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 tr