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Rajan Vs. Padmavathy Gopalan Nair and Another - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberR.S.A.No.744 of 2010
Judge
Reported in2011(4)KLJ193; 2011(4)KHC383
AppellantRajan
RespondentPadmavathy Gopalan Nair and Another
Excerpt:
indian contract act - section 74 -.....properly consider the plea of the appellant that the suit is not maintainable, in the absence of a written authorization by the second respondent, to enable the power of attorney holder of the first respondent to institute the suit. relying on the decision of a learned single judge in k.a. pradeep v. branch manager, punjab national bank ltd and others, 2007 (3) klj 333, learned counsel appearing for appellant argued that courts below should not have granted a decree based on the decision in narayanan nair’s case. learned counsel argued that even if an agent is entitled to institute the suit without a written authority, as provided under rule 23 of the kerala civil rules of practice, the agent is competent to sign and verify the plaint only on production of a written authority in.....
Judgment:

1. Defendant in O.S.528 of 2005 on the file of Additional Munsiff Court, Palakkad is the appellant. Plaintiffs are the respondents. The suit was filed by the respondents through their power of attorney holder for realization of the advance of Rs.40,000/- paid under Ext.A1 agreement for sale. The appellant resisted the suit contending that though first respondent authorized the power of attorney holder to institute the suit, as admitted in the plaint, second respondent has only orally authorized the person to institute the suit and without a written authority, the suit could not be instituted and therefore the suit is not maintained. Appellant also contended that though he executed Ext.A1 agreement for sale and received Rs.40,000/- as advance, he is not liable to repay the advance amount as he was always ready and willing to perform his part of the agreement and sale deed was not executed due to the failure of the respondents to perform their part of the contact.

2. Learned Munsiff on the evidence found that first, respondent has authorized the power of attorney holder to institute the suit by Ext.A3 power of attorney and though second respondent has only orally authorized the first respondent as there is no necessity to have a written authority as held by this court in Narayanan Nair v. John Kurien, 1988 (1) KLT 673 and the suit is maintainable. Learned Munsiff on the evidence found that appellant has admitted execution of Ext.A1 agreement as well as receipt of Rs.40,000/- as part of the sale consideration and the agreement was not performed. Learned Munsiff also found that though appellant is entitled to forfeit the advance amount, it could only be subject to the provisions of Section 74 of the Indian Contract Act and appellant did not establish that he sustained any loss and therefore the respondents are entitled to realize Rs.40,000/- paid as advance.

A decree was granted permitting the respondents to realize Rs.40,000/- with interest at the rate of 6% per annum from 9.7.1998, the date fixed for performance of the agreement.

3. Appellant challenged the decree and judgment before District Court, Palakkad in A.S.112 of 2008. Learned Additional District Judge on re-appreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.

4. When the appeal came up for admission, notice before admission was ordered. After respondents appeared, on submission that there is a chance for settlement, the case was referred to High Court Permanent Lok Adalath. The appeal was subsequently returned as it was not settled at the Adalath.

5. Learned counsel appearing for appellant and respondents were heard. The argument of the learned counsel appearing for appellant is that courts below did not properly consider the plea of the appellant that the suit is not maintainable, in the absence of a written authorization by the second respondent, to enable the power of attorney holder of the first respondent to institute the suit. Relying on the decision of a learned single Judge in K.A. Pradeep v. Branch Manager, Punjab National Bank Ltd and others, 2007 (3) KLJ 333, learned counsel appearing for appellant argued that courts below should not have granted a decree based on the decision in Narayanan Nair’s case. Learned counsel argued that even if an agent is entitled to institute the suit without a written authority, as provided under Rule 23 of the Kerala Civil Rules of Practice, the agent is competent to sign and verify the plaint only on production of a written authority in that behalf signed by the party and also by filing an affidavit by the person verifying the signature of the party stating the reason for the inability to sign or verify the proceedings. As no such affidavit or authority was produced, the suit is not maintainable.

6. On hearing the learned counsel appearing for the appellant, I do not find any substantial question of law involved in the appeal. It is true that there was no written authorization by the second respondent, authorizing the power of attorney holder of the first respondent, to institute the suit on his behalf also. The question is whether a written authorization is necessary.

7. Rule 14 of Order VI of code of civil procedure which provide requirement of signature in the plaint reads as follows:-

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 authorized by him to sign the same or sue or defend on his behalf”.

Under the rule any person duly authorized by a party is competent to sign or to sue or defend on behalf of that person. It does not say that the due authorization must be in writing. This court in Narayanan Nair’s case supra has considered the question whether a written authority is necessary. This court held:-

“No written authority has been produced either by the plaintiff or by Kurien in support of the case that Kurien has been duly authorized to institute the suit. Nor has Kurian filed an affidavit verifying the signature of the plaintiff stating the reasons of plaintiff’s inability to sign in the plaint. The particular rule in the Civil Rules of Practice (quoted above) applies only to cases where proceedings are required to be signed or verified by parties concerned. The said rule need not be imported to a case where plaint or written statement can be signed, as sanctioned by the substantive law, by any other person duly authorized by the party concerned. Order 6 Rule 14 permits such a course to be adopted in making the pleadings. The scope of Order 6 Rule 14 is not to be curtailed or restricted by unduly reading of Civil Rules of Practice into it. Nor could the sanction offered by the substantive law be stultified by resort to the rule framed under such law. The proviso in Rule 4 (of Order 6) does not insist on production or even creation of a power of attorney or written authorization. There is nothing in the said provision suggesting that a written authorization is indispensable for the proper compliance thereof. Case law seems to be very much in support of the view that even oral authorization would be sufficient to constitute due authorization. (Vide Bengal Jute Mills v. Jewraj Heeralal, AIR 1943 Calcutta 13; Subbiah Pillai v. Sankarapandian Pillai AIR 1948 Madras (Vol.35) 369; Sarju Prasad v. Badri Prasad, AIR 1939 Nag.242; and Netram v. Bhagwan, AIR 1941 Nag.159. Those decisions were referred to and discussed in detail by a Division Bench of the Bombay High Court in All Indian Reporter Ltd. v. Ramachandra (AIR 1961 Bombay 292). The Bombay High Court, in concurrence with the preponderant view held that oral authorization is good enough to constitute a valid authorization under Order 6 Rule 14 of the code”.

8. Though the learned counsel appearing for appellant relied on the decision of another single Judge in Pradeep’s case supra, the learned single Judge in that case did not consider the question settled in Naayanan Nair’s case. Paragraph 9 of the decision in Pradeep’s case makes the position clear.

“In the above view of the matter it is not necessary for me to consider the argument of Sri. Vinod Madhavan based on the decision of Thomas, J (Narayanan Nair v. John Kurien, 1988 (1) KLT 673 that an oral authorization will suffice. In that decision the learned Judge noticed that an affidavit was filed by the principal himself in which he had stated that he had authorized his agent to defend him in the suit. In the instant case no such affidavit is seen sworn to by the principal. It is the agent alone who claims that he has been authorized. Thus the principles laid down in Narayanan Nair’s case (supra) may not be applicable to the present case”.

9. the question considered in Pradeep’s case was the legality and the value of the power of attorney produced, on the objection raised that the notary has not made an endorsement that the executant signed in the power of attorney in his presence. The learned Single Judge found that identity of the signatory in the power of attorney is not disputed and what is disputed was only its value as a power of attorney and therefore the trail court should have permitted the signatory to the writ petition to defend the suit. In the light of that finding, learned single Judge found it not necessary to consider the plea based on the decision in Narayanan Nair’s case.

10. When this court has settled the question holding that “when Order VI Rule 14 permits a course to be adopted in making the pleading, the scope of Order VI Rule 14 cannot be curtailed or restricted by unduly reading of Civil Rule of Practice into it nor could the sanction offered by the substantive law be stultified by resort to the rule framed under such law”. Appellant in the light of the settled position cannot contend that for non-complaince of the provision of rule 23 of the Kerala Civil Rules of practice, courts below cannot grant the decree.

11. Courts below based or the evidence, rendered a factual finding that appellant did not establish any loss consequent to the non compliance of the agreement for sale and directed appellant to repay the advance amount received with interest at 6% per annum. On the facts and evidence, I find no substantial question of law is involved. Appeal is dismissed.


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