ZHEJIANG MEDICINES AND HEALTH PRODUCTS IMPORT AND EXPERT CO.LTD. & ANR. Vs. DEVANSHI IMPEX AND EXPORT CO.LTD. & ANR.

JUDGEMENT

(1.) This petition seeks winding up of the Respondent Company on the ground of inability to pay its debts. The Petitioner's debt arises out of a contract of sale of goods. The Petitioner claims to have sold, supplied and delivered goods described in the invoices annexed as Exhibits "B-1 " to "B-3 " to the petition. The aggregate invoice value works out to USD 574,640. There is no dispute between the parties as to either receipt of or quality of goods or correctness of the invoices. The Respondent has, in fact, by its mails dated 23 Feb. 2013 and 29 March 2013, categorically admitted its liability to pay the outstanding amount of USD 534,678.80 to the Petitioner and assured payment respectively by March 2013 and April 2013.There is a failure to pay on the part of the Respondent. The statutory demand notice addressed by the Petitioner in respect of this debt is replied by the Respondent by its letter dated 30 Dec. 2014. Once again, the Respondent categorically admits the responsibility to pay the amount but has pleaded temporary financial difficulties. In sum, there is no defence on merits voiced in the correspondence between the parties prior to the filing of the petition. Indeed no defence was urged even at the hearing of the petition, save and except the defence as to the maintainability of the petition on account of the Petitioner's failure to verify the petition in accordance with law. That defence is discussed below.

(2.) The Petitioner is a body corporate. The petition has, however, not been verified by any director, secretary or principal officer of the Petitioner. The petition is verified by a constituted attorney. In support of the authority of the constituted attorney to verify the petition, the petition relies on a power of attorney. It is the case of the Respondent that this power of attorney, which is executed and notarized in People's Republic of China, is not valid in law or capable of being acted upon. The Respondent relies on Sec. 14 of the Notaries Act and submits that there is no notification by the Central Government declaring notarial acts lawfully done by Notaries within the People's Republic of China as recognised within India for the purpose of filing of a winding up petition. Learned Counsel for the Respondent relies on judgments of Calcutta, Allahabad and Kerala High Courts in support of his contention that in the absence of such notification, the power of attorney executed and notarized in China cannot be accepted as valid by this Court or acted upon. On the other hand, it is submitted by learned Counsel for the Petitioner that there is no need for a notification under Sec. 14 of the Notaries Act for this Court to accept the power of attorney or act upon the same. Learned Counsel relies on Sections 85 and 57 of the Indian Evidence Act, 1872 and submits that any document, which purports to be a power of attorney and to have been executed before and authenticated by a Notary Public, shall be presumed to be so executed and authenticated and further, the Court has to take judicial notice of seals of Notaries Public. It is submitted that Sec. 14 does not, in any way, control the interpretation of Sec. 85 read with Sec. 57 of the Evidence Act.

(3.) In the present case, the power of attorney is executed by the Petitioner, who is a body corporate, through its duly authorised officer. The officer has been authorised to execute such power of attorney by virtue of a resolution of the board of directors of the Petitioner Company passed on 2 Sept. 2014. The Officer, so authorised, has on 17 Sept. 2014 executed the power of attorney in favour of one Pankaj Sachdeva. The power of attorney specifically authorizes the constituted attorney to sign and verify all claims, including winding up petitions and pleadings in connection with the outstanding amount due from the Respondent along with overdue interest and costs, etc. There is a Company seal affixed unto the power of attorney and it is attested by Notary Public. A notarial certificate issued by Notary, Cui Hairong, Hangzhou National Notary Public Office, Zhejiang Province, the People's Republic of China, is appended to it. The constituted attorney has signed and verified the petition on the basis of this power of attorney.