PRADEEP Vs. BRANCH MANAGER NEDUNGADI BANK LTD

JUDGEMENT

(1.) In this Writ Petition under Art. 227 of the Constitution, the petitioner, who is a power of attorney holder of the 2nd defendant in a suit for recovery of money filed by the first respondent bank, challenges Ext.P1 order by which the learned Subordinate Judge dismissed an application filed by him for leave to represent his principal in the suit. The interlocutory application was filed by the petitioner under S.151 of the Code of Civil Procedure read with R.22 of the Civil Rules of Practice producing power of attorney dated 18.1.2003 executed by the 2nd defendant in the suit in his favour and Ext.P1 is the order on that application.

(2.) A counter affidavit was filed to the application by the respondent bank wherein the objections were to the effect that the power of attorney is not attested by witnesses and that the same has not been duly authenticated by the notary. The objections found favour with the learned Subordinate Judge who took the view that there is no proper authentication of the power of attorney and that there is no proper endorsement by the notary public to the effect signature of the principal has been subscribed to in the notary's presence. Accordingly, the learned Subordinate Judge dismissed the application. In fact on the same day the learned Judge, by a separate order dismissed another application filed by the petitioner seeking reception of the written statement filed by him through the power of attorney holder on the reason that I.A. 2168/2004 filed by the petitioner for permission to conduct the case by the power of attorney stands disallowed. That order is separately challenged by the writ petitioner in WP (C) No. 15708/2005.

(3.) I have heard the submissions of Sri. Vinod Madhavan, the learned counsel for the petitioner and those of Sri. Madhu Radhakrishnan the learned counsel for the respondent Bank. A copy of the power of attorney as well as copies of the application and the counter were placed before me for my perusal by the learned counsel. Strong reliance was placed by Mr. Vinod Madhavan on S.85 of the Indian Evidence Act and the decision of the Supreme Court in Jugari Singh and Anr. v. Jaswant Singh & Ors. (AIR 1971 SC 761) to contend that it is not necessary that the notary says in the endorsement that he was convinced regarding the identity of the executant. The notary seal itself enjoys the presumption that the document has been duly authenticated. The learned counsel also relied on the judgment in Narayanan Nair v. John Kurien (1988 (1) KLT 673) to argue that the scope of R.14 of O.VI of CPC is not circumscribed by any rules in Civil Rules of Practice and that even an oral authorisation will be sufficient. The counsel submitted that R.22 of the Civil Rules of Practice does not insist on any power of attorney and that any other written authority containing authorisation will suffice. Even if the power of attorney in question is not a duly authenticated one then also it could be construed as other written authority' for the purpose of R.22.