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12. Issues No.1 to 5 were framed on the basis of preliminary objections raised by the defendants. They were raised as preliminary issues. However, trial in the matter was proceeded further. Thus, as raised by the defendants, the same are to be considered at this final stage.

ISSUE NO.1:

―Whether the suit has been instituted and the plaint has been signed and verified by a duly authorized person? (OPP)‖

13. The burden of proving Issue No.1 is on the plaintiff. The plaint was signed and verified by Mr.P.K.Ray who is admittedly not produced as a witness. In para 24 of the plaint, it is stated that by and under a power of attorney dated 4th May, 1990 and in pursuant thereof Mr.P.K.Ray, General Manager and Marketing Instructor of the plaintiff company, was duly empowered and authorized to institute the present suit. The original power of attorney which is duly attested under Section 8 of the Notaries Act, 1958 along with the list of document was placed on record. The said power of attorney was used by Mr.P.K.Ray in various other litigations between the parties including the proceedings earlier pending in this Court under Sections 8 and 20 of the Arbitration Act, 1940. PW-1 Mr.R.C.Chopra in his testimony stated in para 2 of his affidavit (Ex.PW-1/A) that the power of attorney was executed by Mr.K.K.Dutt of the plaintiff company in pursuant of the Board of Directors Resolution dated 20th November, 1984. In his cross examination recorded on 30th October, 2000, PW-1 was asked as to whether he had brought the minute books of the company containing Board of Directors Resolution passed on 20th November, 1984 authorizing Mr.K.K.Dutt, Director, to issue power of attorney to Mr.P.K.Ray. In reply to the said question, PW-1 stated that he can produce the same if the same is required by the Court. The Joint Registrar in his cross-examination asked the PW-1 to bring the minute books in question on the next date. It was informed to the Joint Registrar by PW-1 that since the minute book is a bulky document therefore it could not be brought by him. He placed on record a certificate dated 22nd November, 2000 (Ex.PW-1/2) from the Secretary of the Company confirming that Mr.P.K.Ray was in gainful employment of the plaintiff company since 1st April, 1964.

14. The contention of the learned counsel for the defendants is that the plaint has been signed and verified by Mr.P.K.Ray. The plaintiff has not been able to prove at all his authority. Therefore, the suit is liable to be dismissed even for non-compliance of production of minute books as per order of the Joint Registrar. It is not in dispute that the power of attorney placed on record by the plaintiff was duly attested under Section 8 of the Notaries Act, 1958 and the plaintiff has filed the original power of attorney of Mr.P.K.Ray. The said power of attorney was earlier used by Mr.P.K.Ray in the arbitration proceedings between the parties. In cross-examination recorded on 27th November, 2000, witness brought a certificate from the Secretary of the Company confirming that Mr.P.K.Ray was under the employment of the plaintiff-company since 1st April, 1964. From the record, it is evident that the Contract Agreement was signed by Mr.P.K.Ray as General Manager on behalf of the plaintiff i.e. Texmaco Ltd. The power of attorney is executed by the plaintiff and authenticated by a Notary Public under Section 85 of the Indian Evidence Act, 1872 which reads as under: