1985 Supreme(MP) 102

C. P. Sen and S. Awasthy, JJ.
Tulsiram v. Bank of Maharashtra.
F. A. No. 108 of 1982 (J); Decided on 8-2-1985.

Headnote:(1) Civil P. C., 1908 -- O. 3, R. 2 (a) and O. 6, R. 15 -- holder of power of attorney -- can verify plaint pleadings.

        (2) Civil P. C., 1908 -- O. 3, R. 2 (a) -- power of attorney not filed in trial Court -- photostat copy filed in appeal -- may be taken on record.

        (3) Civil P. C., 1908 -- O. 41, R. 27 -- power of attorney not filed in trial Court -- photostat copy filed in appeal -- taken on record.

        (4) Civil P. C., 1908 -- S. 34 -- interest -- loan taken only of Rs. 7,750/- -- claim filed of Rs, 27,349/- -- interest reduced to 10% per annum.

        (5) Civil P. C., 1908 -- S. 35 -- costs -- amount of loan only of Rs. 7,750/- -- claim made of Rs. 27,349/- -- costs disallowed.

        (6) Contract Act, 1872 -- S. 25 -- III (e) -- written promise under -- is a contract -- suit filed after execution of such promise within 3 years -- is within limitation.

        The respondent No. 1 filed a suit against the appellants-defendants 1 and 2 and respondents No. 2-defendant No. 3 for recovery of Rs. 27,149.01. The plaint was signed and verified by Shri N. P. Sathe who was the Manager of the Chhindwara Branch of the Bank. He had stated in the plaint that he holds a power of attorney and has a right to sign and verify the plaint which fact was denied by the defendants and an issue was framed. The trial Court held that Shri N. P. Sathe had the authority to sign and verify the plaint. The power of attorney which was given to Shri Sathe was not filed in the trial Court. The respondent-plaintiff filed an application under Order 41, Rule 27, C.P.C. along with a photo-stat copy of the power of attorney in favour of Shri N. P. Sathe, dated 8-1-1974. The power of attorney so filed shows that Niranjan Prabhakar Sathe had the authority to sign and verify the plaint. It was stated in the application that there was oral evidence in the case about Shri N. P. Sathe having power of attorney to sign and verify the plaint which was accepted by the Court below but due to inadvertence, the document (power of attorney) could not be filed in the trial Court. The appellants have disputed the genuineness of the document and also objected to its being taken on record because no proper explanation was given for filing the document so late.

        Held : We have perused the photo-stat copy of the power of attorney. We have no doubt regarding the genuineness of the document and we are satisfied that the document could not have been filed in the trial Court due to inadvertence. We, therefore, allow the application dated 6-2-1985 and take the document on record.

        We hold Shri N. P. Sathe had the authority to sign and verify the plaint. The plaint cannot be rejected on this ground. The delay in filing this document shall be considered while awarding the costs.

        The contention of the appellants is that from the pleadings it appears that the loan of Rs. 7,750/- on 26-5-1971 was, in fact, granted to the defendant No. 3 (respondent No. 2) and the [appellants-defendants Nos. 1 and 2 had merely signed the document. They, therefore, cannot be held liable for the amount of loan granted to the defendant No. 3. This argument is of no consequence for the reason that in the written statement filed by defendant No. 2 (appellant No. 2), Chakradhar Singh, it is admitted that a loan of Rs. 7, 750/- was taken by him and his brother defendant No. 1 (appellant No. 1) who was proceeded exparte in the trial Court. He has, however, not admitted that the said loan was renewed by writing a fresh document on 11-7-1974 by accepting the amount of loan on that day as Rs. 11,188/- and again on 17-1-1978 as Rs. 17,484.64 vide Ex. P-4.

        The renewed pronotes dated 11-7-1974, Ex. P-2 and dated 17-1-1978, Ex. P-4, bear the signatures of the defendants as has been proved by Ramakant (P. W. 1) before whom the defendants had signed those documents. A comparison of Exs. P-2 and P-4 with Ex. P-1 also makes it clear that the documents, Exs. P-2 and P-4, were signed by the same persons who had signed Ex. P-1. We, therefore, hold that the defendants had executed Ex. P-4 on the basis of which the present suit has been filed.

        It was argued by the learned counsel for the appellants that the renewal of Ex. P-1 was done after a lapse of 3 years from the date of original execution of Ex P-1 dated 26-5-1971, the date of advancing the loan of Rs. 7,750/-. It is further argued that the date of execution of Ex. P-4 is also after the lapse of 3 years. Hence, the renewals were barred by limitation. No action could lie on such renewals. The learned counsel for the respondent No. 1 relied on section 25 (3) of the Contract Act and urged that the suit could be based on Ex. P-4.

        Under illustration (e) given in section 25 of the Contract Act, such a written promise shall be a contract. Exhibit P-4 is an express promise made in writing and signed by the persons to be charged therewith to pay wholly the debt of which the Bank has enforced payment and the suit has been filed within 3 years from the date of its execution. Therefore, the suit is within time. Please see. Tulsiram v. Samesingh (A. I. R. 1981 Delhi 165, at p 168, 169) and Mawaji Ramji v. Premji Kumbhabhai (A. I. R. 1967 Orissa 158). we, therefore, reject the contention of the learned counsel for the appellants and hold that the appellants are bound to pay the amount mentioned in the pronote, Ex. P-4 and interest at the rate of 14 per cent per annum as agreed and shown in the document, Ex. P-4, till the date of suit.

        It was argued by the learned counsel for the appellants that in the original pronote, Ex. P-1, the rate of interest which was mentioned was uncertain. Hence, interest could not be recovered. The pro note, Ex. P-1, mentions that "interest on such sum from this date at the rate of 5% over the Bank rate, minimum 11 per cent per annum with quarterly rests for value received."

        On 11-7-1974, the defendants had executed a document, Ex. P-2, in which they have confirmed the debit balance of Rs. 11,188.64 due from them till date on the account exclusively of interest from 1-7-1974 and acknowledged their liability and indebtedness for the same. We are, therefore, unable to reopen the account and to accept the contention of the appellants counsel. In the same manner, in Ex. P-4, the defendants had acknowledged their liability to pay Rs. 17,487. 64 and agreed to pay interest on that sum from that date (17-1-1978) at the rate of 5% over Bank rate, minimum 14 per cent per an1um with quarterly rests for the value received. The interest charged from the defendants-appellants is at the rate of 14 per cent only. It being the minimum rate of interest agreed by the appellants the same has to be accepted. We, therefore, reject the submission of appellants and hold that they are liable to pay interest at the agreed rate.

        We feel that the appellants had taken a loan of only Rs. 7,750/- on 26-5-1971 for which a claim of Rs. 27,349.01 has been made which is quite an excessive. Hence, we hold that from the date of the suit till recovery the defendants shall pay interest at the rate of 10 per cent per annum only over the decretal amount. We also order that the costs of the suit as well as appeal shall be born by the parties as incurred. AIR 1981 Delhi 165 and AIR 1967 Orri. 158 relied on. Appeal dismissed.