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Dinesh Chand Gupta Vs. Smt. Bitola Devi Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 253 of 1978
Judge
Reported inAIR1984All116
ActsCode of Civil Procedure (CPC) , 1908 - Sections 5 - Order 3, Rule 2
AppellantDinesh Chand Gupta
RespondentSmt. Bitola Devi Gupta and ors.
Advocates:R.K. Asthana, Adv.
DispositionAppeal allowed
Excerpt:
civil - power of attorney - order 3 rule 2 of code of civil procedure, 1908 - powers conferred under a power of attorney to be interpreted in a broad perspective - courts must also acknowledge implied powers in a power of attorney. - - 1/- per cent per mensem and in case of failure to pay, the sale of house number 96, panki katra, kanpur on the basis of a simple mortgage dated 3-2-1971 executed by defendants' numbers 1 and 2 in his favour on 3-2-1971. it was also prayed that in case the amount remained unpaid by the sale of house number 96, panki katra, kanpur, the same may be recovered from the sale of house number 110/165, ram krishna nagar, kanpur. provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by..........widest interpretation desired by the executant himself. the courts of law are bound by the express power conferred in a power of attorney, but they cannot refuse to recognise the implied powers conferred therein. we cannot lose sight of the fact that the plaintiff had gone to england in connection with service and he could not trust any one better than his own father. we are of the opinion that the power of attorney conferred an express power on ganeshi lal to lend money with or without a security at such rate of interest and upon such terms of repayment as he may consider fit and proper and an implied power to file a suit for the recovery of the money. we hold that the suit was properly filed. 15. in view of our finding above the appeal succeeds. 16. the appeal is allowed and the.....
Judgment:

Saxena, J.

1. This is a First Appeal against the judgment and decree dated 28-2-1976 passed by Sri S. C. Shukla, formerly II Civil Judge, Kanpur dismissing the suit with costs.

2. On 27-7-1976 plaintiff filed a suit for recovery of Rs. 20,457.50 P. along with pen-dente lite and future interest at the rate of Re. 1/- per cent per mensem and in case of failure to pay, the sale of house number 96, Panki Katra, Kanpur on the basis of a simple mortgage dated 3-2-1971 executed by defendants' numbers 1 and 2 in his favour on 3-2-1971. It was also prayed that in case the amount remained unpaid by the sale of house number 96, Panki Katra, Kanpur, the same may be recovered from the sale of house number 110/165, Ram Krishna Nagar, Kanpur. The principal sum was Rupees 12,500/-. The interest agreed was Re. 1/-per cent per mensem. The amount was agreed to be paid within two years. Defendant 3 was impleaded with the allegation that he was a transferee of house number 110/165 Ram Krishna Nagar, Kanpur, and the defendants 1 and 2 had transferred the house with a view to defeat and delay the payment of the money due on the mortgage.

3. The suit was contested by defendants 1 and 2 with the allegations that Ganeshi Lal had no right to sign and verify the plaint on behalf of the plaintiff, that no loan was ever advanced by the plaintiff, that the plaintiff is a permanent resident of England, that Ganeshi Lal lives at Kanpur and conducts money-lending business fictitiously in the name of the plaintiff, that Ganeshi Lal advanced only a sum of Rs. 10,000/- to defendant 1 and got a mortgage deed for Rs. 12,500/- executed fictitiously that defendant 1 is alone the owner of the house, that defendant 2 has no concern with the same, that defendant 2 is the owner of house No. 110/165 Ram Krishna Nagar, Kanpur and he sold the same to defendant 3, that no charge can be created on house no. 110/ 165 Ram Krishna Nagar, Kanpur, that the suit is barred by Sec. 10, U. P. Regulations of Money-lending Act, 1976, and that defendants 2 and 3 have been wrongly impleaded.

4. Defendant 3 filed a separate written statement claiming to be a bona fide purchaser for value of house no. 110/165, Ram Krishna Nagar, Kanpur.

5. The learned II Civil Judge, Kanpur, dismissed the suit on the preliminary ground that Ganeshi Lal had no authority to file the present suit. After deciding issue 2 he did not consider it necessary to record any finding on the remaining issues and he dismissed the suit with costs on parties. Hence this appeal.

6. The only point for determination in this appeal is as to whether Ganeshi Lal was competent to file a suit on behalf of plaintiffs. Order 3, Rule 1 provides that :--

'Appearances, etc. may be in person, by recognised agent or by pleader -

Any appearance, application or act in or to any Court required or authorised by law to be made or done by a party in such Court may, except where otherwise expressly provided by any law for the time in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf :

Provided that any such appearance shall, if the Court so directs, be made by the party in person.'

7. Order 3, Rule 2 defines recognised agents of parties by whom such appeals, ap-plications and acts may be made or done, Sub-rule (a) defines recognised agents as persons holding Powers of Attorney, etc., on behalf of such parties.

'Proviso to Order 6, Rule 14, C. P. C., provides.

'Pleading to be signed'--Every pleading shall be signed by the party and his pleader if any;

Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf.'

8. The statement of P. W. 1 Ganeshi Lal shows that Dinesh Chand Gupta, plaintiff is his second son and was on the date of suit employed in England. He went there in the year 1964 and was not present on the date of mortgage. He executed a Power of Attorney in favour of his father Ganeshi Lal.

9. Exhibit 4 is the Power of Attorney. The relevant portion of the Power of Attorney is as below :

'...... hereby appoint Ganeshi LalGupta (S/o Sri Kishori Lal Gupta) of 107/74, Jawahar Nagar, Kanpur, India, my Attorney to act in and conduct and manage all my affairs in India as he may think fit for me and in my name or otherwise and for myown use and benefit and execute any or all the following acts and deeds :--

1. The powers hereby given to my Attorney shall be given the widest interpretation and shall be construed as an express authority to him to act in and deal with my affairs as fully and effectually as I myself could do.

2. My Attorney may appoint and remove at pleasure any substitute for or agent under him in respect of all or any of the matters herein contained upon such terms as my Attorney shall deem fit.

3. My Attorney may sell and dispose of all or any part of my premises in India in such a manner as he shall think proper and to receive from the purchaser the purchase money payable for or in respect of such premises and give a good and sufficient discharge for the said purchase moneys and to execute and do all acts and deeds relative thereto in my name and to register the same.

4. My Attorney may purchase or acquire any premises in India for and in my name upon such terms as the may think proper and execute and do all acts and deeds relative thereto and to register the same.

5. My Attorney may for and in my name lend or borrow money with or without security at such rates of interest and upon such repayment terms as he may consider fit and proper.

6. To adjust and settle or compromise or refer to arbitration any dispute which may arise in or about my affairs in India.

7. Lastly, I declare that this Power of Attorney shall continue in force until notice of my death or of other the revocation hereof shall be actually received by my Attorney.'

In Madanlal Dhariwal v. Bherulal (AIR 1965 Mys 272) it was held (para 12):

'It is well established rule that although a Power of Attorney must be strictly construed as giving only such authority as it expressly or by necessary implication creates the Court cannot refuse recognition of the implied authority which every agent has, to do whatever is necessary or ordinarily incidental to the effective execution of the express authority conferred on him by the Power of Attorney.'

10. In O. A. P. R. M. A. R. Adaikappa Chettiar v. Thomas Cook & Son (Bankers) Ltd. (AIR 1933 PC 78) it was held that the general words used in subsequent clauses to a Power of Attorney must be read with special powers given in the earlier clauses and cannot be construed so as to enlarge the restricted powers therein mentioned.

11. In Syed Abdul Khader v. Rami Reddy : [1979]2SCR424 the Power of Attorney authorised the Attorney to purchase or sell lands besides other powers conferred on the Attorney. On pages 560-561 it was held :

'Each was an independent power. There is nothing in Ext. P-1 which would even remotely indicate that the land could be sold only for financing the litigation or if for that purpose a loan was borrowed, to repay the loan. Such power of wide amplitude conferring such wide authority cannot by construction be narrowed down to deny an authority which the donors expressly granted. The ordinary authority given in one part of the instrument will not be cut down because there are ambiguous and uncertain expressions elsewhere but the document will be considered as a whole for interpretation of particular words or directions.'

12. The special powers conferred on the Attorney very wide powers and he was authorised to act in and conduct and manage all the affairs of the executant in India as he may think fit on his behalf and in his name or otherwise and for this use and benefit. The general powers conferred in Clause 1 further clarified that the powers hereby given to the Attorney shall be given the widest interpretation and shall be construed as an express authority to him to act in and deal with his affairs as fully and effectually as he could himself do. Clause 2 provided for appointment or removal of agents. Clause 3 provided for sale and disposal of all or any part of his property. Clause 4 provided for purchase of property in hia name. Clause 5 provided for lending and borrowing money with or without interest, security at such rate of interest and upon such repayment terms as the Attorney may consider fit and proper. It further authorised the attorney to adjust, settle, compromise or refer to arbitration any dispute which may arise in or about his affairs in India.

13. The special powers conferred in the opening portion of the Power of Attorney read with the powers conferred in Clause 1 leave no room for doubt that the executant authorised the Attorney to file a suit on his behalf. This power is obviously implied from the special powers given in the opening portion and the powers given in Clause 1. The mere non-mention of this power cannot justify the inference that this power was not conferred on the Attorney.

14. We are, thus, of the opinion that the learned Civil Judge was not justified inmaking a narrow interpretation of the power of Attorney in spite of the widest interpretation desired by the executant himself. The Courts of law are bound by the express power conferred in a Power of Attorney, but they cannot refuse to recognise the implied powers conferred therein. We cannot lose sight of the fact that the plaintiff had gone to England in connection with service and he could not trust any one better than his own father. We are of the opinion that the Power of Attorney conferred an express power on Ganeshi Lal to lend money with or without a security at such rate of interest and upon such terms of repayment as he may consider fit and proper and an implied power to file a suit for the recovery of the money. We hold that the suit was properly filed.

15. In view of our finding above the appeal succeeds.

16. The appeal is allowed and the judgment and decree passed by the learned II Civil Judge, Kanpur, are set aside. The case is remanded with the direction that it shall be readmitted to its original number and shall be disposed of in accordance with law. Parties may be given an opportunity to adduce such additional evidence as they may deem fit and proper. The costs of the appeal shall be easy.


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