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TMI Blog1998 (8) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... d by a duly authorised person. 2. During the pendency of the appeal, appellant's application for change in name from M/s. India Linoleum Ltd. to M/s. Birla DLW Ltd. had been allowed. 3. The Trial Court record had been called for and has been perused. Learned Counsel for the appellant submitted that the learned Additional District Judge erred in deciding the Issue No. 1 against the appellant, viz. "whether the plaintiff firm is duly incorporated under the Indian Companies Act and the plaint has been signed, verified and instituted by a duly authorised person". 4. At this stage, it may be noticed that the original power of attorney, PW.1/2, is purported to have been executed by Shri M.D. Poddar, Director of the plaintiff Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant was to be non-suited due to technical defects. 6. Learned Counsel for the appellant also relied on Gopal Das & Another Vs. Sri Thakurji & Others AIR (30) 1943 PC 83, in support of his contention that where the objection is not to the inadmissibility of the document but to the mode of proof, the objection should be taken at the trial before the document is marked as an exhibit and admitted on record. 7. Learned Counsel for the respondent on the other hand, submitted that the Trial Court had rightly returned the finding on Issue No. 1 against the appellant. It was urged that the appellant had miserably failed to prove that the plaint had been signed verified and instituted by a duly authorised person. Learned Counsel relied on Elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided two conditions are satisfied. Firstly, it must be executed before a Notary Public and secondly. It must be authenticated by him . In this case, there is no authentication at all. There is no statement of facts by the Notary Public regarding the manner of execution or the persons executing the document. If reference is made to the judgments cited before us, the contrast is striking. In the case of the City Bank, the authentication made by the Notary Public in New York covers nearly two printed pages of the Report and quotes extensively the circumstances in which the General POA was executed. Similarly, in the case of the National & Grindlays Bank Ltd., the authentication shows that the seal of the Bank was impressed on the POA in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the Notary. The endorsement by the Notary, stating that he had verified the signatures to be that of Mr. M.D. Poddar, is vague. It does not disclose the basis of such verification. In these circumstances, it cannot be said that the twin requirement of execution and authentication by the Notary are met so as to draw the presumption of validity under Section 85 of the Indian Evidence Act. 9. From the foregoing it is clear that the plaintiff has failed to produce or prove the Resolution of the Board of Directors, authorising Shri M.D. Poddar to execute the Power of Attorney. The Power of Attorney itself has not been proved Mere exhibition of the same would be of no avail. 10. We have also perused the plaint in question to see wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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