MSC MEDITERRANEAN SHIPPING COMPANY S. A. & ANR. Vs. BRG IRON AND STEEL COMPANY PRIVATE LIMITED & ORS.

JUDGEMENT

(1.) This is a suit, which is ready for the hearing of final arguments. An application for dismissal of the suit under Order VII Rule 11 has been filed by the defendants, being G.A. No. 6 of 2019, and a preliminary argument with respect to maintainability of the suit has been put forth. Thus, leave was given to the parties to make their submissions regarding maintainability of the suit and the decision on this preliminary point has been rendered herein.

(2.) Mr. Mitra, counsel for the defendant had argued that under Order XXIX Rule 1 of the Code of Civil Procedure, 1908 [hereinafter referred to as "CPC"], a pleading must be signed and verified on behalf of a corporation by the secretary, director, or any other principal offer who is able to depose as to the facts of the case. He submitted that in the present suit, the plaint has been verified by a Mr. Amit Sen, who has stated that he is the "constituted attorney" of plaintiff No. 1 and the "Senior Manager and authorized representative" of plaintiff No. 2. The counsel submitted that Mr. Amit Sen did not fall into any of the categories of persons specified in Order XXIX Rule 1 and, thus, could not have verified the plaint. He further submitted that nothing was appended to the plaint, which would indicate that Mr. Sen was an authorized representative.

(3.) The counsel then placed Exhibits J, I and K before the Court and proceeded to argue that Exhibit J is an apostilled document and not a power of attorney, by which the President of the plaintiff company delegated certain powers to Mr. Laurent Raymond Audaz on 17th March, 2016. With respect to Exhibit I, the counsel submitted that it is a Power of Attorney nominating Mr. Amit Sen as the authorized agent and had been executed by Mr. Audaz on 10th March, 2016. He submitted that Mr. Audaz did not have any authority to execute this Power of Attorney on 10th March, 2016 as he had been delegated powers by the plaintiff on 17th March, 2016. He further stressed on the point that these documents were not put on record when the suit was filed. Further, the stamping on Exhibit I is dated 2nd January, 2017 and he argued that these documents were not even in existence on the date the suit was filed. When Section 2(21) of the Stamp Act, 1899 is read with Entry 48(d) of Schedule IA of the Act, it is clear that a power of attorney is required to be stamped and if not stamped, the presumption is that the document is invalid. Additionally, he submitted that these documents were only disclosed after taking time on multiple occasions.