Delhi High Court
M/S Goodlass Nerolac Paints Ltd. vs M/S Inder Paint & Hardware Store on 26 November, 2008
Author: Pradeep Nandrajog
R - 90
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.781/1993
Date of decision: 26th November, 2008
%
M/S GOODLASS NEROLAC PAINTS LTD. ..... Appellant
Through : Mr. Sanjiv Bahl, Adv.
Versus
M/S INDER PAINT & HARDWARE STORE .... Respondent
Through : None.
CORAM :-
THE HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may
be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
Pradeep Nandrajog, J. (Oral)
1. The appellant has succeeded on merits in the recovery
suit with a finding that the appellant is entitled to a decree in
sum of Rs.90,401.94, but benefit thereof has been denied on
account of finding of issue No.1 being against the appellant.
2. Issue No.1 was whether the suit has been instituted and
the plaint signed and verified by a duly authorized person.
3. The finding of the Learned Trial Judge is in paras 8,9 and
10 of the impugned judgment which reads as under: -
"8. PW-1 has proved copy of Power of
Attorney Ex.PW1/1 and copy of resolution,
Ex.PW1/2. This witness has been duly authorised
to sign and verify the pleadings and institute the
suit. The witness has testified himself to be
Divisional Manager and principal officer of the
company. Original certificate of incorporation
was produced and copy proved is Ex.PW1/3.
Memorandum of Articles and Association was
also proved as Ex.PW1/4. As is manifest from
the statement of this witness, he brought a
certified copy resolution and proved the photo
copy of it as Ex.PW1/2. This document seems to
be copy of copy, which is not permissible under
law. The document which was original of
Ex.Pw1/2 seems to have been attested by a
notary. But is it not a strange way of proving
documents?
9. This is manifest from the statement of
PW 1 that original minute book containing
resolution was not produced. Then Ex.PW1/2 is a
copy of a copy. Under Sec. 63 of the Indian
Evidence Act, a copy of document is a secondary
Evidence and that is admissible only when a
copy is made from original or, is compared with
original. Ex.PW1/2 came into existence, from
photo copying a certified copy which was
allegedly notarised. This copy has not been
further compared with original. Hence, it being a
copy of copy, uncompared with original is not
admissible in evidence.
10. As noted above, the original of
Ex.PW1/2 bears the signatures of Notary Public
under the endorsement, "Attested bt me". Does
it give any life to the document so as to be read
in evidence. This must be answered in negative.
Before a legal presumption is raised under Sec.
85 of the Evidence Act, it is essential that the
power of attorney should be "executed before
and authenticated by" a Notary Public. Mere
endorsement "attested" or "attested before me",
is nowhere a requisite U/S 85 of the said Act to
present some fact. Then, there is also nothing
on record to show if the power of attorney was
executed and attested by Notary on the same
day, so as to presume that the execution took
place in presence of the said notary public."
4. We have seen the trial court record.
5. The Power of Attorney, photocopy whereof Ex.PW1/1 has
been executed on 10.06.1988 and has been notarized before
the Notary Public on the same date.
6. Section 85 of the Evidence Act is reads as under: -
"85. Presumption as to powers-of-
attorney.- The Court shall presume that every
document purporting to be a power-of-attorney,
and to have been executed before, and
authenticated by, a Notary Public, or any Court,
Judge, Magistrate, Indian Consul or Vice-Consul,
or representative of the Central Government,
was so executed and authenticated."
7. In the decision reported as AIR 1971 SC 761 Jugraj Singh
& Anr. vs. Jaswant Singh & Ors., with respect to the
presumption attached under Section 85 of the Evidence Act,
relatable to Power of Attorney, Hon'ble Supreme Court held
that a Power of Attorney notarized before a Notary Public on
the date of its execution raises a presumption qua the due
execution thereof.
8. A perusal of the impugned judgment and decree shows
that the learned Trial Judge has referred to Ex.PW1/2 which is
a certified copy of the resolution passed by the board of the
appellant and attested as a true copy by the Notary Public on
19.01.1992.
9. Unfortunately, the learned Trial Judge has confused the
issue by ignoring that the issue of authorization was being
argued with reference to Ex.PW1/1 which is a copy of the
power of attorney executed before the Notary Public at the
time of notarization. Thus, the appellant would be entitled to
the presumption of law as enshrined under Section 85 of the
Evidence Act.
10. Decree is passed in favour of the appellant and against
the respondent in sum of Rs.90,401.94 together with
Pendente lite and future interest @ 9% per annum till
realization.
11. Appellant shall be entitled to cost all throughout.
PRADEEP NANDRAJOG, J
J.R. MIDHA, J
NOVEMBER 26, 2008
mk
