Back
2017 Supreme(P&H) 625
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rameshwar Singh Malik
CR No. 8577 of 2016
M/s Active Promoters Pvt. Ltd.
v.
Assotech Realty Private Limited & Anr.
{Decided on 11/01/2017}
For the Petitioner:Mr. Aashish Chopra, Advocate.
For the Respondent No.1:Mr. Pankaj Jain, Advocate.
Commercial Courts--Revision against an interlocutory order is not maintainable.
Power of Attorney--Duly notarized by Notary of foreign country--It is admissible in evidence.
Headnote:(A) Civil Procedure Code, 1908, O.7 R.14--Tendering of document--Agreement to sell--Admissibility of document--Specific Performance--Once a document has been tendered in evidence and accepted by the court without objection by the opposite party, said opposite party cannot subsequently raise the objection, with regard to admissibility of such a document in evidence, on the ground of insufficiency of stamp duty--Evidence Act, 1872--Specific Relief Act, 1963, S.16.
(B) Evidence Act, 1872 S.85--Admissibility of Document--Special power of attorney--It was notarized by the Notary Public of State of Florida, strictly in accordance with law of America--Therefore, such a document is admissible in evidence, because it would meet the requirement of law contained in Section 85 of the Indian Evidence Act and Section 32 of the Indian Registration Act. (Para 14)
(C) Commercial Courts, Commercial Division And Commercial Appellate Division Of High Courts Act , 2015, S.8--Revision--Against an interlocutory order; revision petition is not maintainable--Such provision is mandatory in nature. (Para 4)
Mr. Rameshwar Singh Malik, J.: (Oral) - Present civil revision petition, under Article 227 of the Constitution of India, at the hands of defendant No.2 in the suit for specific performance of the sale agreement, filed by plaintiff-respondent No.1, is directed against the order dated 5.11.2016 (Annexure P-7), whereby an application moved by petitioner-defendant No.2 for impounding special power of attorney, it having been executed outside India, was dismissed by the learned trial Court.
2. Notice of motion was issued.
3. Heard learned counsel for the parties.
4. Learned counsel for petitioner submits that the learned trial Court-cum-Commercial Court misdirected itself, while passing the impugned order, dismissing the application of the petitioner. The power of attorney in question ought to have been impounded, it being impermissible in law. Neither the special power of attorney was executed on stamp paper of appropriate value nor it was appropriately stamped, at the time of its execution outside India. Since the special power of attorney was produced in the Court in India, after expiry of three months from the date of its execution, it was liable to be impounded. Stamp duty and penalty was required to be deposited by the persons seeking production of said power of attorney in evidence. He also argued that the objection was raised on behalf of the petitioner on 20.7.2009 itself, when the said document was sought to be tendered in evidence, regarding the admissibility of special power of attorney, referred to hereinabove. It was next contended that once the objection regarding inadmissibility of a document was raised for want of affixation of stamp duty, the learned trial Court was under legal obligation to decide the same at the earliest. However, since the learned trial Court failed to appreciate the above-said relevant aspects of the matter, while passing the impugned order, the same is liable to be set aside. In support of his contentions, he places reliance on the following judgments:-
1. K.K.Ray (Private) Ltd. versus Calcutta, 1967 AIR (Calcutta) 636
2. Shalimar Chemical Works Limited versus Surendra Oil and Dal Mills (Refineries) and Others, [2010(5) Law Herald (SC) 3566] : (2010) 8 Supreme Court Cases 423
3. Shalini Shyam Shetty and Another versus Rajendra Shankar Patil, [2010(5) Law Herald (SC) 3663] : (2010) 8 Supreme Court Cases 329
4. Man Kaur (Dead) by LRs. Versus Hartar Singh Sangha, [2011(3) Law Herald (SC) 2417 : 2011(3) Law Herald (P&H) (SC) 2108 : 2011(2) Land.L.R. 84 (SC)] : (2010) 10 Supreme Court Cases 512
5. Jugraj Singh and Another versus Jaswant Singh and Another 1971 AIR (SC) 761
6. Malaysian Airlines Systems Bhd versus M/s.Stic Travels (P) Ltd., 2001 (2) RCR (Civil) 45
7. Chanan Kaur alias Channo versus Pakhar Singh and others 2004 (1) RCR (Civil) 113
8. Sharomani Gurdwara Parbandhak Committee, Amritsar versus Ram Sarup 2004 (4) RCR (Civil) 541
9. REI Agro Ltd. versus UBS AG & Ors. 2015 SCC online Cal 2557
10. Salim Badsha versus Md.Naziruddin Sk. & Ors., 2016 SCC Online Cal 654.
He prays for allowing the present revision petition, by setting aside the impugned order.
6. Per contra, learned counsel for respondent No.1-plaintiff vehemently contended that the case of defendant No.2-petitioner was based on technicalities alone. Petitioner had been proceeding on a malafide approach right from day one with a view to delay the proceedings. Suit for specific performance of the sale agreement is pending between the parties for the last more than 11 years. Defendant-petitioner is trying to delay the suit proceedings on one or the other flimsy grounds, proceeding on a malafide approach. He refers to the application moved by the petitioner as Annexure P-5 from pages 97 to 99 of the paper-book, to contend that the power of attorney Ex.PW5/1 was executed by Naresh Nagpal in favour of Ravinder Parkesh Seth on 2.7.2009, strictly in accordance with law. Said genuine and authenticated document was tendered in evi
