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In the Hon’ble High Court of Delhi
at New Delhi
Civil Writ Jurisdiction
Writ Petition No. 1280 of 2012
IN THE MATTER OF:
Seema Sapra …Petitioner
versus
General Electric Company and Others ….Respondents
Affidavit of petitioner pointing out that the vakalatnamas
and authority documents filed by AZB on 16 July 2013 for representation of
Respondents 1, 6 and 7 (General Electric Company, GE India Industrial Private
Limited and GE Global Sourcing India Private Limited) are unauthorised, illegal,
invalid and prima facie forged and unauthentic documents
I, Seema Sapra, daughter of Late Shri A. R. Sapra, aged 41
years, previously resident of G 4, first floor, Jangpura Extension, New Delhi
110014 and rendered homeless on 30 May 2012 (because of and as a result of the
whistleblower complaints of corruption, forgery, bribery, fraud and illegal
activities made against General Electric, Montek Singh Ahluwalia, Planning
Commission, Railway Ministry and Ministry of Finance and as a result of the whistleblower
corruption petition (W.P. (C ) 1280/ 2012) and because of my complaints of
sexual harassment against Mr Soli J Sorabjee and Mr Raian Karanjawala) in
contempt of this Hon’ble Court’s order dated May 25, 2012 and presently
homeless and sleeping in my car since 27 February 2013 (except for a period of
approximately 15 days in June 2013) do hereby solemnly affirm and state as
under:
I am the Petitioner in the present Petition and am well
aware of the facts of the case and am competent to file the present affidavit. This
affidavit is being filed to raise the issue of the unauthorised and fraudulent
representation of General Electric Company, GE India Industrial Private
Limited, and GE Global Sourcing India Private Limited by AZB & Partners and
by one Mr K R Radhakrishnan before the Delhi High Court in Writ Petition
(Civil) 1280/ 2012 – in the matter of Seema Sapra v. General Electric Company
and Others.
This affidavit is being filed to supplement CM 10493/ 2013
which was listed before this court on 22 July 2013 and was adjourned to 22
August 2013 without being taken up for hearing. The contents of CM 10493/ 2013
are not repeated herein but may be read along with this affidavit.
This matter was scheduled for hearing on 18 July 2013. On 17
July 2013, the petitioner inspected the court file and found out that on 16
July 2013, AZB had filed three new vakalatnamas in this matter for respondents
1, 6 and 7. The petitioner sent three emails and at least two text messages to
lawyers from AZB including to Mr Nanju Ganpathy requesting that a copy of the
documents filed by AZB on 16 July 2013 under diary no. 101173 be provided to
the petitioner. The petitioner also requested AZB for a copy of these documents
during the court hearings on 18 July and 22 July 2013.
Since AZB & Partners and General Electric chose to
ignore the petitioner’s request for copies of the latest (third) version of
vakalatnamas and authority documents filed by them in the captioned matter in
the Delhi High Court on 16 July 2013, the petitioner obtained certified copies
from the court. The original certified copies of the vakalatnamas and authority
documents placed on record by AZB on 16 July 2013 are attached hereto as
Annexure P-1.
Also attached hereto as Annexure P-2 is a copy of a letter
dated January 4, 2011 signed by Mr Bradford Berenson when he was with Sidley
Austin LLP. This letter provides a specimen signature for Mr Bradford
Berenson.
It is pointed out that the signatures allegedly affixed by
Mr Bradford Berenson to the vakalatnama dated 9 May 2013 and Power of Attorney dated
April 29, 2013 produced by AZB do not match the signature of Mr Bradford
Berenson in the attached letter dated January 4, 2011.
The signatures of Barbara Mondulick (notary public) on the
vakalatnama dated 9 May 2013 and Power of Attorney dated April 29, 2013 produced
by AZB do not match. These also do not match the signature of Barbara Mondulick
on the Power of Attorney dated 4 May 2012 and on the signed statement of Mr
Brackett Denniston dated 17 December 2012 placed on the record earlier by
AZB.
The vakalatnama dated 9 May 2013 placed on record by AZB has
an uncoloured embossed seal on it next to Ms Barbara Mondulick’s alleged
signature. Since this seal is uncoloured, it is not visible in the certified
copy annexed hereto as Annexure P-1, though it is visible in the original
document which the petitioner has inspected. However, it is pointed out that no
such embossed seal of Ms Barbara Mondulick is visible on the copies of the
power of attorneys dated 4 May 2012 and 29 April 2013 or on the signed
statement of Mr Brackett Denniston dated 17 December 2012 placed on record by
AZB and all of which have allegedly been notarised by Ms Barbara Mondulick.
The copies of the power of attorney dated 4 May 2012 and Mr
Brackett Denniston’s statement dated 17 December 2012 both allegedly notarised
by Ms Barbara Mondulick bear a rubber stamp seal of Ms Barbara Mondulick. On
the other hand the power of attorney dated 29 April 2013 and the vakalatnama
dated 9 May 2013 allegedly executed by Bradford Berenson do not bear any such
rubber stamp seal of Ms Barbara Mondulick.
The three allegedly apostilled documents that AZB relies
upon (the POA dated 4 May 2012, the POA dated 29 April 2013, and the
vakalatnama dated 9 May 2013 allegedly executed by Bradford Berenson) have not
been placed on record in original. Instead photocopies have been filed. Unless
and until the original apostilled documents are placed on record, it is
impossible to ascertain if these documents and apostilles are genuine. The
reason being that the apostille pages are generic documents merely certifying
the signature of Barbara Mondulick to a “public document” without describing/
identifying the accompanying public document or its date. Copies of these apostille
pages could have been taken from other unconnected documents signed by Ms
Barbara Mondulick and attached to the copies of the alleged POA dated 4 May
2012, the alleged POA dated 29 April 2013, and the alleged vakalatnama dated 9
May 2013 allegedly executed by Bradford Berenson. Only original apostilled
documents can be relied upon and these have not been produced on the record.
Also attached hereto as Annexure P-3 is a copy of the Notary
Manual for the State of Connecticut .
The acknowledgement declaration allegedly printed by Barbara Mondulick on the
vakalatnama dated 9 May 2013 allegedly executed by Bradford Berenson is not in
accordance with the rules prescribed by the State of Connecticut in this notary manual.
Ms Barbara Mondulick appears to have ties to General
Electric Company and is therefore an "insider" to the company.
The new alleged power of attorney dated 29 April 2013
allegedly executed by Bradford Berenson does not contain the safeguard
provisions that were present in the earlier power of attorney dated 4 May 2012
allegedly executed by Alexander Dimitrief.
A comparison of the POA dated 4 May 2012 allegedly executed
by Alexander Dimitrief and the POA dated 29 April 2013 allegedly executed by
Bradford Berenson shows the following:
|
POA dated 4 May 2012 allegedly executed by Alexander
Dimitrief
|
POA dated 29 April 2013 allegedly executed by Bradford
Berenson
|
|
Records that Seema Sapra has instituted certain
proceedings in the Delhi High Court against General Electric Company, (i.e., the
present writ petition)
|
Does not mention any proceedings instituted by Seema Sapra
against General Electric Company
|
|
Provides that: “THIS POWER OF ATTORNEY is strictly limited
to act as a signatory on behalf of the Grantor, in respect of documents in relation
to the Proceedings, which are specifically pre-approved in writing by the
Grantor in advance. This Power of Attorney does not empower the Attorney to
exercise any discretion on behalf of the Grantor, or to do any other act
other than as specified herein”.
|
Does not contain such a provision.
|
Prima facie the new documents filed by AZB on 16 July 2013
appear to be forged/ inauthentic documents besides being unauthorised and
invalid for the reasons already set out in CM 10493/ 2013 filed in W.P. (Civil)
1280/ 2012. This application was listed before court on 22 July 2013 and was
for undisclosed and unrecorded reasons adjourned unheard by Justice Gita Mittal
and Justice Deepa Sharma to 22 August 2013.
K R Radhakrishnan cannot therefore act for and represent
General Electric Company, or GE India industrial Private Limited or GE Global
Sourcing India Private Limited in these writ proceedings and AZB & Partners
cannot appear for these respondents as all the three sets of alleged vakalatnamas
(dated 7 December 2012, 17 December 2012, and 16 July 2013) in their favor
signed by Bradford Berenson/ K R Radhakrishnan are unauthorised and invalid. The
authority documents attached to the vakalatnamas dated 16 July 2013 filed by
AZB are also unauthorised, invalid and illegal, and prima facie appear to be
forged and inauthentic documents.
It is basic and settled law that no person can claim to
represent a legal entity like a company in court proceedings without being duly
authorised in accordance with law and without producing such duly executed
authority documents. It is also basic and settled law that no lawyer can
represent a party in court proceedings without placing on the record a
vakalatnama duly executed by such party authorising the lawyer to represent it.
The Court has no discretion to allow a company to be
represented in court proceedings by an individual who has failed to produce
valid and sufficient authority documents and has failed to establish his
authority to represent the company. The
Court has no discretion to permit a lawyer to represent a party in the absence
of a duly executed and valid vakalatnama.
This unauthorised and fraudulent representation of General
Electric Company, GE India Industrial Private Limited and GE Global Sourcing
India Private Limited by K R Radhakrishnan and by AZB & Partners/ Mr Nanju
Ganapathy in these whistleblower writ proceedings accusing General Electric of
corruption, fraud, forgery and of obstruction of justice, is a monumental fraud
being committed on the Delhi High Court, on the Government of India, on General
Electric Company, and on the petitioner by General Electric Company's in-house
lawyers acting in collusion with AZB & Partners and with Gibson Dunn &
Crutcher.
DEPONENT
VERIFICATION
Verified at New
Delhi on this 27th day of July 2013, that the contents
of the above affidavit are true and correct to my knowledge and that nothing
material has been concealed therefrom.
DEPONENT
In the Hon’ble High Court of Delhi
at New Delhi
Civil Writ Jurisdiction
C.M. Appl. No.
of 2013
In
Writ Petition (Civil) No. 1280 of 2012
IN THE MATTER OF:
Seema Sapra …Petitioner
Versus
General Electric Co. and Others ….Respondents
An application under section 151, Civil Procedure Code
SEEKING DIRECTIONS from the court TO IMMEDIATELY STOP AZB & PARTNERS AND MR
NANJU GANPATHY FROM APPEARING FOR RESPONDENTS 1, 6 & 7 IN THIS WRIT PETITION
AND FOR ISSUE OF FRESH NOTICE TO RESPONDENTS 1, 6 & 7
The
Petitioner above named
Most Respectfully Showeth:
This application is being filed seeking directions in
connection with the unauthorised and fraudulent representation of General
Electric Company, GE India Industrial Private Limited, and GE Global Sourcing
India Private Limited (Respondents 1, 6 & 7 respectively) by AZB &
Partners before the Delhi High Court in Writ Petition (Civil) 1280/ 2012 – in
the matter of Seema Sapra v. General Electric Company and Others.
General Electric Company, an American company is respondent
1 in this petition and was issued notice by the Delhi High Court on 7 March
2012.
Mr Nanju Ganpathy and AZB & Partners (AZB) appeared for
General Electric Company in this matter on 9 May 2012. AZB continued to appear
for General Electric Company on 14, 16,
25, 29 and 30 May 2012; on 3,13, and 19 July 2012; on 12 October 2012; on 8, 19,
26 and 30 November 2012; and on 5 December 2012.
The petitioner inspected the court record and discovered
that AZB/ Nanju Ganpathy (along with Rajiv Nayar, Sr Advocate) were appearing
for General Electric Company without having filed any vakalatnama. The
petitioner filed CM 19370/ 2012 (on 6 December 2012) objecting to AZB
representing General Electric Company without filing a vakalatnama. AZB filed a
vakalatnama on 7 December 2012.
On 10 December, 2012, CM 19370/ 2012 was listed before court
and the petitioner objected in court to AZB’s appearance for General Electric
Company. On this date, Nanju Ganpathy lied to the court and stated that a
vakalatnama had been filed much earlier but was not on record. The electronic
case history maintained by the court registry establishes that Mr Nanju Ganpathy
misled the court as there is no record of AZB having filed a vakalatnama before
7 December 2012.
The vakalatnama filed by AZB on 7 December 2012 did not
produce necessary authority documents and was invalid in view of the Supreme
Court of India’s ruling in Uday Shankar Triyar v. Ram Kalewar Prasad Singh
[(2006) 1 SCC 75] which holds that a vakalatnama on behalf of a company must
either bear the company seal or it must mention the name and designation of the
person signing the vakalatnama (on behalf of the company) below the signature
AND a copy of the authority must be annexed to the vakalatnama. The Supreme
Court further ruled that if a vakalatnama is executed by a power-of-attorney
holder of a party, the failure to disclose that it is being executed by an
attorney holder and failure to annex a copy of the power of attorney will
render the vakalatnama defective.
The petitioner filed CM 19683/2012 on 14 December 2012
pointing out that the vakalatnama dated 7 December 2013 was invalid and did not
annex the required authority documents. AZB filed another vakalatnama for
General Electric Company on 17 December 2012. This vakalatnama is signed by one
Mr K R Radhakrishnan who is company secretary of an Indian subsidiary of
General Electric Company. This Indian subsidiary (GE India Industrial Private
Limited) is separately impleaded as respondent 6.
K R Radhakrishnan claims to be authorised signatory for
General Electric Company under a Power of Attorney (POA) dated 4 May 2012
issued in his favour by Alexander Dimitrief of General Electric Company.
K R Radhakrishnan has filed an affidavit in the writ
petition through AZB on 7 January 2013. This affidavit produces an extract from
the Board Minutes of General Electric Company (last revised on November 6,
2009) containing a Board Resolution (hereinafter referred to as the Board
Resolution) which describes and limits the authority of individuals to sign
documents (including court pleadings) on behalf of General Electric Company.
This affidavit also produces the alleged POA dated 4 May
2012 and a statement dated 17 December 2012 made and signed by Mr Brackett
Denniston, General Counsel and Secretary of General Electric Company. (This
affidavit falsely and perjuriously states in paragraph 2 that this signed
statement dated 17 December 2012 issued by Mr Brackett Denniston is a board
resolution issued by General Electric Company.)
Alexander Dimitrief was Vice President, Litigation &
Legal Policy of General Electric Company from 9 February 2007 until November 1,
2011 when he was appointed as General Counsel of GE Energy. On May 4, 2012, the
date on which the POA was allegedly executed, Alexander Dimitrief was General
Counsel of GE Energy. The writ proceedings pertain to GE Transportation and not
to GE Energy. (Both are separate business units/ divisions of General Electric
Company).
The Board Resolution of General Electric Company describes
and limits the authority of individuals to sign documents (including court
pleadings) on behalf of General Electric Company. The relevant clause is
Paragraph A which confers authority to sign powers of attorney and court
pleadings on behalf of General Electric Company upon certain individuals. Under
Paragraph A of the Board Resolution, the following persons are “Authorized Persons”
who can sign powers of attorney and court pleadings on behalf of General
Electric Company:
Chairman of the Board
A Vice Chairman of the Board
An Executive Vice President
A Senior Vice President
A Vice President reporting directly to the Chairman or a
Vice Chairman of the Board
The Comptroller
The Treasurer
The Secretary
Any Vice President who is a corporate staff officer of the
Company
These “Authorized Persons” can “execute” on behalf of
General Electric Company, the instruments of the type described in Paragraph A
of the Board Resolution. These instruments described in Paragraph A are the
following:
“Any contract, lease, licence, assignment, bond or other
obligation, conveyance, power of attorney, guarantee, proxy, court pleading, release,
tax return and related documents, or other instruments”.
The second part of Paragraph A of the Board Resolution also
states that the following company employees may “sign” any instrument of the
type described in Paragraph A which relates to the component or function or
Division or Department to which such company employee is assigned:
An Operational Officer of the Company
A Manager of the Company
A formally designated Acting Manager of the Company
Neither the “Authorized Persons” nor any employee of the
Company can delegate to “others” the authority to execute/ sign on behalf of
General Electric Company, instruments of the type described in Paragraph A of
the Board Resolution.
Only the Chairman of the Board or a Vice Chairman of the
Board is authorized under Paragraph B of the Board Resolution to delegate to
“others”, the authority to execute contracts and other instruments on behalf of
the Company.
The last sentence of Paragraph A, and Paragraphs C, D, E,
and F provide limited authority to identified individuals to delegate to others
the authority to sign on behalf of General Electric Company certain limited
types of contracts and instruments. These provisions are not relevant for the
POA dated May 4, 2012 as the POA does not fall within the description of the
types of instruments covered by these provisions. The POA dated 4 May 2012 is
not covered by the last sentence of Paragraph A, or by Paragraphs C, D, E, F
and G of the Board Resolution.
The provisions of the Board Resolution applicable to the POA
dated 4 May 2012 are Paragraph A (excluding its last sentence) and Paragraph B.
The POA dated 4 May 2012 allegedly executed by Alexander
Dimitrief purportedly does the following:
It purports to delegate to K R Radhakrishnan the authority
to execute vakalatnamas or powers of attorney on behalf of General Electric
Company.
It purports to delegate to K R Radhakrishnan the authority
to execute court pleadings on behalf of General Electric Company.
It purports to delegate to K R Radhakrishnan the authority
to give undertakings, representations, confirmations, consents and statements
of responsibility in the name of and on behalf of General Electric Company.
It purports to authorize K R Radhakrishnan to accept service
of summons and notices from a Court on behalf of General Electric Company.
Under the original document (the Board Resolution)
conferring authority on him, Alexander Dimitrief did not/ does not have the
authority to delegate to any person the authority to execute vakalatnamas or
powers of attorney on behalf of General Electric Company; or the authority to
execute court pleadings on behalf of General Electric Company; or the authority
to give undertakings, representations, confirmations, consents and statements
of responsibility in the name and on behalf of General Electric Company.
Therefore Alexander Dimitrief could not have delegated/ can
not delegate to K R Radhakrishnan (or to any other person) the authority to
execute vakalatnamas or powers of attorney on behalf of General Electric
Company; or the authority to execute court pleadings on behalf of General
Electric Company; or the authority to give undertakings, representations,
confirmations, consents and statements of responsibility in the name and on
behalf of General Electric Company.
The POA dated May 4, 2012 allegedly executed by Alexander
Dimitrief on behalf of General Electric Company is in excess of the authority
vested in Alexander Dimitrief under the Board Resolution and is therefore
illegal, unauthorised and invalid and it can confer no authority on K R
Radhakrishnan.
This analysis is also supported by other provisions of the
Board Resolution. The last recital on page one of the Board Resolution
stipulates that it will not confer “any authority to approve transactions
underlying the documents to be signed over and above that which is possessed by
the signer either by virtue of the power inherent in that individual’s position
with the Company or by virtue of a delegation of authority to that individual
by the Board of Directors or higher management”.
Paragraph H of the Board Resolution also confirms that any
delegation of authority must be expressly authorized by the Board Resolution
and that Authority can be delegated only pursuant to the last sentence of
Paragraph (A), or pursuant to Paragraphs (B), (C), (D), (E) or (F) of the board
resolution. None of these provisions authorize Alexander Dimitrief to delegate
to any person, the authority to execute powers of attorneys and/ or court
pleadings on behalf of General Electric Company.
The petitioner has raised an objection that Alexander
Dimitrief was not an Authorized Person in terms of Paragraph A of the Board
Resolution on 4 May 2012, and neither was he the Operational Officer of the
Company in charge of litigation as he had demitted the office of Vice
President, Litigation & Legal Policy of General Electric Company on
November 1, 2011.
Mr Brackett Denniston’s signed statement dated 17 December
2012 annexed to the affidavit of K R Radhakrishnan claims that until Mr
Bradford Berenson was appointed as Mr Alexander Dimitrief’s replacement, the
latter “continued to be authorized to issue powers of attorney and other
instruments on behalf of General Electric Company in relation to matters of
litigation and legal policy in terms of the Resolution”. No evidence or
document has been produced by Mr Brackett Denniston to support this contention.
Given that the Board Resolution of General Electric Company limits the
authority of individuals to execute instruments on behalf of the company, this
authority cannot be expanded suo moto by Mr Brackett Denniston. Mr Alexander
Dimitrief was admittedly no longer the Operational Officer looking after
litigation for General Electric Company on 4 May 2012 and as such he had no
authority to execute the POA dated 4 May 2012.
Even assuming without admitting, that Alexander Dimitrief
was on 4 May 2012, authorized (as an Operational Officer of the Company looking
after litigation & legal policy) under Paragraph A of the Board
Resolution to “sign” powers of attorney
and/ or court pleadings on behalf of General Electric Company in relation to
litigation & legal policy; he certainly had no authority to further
delegate his authority to others. Alexander Dimitrief could not have delegated
the authority to execute/ sign powers of attorney and court pleadings on behalf
of General Electric Company to K R Radhakrishnan. The POA dated 4 May 2012,
under which K R Radhakrishnan claims to be the authorized signatory and
attorney of General Electric Company is unauthorized, illegal and invalid and
can confer no such authority upon K R Radhakrishnan.
K R Radhakrishnan is therefore not an authorised signatory
of General Electric Company and the vakalatnama executed by him appointing AZB
to represent the Company is invalid. Similarly, the several affidavits/
applications executed and filed by K R Radhakrishnan through AZB on behalf of
General Electric Company in this matter are unauthorised, false and perjurious.
Brackett Denniston, Senior Vice President, General Counsel
and Secretary of General Electric Company has in his signed statement dated 17
December 2012 annexed to the affidavit dated 7 January 2013, purported to
ratify the execution of the Power of Attorney dated 4 May 2012 on behalf of
General Electric Company and in favor of K R Radhakrishnan.
Brackett Denniston cannot ratify the execution of this POA
as he himself could not have executed this POA. Just like Alexander Dimitrief,
Brackett Denniston being an “Authorized Person” in terms of Paragraph A of the
Board Resolution is only authorized to himself execute on behalf of General
Electric Company the instruments of the type described in Paragraph A. The
Board Resolution does not authorize Brackett Denniston to further delegate this
authority to other persons. Brackett Denniston himself did not/ does not have
the authority to execute a POA delegating to K R Radhakrishnan the authority to
execute powers of attorney and court pleadings on behalf of General Electric
Company. It follows that Brackett Denniston does not have the authority to
ratify an action on behalf of General Electric Company which action he himself
is not authorized to undertake.
The only persons who are authorized under the Board
Resolution to delegate to other persons the authority to execute powers of
attorney and court pleadings on behalf of General Electric Company are the
Chairman and/ or the Vice Chairman of the Board (by virtue of Paragraph B of
the Board Resolution).
Accordingly, only the Chairman or Vice Chairman of the Board
of General Electric Company can ratify the POA dated 4 May 2012. It is also pointed out that mere ratification
of the POA dated 4 May 2012 will not suffice. In addition, the Chairman and/ or
Vice Chairman of the Board would have to separately verify and ratify each and
every affidavit filed in this writ petition by K R Radhakrishnan on behalf of
General Electric Company. It is pointed out that all these affidavits are not
only unauthorized but are substantively false and the deponent of these affidavits
(K R Radhakrishnan) is liable to be prosecuted and punished for the offence of
perjury.
This unauthorized and fraudulent representation of General
Electric Company by K R Radhakrishnan and by AZB is an elaborate fraud being
perpetrated on the Delhi High Court, on General Electric Company, on the
Government of India and on the petitioner. This fraud is being perpetrated by
senior legal officers of General Electric Company (including Brackett
Denniston, Alexander Dimitrief, Bradford Berenson and Jeffrey Eglash) acting in
collusion with F Joseph Warin and John Chesley from Gibson Dunn & Crutcher
and with Zia Mody and Nanju Ganpathy of AZB & Partners.
The complaints that are the subject matter of this petition
are against General Electric Company and several of its officers/ executives
and in-house lawyers. The alleged in-house investigation into the petitioner’s
complaints was carried out by General Electric Company through an in-house
lawyer, Mr Jeffrey Eglash under the direct supervision of Brackett Denniston
and Alexander Dimitrief. The letter dated 3 February 2011 sent to the
Petitioner by General Electric Company misrepresenting facts and covering up
the complaints of obstruction of justice, corruption, fraud and forgery was
signed by Alexander Dimitrief. Brackett Denniston and Alexander Dimitrief are
both personally implicated in the petitioner’s complaints as are other very
high-level officers/ executive/ lawyers / former employees of General Electric
Company including Jeffrey Immelt, John Rice, John Flannery, Lorenzo Simonelli,
Tara Plimpton, Mona Dange, Deepak Adlakha, Puneet Mahajan, Pratyush Kumar,
Ashfaq Nainar, Scott Bayman, and Ruby Anand.
It is pointed out that the POA dated 4 May 2012, omits to
mention/ specify the number or cause title or any identifying feature or the
nature/ character/ subject matter of the writ petition.
The fact of this fraud being committed on the Delhi High
Court is further confirmed by a strange provision in the POA dated 4 May 2012.
Clause 6 of this POA provides that the powers conferred by the POA “shall not
be prejudiced, determined or otherwise affected by the fact of the Grantor
acting either directly or through another agent or attorney in respect of all
or any of the purposes herein contained”.
This clause therefore raises the likelihood that the
“unauthorized” instructions being sent to K R Radhakrishnan and/ or to AZB are
not being sent directly from General Electric Company but via other
intermediaries/ agents/ attorneys. Multiple layers of separation between
General Electric Company (and its legal officers) and these court proceedings
are being maintained.
In April 2012, when the petitioner attempted to serve the
court notice and the writ petition on General Electric Company at its corporate
head-office in Fairfield (Connecticut) in the United States, the courier was
diverted by Jeffrey Eglash (a lawyer in General Electric Company) to the New
York office of the law firm of Gibson Dunn & Crutcher. The cover up of the petitioner’s complaints
is being facilitated by Gibson Dunn & Crutcher.
It appears that no official record of these writ proceedings
is available within the internal records of General Electric Company. It
appears as if this writ petition has not been officially brought to the notice
of senior management of General Electric Company including senior legal
officers like Mr Brackett Denniston, Mr Alexander Dimitrief, and Mr Bradford
Berenson. This is to prevent any accountability and responsibility on their
part for the false affidavits that are being filed in this matter purporting to
be on behalf of General Electric Company.
AZB has continued to appear for General Electric Company in
court in this matter without authority on subsequent dates including on 12, 19,
20 and 21 December 2012; on 7, 14, 16, 23, and 24 January 2013; on 4, 15 and 27
February 2013; on 18 March 2013; on 1, 11, 12, 18, 22 and 29 April, 2013; on 1,
3, 16, 22 and 31 May 2013.
Though the petitioner has raised this issue before the court
on several dates and in subsequent applications, the Bench has so far failed to
even take up this issue for hearing, arguments and decision.
The issue is very simple. The POA dated May 4, 2012 through
which K R Radhakrishnan and AZB & Partners claim to represent General
Electric Company in these writ proceedings is illegal and invalid because such
POA could not have been executed by Alexander Dimitrief under the Board
Resolution through which Alexander Dimitrief claims his authority.
K R Radhakrishnan cannot therefore act for and represent
General Electric Company in these writ proceedings and AZB & Partners
cannot appear for General Electric Company as the vakalatnama in their favor
signed by K R Radhakrishnan is invalid.
This fraud on the Delhi High Court is a serious matter. General
Electric Company is accused of corrupt and illegal activities in this writ
petition in connection with high-value Railway Ministry tenders for diesel and
electric locomotive factories. The Delhi High Court issued notice to General
Electric Company and directed it to file its reply. Instead of complying with
the court order, senior legal management of General Electric devised an
elaborate scheme to defraud the court and to avoid filing appropriate
affidavits and replies. Through this fraudulent scheme effectuated with the
help of external lawyers from Gibson Dunn & Crutcher and from AZB &
Partners, senior legal management of General Electric Company has caused an
unauthorised person (K R Radahakrishnan) to file unauthorised, false and
evasive affidavits before the court misrepresenting these as affidavits being
filed on behalf of General Electric Company.
It is basic and settled law that no person can claim to
represent a legal entity like a company in court proceedings without being duly
authorised in accordance with law and without producing such duly executed
authority documents. It is also basic and settled law that no lawyer can
represent a party in court proceedings without placing on record a vakalatnama
duly executed by such party authorising the lawyer to represent it.
The Court has no discretion to allow a company to be
represented in court proceedings by an individual who has failed to produce
valid and sufficient authority documents and has failed to establish his
authority to represent the company. The
Court has no discretion to permit a lawyer to represent a party in the absence
of a duly executed and valid vakalatnama.
This fraud also constitutes a major breach of corporate
governance principles and laws by the senior management of General Electric
Company and is an issue for US regulators and the US Department of Justice to
investigate. The petitioner has brought
this matter to the attention of the United States Embassy in New Delhi , the US SEC and the United States
Department of Justice.
This application also raises the issue of the unauthorised
and fraudulent representation of GE India Industrial Private Limited and GE
Global Sourcing India Private Limited by AZB & Partners before the Delhi
High Court in Writ Petition (Civil) 1280/ 2012 – in the matter of Seema Sapra
v. General Electric Company and Others.
K R Radhakrishnan and Nanju Ganpathy and AZB & Partners
are also fraudulently claiming to represent the two Indian subsidiaries of
General Electric Company who are respondents 5 and 6 in this writ petition
without being duly authorised and without legal and valid authority documents.
Respondent 6 is GE India Industrial Private Limited (hereafter
referred to as GE India) while Respondent 7 is GE Global Sourcing India Private
Limited (GE Global Sourcing India).
Mr Nanju Ganpathy and AZB & Partners (AZB) appeared for
GE India and GE Global Sourcing India in this matter on 9 May 2012. AZB
continued to appear for GE India on 14, 16, 25, 29 and 30 May 2012; on 3, 13,
and 19 July 2012; and on 12 October 2012.
On 4 July 2012, AZB filed an alleged counter affidavit/
reply to the writ petition purporting to be the response of all three General
Electric respondents i.e., General Electric Company, GE India Industrial
Private Limited and GE Global Sourcing India Private Limited (respondents 1, 6
and 7 respectively).
This document dated filed on 4 July 2012, was allegedly
signed by one K R Radhakrishnan, and merely states that K R Radhakrishnan was
the authorized signatory of respondents 1, 6 and 7. The document contains a
verification clause which was signed but not affirmed before an oath
commissioner. A two page affidavit of K R Radhakrishnan attached to this
document merely states that K R Radhakrishnan is the authorised signatory of respondents
1, 6 and 7 in the matter “pursuant to the powers of attorney executed in my
favour in this regard”. Neither these alleged powers of attorney nor any other
authority documents were annexed to this document which otherwise contained
thirteen annexures with the document itself running to 206 pages.
On 12 October, 2012, the petitioner pointed out to the court
that no authority documents had been placed on record to establish that K R
Radhakrishnan was authorized to represent respondents 1, 6 and 7 and as a
result the following direction was issued by the court in its order dated 12
October 2012:
“Ms Seema Sapra, petitioner in person, opposes the
condonation of delay of one day on the ground that the counter affidavit by
itself ought not to be on record as the person who has sworn the affidavit,
i.e., Mr.K.R. Radhakrishnan is not authorized to file the counter affidavit, on
behalf of respondent no. 1. Even while, Ms Sapra says that this objection is
confined to respondent no. 1 only, she adds that no documents had been filed on
record to show that there is authority vested in Mr.K.R. Radhakrishnan, on
behalf of respondent nos. 6 and 7 as well.
Mr Ganpathy, who appears for respondent nos. 1, 6 and 7,
says that he will place the requisite documents on record.
Let the same be done within two weeks.”
On 19 October, 2012, AZB filed three documents which were
not supported by affidavit. These three
documents were a power of attorney dated 4 May 2012 alleged executed by
Alexander Dimitrief on behalf of General Electric Company and alleged copies of
two alleged board resolutions dated 7 May 2012 passed by respondents 6 and 7
(GE India Industrial Private Limited and GE Global Sourcing India Private
Limited). The index (table of contents) accompanying these documents and signed
by a lawyer from AZB & Partners wrongly described the contents as “Power of
Attorney on behalf of Respondents 1, 6 & 7”. No powers of attorney were
produced for respondents 6 and 7. Instead the documents placed on record were
alleged copies of alleged board resolutions dated 7 May 2012 of respondents 6
and 7 which merely authorised a Director of these companies to execute powers
of attorney in favour of K R Radhakrishnan. The copies of the two alleged board
resolutions placed on record were also not authenticated and certified as true
copies in accordance with law and practice.
Mr Nanju Ganpathy and AZB & Partners (AZB) continued to
appear for GE India and GE Global Sourcing India in this matter on 8, 19, 26
and 30 November 2012; and on 5 December 2012.
The petitioner inspected the court record and discovered
that AZB/ Nanju Ganpathy (along with Rajiv Nayar, Sr Advocate) were appearing
for GE India and GE Global Sourcing India without having filed any vakalatnamas.
The petitioner filed CM 19370/ 2012 (on 6 December 2012) objecting to AZB
representing GE India and GE Global Sourcing India without filing vakalatnamas.
AZB filed three separate vakalatnamas on 7 December 2012, two of which
purported to appoint AZB to represent GE India and GE Global Sourcing India.
On 10 December 2012, CM 19370/ 2012 was listed before court
and the petitioner objected in court to AZB’s appearance for GE India and GE
Global Sourcing India. On this date, Nanju Ganpathy lied to the court and
stated that vakalatnamas had been filed much earlier but were not on record.
The electronic case history maintained by the court registry establishes that
Mr Nanju Ganpathy misled the court as there is no record of AZB having filed vakalatnama(s)
before 7 December 2012.
The vakalatnamas filed by AZB on behalf of GE India and GE
Global Sourcing India on 7 December 2012 did not produce necessary authority
documents and were invalid in view of the Supreme Court of India’s ruling in Uday
Shankar Triyar v. Ram Kalewar Prasad Singh [(2006) 1 SCC 75] which holds that a
vakalatnama on behalf of a company must either bear the company seal or it must
mention the name and designation of the person signing the vakalatnama (on
behalf of the company) below the signature AND a copy of the authority must be
annexed to the vakalatnama. The Supreme Court further ruled that if a
vakalatnama is executed by a power-of-attorney holder of a party, the failure
to disclose that it is being executed by an attorney holder and failure to
annex a copy of the power of attorney will render the vakalatnama defective.
The petitioner filed CM 19683/2012 on 14 December 2012
pointing out that the vakalatnamas dated 7 December 2013 were invalid and did
not annex the required authority documents.
AZB then filed two other affidavits on 17 December 2012 signed
and verified by K R Radhakrishnan.
The first affidavit filed by K R Radhakrishnan on 17
December 2012 is an alleged reply to CM 18642/ 2012 (it begins at page 3874 of
the court record). This affidavit contains the following statement at page 3878
of the court record:
“… the Respondent Nos. 6 and 7 issued Board Resolutions
authorizing Mr K R Radhakrishnan to take all necessary steps to prosecute and/
or defend the said two entities. It would further be necessary to mention that
no Power of Attorney as envisaged in each of the said Board Resolutions was
issued as the Board Resolution(s) issued clearly empowered and authorized Mr K
R Radhakrishnan to do all that was necessary to effectively prosecute and/ or
defend actions to be initiated by these entities and/ or initiated against
these entities.”
The above statement is false in so far as it states that the
alleged Board Resolutions dated 7 May 2012 (for GE India and GE Global Sourcing
India) themselves empowered and authorised K R Radhakrishnan to defend this
writ petition on behalf of GE India and GE Global Sourcing India.
On the contrary, the board resolutions dated 7 May 2012 allegedly
issued by GE India and GE Global Sourcing India clearly contemplated the
execution of powers of attorney in favour of K R Radhakrishnan. These alleged
board resolution stated: “RESOLVED FURTHER THAT a Power of Attorney be executed
for this purpose in favour of K R Radhakrishnan and any one Director of the
Company be and is hereby authorised to sign the same for and on behalf of the
company”. In his affidavit dated 17 December 2012, at page 3878 of the court
record, K R Radhakrishnan clearly admits that the powers of attorney
contemplated by the board resolutions dated 7 May 2012 were never issued/
executed in his favour. The legal effect of this failure/ omission to execute
powers of attorney on behalf of GE India and GE Global Sourcing India in favour
of K R Radhakrishnan is that he was never appointed as the “attorney” for these
companies. He therefore at no time had the authority to sign vakalatnamas and
affidavits on behalf of GE India and GE Global Sourcing India in favour of AZB
for the purposes of this writ petition.
There is another crucial defect in the alleged board
resolutions dated 7 May 2012 under which K R Radhakrishnan first claimed the
authority to represent GE India and GE Global Sourcing India. These board
resolutions purport to authorize the execution of a power of attorney in favour
of K R Radhakrishnan to act for these companies in connection with “Proceedings”
which are defined in the board resolutions as follows:
“initiate proceedings before the Bar Council of Delhi (under
the provisions of the Bar Council of India Rules) or Bar Council of India or
any Civil Courts, Criminal Courts, High Courts, Supreme Court of India or
before any other Quasi-Judicial authority, Tribunal, Government Authority or
Local authority, against Ms. Seema Sapra, an advocate enrolled with the Bar
Council of Delhi (“Proceedings”)”
The “Proceedings” covered by these Board Resolutions dated 7
May 2012 therefore do not include this writ petition filed by the Petitioner in
February 2012 against GE India and GE Global Sourcing India. The subject matter
of the Board Resolutions dated 7 May 2012 was limited to proceedings that these
companies might initiate against the Petitioner and did not include proceedings
already initiated against these companies by the Petitioner.
The second affidavit filed by AZB and signed and verified by
K R Radhakrishnan on 17 December 2012.is wrongly labelled as the “Confirmatory
Affidavit on behalf of Respondents 1, 6 and 7”. This affidavit states that K R
Radhakrishnan is the company secretary of respondent 6, i.e. GE India.
This affidavit signed and verified by K R Radhakrishnan
contains the following misrepresentations:
It misrepresents that the alleged board resolutions dated 7
May 2012 authorised K R Radhakrishnan to act for GE India and GE Global
Sourcing India for the purposes of the present writ petition and misrepresents
that K R Radhakrishnan was the duly constituted attorney for GE India and GE
Global Sourcing India when he signed and verified and caused affidavits to be
filed on behalf of these companies in this writ petition.
It misrepresents that in July 2012, K R Radhakrishnan signed
vakalatnamas for respondents 1, 6 and 7 in favor of AZB for the purposes of
this writ petition. The single vakalatnama in favor of AZB that K R
Radhakrishnan claims to have signed on or about 2 July 2012 appears to be the
vakalatnama that AZB used to file the fraudulent OMP 647/ 2012 on behalf of GE
India and against the Petitioner as respondent.
This affidavit then goes on to produce copies of new board
resolutions dated 17 December 2012 allegedly passed by GE India and GE Global
Sourcing India under which K R Radhakrishnan now claims to be the duly
constituted attorney for GE India and GE Global Sourcing India instead of under
the earlier board resolutions dated 7 May 2012. These alleged new board resolutions
dated 17 December 2012 are very strange documents that attempt to masquerade as
powers of attorney and in fact misrepresent themselves as powers of attorney.
These alleged board resolutions dated 17 December 2012
record that the consent of the Boards of GE India and GE Global Sourcing India is
accorded to authorise and appoint K R Radhakrishnan (the Company Secretary of
GE India) as the attorney of these companies interalia to defend proceedings
initiated against these companies by the Petitioner in the Delhi High Court. These
board resolutions do not contain the usual provision authorising the execution
of the power of attorney instrument.
Instead in their final paragraph, these board resolutions
claim to be the power of attorney instruments themselves and state: “RESOLVED
FURTHER THAT this power of attorney is governed by, and shall be construed in
accordance with the laws of India and shall remain in full force and effect
until it is revoked by the company in writing or until December 16, 2014 whichever
occurs earlier”.
The fraud being perpetrated on the court is extremely
evident. In the first instance, the source of Radhakrishnan’s authority to
represent GE India and GE Global Sourcing India is described as powers of
attorney. Board resolutions dated 7 May 2012 are then produced which do not
cover the instant proceedings and which envisage the execution of powers of
attorney which are admittedly never executed. Vakalatnamas are not filed.
Affidavits are signed and filed by K R Radhakrishnan even though he was not
duly constituted as the attorney for the companies.
Once this fraud was exposed, a second attempt at
fraudulently deceiving this court is made. In this second round of fraud,
alleged board resolutions dated 17 December 2012 have been produced which themselves
claim to be the power of attorney instruments.
Before delving into the legal issue of whether or not these
alleged board resolutions are powers of attorney and can directly appoint K R
Radhakrishnan as the attorney of the companies, it is pointed out that the
copies of the alleged board resolutions dated 7 May 2012 and 17 December 2012
placed on record are not certified and authenticated as per usual practice and
law. The certified minutes containing these board resolutions have not been
placed on record.
A comparison of the letterheads on which “copies” of the two
alleged board resolutions for GE Global Sourcing India have placed on record
raises the suspicion that these documents are not genuine. The letterheads on
which copies of these two board resolutions are printed are different even
though they are for the same company and were allegedly signed in October and
December of 2012.
The two alleged board resolutions dated 7 May 2012 do not
bear the company seal for GE India and GE Global Sourcing India. The GE logo on
the letterheads on which these board resolutions are printed is illegible. The
persons who have signed these documents are not identified.
The two alleged board resolutions dated 17 December 2012
also do not bear the company seals and are merely stamped with a rubber
stamp. The letterhead on which the
alleged board resolution for GE India dated 17 December 2012 is printed also
has a blurred and obscured GE logo.
Prima facie it appears that the documents placed on record
by AZB purporting to reproduce copies of the alleged board resolutions dated 7
May 2012 and 17 December 2012 issued by GE India and GE Global Sourcing India
are forged and unauthentic documents.
Another unusual aspect about the two board resolutions dated
17 December 2012 is that both were apparently passed by circulation on 17
December 2012 and the vakalatnamas signed pursuant thereto are also dated 17
December 2012 and the affidavit that places these board resolutions on the
court record was signed, verified and filed also on 17 December 2012.
The issue before the court is do the two board resolutions
dated 17 December 2012 constitute powers of attorney appointing K R
Radhakrishnan as the duly constituted attorney for respondents 6 and 7, i.e.,
for GE India and for GE Global Sourcing India.
The Powers of Attorney Act, 1882 defines a power of attorney
as “any instrument empowering a specified person to act for and in the name of
the person executing it.”
A Power of Attorney therefore is a written legal instrument
executed by the person devolving the power of attorney on another “specified
person” and thereby empowering the specified person to act for and in the name
of the person executing the instrument.
Section 46 of the Companies Act provides:
“Form of contracts
(1) Contracts on behalf of a company may be made as
follows:—
(a) a contract which, if made between private persons, would
by law be required to be in writing signed by the parties to be charged
therewith, may be made on behalf of the company in writing signed by any person
acting under its authority, express or implied, and may in the same manner be
varied or discharged;
(b) a contract which, if made between private persons, would
by law be valid although made by parole only and not reduced into writing, may
be made by parole on behalf of the company by any person acting under its
authority, express or implied, and may in the same manner be varied or
discharged.
(2) A contract made according to this section shall bind the
company.”
A power of attorney on behalf of a company would therefore
fall within Clause 1(a) of Section 46 of the Companies Act and is required to be
in writing and executed/ signed on behalf of the company by a person acting
under the authority of the company.
Section 48 of the Companies Act provides:
“Execution of Deeds
(1) A company may, by writing under its common seal, empower
any person, either generally or in respect of any specified matters, as its
attorney, to execute deeds on its behalf in any place either in or outside India .
(2) A deed signed by such an attorney on behalf of the
company and under his seal where sealing is required, shall bind the company
and have the same effect as if it were under its common seal.”
Under Indian law, a power of attorney executed on behalf of
a company must be a written instrument signed by an authorized signatory for
and on behalf of the company.
Admittedly, the powers of attorney envisaged under the board
resolutions dated 7 May 2012 in favour of K R Radhakrishnan were never
executed.
The new alleged board resolutions dated 17 December 2012
placed on record by AZB purport to directly appoint K R Radhakrishnan as the
attorney of GE India and GE Global Sourcing India without the execution of
written powers of attorney in favour of Radhakrishnan signed by an authorized
signatory of these companies. This is not permissible under Indian law.
The documents described as copies of the board resolutions
dated 17 December 2012 placed on record with Radhakrishnan’s affidavit dated 17
December 2012 cannot and do not in law appoint K R Radhakrishnan as the
attorney for these companies.
A board resolution of a company is not a written instrument/
contract executed on behalf of the company. Board resolutions by themselves
cannot appoint someone as an attorney of the company as this can only be done
through a written instrument duly executed on behalf of the company by an
authorized signatory signing such an instrument in the name of, for and on
behalf of the company. This has admittedly not been done in the present case.
K R Radhakrishnan is therefore not a duly constituted
attorney for GE India or for GE Global Sourcing India.
It is pointed out that the board resolutions dated 7 May
2012 and 17 December 2012 omit to mention/ specify the number or cause title or
any identifying feature or the nature/ character/ subject matter of the writ
petition.
The fact of this fraud being committed on the Delhi High
Court is further confirmed by a strange provision in the board resolutions
dated 7 May 2012 and 17 December 2012. All these board resolutions provide that
the powers conferred “shall not be prejudiced, determined or otherwise affected
by the fact of the Company acting either directly or through another agent or
attorney in respect of all or any of the purposes herein contained”.
This clause therefore raises the likelihood that the
“unauthorized” instructions being sent to K R Radhakrishnan and/ or to AZB are
not being sent directly from GE India or from GE Global Sourcing India but via
other intermediaries/ agents/ attorneys. Multiple layers of separation between the
companies (and their legal officers) and these court proceedings are being
maintained.
The vakalatnamas dated 17 December 2012 purportedly signed by
him in favour of AZB on behalf of GE India and GE Global Sourcing India are
therefore unauthorized and invalid.
The several affidavits signed and filed in this matter by K
R Radhakrishnan on behalf of GE India and GE Global Sourcing India are also
unauthorized as well as being false and perjurious.
AZB has continued to appear for GE India and GE Global
Sourcing India in court in this matter without authority on subsequent dates
including on 12, 19, 20 and 21 December 2012; on 7, 14, 16, 23, and 24 January
2013; on 4, 15 and 27 February 2013; on 18 March 2013; on 1, 11, 12, 18, 22 and
29 April, 2013; on 1, 3, 16, 22 and 31 May 2013.
Though the petitioner has raised this issue before the court
on several dates and in subsequent applications, the Bench has so far failed to
even take up this issue for hearing, arguments and decision.
Given that K R Radhakrishnan and AZB are not authorized to
represent General Electric Company or its two Indian subsidiaries, GE India
Industrial Private Limited or GE Global Sourcing India Private Limited, no
affidavit or application filed by AZB in this matter on behalf of respondents
1, 6 and 7 should be considered or heard by the court until the court hears and
decides the issues raised herein regarding the lack of authority in K R
Radhakrishnan and AZB to represent these respondents.
On 17 July, 2013, the petitioner applied to inspect the
court file. The file was first not made available to her and her application
was returned with an invalid objection. The petitioner complained to the
Registrar General of the Delhi High Court and upon her intervention, the
petitioner was finally able to inspect the court file.
AZB has filed three fresh vakalatnamas on 16 July 2013 which
have been placed in the “B” folder of the court file. These three vakalatnamas
are also signed by K R Radhakrishnan. The fresh vakalatnamas dated 16 July 2013
for GE India and GE Global Sourcing India rely upon the alleged board
resolutions dated 17 December 2012. As already dealt with above, these alleged
board resolutions dated 17 December 2012 do not constitute Radhakrishnan as the
constituted attorney for GE India and GE Global Sourcing India and do not
confer upon him any authority to execute vakalatnamas for GE India and for GE
Global Sourcing India.
The fresh vakalatnamas dated 16 July 2013 filed by AZB in
this matter for respondents 6 and 7 (GE India and GE Global Sourcing India) are
therefore invalid and do not confer any authority on AZB to represent these
respondents in this writ petition.
The fresh vakalatnama filed by AZB on 16 July 2013 for
General Electric Company (respondent 1) produces a new power of attorney
allegedly executed on 29 April 2013 by Mr Bradford Berenson on behalf of
General Electric Company and apostilled in the United States on 10 May 2013. I
have read this new POA dated 29 April 2013 signed by Bradford Berenson and its
provisions/ clauses are identical to those in the earlier POA dated 4 May 2012
signed by Alexander Dimitrief.
Mr Bradford Berenson was appointed as the Operational
Officer for Litigation & Legal Policy for General Electric Company on 15
October 2012.
As Operational Officer for General Electric Company for
litigation, Mr Bradford Berenson’s authority under the Board Resolution of
General Electric Company would be subject to the same limitations as have been
elaborated upon hereinabove in the context of the authority of Mr Alexander
Dimitrief and Mr Brackett Denniston.
The POA dated 29 April 2013 allegedly executed by Bradford
Berenson purportedly does the following:
It purports to delegate to K R Radhakrishnan the authority
to execute vakalatnamas or powers of attorney on behalf of General Electric
Company.
It purports to delegate to K R Radhakrishnan the authority
to execute court pleadings on behalf of General Electric Company.
It purports to delegate to K R Radhakrishnan the authority
to give undertakings, representations, confirmations, consents and statements
of responsibility in the name of and on behalf of General Electric Company.
It purports to authorize K R Radhakrishnan to accept service
of summons and notices from a Court on behalf of General Electric Company.
Under the original document (the Board Resolution)
conferring authority on him, Bradford Berenson did not/ does not have the
authority to delegate to any person the authority to execute vakalatnamas or
powers of attorney on behalf of General Electric Company; or the authority to
execute court pleadings on behalf of General Electric Company; or the authority
to give undertakings, representations, confirmations, consents and statements
of responsibility in the name and on behalf of General Electric Company.
Therefore Bradford Berenson could not have delegated/ can
not delegate to K R Radhakrishnan (or to any other person) the authority to
execute vakalatnamas or powers of attorney on behalf of General Electric
Company; or the authority to execute court pleadings on behalf of General
Electric Company; or the authority to give undertakings, representations,
confirmations, consents and statements of responsibility in the name and on
behalf of General Electric Company.
The POA dated 29 April 2013 allegedly executed by Bradford
Berenson on behalf of General Electric Company is in excess of the authority
vested in Bradford Berenson under the Board Resolution and is therefore
illegal, unauthorised and invalid and it can confer no authority on K R
Radhakrishnan.
K R Radhakrishnan is therefore still not an authorised
signatory of General Electric Company despite the new alleged POA dated 29
April 2013 signed by Bradford Berenson. The new vakalatnama executed by Radhakrishnan
on 16 July 2013 appointing AZB to represent General Electric Company is also invalid.
Bradford Berenson also cannot ratify the vakalatnamas and
affidavits purportedly signed by Radhakrishnan on behalf of General Electric
Company. This is because the purported delegation of authority by Bradford
Berenson on Radhakrishnan to execute powers of attorney and/ or court pleadings
on behalf of General Electric Company is ultra vires the Board Resolution of
General Electric Company which is the constitutional document and source of all
authority to execute documents/ instruments on behalf of General Electric
Company.
Just like Alexander Dimitrief, Bradford Berenson is under
the terms of Paragraph A of the Board Resolution, only authorized to himself
execute on behalf of General Electric Company the instruments of the type
described in Paragraph A. The Board Resolution does not authorize Bradford
Berenson to further delegate this authority to other persons.
It is pointed out that the POA dated 29 April 2013 also omits
to mention/ specify the number or cause title or any identifying feature or the
nature/ character/ subject matter of the writ petition.
This alleged POA dated 29 April 2013 signed by Bradford
Berenson also provides that the powers conferred by the POA “shall not be
prejudiced, determined or otherwise affected by the fact of the Grantor acting
either directly or through another agent or attorney in respect of all or any
of the purposes herein contained”.
This clause in the POA dated 29 April 2013 therefore further
supports the likelihood that the “unauthorized” instructions being sent to K R
Radhakrishnan and/ or to AZB are not being sent directly from General Electric
Company but via other intermediaries/ agents/ attorneys. Multiple layers of
separation between General Electric Company (and its legal officers) and these
court proceedings are being maintained.
The issue is very simple. The POA dated May 4, 2012 (signed
by Alexander Dimitrief) and the new POA dated 29 April 2013 (signed by Bradford
Berenson) through which K R Radhakrishnan and AZB & Partners claim to
represent General Electric Company in these writ proceedings are both illegal
and invalid because such POAs could not have been executed by Alexander
Dimitrief or by Bradford Berenson under the Board Resolution through which
Alexander Dimitrief and Bradford Berenson claim their authority.
K R Radhakrishnan cannot therefore act for and represent
General Electric Company in these writ proceedings and AZB & Partners
cannot appear for General Electric Company as the vakalatnamas (dated 7
December 2012, 17 December 2012, and 16 July 2013) in their favor signed by K R
Radhakrishnan are invalid.
It is basic and settled law that no person can claim to
represent a legal entity like a company in court proceedings without being duly
authorised in accordance with law and without producing such duly executed
authority documents. It is also basic and settled law that no lawyer can
represent a party in court proceedings without placing on record a vakalatnama
duly executed by such party authorising the lawyer to represent it.
The Court has no discretion to allow a company to be
represented in court proceedings by an individual who has failed to produce
valid and sufficient authority documents and has failed to establish his
authority to represent the company. The
Court has no discretion to permit a lawyer to represent a party in the absence
of a duly executed and valid vakalatnama.
This application is being made in the interest of justice.
The petitioner has filed an application in this matter
(CM 6096/ 2013 ) for recusal by the
Bench of Justice Gita Mittal and Justice Deepa Sharma. This application is pending
hearing after being listed before court on 16 May, 2013. The petitioner is
vehemently pressing for immediate recusal by both Justice Gita Mittal and
Justice Deepa Sharma. The present application is being filed without prejudice
to this pending request for recusal. The present application is being filed at
this time because of the grave urgency in this matter arising from the existing
threat to the petitioner-whistleblower’s life, who is presently in danger, and
sleeping in her car parked on public streets without any protection since 27
February, 2013. The petitioner once again requests Justice Gita Mittal and
Justice Deepa Sharma to immediately recuse themselves from this matter so that
it can be heard by another Bench.
This application is necessary to help protect the petitioner
as it will help prevent the ongoing attempted cover-up of the petitioner’s
corruption complaints and the ongoing attempted collusive subversion of these
writ proceedings and the ongoing attempted elimination of the petitioner-whistleblower.
It is submitted that the proper conduct for the court will
be to immediately recuse itself from this matter as prayed for in CM 6096/ 2013
and request the Chief Justice of the Delhi High Court to post this application before
another Bench. These orders are necessary in the interest of justice in this
matter.
PRAYER
It is therefore most respectfully prayed that this Hon’ble Court may
be pleased to:
Recall its directions to Nanju Ganapathy on 18 July 2013 to
assist the court by filing a list of pending applications and the “prayers” in
the writ petition;
Declare that Mr Nanju Ganpathy/ AZB & Partners cannot
appear in Civil Writ Petition 1280 of 2012 on behalf of respondents 1, 6 and 7
as the vakalatnamas filed by them on December 7, 2012 and refiled on December
11, 2012 and the vakalatnamas filed by
them on December 17, 2012 and the vakalatnamas filed by them on 16 July 2013 are
all defective and invalid and declare that Mr Nanju Ganpathy/ AZB &
Partners have no authority to represent respondents 1, 6 and 7 in these
proceedings;
Immediately prohibit appearance by Mr Nanju Ganpathy and AZB
& Partners on behalf of respondents 1, 6 and 7 in Civil Writ Petition 1280
of 2012 on the ground that vakalatnamas and authority documents placed on
record by AZB on behalf of respondents 1, 6 and 7 are defective and invalid;
Issue notice of criminal contempt of court to Mr Brackett
Denniston, Mr Alexander Dimitrief, Ms Zia Mody, Mr Nanju Ganpathy, Mr Manpreet
Lamba, Mr Kartik Yadav, Mr Deepak Adlakha, Mr Abhishek Tiwari and Mr K R
Radhakrishnan for committing a fraud on
this court by falsely claiming that K R Radhakrishnan and AZB & Partners/
Nanju Ganpathy represent respondents 1, 6 and 7 and for aiding and abetting
perjury by enabling the filing of false affidavits by Mr K R Radhakrishnan in
Civil Writ Petition 1280 of 2012 with intent to subvert and sabotage the
present writ petition;
Issue direct notice on the writ petition once again to
respondents 1, 6 and 7 by dasti email and directing these respondents to appear
in this matter through properly authorised counsel/advocates;
Direct the court registry to return the defective
vakalatnamas filed on December 7, 2012 and refiled on December 11, 2012 and to
also return the defective vakalatnamas filed on December 17, 2012 and July 16,
2013 by Nanju Ganpathy/ AZB & Partners in compliance with the Supreme
Court’s decision in Uday Shankar Triyar v. Ram Kalewar Prasad Singh [(2006) 1
SCC 75];
Clarify that notice on the writ petition to respondents 8,
9, 10 and 11 as issued by this court on November 19, 2012, can be served dasti by
email and courier only and not by all permissible modes of service;
Direct AZB & Partners, Nanju Ganapathy, and K R
Radhakrishnan to produce the original records of the minutes of the board
meetings/ resolutions of respondents 6 and 7 for the board resolutions dated 7
May 2012 and 17 December 2012, allegedly issued by respondents 5 and 6;
Pass such other and further orders as this Hon’ble Court may
deem fit and proper.
Place: New Delhi
Petitioner
in Person
July 19, 2013 Seema
Sapra
Rendered homeless since May 30, 2012 as a result of
corruption complaints against General Electric and as a result of the
whistleblower corruption petition (W.P. (C ) 1280/ 2012) and presently homeless
and sleeping in her car since 27 February 2013
In the Hon’ble High Court of Delhi
at New Delhi
Civil Writ Jurisdiction
C. M. Appl. No.
of 2013
In
Writ Petition No. 1280 of 2012
IN THE MATTER OF:
Seema Sapra …Petitioner
versus
General Electric Co. and Others ….Respondents
AFFIDAVIT
I, Seema Sapra, daughter of Late Shri A. R. Sapra, aged 41
years, previously resident of G 4, first floor, Jangpura Extension, New Delhi
110014 and rendered homeless on 30 May 2012 (because of and as a result of the
whistleblower complaints of corruption, forgery, bribery, fraud and illegal
activities made against General Electric, Montek Singh Ahluwalia, Planning
Commission, Railway Ministry and Ministry of Finance and as a result of the
whistleblower corruption petition (W.P. (C ) 1280/ 2012) and because of my
complaints of sexual harassment against Mr Soli J Sorabjee and Mr Raian
Karanjawala) in contempt of this Hon’ble Court’s order dated May 25, 2012 and
presently homeless and sleeping in my car since 27 February 2013 (except for a
period of two weeks in June 2013) do hereby solemnly affirm and state as under:
1. I am the Petitioner in the present Petition and am well
aware of the facts of the case and am competent to file the present affidavit.
2. I state that the accompanying application under Section
151, Civil Procedure Code seeking directions from the court regarding the
legal/ court representation of respondents 1, 6 and 7 in this matter (along
with affidavit) has been drafted by me and the facts stated therein are true
and correct to my knowledge and nothing material has been concealed there-from.
DEPONENT
VERIFICATION
Verified at New
Delhi on this 19th day of July 2013, that the contents
of the above affidavit are true and correct to my knowledge and that nothing
material has been concealed therefrom.
DEPONENT
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