Jammu Development Authority and Another vs Shanti Saroop Th. LRs.

The judgment passed by a Learned Single Judge of this court is being assailed on merits as well as on the plea that the appellant was not given

any opportunity to raise objections to the award given by the arbitrator.

The Learned Single Judge in the judgement under appeal has mentioned that a counsel had put in appearance on behalf of Jammu Development

Authority on 3rd Dec. 99. It has been further observed that

...it was stated by both the learned Counsel that they have instructions from their respective clients to appear before this Court and to accept notice

regarding filing of the award."" As there was failure to file the award, further directions came to be given.

In ground 18 and 19 of the Appeal, it is submitted as under:-

That the appellant have also not given any Vakalatnama to Mr. Adarsh Sharma, Advocate in the present particular case nor authorised him to

appear before any forum including Hon'ble High Court.

That the appellants were surprised when a notice was served by respondent No. 1 through his Advocate that Award of the Arbitrator has

been made rule of the Court. A copy of the said notice is attached herewith and marked as Annexure-G. The appellant at once issued letter to his

counsel who are contesting the case on 6.3.2000. A copy of the said letter is attached herewith as Annexure-H.

It is further stated that the appellants wanted to raise objections but as no notice was served, therefore, the objections could not be preferred.

An assertion to this effect has been made in ground 20 of the Appeal.

""The short question which is required to be gone into as to whether appellants had notice of the proceedings taken in this Court and whether the

Counsel who appeared had the authority to so appear on their behalf.

A perusal of the file indicates that on 3rd Dec '99, the file was put for motion hearing for the first time. At that point of time, a counsel did

appear on behalf of Jammu Development Authority. A Statement was made that instructions have been given to him to appear on behalf of Jammu

Development Authority. There after the decision was given on 21st Feb, 2000. As objections were not preferred, the award was ordered to be

made rule of the Court.

A perusal of the file further indicates that the record of proceedings before the Arbitrator consisted of 173 pages. The award was on a stamp

paper. This was on 13 pages. A perusal of file in AA No. 51/99 would indicated that the Counsel whose presence has been marked did not put

his power of attorney on the file.

The further fact is that earlier an application AA 46/99 was filed in this Court. The arbitrator was called upon to file the award. This Court took

notice of the fact that the award stood filed, and therefore, no further order was required to be passed. The aforementioned application was

accordingly disposed of on 1st Nov. 99. When this application was decided, the presence of counsel for the JDA is marked. A perusal of that file

also indicates that there is no power of attorney on the file.

The basic argument which has been urged is that the appellant was never served and that it had never authorised the counsel to appear, and

therefore, any appearance put of his own by the counsel is not binding on the corporation.

The basic concept which has to be taken note of is that in order to bind a Corporation, it must be demonstrated that it has taken some decision

and that decision has been taken by the Corporation in the form of a resolution. The will of a corporate body is always expressed in the form of a

resolution; unless and until there is a resolution, it may not be bound. Order III R.4 deals with appointment of a person who is supposed to plead

cause of another. Sub Rule (1) is clear and categoric. It provides that no pleader shall act for any person in any court, unless he has been

appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person

duly authorised by or under a power of attorney to make such appointment."" Sub R, (2) provides that every such appointment shall be filed in

Court and for the purpose of sub R(1) be deemed to be in force until determined by leave of the court. On the basis of what is contained in O.III

R.4 it can be said that the powers intended to be entrusted to a pleader should be specified in the Vakalatnama. The manner of appointment under

this Rule would determine the purpose for which the Counsel is engage. If he has been appointed to act in the Court, such appointment must be in

writing signed by the party or by a person duly authorised by him. Therefore, an act done by a person who has not been duly appointed by a

document in writing would not be valid. The Rajasthan High Court in the case of Ramkaran Vs. Shrikishan and Others, has observed that non-

filing of memo of appearance as well as Vakalatnama signed by a party indicating the appointment of an advocate would disentitle that advocate to

plead or act on behalf of that party. In Firm Mohanlal Ramchandra Vs. The Union of India (UOI), , a Division Bench of Rajasthan High Court has

gone to the extent of observing that even a Government pleader cannot act without any express authority empowering him to do. The position in

this case is similar. Again so far as suits or proceedings against Corporations are concerned, Order 29 deals with the Subject. Service has to be

effected on the persons referred to in 0.29 R.2 and in any case on the principal officer of the Corporation. In the present case, the file does not

indicate that the counsel who had put in appearance on behalf of appellants was authorised in any manner. The Vakalatnama authorising the

counsel to appear is not on the record. He has not chosen to file even a memo of appearance.

So for as the appearance of counsel in the case is concerned, that is not being doubted because judicial proceedings would have deemed to be

properly recorded, however, the question which is required to be gone into is as to whether the appearance by the Counsel on behalf of appellants

was duly authorised by them. The record as indicated above, does not show that this authorisation was there. Where a Counsel puts in appearance

of his own and does not place on record the letter of authority or vakalatnama on that date or even on a later date, then to bind a Corporation of

the liability on the basis of such an appearance would not be apt. The decisions given by the Rajasthan High Court, noticed above are fully

applicable to the facts of this case and it has to be concluded the there was no proper representation on behalf of appellants and the decision so

given would not bind them. As the entire decision has proceeded on the assumption that there is proper representation on the part of appellants

and as this appearance is not found to be proper, therefore, the judgment under appeal would be deemed to have been rendered with out affording

proper opportunity to appellants. The judgment is accordingly set aside. The parties to appear before the Learned Single Judge. Objections would

be preferred within the period of limitation which is prescribed which is prescribed under law the period of limitation would begin from the date of

pronouncement of this judgement.

Disposed of accordingly.