075-NLR-NLR-V-74-L.-J.-PEIRIS-CO.-LTD.-Appellant-and-L.-C.-H.-PEIRIS-Respondent.pdf
h. ./. Pdris cO Vo. t.td. n. Peiris
. 201
Present-: H. N. G. Fernando, C.J., and Thamotheram, J.
J. PEIRIS &. CO. LTD.. Appellant, and L. O. H. PEIRIS,Respondent
E. C. 97j07 (Inti/.)—D. C. Kalutam, 1172jL.
Jncorporalcd Company—Proxy granted by it to a Proctor—Question who is entitled togrant- it on behalf of Company—Civil Procedure Code.27—Companies
Ordinance, s. 34 (J).
Whore (lie proxy filed on behalf of a Company incorporated under theCompanies Ordinance hnm (ho seal of the Company and the signature of oneDirector—
Held, that, the proxy was valid and duty signed within tho meaning of section27 of the Civil Procedure Code. " The Court in this connection is not concernedwith the validity of the appointment of the Proctor ns the Company's agentbut with certainty that the Proctor had tho authority of his client to do what heis permitted to do under section 27 of tho Civil Procedure Code. ”
Appeal from an order of t he District Court, Kalutam.
C. Banqanatkan, Q.C.. with B. Bodinagoda and L. IK. Alhulalhmudali,for tho plaintiff-appellant.
II. IK. Jayewardene. Q.C., with Ben Eliyatamby and ?K. S. W eerasooria,for tho defendant-respondent.
Cur. adv. vuli.
THAMOTHERAM, J.—L. J. Peiria ct- Co. Ltd. v. Peiria
26i
December 18, 1970. Thamotheram, J.—
The Plaintiff-Appellant a Com pa 113- incorporated under the CompaniesOrdinance, instituted this action in the District Court of Kalutara fora declaration of title to a property which, it was claimed, was gifted totho Company by' Lokukankanago John Peiris and accepted on its behalfby' tho Defendant who, at the timo, was its solo Director.
Tho Defendant-Despondent denied these averments and prayed for thedismissal of the action.
When tho case was taken up for Trial tho learned counsel for theDefendant submitted to Court that the proxy filed by the Plaintiff wasdefective, and that the Plaintiff's action should be dismissed.
Tho Plaintiff filed a fresh proxy as directed by Court. The objectionto the original proxy' was, thereafter, considered and the learned judgerejected it, holding that it did not conform to the requirements ofSection 27 of tho Civil Procedure Code. He further held that it was notopen to tho Plain tiff-Appellant to rectify tho original proxy as thePlain tiff-Appellant was not properly before Court at tho timo of theinstitution of the action. . Ho rejected the fresh proxy as well.
The original proxy bore the seal of the Compaq- and tho signature ofone Director. Tho frosh proxy boro tho sohl of the Company and thesignatures of two Directors as required by tho Companies Ordinance incases where tho seal was required to be affixed.
The learned District Judge was rigid when lie said " The relationshipof a Proctor and cliont may well bo a contract of agency bid- there is nolaw requiring that the contract should bo in writing. A proxy' is awriting given by a suitor to Court authorising the Proctor to act 011 hisbehalf. It does not contain the terms of the contract between thesuitor and tho Proctor. That contract is a distinct one and has nothingto do with the proxy which is an authority granted by virtue of thatcontract.”
Tho learned judge however, misdirected himself when he said ” In thiscase wo arc not concerned with the procedure of filing a proxy' but withthe substantivo question w ho is entitled to grant a proxy on behalf of aCompany.”
The real question to my mind is . . . had the Proctor (lie authorityof his clioid, i.e. tho Company, to institute the action and otherwiso dowhat Section 27 of tho Civil Procedure Codo enables a person having such
THAMOTHERAM,J. Fein's d.- Co. Ltd. c. Fciris
2 li3
authority to do ? The quostiou is not who can act on behalf of theCompany, but liars tho Company given the required authority in writing.Section 34 sub-sect ion 1 of the Companies Ordinance states “ a documentor proceeding requiring authentication by a Company may bo signed by aDirector, Secretary, or other authorised officer of the Company, and neednot he under its common seal “ Authenticate ” means to establishthe truth of, to establish the authority of, make valid This is all thatis required for the purpose of a valid proxy.
Section 27 of the Civil Procedure Code reads " the appointment of aProctor to make any appearance or application or do any act as aforesaidshall bo in writing signed Iry the client, and shall be filed in Court ”.This is a- procedural requirement which must bo satisfied to enable aProctor to act on behalf of his client. This is not a provision of Law1 hut requires a contract of agency between a- Proctor and his client to bein writing. The questions that arise for consideration arc (1) is there acontract of agency between the Proctor and his client ? Xo writing isrequired to establish this. (2) Is there a writing appointing a client’sProctor giving him authority to act on the client’s behalf for thopurposes mentioned in Section 27 of the Civil Procedure Code ?(3) Is
this writing signed by the client ?
Stroud’s Judicial Dictionary, vol. 4, p. 27S3 states under heading“ ‘signed’ ‘signature’ ” ’’ speaking generally a signature is the writing orotherwise affixing a person’s name or a mark to represent his name byhimself or by his authority (if. Kent Justice *) with the intention ofauthenticating a document as being that of or binding on the personwhose name or mark is so written or affixed. In Jlorton v. Copeland 2Maule J. snicl ’signature does not necessarily mean writing a person’sChristian and surname, but any mark which identifies it, as tho act ofthe party ”, but the reporter adds in a note " provided it being proved oradmitted to be genuino and be the accustomed mode of signature of thoparty ”.
The original proxy in this case was in writing and purported to besigned by the Proctor’s client, the Company. The question for thodecision of the Court was whether in fact it was signed by him by whomit was purported to bo signed. Jt is here that- Section 34, sub section 1,of the Companies .Act lias relevance. Tho Court in this connection is notconcerned with the validity of the appointment of the Proctor as tho
h. H. 8 Q. P. 80S.
1 76 C. Ft. S3S.
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THAilOT HER AM, J.—L. J. Pciris dj Co. Ltd. v. Pciris
Company’s agent but with certainty that the Proctor had tho authority„f his client to do what ho is permitted to do under Section 27 of theCivil Procedure Code.
[ am of tho view that the original proxy is good. Tho judgment andorders of the learned District Judge are sot aside. Tho Plaintiff-Appellantshould bo permitted to proceed on tho basis of tho original proxy. ThoPlaintiff is entitled to costs in both Courts.
H. X. G. Fkkn.aN'do, C.J.—I agree.
Appeal allowed.