“Power Of Attorney” Holder Can Not Depose In Respect To The Matters In Which The Principal Alone Has Personal Knowledge: SC
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Hon’ble Court of Justice |
SUPREME COURT OF INDIA |
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JURISDICTION |
CIVIL APPELLATE |
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Reference |
CIVIL APPEAL NO.2869 , 2870 OF 2010 |
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Appellant (s) |
MOHINDER KAUR |
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Respondent (s) |
SANT PAUL SINGH |
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Bench |
HON'BLE MR. JUSTICE NAVIN SINHA, HON'BLE MR. JUSTICE SANJIV KHANNA |
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Judgement By |
HON'BLE MR. JUSTICE NAVIN SINHA |
Abstract
This landmark
judgment ordered by Honorable Supreme Court of India, in year 2010, provides a
guiding light to the validity &
extent of judicial recognition of holder of Power of Attorney to dispose in
matters, which originally belong to a principal (the primary person or party
who has the complete knowledge & bearing of the matter).
This judgment emphasizes that the execution of “Power
of Attorney” by a person and its specific performance is limited in nature for
the holder of the power of attorney.
The relief of
specific performance of any statement being discretionary in nature, the
litigant can’t be provided any relief basis the Power of Attorney clauses.
The honorable court has referenced several previous cases related to frivolous objections, failure to perform obligations mentioned in power of attorney.
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Previous Judgement References: |
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·
Janki
Vashdeo (supra), it was held that a power of attorney holder, who has acted
in pursuance of the said power, may depose on behalf of the principal in
respect of such acts but cannot depose for the principal for the acts done by
the principal ·
Likewise,
the power of attorney holder cannot depose for the principal in respect of matters
of which the principal alone can have personal knowledge and in respect of
which the principal is entitled to be cross examined |
In the Context of Present Case --
1)
The defendant filed an appeal
aggrieved by the findings decreeing the suit for specific performance filed by
respondent. .
2)
In the present case, :
a.
Scenario & Sequence of Events:
i.
An agreement of sale of a house
was executed between parties for a total sum of 1.5 Lac Indian Rupees, and
while execution of the agreement, a sum of 15000/- Indian rupees were paid.
ii.
The property was mortgaged to
education department, therefore the parties executed a further agreement that
the sale deed would be executed within 15 days of the defendant obtaining release of property from mortgage, giving due
intimation to plaintiff.
iii.
A further sum of 53000/- &
2000/- was paid to defendant.
iv.
As per agreement, after
redemption of mortgage, the appellant informed the respondent. To this, the
respondent disputed the redemption and asked for proof of the same.
v.
The appellant after due notice,
cancelled the sale agreement.
vi.
Also the appellant forfeited
the earnest money.
vii.
The plaintiff then filed a suit
seeking specific performance of the agreement by defendant.
viii.
The suit was decreed and the appeal preferred
by the defendant was also dismissed.
ix. The second appeal of the defendant was also dismissed and the present appeal was now being considered, for which the current judgment was passed.
b. Action 1: Sri Neeraj Kr Jain, learned senior counsel appearing for the appellant, submitted that the intimation was given to the respondent after redemption of mortgage – which was an essential element in the agreement. The respondent raised frivolous objection, and did not take the steps for execution of sale deed.
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Relying / Referencing the suits : ·
I.S.
Sikandar (D) by L.Rs. vs. K. Subramani and Ors., (2013) 15 SCC 27, it was
submitted that the suit for specific performance simpliciter was not
maintainable in absence of any challenge to the cancellation of the
agreement, and seeking consequential declaratory relief. PW1 was a power of
attorney holder from the respondent by execution on 02.11.1989. She was not
competent to depose with regard to events prior to the same, especially with
regard to facts personal to the knowledge of the respondent. ·
Janki
Vashdeo Bhojwani and Ors. vs. IndusInd Bank Ltd. and Ors., (2005) 2 SCC 217. Mere
bald assertions in the plaint were not sufficient, in absence of any evidence
to establish readiness and willingness. ·
Vijay
Kumar and Ors. Vs. Om Parkash, 2018 (15) SCALE 65. |
c.
Action 2: Sri Vineet
Bhagat, learned counsel for the respondent submitted that the appellant did not
give proper intimation regarding the redemption of mortgage of the suit
property. As per counsel claim, the respondent was always ready and willing to
perform the obligations under agreement, but was hindered by the conduct of
appellant in not placing the correct information in accordance with the
agreement.
Present Suit Consideration –
1) (Considering the Submissions on Behalf of Both the Parties)
i.
Undisputed that the suit
property stood redeemed from mortgage
ii.
Appellant sent due
intimation by registered post to respondent and provided photocopy of the
release deed
iii.
Required respondent to take
steps for sale execution
iv. Respondent reply sought no dues certificate denying receipt of release deed.
v. The respondent then gave the power of attorney to PW1
2)
In the
Charge :
a)
PW the witness was
naturally unaware of the preceding events and denied receipt of notice
b)
The witness was
therefore incompetent to deny receipt of photocopy of release document by
respondent.
c)
It was for the
respondent to establish his readiness and willingness for execution of
agreement and proving his capacity to pay the balance consideration amount.
d)
Except for the solitary
statement in the plaint no evidence whatsoever was led on behalf of the
respondent with regard to the same, if PW1 was competent to depose with regard
to the same because these were facts which had to be personal to the knowledge
of the respondent alone. Had the witness even led any documentary evidence on
behalf of the respondent, in support of the plea for readiness and willingness
on part of the respondent, different considerations may have arisen. The
witness also sought to deny any knowledge regarding the cancellation of the agreement
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·
The
failure of the respondent to appear in the witness box can well be considered
to raise an adverse presumption against him as further observed therein as follows
: As
could be seen from the prayer sought for in the original suit, the Plaintiff
has not sought for declaratory relief to declare the termination of Agreement
of Sale as bad in law. ·
In
the absence of such prayer by the Plaintiff the original suit filed by him
before the trial court for grant of decree for specific performance in
respect of the suit schedule property on the basis of Agreement of Sale and consequential
relief of decree for permanent injunction is not maintainable in law. |
Conclusion
The apex court concluded the
following (as summary):
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We again reiterate that unless
there are clear-cut allegations of misconduct, that merely because the respondent may not
have been satisfied by the intimation given by the appellant regarding release
of the property from mortgage, it cannot be construed as readiness and
willingness on part of the respondent and his capacity to perform his
obligations under the agreement,