Delhi High Court
Hcl Comnet Systems & Services Ltd vs Ashok Kumar Arora on 12 October, 2011
Author: J.R. Midha
Bench: J.R. Midha
8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 43/2010
% Date of decision: 12th October, 2011
HCL COMNET SYSTEMS & SERVICES LTD ..... Appellant
Through : Mr. J.P. Sengh, Sr. Adv. with
Mr. Bharat Ahuja and
Mr. Sumeet Batra, Advs.
versus
ASHOK KUMAR ARORA ..... Respondent
Through : None.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may NO
be allowed to see the Judgment?
2. To be referred to the Reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
JUDGMENT (ORAL)
1. The appellant has challenged the impugned judgment dated 12th October, 2009 whereby the learned Trial Court has dismissed the appellant's suit for recovery on the ground that the suit has not been filed by a duly authorized person.
2. The learned Senior Counsel for the appellant submits that the appellant is a company incorporated under the Companies Act and the suit has been instituted by the Company Secretary, Mr. Verinder Khashu. It is submitted that the plaint was signed and verified by the said Company Secretary. It is further RFA No.43/2010 Page 1 of 3 submitted that the Company Secretary also appeared in the witness box as PW-1 but he resigned before his cross- examination could take place and, therefore, the appellant produced another witness, Mr. Ashish Garg who proved his authority to continue the suit. The learned Trial Court held that Mr. Verinder Khashu was not the Director of the appellant - Company and, therefore, it was necessary to prove the resolution of the company in favour of Mr. Verinder Khashu.
3. The learned Senior Counsel for the appellant submits that the Order XXIX Rule 1 of the Code of Civil Procedure provides that the plaint can be signed and verified by the Secretary, Director or other Principal Officer of the company who is able to depose to the facts of the case. It is submitted that the learned Trial Court misread Order XXIX Rule 1 of the Civil Procedure. The learned Senior Counsel for the appellant refers to and relies upon the judgment of the Supreme Court in the case of United Bank of India vs. Naresh Kumar, AIR 1997 SC 3. The Supreme Court held that a Director or Secretary can sign and verify the pleadings on behalf of the company by virtue of the office they hold even in the absence of any formal letter of authority or power of attorney. It is further submitted that the respondent had not disputed that Mr. Verinder Khashu was the Company Secretary of the appellant - Company and in that view of the matter, no resolution was required to be proved under Order XXIX RFA No.43/2010 Page 2 of 3 of the Code of Civil Procedure.
4. There is merit in the submissions made by learned Senior Counsel for the appellant. The suit was validly instituted by Mr. Verinder Khashu as the Company Secretary of the appellant - Company. The finding of the learned Trial Court with respect to issue No.2 is set aside and it is held that the suit was instituted by the duly authorized person. The learned Trial Court has not given a clear finding with respect to the other issues before it.
5. In the facts and circumstances of this case, the impugned judgment and decree is set aside. Issue No.2 is decided in favour of the appellant and the suit is held to have been instituted by a duly authorized person. With respect to the remaining issues, the case is remanded back to the learned Trial Court who shall decide the same after hearing both the parties. The learned Trial Court shall endeavour to decide the matter within a period of four months.
6. Both the parties are directed to appear before the learned District Judge (South) on 1st November, 2011 when the learned Trial Court shall fix the date for hearing the parties. The LCR be sent back forthwith. Copy of this order be sent to the respondent as well as his counsel.
J.R. MIDHA, J OCTOBER 12, 2011/aj RFA No.43/2010 Page 3 of 3