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United Bank of India Vs. Prabhas Ch. Deb and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 2541 of 1974
Judge
Reported inAIR1977Cal55,81CWN48
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 15 - Order 29, Rule 1
AppellantUnited Bank of India
RespondentPrabhas Ch. Deb and ors.
Appellant AdvocateRanjit Kumar Banerjee and ;Nihar Ranjan Das Gupta, Advs.
Respondent AdvocateGobinda Chandra Paul, Adv.
DispositionRevision allowed
Cases Referred(International Continental Caoutchoue Compagnie v. Mehta
Excerpt:
- .....much on the privy council decision reported in (1893) 20 ind app 139 (pc) we have no hesitation to hold that in this case sri sen gupta is a principal officer of the bank and he is acquainted with the facts of the case and nothing has been shown by the defendants that he was not the officer authorised to sue or verify the plaint. we are mindful of the fact that on the objection being raised by the defendants the plaintiff got the plaint signed by sri nikhil chandra ghosh. for the reasons stated above we are of the opinion that the plaint was properly signed and verified by shri c. r. sen gupta, the agent of the bank. that being so, we set aside the order passed by the learned! subordinate judge.6. in the result, the application succeeds and the rule is made absolute. there will be no.....
Judgment:

N.C. Mukherji, J.

1. This Rule arises on an application under Section 115 of the Code of Civil Procedure and is directed against order No. 14 dated April 8, 1974 passed by Shri A. N. Saha, Additional Subordinate Judge, Nadia, in Title Suit No. 2 of 1974.

2-3. The facts of the case may briefly be stated as follows :--

The petitioner as plaintiff filed a suit against the opposite parties. The said suit was signed and verified by one Sri C. R. Sen Gupta. Agent of the Be-thuadari Branch of the United Bank of India. The defendant challenged the verification. The plaintiff was allowed time to satisfy the court that Sri Sengupta fills up the character of any of the personalities described in Order 29, Rule 1 of the Code of Civil Procedure. The plaintiff, however, produced a registered power of attorney executed by the Manager and the Director of the Bank authorising one Sri Nikhil Ranjan Ghosh to sign the pleading on behalf of the company. It was the contention of the plaintiff that by the said power of attorney Sri Ghosh was authorised to sign and verify the plaint. The defendant raised an objection to the effect that Sri Ghosh cannot be considered as one of the principal officers mentioned in Order 29, Rule 1 of the Code. The learned Subordinate Judge after hearing the learned Advocates for the parties was of the opinion that Sri Ghosh could sign the plaint, but the plaintiff was directed to have the plaint verified by an officer enumerated in Order 29, Rule 1 of the Code. Being aggrieved by the aforesaid order, the plaintiff has come up to this Court.

4. Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the petitioner, draws our attention to Section 435 of the Old Code, the provisions of which are similar to those in Order 29, Rule 1. Mr. Banerjee submits that Shri Sen Gupta, the Agent of the Bank, ought to have been considered as a principal officer of the bank as he was managing the affairs of the bank and it was he who on behalf of the bank advanced loan to the defendants for the non-payment of which the suit has been brought. Mr. Banerjee in this connection further submits that loan has been admitted by the defendants in their written statement and it is only to delay the matter, a baseless objection has been raised on behalf of the defendants. Mr. Banerjee submits that when the plaint was signed and verified by the local agent of the bank, it was for the other side to show that he was not a person authorised. In support of his contention Mr. Banerjee refers to a decision reported in (1901) 5 Cal WN 91 (Ram Komal Saha v. Bank of Bengal of Akyab). It has been held in this case that where a petition by the Bank of Bengal was verified by a person described as the Officiating Inspector of Branches, Bank of Bengal, and there was nothing to show that he was not the officer authorised to sue or verify the petition on behalf of the Bank at Chitta-gong or that he was not able to depose to the facts of the case. The petition was properly verified under Section 435, C. P. C-Mr. Banerjee very much relies on the pronouncement of the Judicial Committee in (1893) 20 Ind App 139 (PC) (Delhi and London Bank Ltd. v. Oldham). In this case one Mr. Lawson was acting under the power of attorney as Accountant to the company in Lucknow. Mr. Langdon, the manager, was away in Cashmere; Mr. Banks, whose position is not explained, but who appears to have been a leading officer of the bank, was ill with smallpox; Mr. Lawson, having the large powers expressly conferred upon him by the power of attorney was apparently the sole authority; at all events, he was conducting the chief banking business of. the branch in Lucknow. Their Lordships thought that in the absence of any evidence that any one else was at the time in question doing any act of management, it was fair to presume that he was the person of all others best able to depose to the facts of the case, the action being in respect of transactions depending upon documents which would necessarily be accessible to him at the time. Their Lordships further found that Mr. Lawson was then as he described himself acting manager of the Bank of Lucknow and that as such he was a 'principal officer of the corporation', entitled to subscribe and verify the plaint within the meaning of Section 435 of the Code, and that the suit was properly instituted. Mr. Banerjee submits that the facts of the present case are identical with the facts of the case cited above. Here Sri Sen Gupta was the agent of the bank. It was he who advanced loan on behalf of the bank to the defendants. That being so, he was a prin cipal officer of the bank and it was he who was most able to depose about the facts of the case. In such circumstances it must be held that the plaint was signed and verified by Sri Sen Gupta properly.

5. Mr. Gobinda Chandra 'Paul, learned Advocate for the opposite parties, submits that the petitioner gave up a goby to its earlier case that Sri Sen Gupta was the proper person to sign and verify the plaint and produced a power of attorney showing that one Mr. Ghosh was authorised to sign and verify the plaint. Then again Mr. Paul submits that Clause 11 of the said power of attorney empowers Shri Ghosh to sign the plaint but it does not authorise him to verify the plaint. Clause 11 of the said power of attorney runs as follows :--

'United Bank of India Ltd. do here-toy nominate, constitute and appoint Sri N. R. Ghosh to commence, prosecute, defend, answer and oppose any suit or legal proceeding..... and to make, sign execute, present and file all applications, plaints, petitions, written statements, memorandum of appeals, vakalatnama. muktarnama, and any other powers or any other papers expedient or necessary, to be made, signed, executed, presented or filed in any court of law.'

Mr. Banerjee contends that a wide power has been given to Shri Ghosh by which he has been authorised to present a plaint in the court and that being so, it must be said that he was authorised to sign the plaint as well as to verify the same and for that no separate authority is required. Mr. Paul joins issue and contends that whether a person is competent to verify a pleading on behalf of a company or a corporation an. affidavit of competency is required to be filed. In support of his contention he refers to a decision reported in 31 Cal WN 1030 = (AIR 1927 Cal 780) (International Continental Caoutchoue Compagnie v. Mehta & Co.). Mr. Paul also refers to a decision reported in : AIR1958Cal104 (Raj Kumar Dhar v. A Stuart Uwis). In this case it has been held that

'Whenever a verification is sought to be made by an agent either under a power of attorney or under some other document or by somebody on behalf of another, that verification must be justified under the latter part of the Order 6. Rule 15 of the Civil Procedure Code, namely, that the person verifying must be proved to the satisfaction of the court to be acquainted with the facts of the cases.'

In this case we are not very much concerned whether Sri Ghosh was duly authorised to sign and verify the plaint. From the facts of the case and relying very much on the Privy Council decision reported in (1893) 20 Ind App 139 (PC) we have no hesitation to hold that in this case Sri Sen Gupta is a principal officer of the bank and he is acquainted with the facts of the case and nothing has been shown by the defendants that he was not the officer authorised to sue or verify the plaint. We are mindful of the fact that on the objection being raised by the defendants the plaintiff got the plaint signed by Sri Nikhil Chandra Ghosh. For the reasons stated above we are of the opinion that the plaint was properly signed and verified by Shri C. R. Sen Gupta, the Agent of the Bank. That being so, we set aside the order passed by the learned! Subordinate Judge.

6. In the result, the application succeeds and the Rule is made absolute. There will be no order for costs. As the suit is pending for a long time we direct the learned Subordinate Judge to dispose of the suit as early as possible. Let the records go down to the court below immediately.

B.C. Ray, J.

I agree.


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