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Azam Khao Vs. S. Sattar - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 136 of 1978
Judge
Reported inAIR1978AP442
ActsCode of Civil Procedure (CPC), 1908 - Order 14, Rule 3; Indian Contract Act, 1872 - Sections 207
AppellantAzam Khao
RespondentS. Sattar
Advocates:S. Mazhar Hussain, Adv.
Excerpt:
.....plaintiff from india - plaintiff should be given opportunity to prove that he was not in india on date of suit - held, matter remitted back to lower court. - - 2. the trial court after considering the evidence adduced by both the parties, held (1) that the defendant has failed to establish that the did not receive the full amount mentioned in the promissory notes; the power of attorney clearly recites that the plaintiff who is carrying on money-leading business in hyderabad city is proposing to go out of hyderabad and that therefore he is empowering the said two attorneys to carry on business of money-lending on his behalf. it is well settled that a power of attorney must be strictly construed. a reading of the power of attorney clearly discloses that the plaintiff appointed the..........been repealed by implication, on the plaintiff's return to india, and his presence in india on the date of suit. the power of attorney clearly recites that the plaintiff who is carrying on money-leading business in hyderabad city is proposing to go out of hyderabad and that therefore he is empowering the said two attorneys to carry on business of money-lending on his behalf. the attorneys were empowered to perform all other duties and functions connected with the said business. the said power of attorney was executed on 13th may, 1968. the suit debts were advanced in aug. 1974 and feb. 1975, it is stated, by the plaintiff himself. even the suit notice, i am told, was issued by the plaintiff himself. it is well settled that a power of attorney must be strictly construed. a reading of the.....
Judgment:
ORDER

1. Plaintiff is the petitioner, He filed the present suit for recovery of Rs. 1000/- on the foot of two promissory notes, Exs. A-2 and A-2. Ex. A-1 is dated 2-8-1974 and is in a sum of Rs. 400. Ex. A-2 is dated 3-2-1975 and is in a sum of Rs. 600. The defendant contended that he did not received the amounts mentioned in the promissory notes but that he received only an amount of Rs. 100/- and Rs. 200/-, respectively under the said pronotes. He also stated that every month, the plaintiff, who is a pathan, has been collecting amount towards interest on full amount. He therefore denied his liability for an further payment.

2. The trial Court after considering the evidence adduced by both the parties, held (1) that the defendant has failed to establish that the did not receive the full amount mentioned in the promissory notes; and (2) that the suit is not liable to be dismissed on the ground that the plaintiff is a money-lender but has not complied with the provisions of the Hyderabd Money Lenders Act. But he dismissed the suit on the following ground, viz., .... .... the suit is not filed by the plaintiff himself but by one of his two power of attorney holders; under the Power of Atorney, two persons are empowered to act. If so, one of them cannot act unilaterally. Secondly, the General Power of Attorney must be deemed to have been impliedly revoked in this case because of the fact that it was executed only for the duration of the plaintiff's absence from India and also because in this matter the plaintiff has himself acted throughout. S. 207 of the Contract Act was said to have been attracted in this case effecting implied repeal of the General Power of Attorney. The said ground was not put forward in the written statement but appears to have been raised by the Court itself --- which, of course, it had the power to do.

3. The aforesaid ground of dismissal of the suit is challenged in this C. R. P.

4. Mr. Mazhar Hussain the learned counsel for the plaintiff petitioner brings to may notice the stipulation in the General Power of Attorney which specifically empowers the two attorneys to act either individually or jointly. In the face of the said specific stipulation, the Court below was no doubt not correct in holding that one of the powers of attorney was not empowered to institute the suit. But in my opinion, the Court below was right in the second aspect of its reasoning, namely, that the power of attorney must be deemed to have been repealed by implication, on the plaintiff's return to India, and his presence in India on the date of suit. The power of Attorney clearly recites that the plaintiff who is carrying on money-leading business in Hyderabad city is proposing to go out of Hyderabad and that therefore he is empowering the said two attorneys to carry on business of money-lending on his behalf. The attorneys were empowered to perform all other duties and functions connected with the said business. The said power of attorney was executed on 13th May, 1968. The suit debts were advanced in Aug. 1974 and Feb. 1975, it is stated, by the plaintiff himself. Even the suit notice, I am told, was issued by the plaintiff himself. It is well settled that a power of attorney must be strictly construed. A reading of the power of attorney clearly discloses that the plaintiff appointed the two attorneys to carry on his money lending business and to do all other acts in that behalf in the absence of plaintiff from India. Now that the plaintiff has come back to India and is advancing the loans himself and doing all other incidental acts himself, the principle contained in S. 207 of the Contract Act, is attracted in this case. It is obvious that the plaintiff, after coming back to India, would be carrying on the money-leading business and other connected activities himself. The Court relied upon an English decision reported in Danby v. Coutts & Co. (1885) 20 Ch D 500 in support of its contention. In that case, the relevant recital reads as follows:

'And whereas I am about to return to South Austrialia and am desirous of appointing an attorney or attorneys to act for me during my absence from England'. It was held that the said recital controlled the generality of the operative part of the instrument and limited the exercise of the powers of the attorneys to the period of the donor's absence from England. The said decision clearly supports the reasoning of the Court below.

5. Mr. Mazhar Hussain, the learned counsel for the petitioner relies upon a decision of a learned single Judge of Calcutta High Court reported in Exekiel v. Carew and Co., AIR 1938 Cal 423, support of his contention that the language of the nature employed in the power of attorney concerned herein does not automatically put an end to the power of attorney on the return of the Principal to India and that in any event, the power revives as and when the Principal against goes out of India. But it may be noticed that in the very Calcutta decision, the learned Judge refers to the statement of Law in Halsbury's Laws of England, 2nd Edition Volume 1, P. 314 which is to the same effect as the decision in Danby v. Coutts & Co. (1885) 29 Ch D 500 (supra), which saying that the statement of law in Danby. Coutts & Co. (supra) is too wide, the learned Judge observed as follows:---

'I am willing to concede that the authority of the attorney could not have been exercised during the periods that David was in Calcutta or possibly in India, but I see nothing in the document to support the contention that the authority of the attorney terminated absolutely upon the return of the donor and that from that date the document was a ineffective as if it had been expressly revoked.'

From the above observation it is clear that during Principal's presence in India, the power of attorney is not empowered to act for him. May be if the Principal again goes out of India, the power may revive. But when the matter was considered by the lower Court, it was not suggested that at the time of the institution of the suit, the plaintiff in this case had again gone out of India. Mr. Mazhar Hussain, however, argues that this aspect was never put in issue in the Court below and that this aspect was raised only at the time of argument in the Court below, and therefore the plaintiff may be given an opportunity to prove that he was not in India on the date of suit. There is no material not to accept this assertion of the learned counsel. In this view of the matter, the case is remitted to the Court below for investigating into the limited question, viz., whether on the date of institution of the suit, the plaintiff was in India or not. If it is held that the plaintiff was in India on that date, the suit will have to be dismissed. But if it is proved that the plaintiff was not in India on the date of institution of the suit, then the suit may be held maintainable. The Court below may send notices to the parties again and dispose of the said question according to law. The parties may be allowed to lead evidence on the said question. The C. R. P. is allowed accordingly, No costs.

6. Petition allowed, case remanded.


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