Delhi High Court
Indian Oil Corporation Ltd. vs Union Of India (Uoi) And Chief Claims ... on 17 April, 2007
Equivalent citations: II(2007)ACC23, 140(2007)DLT571, AIR 2007 (NOC) 1946 (DEL.)
Author: J.M. Malik
Bench: J.M. Malik
JUDGMENT J.M. Malik, J.
1. In this appeal the applicant/appellant, Indian Oil Corporation, has called into question the order dated 4.11.2003, passed by Railway Claims Tribunal, wherein, its claim was rejected. The appellant, filed an application for recovery of Rs. 1,28,029/- before the Railway Claims Tribunal for non-delivery of one tank wagon bearing No. ER-78436 containing LDO which was booked along with 9 other wagons vide Railway Receipt No. 639513 dated 27.12.1993 from Barauni to Shakurbasti. Respondents/defendants set up the following defenses in their reply. Smt. Nishi Saigal is not the duly authorised constituted attorney of the appellant. No claim notice was served upon the respondents by the appellant. Lastly, the tank wagon No. ERTL-78436 was placed over night at B.R.P.L. siding on 9.1.1994 as empty and was drawn up from the siding as empty due to damage.
2. On the pleadings of the parties, the following issues were framed:
1. Whether the claim application is not maintainable since no statutory notice was served"
2. Whether the applicant company was not properly registered under the provisions of companies Act and whether Smt. Nishi Saigal was not authorised to file this claim application, as contended
3. Whether the respondents prove that the wagon with No. ER-78436 was not lost in transit and not decanted, if so, the effects thereof.
4. To what relief, if any, the applicant is entitled.
3. Railway Claims Tribunal vide its order decided issue No. 1 and 3 in favor of the appellant. It was held that statutory notice was served upon the respondents. It was also held, No evidence towards this fact either through documents or through affidavits has been produced by the respondent despite adequate opportunities being given. The arrival of the wagon in empty condition, in the absence of any evidence to the contrary, is attributable to the respondent. In the absence of any evidence we hold that the non-decantation certificate (Ex. AW 1/5) establishes clearly that the wagon in question was not handed over to the applicants. The respondents have failed to prove that the wagon was not lost in transit and was not decanted or had been received empty at the destination station.
4. However, issue No. 2 was decided against the appellant. The findings on issue No. 2 are reproduced as follows:
The application appears to have been signed and verified by Nishi Saigal Attorney of the applicant company on 24th December, 1996. In his affidavit Shri G.D. Minocha affirms that Smt. Nishi Saigal was holding a power of attorney on behalf of the applicant and he also verified her signatures as he has worked with Smt. Nishi Saigal. A photocopy of the Power of Attorney in favor of Smt. Nishi Saigal as well as that of Shri G.D. Minocha has been filed as Ex. AW 1/1 and Ex. AW 1/2. On perusal of Ex. AW 1/1 and as argued by Ld. Counsel for the respondent this Power of Attorney is from Shri Shri B.S. Chhikara, Law Officer. The applicant has not been able to place on record any document which had authorised Shri B.S. Chhikara as a duly authorised constituted General Attorney for and on behalf of the applicant company. It has been recited in this Power of Attorney (Ex. AW 1/1) that Mr. Chhikara held P.O.A. dated 18.10.77 which empowered him to sub-delegate his powers. This sub-delegation does not stand proved due to non-production of the P.O.A. dt. 18.10.77. The Ld. Counsel for the respondent also pointed out that the Notary Public had signed the Power of Attorney (Ex. AW 1/1) on 15.1.86 whereas the signatures of Shri B.S. Chhikara on the concerned document is dated 19 January 1986. In the absence of proper authority in favor of Shri B.S. Chhikara, authority to verify and sign the claim application by Smt. Nishi Saigal becomes questionable. Further a person working in the law department cannot be said to be the 'Principal Officer'. Hence we hold that that the competency of Smt. Nishi Saigal to sign and verify the pleadings is not proved. The Incorporation Certificate (Ex. AW 1/2) has not been controverter by the respondent hence we hold that the applicant company has been properly registered.
5. Learned Counsel for the respondents vehemently argued that the appellant has failed to prove that Smt. Nishi Saigal was authorised to file this application. He, however, conceded at bar that the appellant authority is liable to pay the above said compensation to the respondent.
6. Attempts were made to obfuscate the real issue. Order sheet dated 6.2.2001 is reproduced as follows:
Present : Mr. M.M. Kalra, counsel for the applicant Mr. Parvez Ahmed, DA for respondent Applicant had filed affidavit of Smt. Nishi Saigal and today states that she cannot attend this Court as she has been transferred. He does not want to press her affidavit and in her place has filed affidavit of one Mr. G.D. Minocha. Copy of the same has been supplied to other side. It has been made clear to applicant counsel that in such eventualities he should have supplied affidavits to other side well in advance as was order sheet dt. 2.6.2001 continued from previous page ordered on the last date of hearing. Mr. Minocha be produced on 10.4.2001 for cross-examination.
Mr. G.D. Minocha Dy. Manager (Law) was examined as AW-1. He proved his affidavit Ex. AW1/1, which also appears to have been marked as Ex. AW 1/1, perhaps due to inadvertence. It must be read in conjunction with Power of attorney Ex. AW 1/2, which was executed in favor of Narender Singh. Its relevant extracts read:
WHEREAS I, Narender Singh, am the constituted General attorney of the Indian Oil Corporation Ltd. by virtue of the power of attorney executed in my favor on 10/8/98.
AND WHEREAS in view of the powers given to me to appoint a substitute or substitutes and of delegating and/or sub-delegating any one or more of the various powers and authorities conferred on me, I, the said Narender Singh, Executive Director and duly constituted Attorney of the Corporation, am desirous of appointing Shri G.D. Minocha, Dy. Manager (Law), Indian Oil Corporation Ltd., Delhi and Haryana State Office, New Delhi, as my attorney and as the attorney of the said Corporation.
This power of attorney was executed by Harender Singh, Executive Director and Constituted General Attorney, Indian Oil Corporation Limited, New Delhi. This documentary evidence puts the case of the appellant in an impregnable position. The case pertaining to Nishi Saigal and B.S. Chhikara pales into insignificance. The appellant has already ratified its previous action. It is surprising to note that there is not a whisper, word or syllable regarding the above said copious amount of evidence produced by the appellant in the order passed by Railway Claims Tribunal. No argument was advanced in this context by the learned Counsel for the respondents. This part of the appellant's case stands proved to the full. The above said issue was not correctly decided.
7. The observations made by the apex court in the celebrated authority reported in United Bank of India v. Naresh Kumar AIR 1997 SC 3 fully dovetail with the above said view:
9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just case. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6, Rule 14 together with Order 29, Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29, Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6, Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example, by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favor of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.
8. In the light of this discussion, I accept the appeal and the appellant issarded compensation in the sum of Rs. 1,28,029/- with costs. I also grant interest @ 8 per cent per annum from the date 27.12.1993 till the realisation of the said amount. Lower Court record and copy of this order be sent to the Trial Court.