UNITED BANK OF INDIA Vs. PRABHAS CH DEB

JUDGEMENT

(1.) This Rule arises on an application under Section 115 of the Code of Civil Procedure and is directed against order No. 14 dated April 8, 1974 passed by Shri A. N. Saha, Additional Subordinate Judge, Nadia, in Title Suit No. 2 of 1974.

(2.) The facts of the case may briefly be stated as follows :-- The petitioner as plaintiff filed a suit against the opposite parties. The said suit was signed and verified by one Sri C. R. Sen Gupta. Agent of the Be-thuadari Branch of the United Bank of India. The defendant challenged the verification. The plaintiff was allowed time to satisfy the court that Sri Sengupta fills up the character of any of the personalities described in Order 29, Rule 1 of the Code of Civil Procedure. The plaintiff, however, produced a registered power of attorney executed by the Manager and the Director of the Bank authorising one Sri Nikhil Ranjan Ghosh to sign the pleading on behalf of the company. It was the contention of the plaintiff that by the said power of attorney Sri Ghosh was authorised to sign and verify the plaint. The defendant raised an objection to the effect that Sri Ghosh cannot be considered as one of the principal officers mentioned in Order 29, Rule 1 of the Code. The learned Subordinate Judge after hearing the learned Advocates for the parties was of the opinion that Sri Ghosh could sign the plaint, but the plaintiff was directed to have the plaint verified by an officer enumerated in Order 29, Rule 1 of the Code. Being aggrieved by the aforesaid order, the plaintiff has come up to this Court.

(3.) Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the petitioner, draws our attention to Section 435 of the Old Code, the provisions of which are similar to those in Order 29, Rule 1. Mr. Banerjee submits that Shri Sen Gupta, the Agent of the Bank, ought to have been considered as a principal officer of the bank as he was managing the affairs of the bank and it was he who on behalf of the bank advanced loan to the defendants for the non-payment of which the suit has been brought. Mr. Banerjee in this connection further submits that loan has been admitted by the defendants in their written statement and it is only to delay the matter, a baseless objection has been raised on behalf of the defendants. Mr. Banerjee submits that when the plaint was signed and verified by the local agent of the bank, it was for the other side to show that he was not a person authorised. In support of his contention Mr. Banerjee refers to a decision reported in (1901) 5 Cal WN 91 (Ram Komal Saha v. Bank of Bengal of Akyab). It has been held in this case that where a petition by the Bank of Bengal was verified by a person described as the Officiating Inspector of Branches, Bank of Bengal, and there was nothing to show that he was not the officer authorised to sue or verify the petition on behalf of the Bank at Chitta-gong or that he was not able to depose to the facts of the case. The petition was properly verified under Section 435, C. P. C-Mr. Banerjee very much relies on the pronouncement of the Judicial Committee in (1893) 20 Ind App 139 (PC) (Delhi and London Bank Ltd. v. Oldham). In this case one Mr. Lawson was acting under the power of attorney as Accountant to the company in Lucknow. Mr. Langdon, the manager, was away in Cashmere; Mr. Banks, whose position is not explained, but who appears to have been a leading officer of the bank, was ill with smallpox; Mr. Lawson, having the large powers expressly conferred upon him by the power of attorney was apparently the sole authority; at all events, he was conducting the chief banking business of. the branch in Lucknow. Their Lordships thought that in the absence of any evidence that any one else was at the time in question doing any act of management, it was fair to presume that he was the person of all others best able to depose to the facts of the case, the action being in respect of transactions depending upon documents which would necessarily be accessible to him at the time. Their Lordships further found that Mr. Lawson was then as he described himself acting manager of the Bank of Lucknow and that as such he was a 'principal officer of the corporation', entitled to subscribe and verify the plaint within the meaning of Section 435 of the Code, and that the suit was properly instituted. Mr. Banerjee submits that the facts of the present case are identical with the facts of the case cited above. Here Sri Sen Gupta was the agent of the bank. It was he who advanced loan on behalf of the bank to the defendants. That being so, he was a prin cipal officer of the bank and it was he who was most able to depose about the facts of the case. In such circumstances it must be held that the plaint was signed and verified by Sri Sen Gupta properly.