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2004 Supreme(SC) 1528

D.M.DHARMADHIKARI, H.K.SEMA
Janki Vashdeo Bhojwani – Appellant
Versus
Indusind Bank LTD. – Respondent


Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

  1. A power of attorney cannot appear and depose as a witness on behalf of the principal in a civil dispute. The power of attorney holder can only appear as a witness in their personal capacity regarding acts done by them on behalf of the principal [Para 8].

  2. The Foreign Exchange (Immunity) Scheme, 1991, only provides protection against prosecution under certain laws (such as FERA and income tax) and does not prohibit the disclosure of the sources of remittance. The remittances received by the appellants cannot be classified as income, much less an independent income [Para 21].

  3. The appeal was against a judgment that required the tribunal to determine whether the appellants had a share in the property, whether they were co-owners at the relevant time, and whether the property was their residence when possession was taken. The tribunal was instructed to allow evidence and to establish whether the appellants had contributed from their independent income [Para 4].

  4. The appellants' claim to have contributed to the purchase price and to be co-owners was not sufficiently proven. The evidence, including income tax returns and foreign remittance documents, did not establish that the source of funds was from their independent income or that they had a share in the property at the relevant time [Paras 22-26].

  5. The appellants failed to discharge the burden of proof that they had contributed to the purchase from their own independent income and that they were co-owners of the property. The evidence relied upon was either interpolated, insufficient, or did not demonstrate independent source of income [Paras 22-26].

  6. The use of a power of attorney holder to depose on behalf of the appellants was deemed improper, as deposing in a witness capacity is a personal act that cannot be delegated. The appellants were required to personally enter the witness box to prove their case, which they failed to do [Paras 9-13].

  7. The conduct of the parties indicated a lack of candor, and the appellants' claims were viewed with suspicion, suggesting an attempt to avoid liability or sale of the property [Para 15].

  8. The evidence regarding foreign remittances and gifts was scrutinized, and it was concluded that such funds did not constitute independent income of the appellants. The appellants did not adequately disclose or prove the source of these funds [Paras 27-29].

  9. The overall conclusion was that the appellants did not establish their claim of co-ownership or contribution from independent income at the time the decrees were passed. Therefore, the appeal was dismissed with costs [Para 29].

  10. The tribunal's errors included framing issues inconsistent with judicial directions and allowing a power of attorney holder to testify on


JUDGMENT

H.K. SEEMA, J.

This appeal is directed against the judgment of the Bombay High Court dated 23-4-2003. The appeal has been heard at length by a Bench in which one of us was a Member, Sema, J. and by an order dated 10-2-2004 reported as Janki Vashdeo Bhojwani and Another v. Indusind Bank Ltd. and others, (2004) 3 SCC 584) it was remitted to the Tribunal with the following directions in paragraphs 24 at Page SCC 587:

"In our view, it is essential, before any further orders can be passed to first decide whether or not the appellants have a share in this property. We therefore remit the matter back to the Debt Recovery Tribunal to record a finding whether or not on the date the decrees were passed, the appellants were co-owners of the property at 38, Koregaon Park, Pune and if so, to what extent. In so deciding the Debt Recovery Tribunal will undoubtedly ascertain whether the appellants had any independent source of income and whether they had contributed for purchase of this property from their own independent income. The Debt Recovery Tribunal will also decide whether this property was the residence of the appellants at the time possession was taken. The Debt Recovery Tribunal s










































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