what is clear is that eventually and Finally, the supply of the goods by the respondent was to the appellants on its own account and not on account of that witness. But that is not the case in hand. In fact the machines were purchased by 'defendant No. 1 and contract of sale was entered into be defendant No. 1 Even the price of the machine was settled with defendant No. 1. The instruction given regarding the name and number of the machine to be supplied to the individual and the make of the machine to be supplied to the individual enterpreneur was given by defendant No. 1. So much so, the order of the additional machine was also placed by defendant No. 1 and the certificates of the proper functioning of the machine was also to be furnished to defendant No.1. And on furnishing of that certificate, the defendant No.1 was to arrange payment against the outstanding bills. This is so apparent from the correspondence exchanged between the parties. This fact was put to Mr. V.K. Goel, D.W.I and he could not deny the same. Moro ever, on the asking of defendant No.1 when the plaintiff demanded price of the machines from other defendants, they denied their liability by saying that price was to be paid by defendant No. 1 with whom plaintiff has the contract. Reference can be had to Ex.P.W. 1/5. Therefore, for all these reasons, I hold that it is defendant No. 1 with whom plaintiff had the contract. Reference can be had to Ex.P.W.1/5. Therefore, for all these reasons, I hold that it is defendant No. I who is liable to make the payment. Both the issues are decided against the defendant. Issue No. 3

(8) The plaintiff has not been able to prove either any agreement for charging interest or any usage for claiming interest. Therefore, in the absence of the same the plaintiff is not entitled to any interest. The issue is accordingly decided against the plaintiff. Issue No. 5

(9) The suit has been filed by the plaintiff against defendant No. 1 as the principal because according to plaintiff, the order for the supply of machine was given by the defendant No. 1. It was at the direction of the defendant No. 1 that the machines were supplied to defendants 2 to 7. So much so the defendant No. 1 vide order dated 28th August, 1976, Ex.P.3, made it clear that these machines should be supplied to their following entrepreneurs and further requested the plaintiff to supply as per the breakup except in the case of M/s. Deluxe Apparels, where the shed had not yet been ready. It was also ordered that the delivery schedule be confirmed but the bills be raised in the individual names of the entrepreneurs raised to the individual names of the entrepreneurs under intimation to defendant No. 1. so that speedy release of payment could be arranged. The language of Ex.P.3 would clearly show that the supply was made by the plaintiff for and on behalf of defendant No. 1 to defendants 2 to 7. The plaintiff has imp leaded defendants 2 to 7 in order to avoid technical defect at later stage. But that does not mean that the suit has become bad for mis-joinder of defendants 2 to 7. Since the machines were installed at the premises of defendants 2 to 7 and on obtaining the delivers certificate from them, the payment was to be made by defendant No. 1 Therefore, the plaintiff has rightly imp leaded these defendants. To my mind, the suit cannot suffer on this account nor the suit can suffer because of the nonjoinder of the Financial institutions of the State of Uttar Pradesh. The privity of contract existed between the plaintiff and defendant No. 1 The plaintiff cannot be forced to implead the Financial institutions who are neither necessary nor proper party. No contract was entered into with Financial institutions nor the machines were supplied under its instructions. Therefore, this issue is decided against the defendant. Issue NO. 6

(10) Mr. Jagdeep Kishore contended that the suit must fail because it has not been properly instituted. According to him, the plaintiff being a company, the resolution of the Board of Directors ought to have been filed empowering Mr. Chester A. William authorising him to execute the power of attorney in favor of Mr. A.J. Wood. But no such resolution has been produced on record by virtue of which Chester A. William has executed the power of attorney in favor of Mr. A.J. Wood. In the absence of such a resolution, no reliance can be placed on the power of attorney executed in favor of Mr. AJ. Wood. And since the suit has not been properly institued, it must fail. In support he has placed reliance on the decision of this court in the case of MIs Nibro Limited V. National Insurance Co. Ltd. . According to him. Order 29 Rule I of the Code of Civil Procedure does not authorize Mr. A.J. wood to institute the suit. In fact, he could have signed and verified the pleadings but had no authority to institute the same. A specific power had to be conferred on him by the Board of the company to institute the suit. The power of atomic Ex.P.W. 1/1, according to Mr.Jagdeep Kishore, has not been proved because Mr. M.P. Virmani appearing as Public Witness I has admitted that he was not aware if Mr. Chester A. William held any authority to execute Ex. P.1/1, nor he could tell as to whether there was any resolution passed by the company authorizing Mr. Chester A. William to sign the power of attorney. Similarly, Mr. M.M.Bajaj, Public Witness 2 could not prove the power of attorney, EX.P.W. 2/2 in favor of Mr. K.K. Gupta, has not been proved because in his case also, no resolution has been proved on record in favor of Mr. P.J. Antony authorising him to execute the power of attorney in favor of Mr. K.K. Gupta.

(11) On the other hand, the counsel for the plaintiff contended that the power of attorney executed by Mr. Chester A. William Ex. Public Witness 1/1, is duly authenticated by a Notary Public. It bears the seal of the company. Therefore, a presumption under Section 85 of the Evidence Act should be drawn. It's due execution and authentication should be presumed. Sofaras the fact that the power of attorney Ex. Public Witness 1/1 was authenticated before the notary public is concerned, the fact is not disputed. It is also not disputed that Chester A. William was the Vice President of the plaintiff No. 1 - Corporation, and had executed the power of attorney, copy of which is Ex.P.W. 1/1, in favor of Mr. A.J. Wood, empowering Mr. A.J. Wood to sign and verify the plaint and file the suit. In this regard, the counsel for the plaintiff has placed reliance on the decision of the Supreme Court in the case of JugrajSinghVs. JaswantSingh and others , wherein upon examining the various provisions of the Evidence Act, Supreme Court observed that the power of attorney executed before a proper Notary Public who complied with the law of that place and authenticated the document as required by that law, such a power of attorney is duly authenticated in accordance with ourtlaw. There is a presumption of regularity official acts and their lordships were satisfied that the Notary public must have satisfied himself in discharge of his duties that the person who was executing it was the proper person. Therefore, the power of attorney was declared valid and effective both under Section 85 of the Indian Evidence Act and Section 33 of the Indian Registration Act. This decision of the Supreme Court, was followed by our High Court in the case of National and Grindlays Bank Ltd. vs. Mis. World Science News and others . In that case, the question whether the fact that the person who had executed the power of attorney on behalf of a body corporate, had the authority to do so came up for consideration. This court came to the conclusion that when a power of attorney is duly authenticated by a Notary Public, presumption under Section 85 of the Evidence Act has to be drawn. The onus to prove whether the suit has been instituted by a duly authorised person was, therefore, placed on the defendant. The relevant observation in the said case read as under: "The document in the present case is a power of attorney and again on the face of 140 it shown to have been executed before, and authenticated by a notary public. In view of Section 85 of the Evidence Act, the court has to presume that it was so-executed and authcnlicalcd. Once the original document is produced purporting to be a power of attorney so executed and attested as slated in 5.85 of the Evidence Act, the court has to presume that it was so executed and authenticated. The provision is mandatory and it is open to the court to presume that all the necessary requirements for the proper execution of the power of attorney have been duly fulfillled. There is no doubt that the section is not exhaustive and there are different legal modes of executing a power of attorney, but once a power of attorney on its face shows to have been executed before, and authenticated by, a notary public, the court has to presume that it was so executed and authenticated." Similarly, in the case of Bank of India Vs. Ajaib Singh Pritam S'.ngh in Suit No. 671/77 decided on 20th April, 1979, this Court repelled the contention of the defendant that the presumption under Section 85 does not mean that the person executing the power of attorney on behalf of the Corporation was also authorised to execute such power of attorney. The Court rejected this contention by holding that if it is held to be so, then Section 85 of the Evidence Act would become redundant. The purpose of Section 85 of the Evidence Act is that the power of attorneys are executed throughout the world and if such power of attorney is executed and authenticated by a notary public or other officer as mentioned in Section 85 of the Evidence Act, the Court is bound to presume that the power of attorney was so executed and authenticated. However, this presumption is rebuttable. The person challenging such power of attorney is to prove that such power of attorney is invalid or that the person acting on the basis of such a power of attorney was not duly authorised. Counsel for the plaintiff has also placed reliance on the decision of the Citi BankN.A. Vs. Juggilal Kamlapat Jute Mills Co. Ltd. (Vol.56) 1984 Company Cases, page 509. In that case, the Court was dealing with almost similar facts as in the present case. In that case also the power of attorney was issued at New York and was duly authenticated by a notary public as in the present case. The Court after discussing various authorities came to the conclusion that such a power of attorney was validly executed. In this case the perusal of Ex. Public Witness 1/1 would show that it had been authenticated by Patricia S.Ball, Notary Public, State of New York. This bears the seal of the Notary Public. Mr. Norman Goodman, County Clerk and Clerk of the Supreme Court of the State of New York, in and for the County of New York, a Court of Record, having by law a seal certified that Mr. Patricia S.Ball, was a Notary Public in and for the State of New York duly commissioned and qualified to act as such. This certificate bearing No. 40216 dated January 29,1979 bear the seal of the County of New York, State of New York, U.S.A. It also bears the certificate of Mr. M.N. Sharma, Consular Agent, Consulate General of India, New York for the legalisation only of the seal of the clerk of the County of New York, State of New York, United States of America. The Notary Public, Patricia S.Ball authenticated that on 29th January, 1979, Mr. Chester A. William came personally before him. He sworn before the notary public 141 and deposed and stated that !'s was the resident of Sanford Ed. Delawara Township, New Jersey, and that he was the Vice President of Singer Sewing Machine Company, the Corporation, described in and which executed the foregoing instrument, that he knew the seal of the said Corporation, that the sea) affixed to the said instrument was that of the Corporation seal that it was so affixed by the order of the Board of Directors of the said Corporation, and that he signed his name thereto by like order. - This shows that the power of attorney Ex.P.W.1/1 was duly authenticated and was executed by the person having the authority. It contained the seal of the company, Ex.P.W.1/1 was executed by Chester A. William as is apparent from the authentication made by the Notary Public. He recorded the deposition of Chester A. William as is apparent from the reading of the recital made by the Notary Public on Ex. Public Witness 1/1. The recital further shows that the seal on this instrument was affixed by the order of the Board of Directors of the said Corporation. These words are very important and lend support to the contention of the learned counsel for the plaintiff that under Section 85 of the Evidence Act a presumption should be drawn that Chester A. William executed the power of attorney for on behalf of the Board of Directors of the Corporation and he was competent to do so. The nature and manner of authentication made by the Notary Public clearly indicates that the Board of Directors of plaintiff No.1, Corporation authorised Chester A. William to execute this instrument and after its authorisation and as per its order, the seal was affixed .and Mr. William signed the same. Mr. Ashok Kumar, therefore, contended that Notary Public must have satisfied himself about the competence of Mr. Chester A. William who executed the power of attorney. Having satisfied himself he properly authenticated. The fact has not been disputed. Hence it should be presumed that the person who executed the same had the authority to do so. He further contended that if Mr. Chester A. William was to be produced in the witness box for the purposes of subjecting to cross examination, then the very purpose of Section 85 will be frustrated and the section itself become redundant. The purpose of Section 85 is to eliminate all his cumbersome evidence. It is to cut short such like objections that the Court is bound to presume that the power of attorney so executed and authenticated is valid. It is thereafter contended that in the case before Justice Bhandare, Mis Nibro Limited Vs. National Insurance Co. Ltd. A.I.R. 1991. Delhi page 15, the person who instituted the suit, Shri G. Jhajharia had not placed on record any evidence to indicate that he had the authority to institute the suit. in the plaint, he claimed to be the Principal Officer and Director. On the basis of being a Director and Principal Officer, he filed the suit. The resolution which was placed on record only indicated his re-appointment as Director. It did not empowered him as Director to institute the suit. It was in these circumstances that the Court came to the conclusion that the said G. Jhajharia had no authority. But in the present case that is not so. Here plaintiff is justify ing the institution of the suit by Mr. A.J. Wood on the basis of power of attorney, executed by Mr. Chester A. William which is duly authenticated by a Notary Public. Therefore, presumption has to be drawn under Section 85 of the Evidence Act that it was validly executed by a competent person. Section 57 enjoins upon the Court to take judicial notice of the seal of the Notary Public. Such judicial notice cannot be limited to the notaries appointed in India only. It 142 in fact includes the notary public of foreign countries also. For all these reasons I hold that the power of attorney executed in favor of Mr. A.J. Wood is valid. Vide Ex. Public Witness I/I he has been authorised to institute the suit. Similarly the power of attorney executed in favor of Mr. K.K, Gupta, Ex. Public Witness 2/2 is also authenticated before Notary public, Noel Joseph Apthorpe-WEBB of Bombay, State of Maharashtra and therefore, in view of my above discussion, I hold that the power of attorney duly authenticated before Notary Public in favor of Mr. K.K. Gupta is valid and Mr. Gupta had the authority to sign, verify and institute the suit. The issue is accordingly decided in favor of the plaintiff. Issue NO. 7 Relief. In view of my above discussion, I hereby pass a decree in favor of the plaintiff and against defendant No. 1 entitling the plaintiff to recover Rs. 1,83,085.00 with costs and interest @12% per annum pendents lite and future till realisation. Decree be prepared accordingly.