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2016 DIGILAW 640 (KAR)

Amit Roy v. Jyothendra Sinhji Vikramsinhji

2016-08-22

ASHOK B.HINCHIGERI

body2016
ORDER : Ashok B. Hinchigeri, J. The petitioner-defendant has called into question the order dated 28-6-2016 (Annexure-A) passed by the Court of the XXXI Additional City Civil and Sessions judge, Bengaluru City (CCH-14) on I.A. No. 47 in O.S. No. 1963 of 2002. In the suit for recovery of possession and damages filed by the respondent-plaintiff, the petitioner filed I.A. No. 47 invoking Section 151 of Civil Procedure Code, 1908 read with Section 85 of the Indian Evidence Act, 1872 ('the said Act' for short) for rejecting the general power of attorney dated 3-6-2.015. The Trial Court dismissed it imposing the cost of Rs. 10,000/-. 2. Sri Pradeep Singh, the learned Counsel for the petitioner submits the that said general power of attorney document is not authenticated and executed as per Section 85 of the said Act. He read out the provisions contained in Section 85 of the said Act. It is extracted herein below: "85. Presumption as to powers-of-attorney.-The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated." 3. The general power of attorney document (Annexure-K) shows that it was executed before G.H. Jadeja, Notary, Government of Gujarat. He submits that as per the Certificate of Practise (Annexure-N) issued by the Government of Gujarat, he can perform his notarial acts throughout Kotdasangani Taluka of Rajkot District. The general power of attorney document (Annexure-K) shows that it was executed at Gondal. Gondal is not a part of Kotdasangani Taluk and therefore the said Notary Public, G.H. Jadeja does not have the power to notarise the documents executed at the said place, namely, Gondal. For want of jurisdiction, it cannot be held the that said documents is executed before the Notary Public. 4. He submits the that new power of attorney dated 3-6-2015 is barred by limitation; its production cannot have the effect of ratifying the power of attorney stated to have been executed in 2000 or the act done by him in his capacity as the general power of attorney holder under the said document. 4. He submits the that new power of attorney dated 3-6-2015 is barred by limitation; its production cannot have the effect of ratifying the power of attorney stated to have been executed in 2000 or the act done by him in his capacity as the general power of attorney holder under the said document. He also relied on Rule 8(4) of the Notaries Rules, 1956 ('the said Rules' for short) for advancing the submission that he can practise only in the area in respect of which he has made the application or in such part thereof as the Government specifies. 5. He submits the that Notary Public is mandatorily required to maintain a Notarial Register in the prescribed Form XV of the Schedule as per Rule 11(2) of the said Rules. He submits that his requisition for the issuance of the said register is not acceded to by the said Notary Public. He submits that if the Notarial Register were only to be issued, it would have made the things clear as to whether the general power of attorney document in question was indeed executed before him. He submits the that fraud is being played by respondent. 6. The learned Counsel relies on the Division Bench decision of Lahore High Court in the case of Punjab Zamindars Bank Limited, Lyallpur v. Madan Mohan Singh and Others, AIR 1936 Lahore 321 (DB), wherein it is held that where the act of an agent is ratified by the principal but the ratification is made after the expiry of the period of limitation, the ratification has no effect. 7. He submits the that Delhi High Court in the case of Rajesh Wadhwa v. Dr. Sushma Govil, AIR 1989 Del. 144 , has no doubt held the that first power of attorney, which was not duly authenticated by the Notary, gets validated by a second power of attorney; but it is good law where the point of limitation is not involved. 8. He relies on the Kerala High Court's decision in the case of Abdul Kadir v. Regional Passport Officer, (2005) 1 BC 69, wherein it is held the that Notary is authorised to practise in a given area. He cannot establish his office or place of practise outside the specified area. He cannot function as a mobile unit outside the authorised area. He cannot establish his office or place of practise outside the specified area. He cannot function as a mobile unit outside the authorised area. However, the clients are free to go to any Notary of their choice. The position of law as interpreted by the Kerala High Court, if applied to the factual matrix of this case, it becomes clear the that respondent can take the document for notarisation to the place of practise of the Notary G.H. Jadeja. But the Notary G.H. Jadeja cannot step out of his place of practise by going from Kotdasangani to Gondal. He submits that this aspect of the matter assumes the significance, as the general power of attorney document shows that it is executed at Gondal. 9. Relying on the decision of the High Court of Bombay in the case of H.K. Taneja v. Bipin Ganatra, LAWS (BOM) 2008-12-134, he would contend that a document cannot be considered for the admission in evidence, unless the Notary has maintained the Notarial Register and assigns the serial number to each notarised document. 10. The learned Counsel read out paragraphs 51 and 52 from this Court's decision in the case of State of Karnataka and Others v. M. Muniraju, ILR 2002 Kar. 2923. They are extracted herein below: "51. The contention regarding the original authority given by the plaintiffs for institution of the suits and subsequently the same were ratified by executing separate GPA in favour of P.W. 1 as per Exs. P. 21 and P. 46, is untenable as the General Power of Attorney holder had no power or authority to institute the said suits against the defendants. In view of the law laid down by the various High Courts and Privy Council referred to supra, by virtue of the alleged ratification of the earlier power of attorneys produced as document 1, dated 24-1-1991 and 20-2-1991 respectively, the agent cannot be deemed to taken the authority on behalf of the principal for prosecution of the cases by producing originals subsequently which bear altogether different dates. 52. For the reasons stated supra, the latter portion of the substantial question of law with regard to the authority of the General Power of Attorney holder for instituting and prosecuting the cases on behalf of the plaintiffs requires to be answered against the plaintiffs and in favour of the defendants holding the that GPA holder Mr. 52. For the reasons stated supra, the latter portion of the substantial question of law with regard to the authority of the General Power of Attorney holder for instituting and prosecuting the cases on behalf of the plaintiffs requires to be answered against the plaintiffs and in favour of the defendants holding the that GPA holder Mr. Gulzar Khan-P.W. 1 had no authority to institute the above two suits. Hence, the suits on this count are also liable to be dismissed." 11. He submits the that Division Bench's decision of Kerala High Court in the case of P.V. Satheesh, Alleppey v. E.M. Thomas, Ernakulam and Others, AIR 2005 Ker. 57 (DB) does not come to the rescue of the petitioner in any way. Because in the said reported case it is held that Notary is authorised to practise only in the given area. The Notary may notarise any document brought from other areas to him in his area but he cannot step out of his area to do his notarising work. 12. He has also relied on the Apex Court's judgment in the case of Jugraj Singh and Another v. Jaswant Singh and Others, AIR 1971 SC 761 . Paragraph 7 read out by him is as follows: "7. The short question in this case is whether Mr. Chawla possessed such a power of attorney for executing the document and for presentation of it for registration. Now, if we were to take into account the first power of attorney which was executed in his favour on May 30, 1963, we would be forced to say that it did not comply with the requirements of the law and was ineffective to clothe Mr. Chawla with the authority to execute the sale deed or to present, it for registration. That power of attorney was not authenticated as required by Section 33 of the Registration Act, 1908 which in the case of an Indian residing abroad, requires the that document should be authenticated by a Notary Public. The document only bore the signature of a witness without anything to show that he was a Notary Public. In any event there was no authentication by the Notary Public (if he was one) in the manner which the law would consider adequate. The document only bore the signature of a witness without anything to show that he was a Notary Public. In any event there was no authentication by the Notary Public (if he was one) in the manner which the law would consider adequate. The second power of attorney however does show that it was executed before a proper Notary Public who complied with the laws of California and authenticated the document as required by that law. We are satisfied that power of attorney is also duly authenticated in accordance with our laws. The only complaint is the that Notary Public did not say in his endorsement that Mr. Chawla had been identified to his satisfaction. But that flows from the fact that he endorsed on the document that it had been subscribed and sworn before him. There is a presumption of regularity of official acts and we are satisfied that he must have satisfied himself in the discharge of his duties the that person who was executing it was the proper person. This makes the second power of attorney valid and effective both under Section 85 of the Indian Evidence Act and Section 33 of the Registration Act." 13. The learned Counsel also brings to my notice this Court's decision in the case of V.R. Kamath v. Divisional Controller, Karnataka State Road Transport Corporation and Others, AIR 1997 Kant. 275 for advancing the submission the that Notary has to enter the particulars in the Register and the affidavit should contain the serial number mentioned in the Register and also the place of attestation. The affidavits which do not contain these particulars are defective and hence cannot be relied upon. 14. Sri Gowrishankar, learned Counsel for the respondent submits the that decision of Kerala High Court's Division Bench in P.V. Satheesh (supra) makes it very clear the that Notary is entitled to notarise any document brought to him from any place either within the specified area or beyond that area or even beyond the country itself. 15. He also relies on the Hon'ble Supreme Court's decision in the case of jugraj Singh (supra) for advancing the submission the that subsequent ratification relates back to the original act itself. 15. He also relies on the Hon'ble Supreme Court's decision in the case of jugraj Singh (supra) for advancing the submission the that subsequent ratification relates back to the original act itself. He read out the following portions from the said decision: "The only question is whether the second power of attorney was effective to render valid the transaction of sale and the registration of the document both earlier than the power of attorney. In our judgment, it would be so. Mr. Hardev Singh does not read into this matter the fact of ratification by Vernon Seth Chotia of his earlier power of attorney. The second power of attorney states in express terms the that first power of attorney was defective and was being ratified. Vernon Seth Chotia also stated in the second power of attorney the that act of Mr. Chawla would be his act which included not only the making of the document but also the presentation of that document. Now the law is quite clear that ratification relates back to the original act provided there is a disclosed principal and this has been stated nowhere better than by Lord Macnaughton in Keighley Maxsted and Company v. Durant, 1901 AC 241 at pp. 246, 247, quoting Tindal, C.J. in Wilson v. Tumman, (1843) 6 M and G 236 at p. 242." 16. He submits the that power of attorney document is not a compulsorily not arisable or registerable document. Appointment of the agency by the principal is covered by Chapter X of the said Act. For making this submission, he relies on the Apex Court's judgment in the case of TMT Kasthuri Radhakrishnan and Others v. M. Chinniyan and Another, (2016) 43 SCD 283, in Civil Appeal No. 5158 of 2009, dated 28-1-2016. 17. He submits that with or without the filing of the subsequently ratified power of attorney, the suit is maintainable. He brings to my notice, this Court's decision in the case of M. Madhava v. The Jayalakshmi Bank Limited and Another, 1967 (2) Mys. L.J. 82, wherein the contention of the defendant the that suit is not maintainable for the reason the that power of attorney document has not accompanied the plaint, is negatived. 18. He submits that Section 196 of the Contract Act, 1872 does not prescribe any limitation for ratifying the power of attorney arrangement. L.J. 82, wherein the contention of the defendant the that suit is not maintainable for the reason the that power of attorney document has not accompanied the plaint, is negatived. 18. He submits that Section 196 of the Contract Act, 1872 does not prescribe any limitation for ratifying the power of attorney arrangement. He submits that under Section 197 of the Contract Act, the ratification may be either express or implied. 19. He submits that under Section 85 of the Evidence Act, the Court has to ensure that every power of attorney document executed before and authenticated by the Notary is so executed and authenticated. He also submits the that Limitation Act, 1963 also does not prescribe anytime for ratification of an act in respect of the document. 20. The submissions of the learned Counsel have received my thoughtful consideration. The question that falls for my consideration is whether the Trial Court is justified in dismissing the petitioner's LA. No. 47. The said I.A. was filed to reject the marking of the general power of attorney dated 3-6-2015 on the grounds that it is not executed and authenticated, as per Section 85 of the Evidence Act and the that ratification of the earlier power of attorney, dated 7-6-2000 is barred under the Limitation Act. Chapter X of the Contract Act, 1872 ('the said Act' for short) deals with the appointment and authority of agents. Section 186 of the said Act states the that authority of an agent may be express or implied. Section 187 of the said Act defines the terms 'express' as an authority said to be express when it is given by words spoken or written. An authority is said to be 'implied' when it is inferred from the circumstances of the case; the things spoken or written, or in the ordinary course of dealing, may be accounted circumstances of the case. 21. Section 196 of the Contract Act provides for the ratification of the acts done by one person on behalf of the other. If the principal ratifies the agent's acts, the same effect will follow as if they had been performed by his authority. Section 197 of the Contract Act states the that ratification maybe expressed or may be implied in the conduct of the person on whose behalf the acts are done. 22. If the principal ratifies the agent's acts, the same effect will follow as if they had been performed by his authority. Section 197 of the Contract Act states the that ratification maybe expressed or may be implied in the conduct of the person on whose behalf the acts are done. 22. Such being the scheme of Chapter X of the said Act, there is nothing to indicate the that power of attorney document has to be compulsorily notarised or registered. If the power of attorney documents were to contain the clause enabling the agent to sell the principal's property, it is then that it becomes a compulsorily registerable document. 23. As observed by the Apex Court in the case of TMT Kasthuri (supra), the grant of power of attorney is essentially governed by Chapter X of Contract Act. A power of attorney holder or the agent derives the right to use the principal's name and perform certain acts, deeds and things on behalf of the principal, subject of course, to the limitations contained in the said deed; the same shall be treated as if they are done by the principal. A power of attorney is a document of convenience. If the power of attorney is notarised, the presumption is raised in favour of its execution. But it cannot be contended with any rate of success that if the power of attorney document is not notarised, it is not executed at all. In the instant case, the respondent-plaintiff appeared before the Trial Court and stated that he executed the previous power of attorney (of the year 2000) in favour of Vallabhai Radhanapura and that recently, on 3-6-2015, he executed another general power of attorney in favour of said Vallabhai Radhanapura. I meets the requirements of Section 197 of the said Act. 24. If the petitioner-defendant proposes to dispute the genuineness and authenticity of power of attorney documents, it shall be open to him to do so in the course of his evidence. On the ground of lack of territorial jurisdiction or of the not mentioning of the serial number of the Notarial Register on the document, I am not persuaded to reject the marking of the general power of attorney document dated 3-6-2015. What evidentiary value can be attached to the said document is for the Trial Court to decide on hearing both the sides. 25. What evidentiary value can be attached to the said document is for the Trial Court to decide on hearing both the sides. 25. On the ground of limitation also, the marking of the power of attorney document cannot be rejected. Section 196 of the said Act itself does not prescribe any limitation or time frame within which the principal has to ratify the agent's acts. What is the effect of the allegedly belated production of a document can be shown in the course of evidence and argumentation. 26. As held by this Court in the case of M. Madhava (supra), the non-filing of the power of attorney of the authorised agent of the plaintiff along with the plaint does not render the suit non-maintainable. 27. Thus, viewed from any angle, the Trial Court cannot be found fault with for passing the impugned order dismissing I.A. No. 47. I therefore dismiss this petition. 28. However, it is made clear the that Trial Court shall examine what evidentiary value can be attached to power of attorney document dated 3-6-2015 without being influenced by and independently of the reasons given herein above, which are for the purpose of disposing of this petition. No order as to costs.