“Power Of Attorney” Holder Can Not Depose In Respect To The Matters In Which The Principal Alone Has Personal Knowledge: SC

Hon’ble Court of Justice





CIVIL APPEAL NO.2869 , 2870 OF 2010

Appellant (s)


Respondent (s)





Judgement By




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.

Previous Judgement References:

·         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. 

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 

·         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.



The apex court concluded the following (as summary):

·         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,    

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