PINTO v. TRELLEBORG LANKA (PVT) LTD AND ANOTHER

039-SLLR-SLLR-2003-V-3-PINTO-v.-TRELLEBORG-LANKA-PVT-LTD-AND-ANOTHER.pdf


214
Sri Lanka Law Reports
(2003] 3 Sri L.R
PINTOv
TRELLEBORG LANKA (PVT) LTD AND ANOTHERCOURT OF APPEALAMARATUNGA, J.
CALA NO. 322/2003SC GAMPAHA – 3828/SPLSEPTEMBER 29, 2003
Civil Procedure Code – Amended by Act No. 14 of 1997 – Section 16, and59(5) – Inconsistency between Sinhala and English texts – Constitution -Article 23 (1) – Company – Proxy – Validity – Who could sign? – Is there arequirement for any other person to sign – Authenticating the company seal?- Is the defect in a proxy curable?
It was contended that the proxies filed by the defendant-respondents were notin conformity with section 59 (5) of the Civil Procedure Code as –
proxies did not state the number of the identity card or the passportnumber of the person signing.
Attorney-at-Law who filed the proxy failed to make an endorsementon the proxy certifying the identity of the two dependents signing theproxy;
1st and 2nd defendants have signed the proxies on 14.8.2003, andthe defendant’s Attorney has certified the proxies on 18.8. 2003.
Pinto v Trelleborg Lanka (Pvt) Ltd. and another
(Amaratunga, J.)
215
CA
The trial Judge rejected the objections.
Held:
In view of Article 23 (1) and section 16 the Civil Procedure CodeAmendment Act 14 of 1997, in the event of an inconsistency theSinhala text shall prevail.
Requirement for a proxy of a company is that it shall be tendered underthe seal of the Company. The object of section 59 (5) is to ensure thatthe correct defendant has signed or authenticated the proxy. The plac-ing of the seal is sufficient, there is no requirement in the code for any.other person to sign authenticating the Company seal.
Though the 2nd defendant's proxy did not contain his passport number,a photocopy of his passport had been tendered and filed along with theproxy – there is substantial compliance.
Discrepancy between the dates appearing below the signature of the2nd defendant and in the memorandum appearing at the end of theproxy does not render the proxy invalid.
Defect in a proxy is curable, what matters is whether the Attorney-at-Law had the authority of the 2nd respondent to appear and act for him- which can be gathered from the signature appearing in the proxy andfrom the copy of the passport filed.
Per Ameratunga, J.
‘There is an inconsistency, according to the sinhala provision betweenthe words corresponding to the words defendant and where in theEnglish version there is a full stop, instead of a comma – the Sinhala ver-sion consists of two sentences – these should be read separately”
APPLICATION for leave to appeal from the order of the District Court of
Gampaha.
Cases referred to:
Seevali Ratwatte v Thilanga Sumathipala – 2001 2 SRI LR 55
Udeshiv Mather- 1988 1 SRI LR'12
Paul Coir Co. v Vaas – 2000 2 SRI LR 166
M.H.B. Morais with Shantha Perera for plaintiff-appellant.
I.S. de Silva with Suren Peiris for defendant-respondents.
Cur.adv. vult
216
Sri Lanka Law Reports
[20031 3 Sri L.R
October 10, 2003AMARATUNGA, J.
This is an application for leave to appeal against the decision 01of the learned District Judge rejecting an objection raised by thelearned counsel for the plaintiff to the validity of the proxies of the1st and 2nd defendants. The plaintiff has filed action against thedefendant company and its Managing Director seeking a declara-tion that he was entitled to function as a Director of the defendantcompany and to receive the benefits set out in paragraph 44 of theplaint. He has sought a permanent injunction restraining the defen-dants from removing him from the post of Director and an enjoiningorder and an interim injunction for the same purpose. The court 10having considered the pleadings and the submissions made bycounsel has issued an enjoining order and notice of interim injunc-tion.
On 18/8/2003 the defendants have filed their proxy and peti-tion and affidavit praying for the dissolution of the enjoining order.
The learned counsel for the plaintiff has then raised a preliminaryobjection that the proxies filed by the defendants were not in con-formity with the provisions of section 59(5) of the Civil ProcedureCode as amended by Act No 14 of 1997 and accordingly the saidproxies were invalid. Section 59(5) of the Civil Procedure Code as 20it appears in the English copy of the code reads as follows:
“Where a defendant is represented by a registered Attorney,the Attorney shall in the proxy tendered on behalf of the defen-dant, state the number of the identity card or the passport, asthe case may be, of the defendant and shall also make anendorsement thereon certifying the identity of such defendant.where a proxy is tendered on behalf of a company or a corpo-rate body it shall be under the seal of such company or thebody corporate as the case may be.” (underlining added)
The learned counsel for the plaintiff has submitted that30
the proxies did not sate the number of the identity card orthe passport number of the person who signed the proxy
the Attorney-al-Law who filed the proxy has failed to makean endorsement on the proxy certifying the identity of thetwo defendants signing the proxy.
CA
Pinto v Trelleborg Lanka (Pvt) Ltd. and another
(Amaratunga, J.)"
217
the first and second defendants have signed the proxieson 14th August 2003 and the defendants' Attorney hascertified the proxies on 18th August 2003.
The learned Judge by her order dated 28/8/2003, for the rea-sons stated therein, has rejected the objections. The plaintiff-peti-tioner now seeks leave to appeal against the said order.
At the hearing before this court the learned counsel for thedefendant-respondents invited the court's attention to the Sinhalaprovision of the said section 59(5). According to the Sinhala provi-sion, between the words corresponding to the words defendant andwere in the English version, (underlined by me in the English pro-vision quoted above) there is a fullstop instead of a comma. Interms of Article 23(1) of the Constitution all laws are enacted in' Sinhala and Tamil together with, a translation thereof in English. Atthe stage of the enactment the Parliament shall determine whichtext shall prevail in the event of any inconsistency between thetexts. In terms of. section 16 of the Civil Procedure Code(Amendment) Act No 14 of 1997 in the event of an inconsistency,the Sinhala text shall prevail. Accordingly this court has to acceptthe sinhala provision of section 59(5).
According to the sinhala provision section 59(2)consists of twosentences. The first sentence ends with the fullstop placed justbefore the reference to a company or a corporate body begins.Therefore the two sentences are to be read separately. The twosentences deal with two types of defendants; the first sentence witha defendant who is a natural person and the second sentence witha defendant who is a juristic person. Since the sentences are to beread disjunctively the requirements set out in the 1st sentence can-not be read into the 2nd sentence. Accordingly the requirement fora proxy of a company is that it shall be tendered under the seal ofthe company. There is no dispute that in the proxy filed on behalfof the company, the seal of the company was embossed on theproxy. This is the only requirement under section 59(5) of the Codefor the validity of the company’s proxy. In addition to the seal, therewere two signatures appearing in the company’s proxy and it wasexplained at the hearing that those were the signatures of twodirectors of the company. Usually Articles of Association ofCompanies contain provisions regarding the custody of the seal ofthe company and the manner in which the seal of the company
40
50
60
70
218Sri Lanka Law Reports[2003] 3 Sri L.R
shall be affixed to any instrument. In this instance Article 76 of theArticles of Association of the 1st defendant company provides forthat and according the said section 76, the company seal shall beaffixed to any instrument in the presence of two Directors or of oneDirector and the Secretary, who shall sign every instrument towhich the seal is affixed. However it is noteworthy that section59(5) only requires that the proxy shall be tendered under the sealof the company. It does not state that ‘the proxy shall be tenderedunder the seal of the company affixed in the manner provided in theArticles of Association of the company.’The object of section 59 (5)of the Code is to ensure that the correct defendant has signed orauthenticated the proxy. The placing of the seal of the company issufficient for this purpose as the company can be made answerablewhen the proxy contains its seal. Since there is no requirement inthe Code for any other person to sign authenticating the companyseal, it is not necessary to show on the face of the proxy that thetwo signatures appearing on the proxy were the signatures of thosewho were empowered to authenticate the seal and to certify theiridentity by the Attorney-at-Law. I therefore hold that the 1st defen-dant company’s proxy was in conformity with section 59(5) of theCode and was accordingly valid.
The 2nd defendant is the Managing Director of the 1st defen-dant company. Since he is a natural person his proxy shall conformto the requirements set out in the first sentence of section 59(5) ofthe Code. The 2nd defendant’s proxy did not contain his passportnumber. However there is no dispute that a photocopy of his pass-port had been tendered and filed along with the proxy. Consideringthe object sought to be achieved by section 59(5) I am of the viewthat there was substantial compliance with the requirement of giv-ing the passport number although there was no literal compliance.
The next requirement is the endorsement certifying the identi-ty of the defendant to be made by the Attorney-at-Law on the proxy.In the proxy under the signature of the 2nd defendant, the authen-ticity of which was not challenged at the hearing before me the dateis given as 14/8/2003. The printed legend appearing at the end ofthe printed form of the proxy states that the signature was placedon 18th August 2003 at Colombo. A point was made by the learnedcounsel for the plaintiff-petitioner that as shown by the proxy itselfthe signature of the 2nd defendant has not been placed in the proxy
80
90
100
110
CA
Pinto v Trelleborg Lanka (Pvt) Ltd. and another
(Amaratunga, J.)•
219
on 18th August and therefore the certificate of the Attorney-at-Lawwas not a proper certificate necessary for the validity of the proxy.
In support of his argument he cited the case of Seevali Ratwatte vThilanga SumathipalaW where the court held that an affidavitsigned by the deponent at one time and attested by the Justice ofthe Peace at a different time was invalid. In the case of an affidavitit is necessary that the deponent and the person attesting the affi- 120davit shall both sign at the same time. In this case it is on recordthat the counsel who appeared in the District Court for the defen-dants has stated that the proxy was signed on 14/8/2003, at hisoffice in Colombo and when the proxy was filed on 18.08.2003 theAttorney-at-Law has put 18th August in the proxy as the date. Inthe absence of anything to show that the explanation tendered bycounsel was incorrect and untenable, it cannot be rejected. Theobject of the requirement that there should be an endorsement cer-tifying the identity of the defendant is to ensure that the proxy hasbeen signed by the defendant and no one else. In this case there 130was no allegation that the 2nd defendant’s proxy was not a proxysigned by him. In the circumstances, this Court is unable to holdthat the discrepancy between the dates appearing below the sig-nature of the 2nd defendant and in the memorandum appearing atthe end of the proxy is such as to render the whole proxy invalid.
In any event a defect in a proxy is curable. Udeshiv MatheW.What matters is whether the Attorney-at-Law had the authority ofthe 2nd defendant to appear and act for him and this authority canclearly be gathered from the signature appearing in the proxy andfrom the copy of the passport filed. The affidavit filed by the 2nd modefendant in this Court clearly shows that he has ratified the acts ofthe Attorney-at-Law. Vide Paul Coir CovVaas.W
For the reasons set out above I hold that there were validproxies before Court on behalf of the 1st and 2nd defendants.Accordingly leave to appeal is refused and the application is dis-missed with costs in a sum of Rs. 5000/-.
Application dismissed.