IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.10.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Civil Suit No.689 of 1999 & Application No.3189 of 1999 M/s.Schmenger GMBH and Company Leder, through its Liaison Concern M/s.Schmenger Leder India, represented by its Liaison Officer, Mr.Mukhtar Parvez, having Office at No.20, East Avenue, K.P.Puram, Chennai-600 028. .. Plaintiff Vs. M/s.Saddler Shoes Private Limited, rep. by its Managing Director, Mr.M.Jamal, A/23, Guindy Industrial Estate, Chennai-600 032. .. Defendant Civil Suit praying for a judgment and decree: (a) to direct the defendant to pay a sum of Rs.38,87,148.61/- together with interest at 18% per annum on the said amount from 30.6.1999 to the date of payment in full to the plaintiff and (b) costs of the suit. For plaintiff : Mrs.C.Uma For defendant : Mr.N.L.Rajah JUDGMENT The plaintiff, a German Company, filed the suit praying for a judgment and decree to direct the defendant-Company, a Chennai based Company, to pay a sum of Rs.38,87,148.61/- together with interest at 18% per annum on the said amount from 30.6.1999 to the date of payment in full to the plaintiff and for costs of the suit. 2. The averments in the plaint are as follows: (a) The plaintiff-Company is doing business of procuring orders for the sellers of shoe uppers and finished leather in India, from Overseas buyers. The plaintiff also collected commission for the services rendered ranging from 4% to 6% of invoice amount as mutually decided. (b) During the course of business, the plaintiff-Company procured various purchase orders from the defendant-Company by overseas buyers and the defendant-Company failed to pay the commission amount and so, a meeting was arranged on 25.2.1998, in which, the defendant-Company agreed to clear the outstanding amount due to the plaintiff-Company within a time frame. (c) On 2.2.1999, the defendant-Company issued a Demand Draft for DM 14,089/- and after giving credit to the above payment, the balance amount due from the defendant is Rs.38,87,148.61 as on 30.6.1999. So, the plaintiff-Company was constrained to issue notice on 19.7.1999 to the defendant- Company and though reply was received by the plaintiff-Company, the defendant-Company did not make payments, and hence, the plaintiff-Company was constrained to file the suit for recovery of amount of Rs.38,87,148.61 with interest @ 18% p.a. on the said amount from 30.6.1999 to the date of payment in full to the plaintiff. 3. The gist and essence of the written statement filed by the defendant-Company, are as follows: (a) Since the suit was filed by the Liaison Officer of the plaintiff-Company, the suit is not maintainable. From 1995, the defendant-Company honoured all the orders placed through the plaintiff-Company and the plaintiff-Company earned handsome commission on account of such business. In June 1996, the plaintiff-Company intimated the defendant-Company that they were expecting orders from a very reputed client of theirs for about 20,000 pairs of shoe uppers and consequently directly, the defendant-Company has not accepted any orders from August 1996 to December 1996. In October 1996, the plaintiff-Company informed the defendant-Company that the expected orders would not be materialised. The defendant lost nearly DM.2,00,000/- on account of the fact that the expected orders did not materialise. So, the defendant-Company raised the claim against the plaintiff-Company. (b) The plaintiff-Company has been evading to settle the claim and it has placed some further orders with the defendant-Company, and the defendant-Company properly and diligently processed the same. In February 1998, the plaintiff-Company raised the issue of 'Commission'. The defendant- Company also reiterated the claim for just compensation for keeping the factory premises idle for nearly five months and so, the discussion has taken place on 25.2.1998 and it was agreed that the defendant-Company would pay the following amounts:- (i) Invoice-Hoegl 1996  DM.13,617.45; (ii) Invoice-EURO 1996  DM.14,089.19 and (iii) Invoice-Marc 1996  DM.19,846.82. (c) The defendant paid the sums of DM 13,617.45 and DM 14,080.19 to the plaintiff. No date was fixed for payment of DM.19,846.82, because the plaintiff agreed that they would in the meantime talk to the principals regarding the compensation to be paid to the defendant-Company and secondly they would in any case continue to place orders with the defendant-Company and so, the defendant- Company at last, partly recovered his loss. The defendant-Company, in total satisfaction of their part, paid DM.13,617.45 and DM.14,089.19 to the plaintiff-Company. As far as sum of DM.19,846.82 is concerned, there was no concluded contract to pay the said amount, and so, the defendant- Company is not liable to pay for the amount of loss @ Rs.38,87,148.61; on the other hand, the plaintiff-Company is liable to pay DM.2,00,000/-. Notice of the plaintiff-Company has been suitably replied. The defendant-Company ultimately prayed for dismissal of the suit. 4(a). The contents of the additional written statement filed by the defendant, are as follows: The plaint does not state the constitution nor gives description of the nature of legal entity of the plaintiff-Company. It is not known as to whether the plaintiff-Company is a Company registered under the Companies Act, and if it is so, it is not pleaded as to whether the Liaison Officer is the Principal Officer authorised to maintain the suit on behalf of the plaintiff-Company. The plaint is silent as regards the competency of the Liaison Officer to maintain the suit on behalf of the plaintiff- Company. There are no pleadings in the plaint as regards the authorisation, if any, given to the Liaison Officer to maintain the suit and prayed for dismissal of the suit. 4(b). The plaintiff-Company filed rejoinder/reply statement, to the said additional written statement, contents of which are as follows: The plaintiff states that M/s.Schemenger GMBH and Company Leder is a company registered in Germany, and it conducts its business in India through its Liaison Office, Schemenger India, which carries on business of procuring orders for the sellers of shoe uppers and finished leather in India, from Overseas buyers. As regards the competency of the Liaison Officer, the plaintiff, by letters dated 23.6.2004 and 29.11.2007, authorised V.Balagopal as Liaison Officer in lieu of the previous Liaison Officer Mr.Sridhar Rajaram, leaving the plaintiff-Company. It is established that the liaison Officer is competent and fully capable of representing the Company's interest in the present litigation in C.S.No.689 of 1999. The Liaison Officer holds Office for a period of five years and the suit was instituted in 1999 and in the years that followed, the Company has seen three Liaison officers, and hence, the suit is maintainable. 5(a). By order dated 8.8.2001, this Court framed the following issues for trial in the suit: (i) Whether the plaintiff is entitled for a decree for a sum of Rs.38,87,148.61 together with subsequent interest at 18% per annum from 30.6.1999 onwards ? (ii) Whether the suit filed by the Liaison Officer of the plaintiff, is maintainable ? and (iii) To what relief the parties are entitled to ? 5(b). On the side of the plaintiff, Mr.V.Balagopal, the Liaison Officer of the plaintiff-Company was examined as P.W.1 and Exs.P-1 to P-10 were marked. On the side of the defendant, one Mr.Munna Jamal, the Managing Director of the defendant-Company was examined as D.W.1 and Ex.D-1 was marked. 6. Issue No.2 : Whether the suit filed by the Liaison Officer of the plaintiff, is maintainable ? Learned counsel appearing for the plaintiff submitted that the plaintiff-Company placed orders for the supply of goods to the defendant-Company and it is entitled to get commission and during the discussion in the meeting between the parties, it was accepted that the defendant-Company was ready to pay the amount, but it did not pay the amount and hence, the plaintiff-Company was constrained to file the suit for recovery of the Commission amount. 7. At this juncture, learned counsel for the defendant-Company submitted that the suit itself is not maintainable, as the suit had been filed by the Liaison Officer of the plaintiff-Company and the Liaison Officer is not the authority to institute the suit and the Principal Officer alone is having a right to verify the plaint and file the suit. Furthermore, the plaintiff did not file any document to show that the Liaison Officer was authorised by the Memorandum and Articles of Association of the plaintiff-Company, and the plaintiff has also not placed the Resolution of the Board of Directors of the plaintiff-Company authorising Liaison Officer to verify and institute the suit. The plaintiff did not also file any Minutes of the meeting of the Company regarding the subject matter of the suit discussed by the Board of Directors of the Company. Learned counsel for the defendant-Company further submitted that P.W.1, the Liaison Officer of the plaintiff-Company joined the plaintiff- Company only in 2003, but the suit was filed in 1999 and PW1 had no personal knowledge about the transactions. He further submitted that as per Section 5 of the Companies Act, the Principal Officer alone can verify the plaint and no authority had been vested on the Liaison Officer to institute the suit. It is further stated that as per Order 29 Rule 1 of the Civil Procedure Code, on behalf of the Corporation, which also includes the nomenclature of "Company", only a Secretary or any Director or other Principal Officer of the Corporation/Company who is able to depose to the facts of the case, could institute the suit. 8. It is now appropriate to consider as to whether the plaintiff has filed documents to show that the Liaison Officer was the person competent to file the suit or he is the person authorised by the Board of Directors of the plaintiff-Company, to file the suit, as resolved by them in their meeting, and hence, this Court has to analyse the documents exhibited and marked through P.W.1, the Liaison Officer of the Company. In this regard, it is stated by the learned counsel for the defendant that the plaintiff filed xerox copies of the documents/exhibits, namely Exs.P-2, 3, 6 and 7, which are not reliable. To substantiate his case, learned counsel for the defendant-Company relied upon the decision of the Supreme Court reported in 2007 (3) CTC 781 (SC) (Yashoda.J. Vs. K.Shobha Rani) and the decision of this Court reported in 2007 (3) CTC 262 (Greaves Ltd. Vs. V.S.Raghavan) and stated that those photocopies/exhibits are not admissible in evidence. 9. Before considering the said decisions, it is appropriate to peruse Sections 63 and 65 of the Indian Evidence Act, which read as follows: "Section 63 : Secondary Evidence" Secondary evidence means and includes: (1) Certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a document given by some person who has himself seen it." "Section 65: Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases. (a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) When the original is of such a nature as not to be easily movable; (e) When the original is a public document within the meaning of Section 74; (f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; (g) When the original consists of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents." 10. From the above Sections, it is clear that it is the duty of the plaintiff to show as to why the plaintiff-Company was not in a position to file the original documents while the plaintiff sought to mark the secondary evidence, and the plaintiff has not assigned any reason as to what happened to the original of the documents exhibited. Sections 63 and 65 of the Indian Evidence Act make it clear that the secondary evidence is admissible in evidence only in the absence of preliminary evidence; if the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the party is not entitled to introduce secondary evidence of its contents. Considering the same, along with the deposition of P.W.1, it is seen that the plaintiff-Company did not assign any reason as to what happened to the preliminary evidence of some of the documents exhibited and the plaintiff has not given reasons as to why it had not filed the original of some of the documents, namely Exs.P-2, 3, 6 and 7. 11. In this regard, it is appropriate to consider the decisions relied on by the learned counsel for the defendants: (a) 2007 (3) CTC 781 (SC) (Yashodha,J. Vs. K.Shobha Rani): "7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. 8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence. 9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and another, [1975 (4) SCC 664], it was inter alia held as follows: "After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to Clause (a) of Section 65 of Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of Clause (a) of Section 65, the appellant filed Applications on July 4, 1973, before respondent No.1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent No.1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No.1. There was also no other material on the record to indicate the original document was in the possession of respondent No.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No.1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court." (b) 2007 (3) CTC 262 (Madras High Court) (Greaves Ltd. Vs. V.S.Raghavan): "20. For the foregoing discussion, Exs.P-3 and P-6 cannot at all form basis for fixing the market value. Holding that mere production and marking of document by consent is not sufficient; to prove its contents and proving of the facts or contents stated in the document, evidence of person is necessary, in K.Ramanathan (died) & Others Vs. B.K.Nalini Jayanthi, 1996 (2) LW 658, First Bench of this Court has held as follows: " ... Therefore, as held by the Supreme Court in Inder Singh and others Vs. Union of India and others, 1993 (3) SCC 240 and Periyar and Pareekanni Rubbers Ltd. Vs. State of Kerala, 1991 (4) SCC 195, referred to supra, persons connected with the sale transactions or the attesting witnesses should be examined in order to prove the transactions as well as the factors referred to therein. The burden of proof is always on the landlord to prove in each case the market value or the site in which the building is constructed, the cost of construction of the building and the cost of provision of any one or more of the amenities specified for fixation of fair rent." (see also Rahmath Fathima Vs. Kader Mohideen, 1996 (2) LW 637). " 12. Considering the above citations, I am of the view that as per Section 63 of the Indian Evidence Act, for letting in secondary evidence, the plaintiff has not adduced any reason as to why the plaintiff-Company was not able to file preliminary evidence and as the provisions of Section 65(a) of the Indian Evidence Act also not being satisfied, the photostat/xerox/photocopies filed by the plaintiff, are not admissible in evidence and the same are not reliable. 13. Coming to the aspect of capacity of the Liaison Officer of the plaintiff-Company to file the suit, it is worthwhile to quote Ex.P-1 (photocopy) = Ex.P-10 (original), dated 24.11.2006, the terms specified in the authorisation letter of the plaintiff-Company authorising the Liaison Officer to take any decision independently and the same reads as follows: "Pirmasens, 24 November, 2006 To whom it May Concern This is to authorize Mr.Balagopal; Liaison OfficerSchmenger Leder India, 20 East Avenue, Kesavaperumalpuram, Chennai 600 028  to take any decision independently as far as this case (C.S.No.689 of 1999  Schmenger GmbH & Co. Leder Vs. Saddler Shoes Pvt. Ltd) is concerned, For SCHMENGER LEDER Schmenger GmbH & Co., Wernet Hartmann, Wolfgang Sehnert, Managing Director. Managing Director." 14. As already stated, the Memorandum/Articles of Association of the plaintiff-Company, had not been filed before Court and the Resolution of the meeting of the Board of Directors of the plaintiff- Company, authorising the Liaison Officer to file the suit, has also not been filed before Court. In this context, it is worthwhile to quote Order 29 Rule 1 C.P.C., as follows: "Order 29: Suits by or against Corporations: Rule 1: Subscription and verification of pleading.--In suit by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the security or by any director or other principal officer of the corporation who is able to depose to the facts of the case." 15. It is to be noted that in the said Order 29, CPC, the Corporation includes any Company registered under the Companies Act, 1956. In the suit for recovery of money filed by the plaintiff- Company, it should be filed by the person authorised by the Board of Directors of the plaintiff- Company, who shall verify and institute the suit. The suit should have been filed by the competent person. To institute a suit on behalf of the plaintiff-Company, it can only be filed by the Directors, specifically empowered by the Board of Directors to file the suit, and in this case, only the Liaison Officer has filed the suit. Even the Director is not competent to file the suit on behalf of the Company, unless the specific power is conferred on him. The Power of Attorney should have been issued to the Director to file the suit on behalf of the Company on the basis of the Resolution passed by the Board of Directors in their meeting held in that regard. The suit is only then held to be validly instituted by the competent person who has been authorised by the Company and when once the Resolution is passed, authorising the Managing Director by giving Power of Attorney in favour of the Director of the Company and then no further Resolution in that regard is necessary. The Company can always authorise some person to sign on behalf of the Company and if the Company does not chose to do so, it can act in accordance with Order 29 Rule 1 CPC and it can rely on the Order 29 CPC, as in fact, a constituting agent to sign if necessity of giving an express authority. In that way, Order 29 CPC is read only merely as a permissive and not mandatory. In some cases, if the suit is filed by the Company, even the Secretary is competent person to sign and verify the pleadings. As per the Memorandum/Articles of Association of the Company, if the Directors who were jointly authorised to decide to institute the suit, and when the Directors have passed no