Debt Recovery Appellate Tribunal - Madras
Pratap Shah vs Indian Overseas Bank on 13 August, 2002
Equivalent citations: II(2003)BC56
ORDER
A. Subbulakshmy, J. (Chairperson)
1. The appeal is directed as against the order passed by the learned Presiding Officer, Debts Recovery Tribunal-2 (DRT), Chennai in IA-38/2002 in TA-343/2001 for sending the document Power of Attorney Ex. A-21 to the Forensic Science Department of Government of Tamil Nadu, Chennai, for examination as to the age of the manuscript portion and the signatures contained in that document and objection was raised by the respondent Bank and the Presiding Officer, DRT, Chennai dismissed that petition holding that only to protract the proceedings the petition has been filed.
2. The learned Counsel appearing for the appellant contends that the typed portions in the Power of Attorney filed appears to be new and it would not have been of the year 1975 when the Power of Attorney was executed and the typed portion came into existence only at the later point of time and the Power of Attorney was also not notarized and the Power of Attorney is a fabricated one and this document has to be sent to the Government Forensic Laboratory, Chennai to find its age of the typed portion and also with regard to signatures.
3. The Counsel for the respondent Bank submits that the then Manager of the Bank filed the plaint and the Manager of that Bank can take steps to recover the loan amount from the borrowers by taking Court proceedings. The Manager of the Bank who was working in the office during 1991 filed the suit by signing the plaint, Vakalat, etc., and the plaint was accepted by the Hon'ble High Court and numbered the same and that cannot be questioned now. He further submits that it is not possible for the manager who signed the plaint to come and give the evidence in the Court at the time of trial and executing of Power of Attorney is an internal matter within the Bank and there is no necessity for the Bank to forge any document and power was given to the Bank Manager to sign the plaint and file the suit against the defaulted borrowers and there is no necessity to send the documents to the Forensic Laboratory. His further contention is that the defendant has not denied the borrowing of the loan from the plaintiff Bank and it is not the case that he is not liable for the loan and the defendant admitted the dues of the Bank and also furnished the security for the amount due to the Bank and so, the question of sending the document to the expert does not arise. The Power of Attorney was executed in the year 1975 counter signed by General Manager of the Indian Overseas Bank and the Director has signed. The Counsel for the appellant defendant strenuously argued that the typed portion in the Power of Attorney appears to be new and it was typed only at a later point of time.
4. The Manager of the Branch has filed the suit for the recovery dues from the borrowers for the amount due from the borrowers from the Bank by signing the plaint, Vakalat, etc., and filed in the Court. Originally the plaint was filed in the High Court and then it was transferred to DRT. The plaint was taken on file by the High Court and it was pending there and after the formation of the DRTs, it was transferred to DRT-2, Chennai. Only during the trial in the course of evidence the filing of the Power of Attorney had arisen and it was filed in the Court.
5. The Power of Attorney was executed in the year 1975. The Bank being public institution, there is no necessity on behalf of the Bank to forge any document. The then Manager of the Bank signed and filed the suit. Another Power of Attorney of the same Bank of the year 1983 was also shown before this Tribunal which also reveals that the Director has signed and it was counter signed by the General Manager of the Indian Overseas Bank. None of the Power of Attorney was notarized. The Manager of the Bank who was the person responsible for recovery of amount from the borrowers, when the borrower has committed default has to file suit for recovery of that amount and the manager was doing his duty by filing a suit. It was something strange for the Counsel for the appellant to contend that the typed portion appears to be new and it was typed at a letter point of time.
6. As rightly pointed out by the Counsel for the respondent Bank, there is no necessity at all to forge the document Power of Attorney.
7. The Hon'ble Supreme Court in AIR 1997 Supreme Court 3 page 3 has held that--
"(i) Where the Courts came to a conclusion that money had been taken by certain parties from Bank and certain persons had stood as guarantors and that the claim of the Bank was justified it will be a travesty of justice if the Bank is to be nonsuited for a technical reason such as plaint was not signed by competent person which does not go to the root of the matter and the only defect which was alleged on behalf of the parties was one which was curable.
(ii) In case where suits are instituted or defended on behalf of a public corporation like Bank; public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
(iii) It cannot be disputed that a company like the Bank can sue and be sued in its own name. Under Order 6 Rule 14 of the CPC a pleading is required to be signed by the party and Us pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29, Rule 1 of the CPC, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the Corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or Power of Attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation."
8. The Apex Court in the above said decision has clearly held that it will be a travesty of justice if the Bank is to be not suited for a technical reason such as plaint was not signed by competent person which does not go to the root of the matter and where suits are instituted or defended on behalf of a public corporation like Bank, public interest should not be permitted to be defeated on a mere technicality. The then Manager of the Bank has signed the plaint and filed suit in the Hon'ble High Court which was transferred to the Presiding Officer, DRT-2, Chennai and at the time of trial in the course of evidence this Power of Attorney was filed. The Power of Attorney is in printed form and only the name and some other particulars are typed. The Power of Attorney was executed in the year 1975 and director has signed and it was counter-signed by General Manager and it cannot be stated that the typed portion appears to be new. There is no basis at all to allege that the typing in the Power of Attorney appears to be new and the age of typing has to be gone into by sending it to the Forensic Laboratory.