(1) The present suit was filed on behalf of the National and Grindlays Bank Limited, a banking company incorporated in England, having its branch in Connaught Place, New Delhi, against the defendants for recovery of money on the basis of hypothecation of machinery etc., mortgage, guarantees and indemnity and for other reliefs.
(2) The suit was filed through Mr. John Herbert Keeble, Manager, at that time of the Connaught Place Branch, who described himself as a duly constituted attorney and Principal Officer of the plaintiff-Bank competent to sign the plaint and to institute the suit and also being conversant with the facts of the case. The plaint was signed and verified by the said Manager as constituted attorney, and the suit was filed through Advocates in this Court.
(3) Later on, the plaint was amended as the name of the plaintiff- Bank had been changed into Grindlays Bank instead of National and Grindlays Bank.
(4) In the amended written statement filed on behalf of defendants 1 to 3, a plea was taken that, "it is not admitted that the plaint has been properly signed and the suit has been instituted by a competent person and under proper authority. It is denied that Mr. John Herbert Keeble is a duly constituted attorney, entitled to institute the suit or sign the plaint. It is submitted that no suit could be instituted without a special Resolution of the Board of the Directors of the plaintiff company".
(5) In view of the plea one of the issues framed by this Court on 19th May, 1975 was as under :
"WHETHERthe plaint has been signed, verified and instituted by a duly authorised party ? O.P.P."
(6) The plaintiff had earlier filed a list of documents and also filed photostat copy of the original power of attorney in favor of the aforesaid Mr. John Herbert Keeble dated 7th November 1962 executed in his favor by the plaintiff-Bank. This photostat copy of the power of attorney which had been granted by the National and Grindlays Bank Limited to John Herbert Keeble showed that it was executed before and authenticated by a Notary Public, namely, John Martyn Dimond of the City of London. In spite of it being a photostat copy, at the stage of admission and/or denial the defendants denied the document. The plaintiff has accordingly filed the present application under Order Xiv rule 5, Order Vi rule 5 read with Section 151 of the Code of Civil Procedure, for directing the defendants to give specific and definite particulars of their objections to para 1 of the plaint, which is the relevant para, and also to recast issue No. 1 in such a way that the burden of proving the lack of authority to institute the suit is on the defendants.
(7) The application has been opposed on behalf of the defendants.
(8) At the time of hearing, Mr. Mahinder Narain, learned counsel for the plaintiff, produced before me the original Power of Attorney. This document shows that it is a power of attorney in favor of John Herbert Keeble executed on behalf of the plaintiff-Bank. It also benrs the seal of the plaintiff-Bank as well as necessary authentication of due execution by the aforesaid Notary Public. It also bears the seal of the Notary Public. The authentication by the aforesaid Notary Public reads as under:
"IJOHNMARTYN Dimond, of the City of London Notary Public duly admitted and sworn practicing in the said City Do hereby Certify and Attest that I was this day present at the registered Office of National And Grindlays Bank Limited situate at No. 26 Bishopsgate in the said City with the Right Honourable Edward Francis Baron Twining, G.C.M.G. M.B.E., a Director and Henry Douglas Cayley The Deputy General Manager of the said Bank and did see the seal of the said Bank affixed to or impressed on the foregoing Power of Attorney and that the Seal so affixed is the genuine Seal of the said Bank. And that the signatures "Twining" and "H. D. Cayley" severally and respectively subscribed at food of the foregoing power of Attorney are of the respective proper handwriting of the said the High Honourable Edward Francis Baron Twining G.C.M.G. M.B.E. and Henry Douglas Cayley In witness whereof I have hereunto set my hand and affixed my Seal of Office in London this seventh day of November One thousand nine hundred and sixty-two. (Seal) sd/- John Martyn Dimond, Notary Public."
(9) As stated earlier, the authentication bears not only the seal but also signatures of the Notary Public. S. 85 of the Evidence Act provides as under :
"85.The Court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by, a notary public, or any Court, Judge, Magistrate, (Indian) Consul or Vice Consul, or representative of the (Central Government). was so executed and authenticated."
(10) The document in the present case is a power of attorney and again on the face of it shows to have been executed before, and authenticated by, a notary public. In view of Section 85 of the Evidence Act, the Court has to presume that it was so executed and authenticated. Once the original document is produced purporting to be a power of attornney so executed and attested, as stated in S. 85 of the Evidence Act, the Court has to presume that it was so executed and authenticated. The provision is mandatory, and it is open to the Court to presume that all the necessary requirements for the proper execution of the power of attorney have been duly fulfillled. There is no dobt that the section is not exhaustive and there are different legal modes of executing a power of attorney, but, once the power of attorney on its face shows to have been executed before, and authenticated by, a notary public, the Court has to so presume that it was so executed and authenticated. The authentication by a Notary Public of a document, purporting to be a power of attorney and to have been executed before him is to be treated as the equivalent of an affidavit of identity. The object of the section is to avoid the necessity of such affidavit of identity. Under Section 57 sub-section (6) of the Evidence Act, the Courts have to taken judicial notice of the seals of Notaries Public and when the seal is there, of which judicial notice is taken, there is no reason why judicial notice should not be taken of the signatures as well". What is argued by Shri Rameshwar Dial, learned counsel for defendants I to 3, is that the Notary Public in Section 85 or Section 57 of the Evidence Act merely means notaries appointed under the Notaries Act 1952. The argument is that where a document purports to be a power of attorney, before the Court can presume it to be so executed and authenticated as is contemplated by S. 85, it should have been authenticated by Indian Consul or Vice-Consul or the representative of the Central Government and not by a notary public of a foreign country. For one thing Notaries Act 1952 was not there when Evidence Act which was the first Act of 1872 was enacted. Secondly, the purpose of Sections 57 and 85 is to cut down recording of evidence. For such matters, like the due execution of a power of attorney in the present day of international commerce, there is no reason to limit the word "Notary Public" in S. 85 or Section 57 to Notaries appointed in India. The fact that notaries public of foreign countries have been recognised as proper authorities for due execution and authentication for purpose of section 85 of the Evidence Act is illustrated by the Supreme Court in case Jugraj Singh and anr. v. Jaswant Singh and or s. . In this case the Supreme Court held that a power of attorney executed and authenticated before a notary public of California satisfied the test of S. 85 of the Evidence Act and S. 33 of the Indian Registration Act. If the interpretation of notary public is limited to notaries public appointed in this country only, it will become impossible to carry on commerce with foreign countries. Surely, S. 57 of the Indian Evidence Act which enjoins upon the Courts to take judicial notice of seals of Notary Public, such judicial notice cannot be limited to Notaries appointed in India only It seems clear if the entire sub-section is read. Once, this conclusion is reached, there is no reason to limit the meaning of the expression "Notaries Public" in S. 85 of the Indian Evidence Act to Notaries appointed in India only.
(11) In this view of the matter, it must be presumed that the power of attorney in favor of John Herbert Keeble was duly executed and authenticated. This presumption, ]ike other presumptions is rebuttable, but, once, the original power of attorney bearing the signature and seal of the notary public is produced, which expressly confers the power on the attorney to institute suits, the burden immediately shifts to the defendants, who dispute the execution of such a power of attorney. Therefore, instead of calling upon the defendants to give better particulars of their objections as to the proper, institution of the suit, I think, it is fit and proper, if issue No. 1 is divided and the burden regarding the proper institution of the suit by a duly authorised person, is placed on the defendants. Issue No. 1 is accordingly divided as under : -
1. Whether the plaint has been signed and verified by a duly authorised person? O.P.P. I A. Whether the suit has not been instituted by a duly authorised person? O.P.D.
(12) The application is allowed to this extent. The Original Power of Attorney is returned for the present to Counsel for the Plaintiff.
(13) Parties may appear before the Deputy Registrar for taking further directions in the suit on 4th February 1976.
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