ORDER SHEET
Adm. Suit No.35 of 2008
Date Order with signature of the Judge
Order on Appl. Under order VII rule 11 CPC (CMA No.1178 of 2009
Mr. Qamar Abbas for the plaintiff.
Mr. Shaiq Usmani for the defendant.
-.-.-
Rukhsana Ahmed, J.- This order will dispose off the application filed by the defendant under order VII rule 11 CPC with prayer for rejection of the plaint as the same has not been filed by a duly authorized person and as neither the power of attorney nor the board resolution nor Memorandum and Articles of Association of the plaintiff company has been filed along with the plaint as such there is no suit before this Court and the plaint is liable to be rejected. The application is supported with an affidavit of the duly constituted attorney of the defendant.
Learned counsel has argued that the power of attorney is actually not a power of attorney at all but it is merely a statement allegedly made by some alleged employee of the plaintiff company sworn before some notary public in Athens Greece. The learned counsel has further contended that the plaint of the suit was verified on oath at Karachi and at the said time there was no power of attorney in existence. The suit was filed on 29.10.2008 and power of attorney was attested by the Pakistan Embassy at Athens Greece on the same day i.e. 29.10.2008. So how was it possible that the document could have traveled all the way to Pakistan the same day. Lastly the counsel has again opposed the said document to be a power of attorney but a mere statement of the director of the plaintiff company which was recorded by a Notary Public and as such due to the facts and contention raised above the Court be pleased to reject the plaint.
The plaintiff has filed his counter-affidavit to the application through duly constituted attorney and has denied all the adverse allegations made therein and has prayed for dismissal of the said application, as the contents of the application do not fall within the ambit/definition of Order VII rule 11 CPC. Clause (a) Cause of action not disclosed, Clause (b) Statement in the plaint disclosing bar by law.
Further the deponent of the affidavit one S. Shakil Ahmed claims to be the constituted attorney of the defendant, but he has not supported the claim with filing power of attorney and therefore he is not an attorney as there is no authority vesting in him to file the accompanying application, as such the application is liable to be dismissed.
He has further argued that there is no Board Resolutions of the company i.e. owners of the vessel (defendant) MY Lady Rea on Court file giving authority to anyone to defend the suit, as such the application merits dismissal.
The contention raised by the defendant basically raises questions/issues of fact and requires evidence, the said document, power of attorney was placed in Court file supported with a proper application filed by the plaintiff. The plaint it has been argued has been filed by a duly authorized person and the power of attorney filed along with the translation of the Greek Government’s relevant Gazette Notification has been filed in Court and taken on record of the Court file vide Court order dated 10.11.2009. Thus, there is no merit in the contentions/prayer raised in this application seeking rejection of plaint on the ground that these documents were not explained earlier and the Government’s Gazette Notification placed on record gives the authority as stated in the gazette.
The learned counsel has argued that the power of attorney had been duly notarized according to the law of the land where it was made and the Pakistan Embassy in that country (Athens Greece) had attested the same, and any point or question relating to this point was a matter of evidence. He has stated that there is no legal requirement for a company to pass a board resolution to institute legal proceedings is mandatory and that the Executive Management of the company or the authorized person can always initiate legal proceedings to protect the interest of the company. He has lastly argued that the general Court Rule cannot be basis of rejection of the plaint and the said application is frivolous, vague and not bonafide and has been filed just to delay the progress of the case and the Court should in the interest of justice dismiss the application with cost. The advocate has been fortified in his arguments with case laws supporting his pleas wherein in admiralty jurisdiction no mandatory provision of law existing in filing of resolution with plaint (2009 CLD 234). In the case of N.V. Nutricia v. Messrs Nutricia Foods International (2000 CLC 866) this Court has decided the application on this very point under order VII rule 11 CPC, the relevant para is reproduced as under:-
“Even if the argument of the plaintiff is to be accepted that the law of Holland is the governing law and that based upon law of Holland and the articles of the memorandum of association the person who had signed this plaint was authorized, this issue can only be proved or disproved after the relevant law is produced before this Court. The order points raised in the application under Order 7 Rule 11 C.P.C., may be taken up at the time of final arguments. The defendant would be within his rights to raise this issue of the competency also at the time of final arguments and the burden shall be upon the plaintiff to prove that according to the law of Holland once Managing Director is authorized then no resolution of the Board is necessary.”
In the case of Ramesh M. Udeshi v. The State (PLD 2003 Karachi 420) this Court has come to a conclusion after discussing several case laws and has dismissed the application under order 7 rule 11 CPC, relevant para of which is reproduced as under:-
“The certificate referred above shows that Notary Public before the attestation and authentication of the Power of Attorney has satisfied himself that the persons who are executing the power of attorney are authorized officers of the company. There is also presumption of regularity of official acts particularly regarding execution and authentication of the Power of Attorney, which takes the same as valid and effective under the provisions of Article 95 of the Qanun-e-Shahadat Order. Secondly, whether the person signing the plaint has the authority on behalf of the plaintiff is a question of fact, cannot be allowed to be raised unless pleaded and the other side has opportunity to meet such plea. Therefore, the submission is untenable.”
Even in the case of Rashid Khan v. Shujauddin reported in 1986 MLD 2930 the Court has held that once documents attested by the First Secretary Embassy of Pakistan then it would be construed as valid documents.
Further Article 95 of the Qanun-e-Shahadat Order, 1984 also supports the contention of the plaintiff, which is reproduced as under:-
“Presumption as to powers-of-attorney. 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, Pakistan Consul or Vice Consul, or representative of the Federal Government, was so executed and authenticated.”
I have heard the learned advocates at length and perused the document of power of attorney which has an English translation alongside. Any ambiguity or question on the document would require evidence.
Considering the above, the application is not maintainable and is dismissed.
Karachi. Judge
Dated: