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1945 Supreme(SC) 43
Privy Council At Oudh
Sir John Beaumont, Lord Godard, Justice Lord Thankerton, JJ.
Babu Anand Behari Lal -Appellant
Versus
Messrs, Dinshaw and Co., Bankers Ltd., Lucknow -Resopndent
Privy Council Appeal No. 36 of 1943; Oudh Appeal No. 8 of 1942
Decided On : 25-10-1945
T.L. Wilson and Co., Hy.S.L. Polak and Co., S.P. Khambatta, C.S. Rewcastle, R.K. Handoo, Sir Herbert Cunliffe
Secondary evidence is inadmissible if the statutory conditions for its admission are not met. Furthermore, new factual issues, such as ratification or estoppel, cannot be raised for the first time on appeal if they were not adjudicated during the trial.
Headnote:(A) Companies Act - Section 171 - Evidence Act - Section 65 - Application to proceed in liquidation - Substitution of name in mortgage decree based on alleged assignment - Document not signed by any director or official of the bank - Authority of agent to act on behalf of the bank - Original power-of-attorney not produced - Conditions for admission of secondary evidence not fulfilled - Extract of power-of-attorney not proved to be a correct copy - Concurrent findings of lower courts on lack of authority upheld.
(B) Appeal - Raising new issues - Ratification or estoppel - Questions of fact not in issue at trial cannot be raised for the first time before the appellate court.
Facts of the case:
The appellant sought permission to proceed in liquidation to substitute his name for that of the respondent bank in a preliminary mortgage decree, claiming an assignment had been made in his favor prior to liquidation. The assignment document lacked signatures from the bank's officials. The appellant relied on a power-of-attorney granted to an agent, but the original document was not produced, and the secondary evidence provided was an unverified extract from bank books.
Findings of Court:
The court found that the conditions for admitting secondary evidence under the Evidence Act were not met as the disappearance or impossibility of producing the original document was not satisfactorily proved. Furthermore, it was not established that the agent had the authority to act on behalf of the bank's directors.
Issues: Whether the agent had the authority to bind the bank through a power-of-attorney and whether secondary evidence of such authority was admissible under the law.
Ratio Decidendi: Secondary evidence cannot be admitted unless the conditions specified in the Evidence Act are satisfied, including proof of the unavailability of the original document. Additionally, factual issues such as ratification or estoppel, which were not raised during the trial, cannot be introduced for the first time at the appellate stage.
Result: Appeal dismissed.
Legal Category Hierarchy
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company law
- liquidation
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practice and procedure
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evidence
- secondary evidence
- appellate procedure
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evidence
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civil law
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agency
- authority
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agency
Lord Thankerton.-
The present appeal arises out of an application by the present appellant for permission to proceed in the liquidation under S. 171, Companies Act, with an application in which he or his predecessor applied to have his name substituted for that of the respondent Bank in a preliminary mortgage decree. The whole warrant for that application was based on an assignment alleged to have been made by the respondent Bank in favour of the appellant prior to the date of liquidation. That document, on the face of it, shows that it was not signed by any director or official of the Bank. It shows, further, as far as one can see, no signature on behalf of the Bank. Issue 5, which has been considered and as to which concurrent findings have been made by the Courts in India, raises a question of the authority of Balakram to act on behalf of the Bank. That was based on an alleged power-of-attorney by the Bank in favour of Balakram. The principal of the power-of-attorney has not been produced and its disappearance, or the impossibility of producing it in the view of the Courts in India has not been satisfactorily proved. Therefore, the conditions have not been fulfilled under which S. 65, Evidence Act, provides that secondary evidence may be admitted.
Further, it may be added that the secondary evidence relied on is an extract of an alleged power-of-attorney purporting to have been found in the Bank books of the Imperial Bank. It is not attempted to prove who the writer of that extract was and the writer is not produced to say it was a correct copy. Even if it was admissible it is not proved, and as has been found by both Courts in India, it is not proved that Balakram had authority from the directors and even assuming under the Companies Act they would be entitled to delegate this particular authority their Lordships do not trouble with the evidence of Balakram because it is inconsistent and unreliable, clearly. Sir Herbert Cunliffe on behalf of the appellant sought to raise another issue. The issue as their Lordships understand it is based on ratification or estoppel. Both these issues are questions of fact which were not in issue at the trial, and are raised for the first time before their Lordships. It is too late to raise any such question at this stage. Accordingly it is unnecessary to deal with the other questions arising in the case because on these concurrent findings the justification for the application had disappeared from the case. The result is that the appeal must be dismissed, the judgment of the Court below be affirmed and the appellant must pay the respondent's costs. Their Lordships will humbly advise His Majesty accordingly.
Appeal dismissed.
