Madhya Pradesh High Court
Bank Of India vs S.K. Mukherjee And Anr. on 6 September, 2005
Equivalent citations: AIR2006MP58, AIR 2006 MADHYA PRADESH 58, 2006 (2) AJHAR (NOC) 503 (MP), 2006 (3) AKAR (NOC) 293 (MP), 2006 A I H C 1871, (2006) 2 JAB LJ 439, (2006) 1 MPLJ 477
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
ORDER U.C. Maheshwari, J.
1. Unsuccessful plaintiff against the dismissal of its suit being dissatisfied with the judgment and decree dated 30-6-1992 passed by the 10th Additional District Judge, Jabalpur in Civil Suit No. 64-B of 1990 (8-B 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 up to 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 some of Rs. 10,000/- with a promise to pay on demand along with interest @ 17%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 relation 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 photo copy 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 filed 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. 1. 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 the Mr. S. S. Joshi, Regional Manager on the plaint has been duly proved by the other official of the bank, Mr. Umesh Shukla (P.W. 1), Mr. Suraan Chunni Lal Mehta (P.W. 2). 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 a decision of the Apex Court reported in AIR 1997 SC 3. So far other issues are concerned, he has submitted that all the concerning documents regarding aforesaid overdraft facility and transactions have been duly proved as is evident by Ex. P/1 to Ex. P3 and outstanding amount as dues against respondent No. 1 was proved by the copy of the ledger as prepared under the Banking Books Evidence Act Ex. P/8. The aforesaid transaction was duly proved by the concerning officer Mr. Suman Chunni Lal Mehta, (P.W. 2) in whose presence the said documents had been executed by respondents. He also submitted that to controvert this evidence, no evidence was put forth on behalf of the appellant. Even the respondent No. 2 who filed the written statements did not enter in the witness box to prove his defence as pleaded by him. The respondent No. 1 was also examined. In such circumstances there was sufficient circumstance to draw adverse inference against the respondent in respect of the transaction. In support of his contention he also cited some reported decisions. The same would be considered at the appropriate stage of this judgment and prayed for decreeing his suit by setting aside the impugned judgment and decree.
6. No-one has appeared on behalf of any of the respondents to respond the arguments advanced by the appellant.
7. Having heard the learned Counsel for the appellant for considering his submissions, I have gone through the record of the trial Court. It appears that the suit was verified dated and signed by the Regional Manager Mr. S.S. Joshi in the capacity of Principal Officer and submitted through their counsel'' along with photo copy of the power of attorney given by his head office but the said original power of attorney has not been proved either by calling original documents or by examining the aforesaid Principal Officer as he was transferred from this Region to another place but the signature of this officer has been duly proved and verified by Mr. Umesh Shukla (P.W. 1), an employee of the appellant-branch. It is further supported by other witness Mr. Suman Chunni Lal Mehta (P.W. 2), the other official of the same branch. These witnesses have also proved all other documents relating to the aforesaid transactions, but the question comes whether the Regional Manager of the Bank could be treated as Principal Officer of the Bank or not. Thus Court has to examine aforesaid question. It could not be disputed that the Regional Manager of the appellant bank is a 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 tranctions 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 which reads as under :-
1. Subscription and verification of pleading :- In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.
8. Thus 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. The aforesaid view is satisfactorily fortified by following precedents.
9. At earlier occasion in the matter of Jagdish Singh v. Central Bank of India, reported in II (1995) BC 320 this question has been answered as under :-
I have considered the argument. Provisions of Order 29, Rule 1, CPC show that the plaint can be signed by the Principal Officer of the Corporation who is able to depose to the facts of the case. Jaswant Rai Mitra was Assistant Divisional Manager at Gwalior and he was able to depose to the facts on the case and he was Principal Officer at Debra. The plaint in para 2 states that Jaswant Rai Mitra is authorized to sign plaints and to verify them and to do all other legal acts of behalf of the, plaintiff Bank. In his statement P.W. 1 Subhash Chandra in para 3 specifically stated that J.R Mitra was Assistant Divisional Manager and Principal Officer and the plaint bore his signatures. This statement was not challenged in cross-examination at all. learned Counsel for the appellant contended that authority has not been filed and as such the statement could not be accepted. I respectfully do not agree with the learned Counsel because the statement of P.W. 1 Subhash Chandra has not been challenged at all. It has, therefore, to be taken that J.R. Mitra was Principal Officer and had an authority to sign the plaint. The plaint was, therefore, properly signed. The contention of the appellant fails.
10. On other occasion in the matter of Allahabad Bank, City Branch, Kamania Gate, Jabalpur v. Desh Singh Bhakhna (1993) BC 367 it has been held as under :-
The learned Counsel for the respondents is no doubt right in submitting that the bank should have produced some documentary evidence showing authorization in favour of the then Branch Manager Shri A. L. Pahawa. In our opinion, however, this was not such a fatal defect warranting dismissal of the suit itself. In the oral evidence of the Branch Manager Shri A.C. Kulshreshtha (P.W. 1), who succeeded Shri A.L. Pahawa, it has been clearly stated that by virtue of his office, Shri Pahawa was the duly authorized officer to sign the pleadings and verify the plaint. In cross-examination of the said witness it could not be seriously disputed that Shri A.L. Pahawa was the Branch Manager of the City Branch and he had signed the plaint and verification clause in that capacity. Non-production, therefore, of any document showing authorization by the bank in favour of Shri A.L. Pahawa could not merit dismissal of the suit. Under the provisions of Order 29, Rule 1 of the Code, which prima facie apply, even in a suit filed by the bank, the principal officer of the bank who is able to depose to the facts of the case, was fully authorized to sign the pleadings and the verification clause of the plaint.
11. Again in the matter of United Bank of India v. Naresh Kumar, Hon. Apex Court has answered this question till some extent as reported in AIR 1997 SC 3 which reads as under:-
12. The Courts below having come to a conclusion that money had been taken by respondent No. 1 and that respondent No. 2 and husband of respondent No. 3 had stood as guarantors, and that the claim of the appellant was justified it will be a travesty of justice if the appellant is to be non suited for a technical reason which does not go to the root of the matter. The suit did not suffer from any jurisdictional infirmity and the only defect which was alleged on behalf of the respondents was one which was curable.
13. The Court had to be satisfied that Shri L.K. Rohatgi could sign the plaint on behalf of the appellant. The suit had been filed in the nature of the appellant company; full amount or court-fee had been paid by the appellant bank; documentary as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub Judge, Ambala, had continued for about two years. It is difficult, in these circumstances even to presume that the suit had been filed and tried without the appellant having authorized the institution of the same. The only reasonable conclusion which we can come to is that Shri L.K. Rohatgi must have been authorized to sign the plaint and in any case, it must be held that the appellant had ratified the action of Shri L.K. Rohatgi in signing the plaint and thereafter it continued with the suit.
12. In view of the aforesaid dictum of different Courts the facts and circumstances of the case at hand are identical till some extent because in the instant case the respondents have not led any evidence, even they have not examined themsleves to challenge the authority of the Regional Manager as Principal Officer of the appellant. Thus, it is held that the plaint was properly signed, verified and filed by the Principal Officer of the appellant as permissible under Order XXIX, Rule 1 of the Code of Civil Procedure even in the absence of power of attorney it could not be dismissed. Consequently the finding of the trial Court in this regard is hereby set aside.
13. Coming to the second question of the case the document relating to the aforesaid transaction, the promissory note, Ex. P/1, the agreement for continuing Security. Ex. P/2, the Guarantee Agreement executed by the respondent No. 2, Ex. P/3 and the ledger for showing the outstanding dues against respondent No. 1, Ex. P/8 have been duly proved by the responsible bank officials of the appellant Mr. Umesh Kumar (P.W. 1) and Mr. Suman Chunni Lal Mehta (P.W. 2) as stated by them in their in chief of the deposition in this regard have not been destroyed, even in the cross-examination. The respondents have also not adduced any evidence to controvert the testimony of aforesaid witnesses. Even the respondent No. 2 who filed written statement has not entered in the witness box in order to prove his defence as pleaded by him. Thus, mere pleading in the W.S. could not take place of the evidence under the settled existing legal position. Even otherwise party who had knowledge of the material fact of the case and not entered in the witness box without sufficient reasons warrants sufficient circumstance to draw adverse inference against him as per provision of Section 114 of the Evidence Act. Such question was answered by this Court in the matter of Gulla Kharagjit Carpenter v. Nandkishore Rawat reported in AIR 1970 Madhya Pradesh 225 in which it was held as under :-
When a material fact is within the knowledge of a party and he does not go into the witness box without any plausible reason, an adverse inference must be drawn against him. A presumption must be drawn against a party who having knowledge of the fact in dispute does not go into the witness box particularly when a prima facie case has been made out against him.
14. In view of the aforesaid discussion the documents relating to the transaction in dispute the promissory note, both the agreements, along with ledger of outstanding dues have been duly proved. It is very unfortunate that even in the absence of the evidence on behalf of the respondents the evidence of plaintiff appellant was not appreciated with proper prospects and approach and suit was wrongly dismissed by trial Court. Thus, this finding of trial Court is also set aside.
15. No any other question was raised before me. Thus, in view of the aforesaid discussion the judgment and the decree of the trial Court is hereby set aside and the suit of the appellant is hereby decreed against both the respondents for Rs. 25,380.75 p. along with the interest @ 16.5% p.a. on the aforesaid amount from the date of filing this suit up to realisation of the amount as it was a commercial transaction of the appellant. The costs of the suit and the appeal shall also be born by the respondents. Counsel fee Rs. 2000/- if certified. The decree be drawn up accordingly.