BANK OF BARODA Vs. KAILASH CHANDRA AND OTHERS

JUDGEMENT

(1.) This appeal by the plaintiff/appellant, whose suit for recovery of Rs. 41,632.04 p. from the defendant/respondents, has been dismissed by the trial Court, by the impugned judgment and decree dated 28th Oct., 1980, passed in Civil Suit No. 3-B/82, by Additional Judge to the Court of District Judge, Khandwa.

(2.) Briefly stated the facts of the case are that the plaintiff/appellant had advanced a loan of Rs. 25,000.00 on the basis of demand promissory note of Rs. 25,000.00 on 17th May, 1977. In view of the failure on the part of defendant/respondents to repay the loan, the plaintiff/appellant filed the suit for the recovery of the amount inclusive of interest on 19th Jan., 1982. After framing the issues the suit has been dismissed on the sole ground that the suit filed by the plaintiff/appellant through its authorised officer Shri P.A. Sethi was not properly constituted, inasmuch as Shri P.A. Sethi had no authority to file the suit on behalf of the Bank. It appears that there is a power of attorney in favour of Shri P.A. Sethi, Manager of the Bank of Baroda, posted at Indore, for prosecuting cases and for and against the bank, but the said original was not produced before the Court. It further appears that an application under Sec. 151 of the Civil Procedure Code (hereinafter referred to as "the Code") was moved by the plaintiff/appellant before the trial Court for comparing the power of attorney with the copy filed in the Court. It may be pointed out at this stage that the copy filed in the trial Court is neither signed by any one nor attested to be a true copy of the original power of attorney in favour of Shri P.A. Sethi, Manager, Bank of Baroda, at Indore. This application was filed when the case closed for judgment and in the absence of the defendants/respondents and was rejected by the trial Court vide its order dated 19th Oct., 1983, holding inter alia that if the plaintiff/appellant wanted to prove the power of attorney, the plaintiff should have done it at the time of evidence which he did not do and in spite of the fact that an objection was raised by the defendants and the learned counsel for the plaintiff/appellant assured to prove it, the learned counsel for the plaintiff felt satisfied with whatever evidence was adduced on behalf of the plaintiff/appellant and closed the evidence on behalf of the plaintiff on all issues. It has been further held that if the plaintiff at all wanted to prove his power of attorney, the plaintiff should not have closed the evidence and since the plaintiff chose to close his evidence, if the power of attorney is now taken in evidence, it would amount to additional evidence for which no permission was given to the plaintiff/appellant by the Trial Court. It has further been held that since there are specific provisions as contained in Order 13 Rule 2 of the Code, the plaintiff/appellant cannot be allowed to abuse the process of the Court under Sec. 151 of the Code.

(3.) By the impugned judgment the suit was dismissed in entirety without going into the other issues framed by the Trial Court. The learned counsel for the plaintiff/appellant contended that the Trial Court wrongly rejected the application filed by the plaintiff on 1.10.1983, wherein it was specifically stated that the power of attorney authorising Shri P.A. Sethi to file and prosecute the suit was in fact sent to Jhabua where it was to be filed in another case before a Civil Court and that the same could have been produced by the plaintiff/appellant after his return from Jhabua Court. It has further been argued by the learned counsel for the appellant that there is only one power of attorney in the entire region and since it is required to be produced in every case; the same has to be sent to various places for its production in the Court. However, even when this application was moved on 1.10.1983, the original power of attorney was not shown to the Trial Court. The learned counsel for the appellant/plaintiff urged that the said power of attorney could be produced even before this Court if time is granted. However, it may be stated that the suit was filed on 19.1.1982 and the application before the Trial Court was moved on 1.10.1983 and even on that date same was not accompanied by the original power of attorney as is apparent from the order dated 19.10.1983 passed by the Trial Court to the effect that even on that date when the application was moved the original power of attorney was not shown to the Court. This appeal was preferred by the plaintiff/appellant on 13.2.19084 and till its final hearing, today, the plaintiff had taken no steps to produce the power of attorney even before this Court nor was it available for the production when the appeal was taken up for final hearing.