2004 Supreme(SC) 165

2005(3) Supreme 275
Supreme Court of India
(From Bombay High Court)
D.M. Dharmadhikari & H.K. Sema, JJ.
Janki Vashdeo Bhojwani & Anr.—Appellants
versus
Indusind Bank Ltd. & Ors. —Respondents
Civil Appeal No. 6790 of 2003
Decided on 6-12-2004
Counsel for the Parties :
For the Appellants : Mukul Rohtagi, Sr. Advocate, E.R. Kumar, Sandeep Parekh, Sumit Goel, P.H. Parekh, Advocates for M/s. P.H. Parekh & Co., Advocates.
For the Respondent No. 1 : Dr. A.M. Singhvi, Sr. Advocate, Simran Mehta and Pranab Kumar Mullick, Advocates.
For the Respondent Nos. 2-7 : K. Radhakrishnan, Sr. Advocate, Amit Mishra and S.K. Agnihotri, Advocates.

Important point
If the power of attorney holder has rendered some ‘acts’ in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him.

Headnote:(i) Civil Procedure Code, 1908—Order III Rules 1 and 2—Holder of power of attorney—Power to ‘act’ on behalf of the principal—Word ‘act’ confines only in respect of ‘acts’ done by the power of attorney holder in exercise of power granted by the instrument—Term ‘acts’ would not include deposing in place and instead of the principal—Power of attorney holder cannot depose for the principal for the acts done by the principal and not by him.

       Held : Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2 CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the princi­pal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. (Para 12)

       (ii) Civil Procedure Code, 1908—Order III Rules 1 and 2—Recovery of Debts Due to Banks Act—Bank recovery suit—Loan facilities to the extent of 22 crores extended to 6th and 7th respondent, a company which was run by respondents 2 to 5—Respondents 2 to 5 were also guarantors—Some of the properties belonging to the parties have been mortgaged to the bank—Loan not repaid—Respondent bank filed a suit against respondents 2 and 7 before the Debt Recovery Tribunal for recovery of a sum of Rs. 3.86 crores and then for a sum of Rs. 27.5 crores—DRT passed an injunction order—Plot No. 38, Koregaon Park was one of the properties which the respondents were restrained from alienating—Tribunal also passed a decree in favour of respondent bank in which property at 38, Koregaon Park was shown as one of the mort­gaged properties—Attachment of properties—Appellants, 1st appellant being wife of 5th respondent and 2nd appellant being wife of 2nd respondent filed objections against the attachment of residential property at 38, Koregaon Park—Appellants case that they were the co-owners in respect of that property—Appellants were neither debtors nor guarantors—Their claim that property in question to the extent of their share in the property could not have been sold in execution of the decree—Whether maintainable—(No)—Failure on part of appellants to discharge burden of proving their ownership—Appellants failed to establish that they have any independent source of income and they had contributed for the purchase of property.

       Held : Having regard to the directions in the order of remand by which this Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr. Bhojwani to represent them and the Tribunal erred in allowing the power of attorney holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to estab­lish that they have any independent source of income and they had contributed for the purchase of the property from their own independ­ent income. We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the property in question. The finding recorded by the Tribunal in this respect is set aside. (Para 13)

       In civil dispute the conduct of the parties is material. The appellants have not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of Decree. (Para 15)

       In the view that we have taken we hold that the appellants have failed to discharge the burden that they have contributed towards the purchase of property at 38, Koregaon Park, Pune from any independent source of income and failed to prove that they were co-owners of the property at 38, Koregaon Park, Pune. This being the core question, on this score alone, the appeal is liable to be dismissed. Despite, we now proceed to consider the documentary evidence produced. The admitted position is that the consideration for sale was paid by M/s Bhojwani Brothers, a distinct legal entity. M/s. Bhojwani Brothers is a Hindu Undivided Family. The said HUF as a distinct entity filed Income Tax Returns. Shri L.R. Bhojwani and his two sons Sanjay and Romy Bhojwani had filed income tax returns showing themselves as owners of 1/4th share each in suit property. In the photo copies of the income tax returns filed by Shri V.R. Bhojwani (power of attorney holder) 1/4th is struck off and is interpolated into 1/7th share. This fact was admitted by him in cross-examination, Vol. V at page 115. He has also admitted that the correction is not depicted in the original papers received from income tax office. The Tribunal also holds that there was interpolation by pencil which was not depicted in the origi­nal papers received from the Income Tax office.­ (Paras 21 and 22)

       For the reasons aforestated the appellants have miserably failed to establish that on the date the decrees were passed, the appellants were the co-owners of the property at 38, Koregaon Park, Pune. They further failed to establish that they have any independent source of income and they have contributed for purchase of the property at 38, Koregaon Park, Pune, from their own independent income. Further the appel­lants failed to discharge the burden of proving that the appellants have a share in the property. (Para 29)