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2006(2) JLJ 439
U.C. Maheshwari, J.
Bank of India v. S.K. Mukherjee and another
First Appeal No. 59 of 1993: against the judgment and
decree of X Additional District Judge, Jabalpur, passed in
Civil Suit No. 64-B of 1990;
Decided on 6.9.2005.
Suit was filed against the respondents for recovery of Rs.25.380.75 p. along with interest @ 17.5% p.a. and costs. The aforesaid suit was verified, signed and dated by the Regional Manager Mr. S.S. Joshi, as principal officer of the appellant Bank although he had power of attorney in his favour and a photocopy of the same was submitted along-with the plaint. [Para 2
It was held that the power of attorney of the aforesaid Regional Manager has not been proved in respect of authorization to file the suit on behalf of the Bank as such in the lack of it, the suit was not signed and verified by the duly authorized person. [Para 4
Held: It could not be disputed that the Regional Manager of the appellant Bank is the superior most officer of the region in which the branch is situated. Being superior officer, he would be deemed the principal officer and he could have performed all transactions on behalf of the Bank even in the absence of power of attorney as per Order 29 Rule 1 of the Code of Civil Procedure. [Para 7
In view of the aforesaid Order 29 Rule 1 of the Code of Civil Procedure. principal officer of the Corporation is competent and authorized to defend or prosecute the legal proceedings and he had also the authority to verify. sign and dated the pleadings. The power of attorney is not the basic requirement for this purpose. It is not in dispute that the appellant Bank is a corporate body under the concerning banking provisions. Thus, it is held that the Regional Manager has verified, signed with date the plaint as principal officer of that branch and his authority was not challenged by cogent and reliable evidence thus even in the absence of proof or presentation of the power of attorney its suit could not be dismissed on this ground. In fact, the suit should have been decreed if other factual circumstances of transaction have been found proved. II (1995) BC 320. I (1993) BC 367 and AIR 1997 SC 3 followed. AIR 1970 MP 225 relied on. . [Para 8
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1. Unsuccessful plaintiff against the dismissal of its suit being dissatisfied with the judgment and decree dated 30.6.1992 passed by the X Aditional District Judge, Jabalpur, in Civil Suit No. 64B of 1990 (8B of 1987) has preferred this appeal for decreeing its suit by setting aside the impugned decree and judgment.
2. Facts giving rise to this appeal are that the appellant -plaintiff being a nationalized bank having a branch at Civil Lines, Jabalpur, respondent No.1 Government contractor had a current account in the aforesaid branch of the appellant. He requested appellant to provide overdraft facility. The same was considered and sanctioned upto the limit of Rs. 10,000/- on prevailing terms and conditions in respect of such facility. In continuance of this transaction the respondent had executed a demand promissory note for the sum of Rs. 10,000/- with a promise to pay on demand along-with interest @ 17.5% p.a. at quarterly rests. In this regard an agreement in respect of continuous security was also executed in support of the aforesaid promissory note by mentioning that the said documents would remain as continuous security and same be enforced in relating to the money which would be drawn by respondent. The respondent No.2 Aroop Kumar Mukherjee had furnished the guarantee by way of executing an agreement of guarantee in favour of the Bank on 11.5.1985 to provide the said facilities to respondent No.1. As per terms of this agreement of guarantee, he took liability for repayment regarding all dues of the respondent No. 1 in connection of the aforesaid overdraft limit along-with interest, costs, charges and expenses. Subsequent to transaction the respondent No. 1 failed to pay the outstanding dues. Thus, the suit was filed against the respondents for recovery of Rs. 25,380.75 p. along-with interest @ 17.5% p.a. and costs. The aforesaid suit was verified, signed and dated by the Regional Manager Mr. S.S. Joshi, as principal officer of the appellant Bank although he had power of attorney in his favour and a photocopy of the same was submitted along-with the plaint.
3. The respondent No.1, in-spite of service of summons, remained absent and ordered to be ex parte. While the respondent No.2 guarantor had tiled the written statement in which all the averments made by the plaintiff in the suit have been denied. Even the execution of the aforesaid documents relating to guarantee have also been denied.
4. In view of the aforesaid pleadings the issues were framed by the trial Court. The parties were directed to lead their evidence after recording evidence. On appreciation of it, it was held that the power of attorney of the aforesaid Regional Manager has not been proved in respect of authorization to file the suit on behalf of the Bank as such in the lack of it, the suit was not signed and verified by the duly authorized person. It was also held that it- has not been proved that in connection of the aforesaid overdraft facility to the respondent No.1 the guarantee was given by respondent No.2. In this pretext the suit of the appellant was dismissed with costs, hence the appellant Bank has preferred this appeal.
5. Learned counsel for the appellant has fairly submitted that the original power of attorney was neither produced nor proved but in the absence of the same in view of the provision of Order 29 Rule 1 of the Code of Civil Procedure the suit was properly signed, verified and dated with the signature of the principal officer of the Bank, the Regional Manager for the concerning branch. He also submitted that the signature of Mr. S.S. Joshi, Regional Manager, on the plaint has been duly proved by the other officials of the Bank Mr. Umesh Shukla (PW1), Mr. Suman Chunnilal Mehta (PW2). Not only the signatures have been proved but the status of the Regional Manager as principal officer of the Bank has. also been proved by these witnesses. In support of this contention, he cited some decisions of the different High Courts along-with
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