Karnataka High Court
Narayana Nayak S/O Krishna Nayak vs B Govinda Bhat S/O B Narasimha Bhat on 14 September, 2012
Author: Ajit J Gunjal
Bench: Ajit J Gunjal
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE AJIT J GUNJAL
REGULAR FIRST APPEAL NO.1559 OF 2003 (DEC)
BETWEEN:
SRI NARAYANA NAYAK
S/O KRISHNA NAYAK
SINCE DECEASED BY LRS.
1(a) SRI B BHASKARA NAYAK
S/O LATE B NARAYANA NAYAK
AGE: 36 YEARS
R/O BERYA HOUSE
KOOTHKUNJ POST AND VILLAGE
PANJA, SULLIA TALUK
DISTRICT: D.K.
1(b) LALITHA
W/O LATE B NARAYANA NAYAK
AGE: 62 YEARS
R/O BERIYA HOUSE
KOOTHKUNJ POST AND VILLAGE Amended
PANJA, SULLIA TALUK vide
DISTRICT: D.K. Court
Order
1(c) BHARATHI dated
D/O LATE B NARAYANA NAYAK 15.12.2004.
AGE: 46 YEARS
R/O BERIYA HOUSE
KOOTHKUNJ POST AND VILLAGE
PANJA, SULLIA TALUK
DISTRICT: D.K.
2
1(d) B PRASANNA KUMAR
S/O LATE B NARAYANA NAYAK
AGE: 40 YEARS
R/O BERIYA HOUSE
KOOTHKUNJ POST AND VILLAGE
PANJA, SULLIA TALUK
DISTRICT: D.K. Amended
vide
1(e) B VASUDEVA NAYAK Court
S/O LATE B NARAYANA NAYAK Order
AGE: 34 YEARS dated
R/O BERIYA HOUSE 15.12.2004.
KOOTHKUNJ POST AND VILLAGE
PANJA, SULLIA TALUK
DISTRICT: D.K.
APPELLANT NOS.1(a) TO 1(d)
ARE REP BY THEIR GPA HOLDER,
APPELLANT NO.1(a),
SRI B. BHASKARA NAYAK. ...APPELLANTS
(BY SRI: G BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1 B GOVINDA BHAT
S/O B NARASIMHA BHAT
AGED 46 YEARS
2 SMT SUMATHI
W/O B NARASIMHA BHAT
SINCE DECEASED BY LRS.
2(a) SUBRAMANYA BHAT
S/O NARASIMHA BHAT
AGE: MAJOR
R/O BANDHATADKA HOUSE Amended
IVARNADU VILLAGE AND POST vide Court
SULLIA TALUK. Order
dated 30.3.2010
2(b) GOVINDA BHAT
S/O NARASIMHA BHAT
R/O BALEKUCHI HOUSE
3
MUGNOORU VILLAGE
KAVU POST
PUTTUR TALUK.
2(c) VASANTHI D/O NARASIMHA
R/O BANDHATADKA HOUSE
IVARNADU VILLAGE AND POST
SULLIA TALUK.
2(d) RAJESHWARI D/O NARASIMHA
R/O BANDHATADKA HOUSE
IVARNADU VILLAGE AND POST
SULLIA TALUK.
2(e) BHUVANESHWARI
D/O NARASIMHA
R/O BANDHATADKA HOUSE Amended
IVARNADU VILLAGE AND POST vide Court
SULLIA TALUK. Order dated
30.3.2010
2(f) SADARAMA D/O NARASIMHA
R/O BANDHATADKA HOUSE
IVARNADU VILLAGE AND POST
SULLIA TALUK.
2(g) SHAMALA D/O NARASIMHA
R/O BANDHATADKA HOUSE
IVARNADU VILLAGE AND POST
SULLIA TALUK.
2(h) SWARNAMALINI
D/O NARASIMHA
R/O BANDHATADKA HOUSE
IVARNADU VILLAGE AND POST
SULLIA TALUK. ...RESPONDENTS
(BY SRI: K SACHINDRA KARANTH, ADVOCATE FOR
RESPONDENT NO.1,
SRI: SACHIN B S, ADVOCATE FOR
M/S: DHARMASHREE ASSOCIATES, FOR
RESPONDENT NOS.2(a), 2(c) TO 2(h),
RESPONDENT NO.2(b) IS SERVED)
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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE AGAINST THE
JUDGMENT AND DECREE DATED 31.10.2003 PASSED IN
O.S.NO.7/1997 ON THE FILE OF THE CIVIL JUDGE (SR.DN),
PUTTUR, D.K., DISMISSING THE SUIT FOR DECLARATION AND
POSSESSION.
THIS REGULAR FIRST APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Unsuccessful plaintiff is before this Court. He has called in question the judgment and decree passed by the learned trial Judge, declining to grant a decree of declaration that the sale deed dated 29.5.1996 executed by the first defendant in favour of the second defendant is not valid, not binding on the plaintiff and as null and void and a direction to the defendants to pay the mesne profits to the plaintiff from 31.12.1995 and also for possession.
2. During the course of the judgment, the parties will be referred to as per the ranking in the trial Court.
3. The facts leading to filing of this appeal can be summarised as follows:
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The plaintiff owned warga lands situate at Balekochi locality of Madnoor Village consisting of Paddy fields, Areca garden, Cashew and other fruit bearing trees. The plaintiff was also residing in the house situate in the said property and was in possession and enjoyment of the same. The plaintiff claims that he had effected substantial improvements of Agme in the adjacent Government land by planting Cashew trees, 60 Areca plants and 5 Coconut plants and enclosed the whole agme with agalu. The plaintiff had also sunk a Tank and the water from the said Tank was being used for irrigation of the Areca Garden situate in the Warga lands and also the Government land, which he claims was in his possession as an unauthorised cultivator. The plaintiff would contend that he also made an application to the competent authority seeking regularisation of the unauthorised occupation. Suffice it to note that the plaintiff sold the Warga lands belonging to him in favour of defendant No.1 for consideration of Rs.50,000/- pursuant to a registered sale deed dated 18.3.1981, which is marked as Ex.D-3 in the proceedings.6
Pursuant to the said sale deed, the plaintiff puts the first defendant in possession of the said property. With the sale consideration, the plaintiff purchased certain other properties in Balnadu Village and he shifted to Balnadu Village. It is the case of the plaintiff that he had already effected improvements in the adjacent Government land and had applied for assignment of the same. According to the plaintiff, he did not sell the improved land nor was there any intention to sell those lands in favour of the defendants, inasmuch as they were the Government lands. On an application made by the plaintiff, Saguvali Chit was issued on 26.5.1981, which is marked as Ex.D-2. It is his case that he had improved the said lands considerably and there was no occassion for him to sell the said property through the power of attorney holder. It is his case that after the grant of the land, he was finding it difficult to come to the suit property from Balnadu Village and consequently, expressed difficulty in this regard to the first defendant, who offered to assist the plaintiff in maintaining the suit property and to carry on the necessary works in 7 the suit property as directed by the plaintiff. The plaintiff believed the first defendant and his representation and consequently executed the irrevocable power of attorney in favour of the first defendant on 27.7.1983, which is marked as Ex.D-4. It is the case of the plaintiff that he was compelled to execute the said power of attorney, inasmuch as he was not aware as to the contents. It appears, the brother of the first defendant had filed a suit in O.S.No.133/1995 with respect of the suit schedule property wherein the plaintiff was also arrayed as a defendant. It is at that point of time, the plaintiff came to know that pursuant to the irrevocable power of attorney, defendant No.1 had executed a sale deed in favour of defendant No.2. In these circumstances, the present suit is filed. It is also the case of the plaintiff that the sale consideration of Rs.40,000/- as disclosed in the sale deed dated 29.5.1996 said to have been executed by defendant No.1 in favour of defendant No.2 was not at all received by him. Hence, having come to know that the power of attorney was obtained by defendant No.1 by mis- 8 representation, he issued a Paper Publication revoking the power of attorney on 9.5.1995 at Ex.P.12. Hence, according to the plaintiff, under Section 201 of the Contract Act, the question of defendant No.1 conveying the title in favour of defendant No.2 does not arise. Hence, in these circumstances, the relief as aforesaid was sought for.
4. The first defendant entered appearance, filed written statement inter-alia contending that the suit is liable to be dismissed for more than one reason. It is the specific case of the first defendant that since the plaintiff moved out of the Village and was residing elsewhere and could not take care of the property which was situate in Balekochi Village, the plaintiff had executed the irrevocable power of attorney on 27.7.1983. It is his defence that the said irrevocable power of attorney is coupled with interest. Hence, under Section 202 of the Contract Act, the question of revoking the said power of attorney does not arise. It is his case that the plaintiff was all along aware of the power 9 of attorney executed by him in favour of the first defendant and it is also denied that under the said power of attorney, the first defendant had no right to sell. A perusal of the written statement discloses that it is the general denial of the allegations made by the plaintiff.
5. The second defendant has filed a separate written statement, inter-alia contending that the plaintiff had sold the Warga land on 18.3.1981 to defendant No.1. That the plaintiff used to visit the A-schedule property to effect improvements therein is not correct. The second defendant would claim that pursuant to a sale deed dated 29.5.1996, she has derived absolute title to the suit property on the basis of the irrevocable power of attorney executed by the plaintiff in favour of defendant No.1, who in turn, executed the sale deed in favour of defendant No.2. Thus, the question of the plaintiff claiming that the sale is null and void and is not binding on him, does not arise at all. They would also specifically take a contention that Ex.D-3, the first sale is dated 18.3.1981 in respect of 10 the Warga lands. The recitals therein clearly disclose that the plaintiff had also agreed to sell the suit schedule property, which was the subject matter of Saguvali Chit dated 26.5.1981 at Ex.D-2.
6. On the basis of the spacious pleadings, the learned trial Judge has framed the necessary issues, which are as follows:
"1. Whether the defendant-1 had valid right to sell the plaint 'A' schedule property and is the sale deed executed by defendant-1 in favour of defendant-2 is valid and binding on plaintiff?
2. Whether the power of attorney deed dated 27.7.1983 is irrevocable under law?
3. Whether the plaintiff had validly terminated the power of attorney deed?
4. Does sale deed dated 29.5.1996 validly convey any right and title in favour of defendant-2?
5. Whether the sale deed is supported by valid consideration?
6. Whether the plaintiff is entitled to the relief of declaration and for possession?11
7. What is the correct income of plaint 'A' schedule property?
8. Is the plaintiff entitled to claim mesne profits? If so, at what rate?
9. Whether defendant-1 is entitled to claim value of improvements?
10. Whether the court fee paid is not correct?
11. To what relief the parties are entitled?
12. What order as to costs?"
7. In support of the rival contentions, the parties have let-in both oral and documentary evidence. The plaintiff has examined himself as PW-1 and one more witness as PW-2. The first defendant was examined as DW-1. In support of their contentions, the plaintiff has marked Exs.P-1 to P-19 and the defendants have marked Exs.D-1 to D-18.
8. The learned trial Judge, having regard to the evidence on record, has recorded a finding that defendant No.1 had a valid right to sell the plaint 'A' schedule 12 property and the sale deed executed by him in favour of defendant No.2 is valid and binding on the plaintiff. The trial Court has also recorded a finding that the plaintiff has failed to prove that the Power of Attorney dated 27.7.1983 is revocable under law. Insofar as the termination of Power of Attorney is concerned, the trial Court has held that it has not been validly terminated. On appreciation of the evidence, the learned trial Judge has non-suited the plaintiff. Aggrieved by the same, the plaintiff is before this Court.
9. I have heard Mr.Balakrishna Shastry, learned counsel appearing for the plaintiff and Mr.Sachindra Karanth, learned counsel appearing for defendant No.1 and Mr.Sachin B.S., learned counsel appearing for defendant No.2.
10. Mr.Balakrishna Shastry, learned counsel for the plaintiff contends that once the irrevocable Power of Attorney is revoked, the question of defendant No.1 13 executing a sale deed in favour of defendant No.2 does not arise. He also submits that there was no occassion for the plaintiff to part with the suit schedule property, inasmuch as the Saguvali Chit was issued in his favour on 26.5.1981. Hence, the question of defendant No.1 executing a sale deed in favour of defendant No.1 on the basis of the irrevocable Power of Attorney does not arise. He also contends that under Sections 32 and 33 of the Registration Act, the Power of Attorney is required to be authenticated, which has not been done.
11. Mr.Sachindra Karanth as well as Mr.Sachin B.S., learned counsel appearing for the defendants, in tandem submit that the evidence on record clearly discloses that pursuant to the sale deed at Ex.D-3, the plaintiff had admitted to part with the suit schedule property of which he was in unauthorised occupation. They would also submit that the oral evidence on record clearly discloses that the plaintiff had admitted that he was not in possession and also the recital regarding parting of the 14 Government land. Another contention raised by them is that the Power of Attorney executed by the plaintiff is coupled with interest, inasmuch as the defendants were permitted to make use of the land and put-up constructions, etc. Hence, they would contend that once the Power of Attorney executed is coupled with interest, the question of revocation does not arise under Section 202 of the Contract Act.
12. The points which would arise for consideration in this appeal are:
i) Whether the judgment and decree passed by the learned trial Judge warrants interference for non-considering the evidence on record?
ii) Whether the Power of Attorney executed by the plaintiff in favour of defendant No.1 was coupled with interest?
iii) Whether the plaintiff has proved fraud and undue influence in getting the Power of Attorney executed?15
13. Point No.1: The plaintiff was examined as PW-1. Undoubtedly, there is no difficulty about the sale of the Warga lands on 18.3.1981 at Ex.D-3 is concerned. In fact, that would be the case of the plaintiff also. But the bone of contention is in respect of the remaining 6 acres of land. The plaintiff in the oral evidence at para-9 deposes that for the house situate in the suit property, he has not paid any tax nor he has received any demand notice. He also admits that he does not know as to who is paying the tax to the house building situate in the suit property or receiving the demand notice or who was assessed for payment of tax. Indeed it has also come in the evidence that he had absolutely no intention to reside in the Village where the suit property are situate, inasmuch as he admits that he had intention to leave the Village once for all. The fact that the plaintiff has executed an irrevocable Power of Attorney in favour of defendant No.1 is not at all disputed by him. What he disputes is that it has been obtained by fraud and misrepresentation. It is significant to note that 16 in his deposition, he would assert that the insertion of conditions was without his knowledge, but however, he came to know about such insertion after two years of the execution of the Power of Attorney. Indeed, it is to be noticed that the Power of Attorney was executed on 27.7.1983. If the evidence of the plaintiff has to be taken into consideration, he came to know about the insertion of condition regarding limiting the time of the Power of Attorney after two years. There are no compelling reasons shown or forthcoming as to why the plaintiff should keep quiet for over a period of 12 years before issuing the public notice in the Newspaper revoking the Power of Attorney. In the cross-examination, the plaintiff would state that he had not given any application in writing for publication of notice at Ex.P12. He admits that he had complained to Kanathoor Temple that the first defendant is due to him a certain sum of money and the said amount due is with reference to the suit properties. He also admits that he received a sum of Rs.10,000/- outside the 17 Office of the Sub-Registrar and that amount was given to one Krishna Bhat, the vendor of the plaintiff.
14. It is to be noticed that the burden is essentially on the plaintiff to prove that the irrevocable Power of Attorney is obtained by defendant No.1 by fraud and misrepresentation. It is also to be noticed that a perusal of Ex.D-3, that is the sale deed dated 18.3.1981, there is certainly a reference to the suit property of which the plaintiff was in unauthorised cultivation, which would read as under:
"F D¹Û ¬ÄªÀÅUÀ½UÉƦàzÀ Q£ÁgÉ ¨ÁUÁÊvÀÄ PÁqÀÄPÀgÉ PÀlÖqÀ ªÀiÁ ªÀiÁªÀÄÆ®Ä ¤ÃgÀÄ zÀjºÀPÀÄÌ PÀÄ«ÄÌ ºÀPÀÄÌ ªÀÄvÀÄÛ zÀSÁð¸ÀÄÛ ªÀåªÀºÀgÀuÉAiÀÄ°è ¨ÁQ¬ÄgÀĪÀ DUÉä¸ÀÛ¼ÀzÀ ºÀPÀÄÌ ªÀUÉÊgÉ ¸ÀªÁð¢. ¸À¢æ D¹ÛUÀ¼À ¥ÀqÀÄ ¨sÁUÀzÀ ¸ÀPÁðj ¸ÀÛ¼À¢AzÀ ¥ÀÄgÁvÀ£À¢AzÀ®Æ F D¹ÛUÀ½UÉ ºÀjzÀÄ §gÀĪÀ ªÀiÁªÀÄÆ®Ä ¤Ãj£À G¥ÀAiÉÆÃUÀzÀ ºÀPÀÄÌ PÀÆqÁ ¤ªÀÄUÉ EgÀvÀPÀÌzÀÄÝ. PÁ«¤AzÀ F D¹ÛUÀ¼À §¢¬ÄAzÁV ¸ÀªÉð£ÀA§æ.152-1JAiÀÄ°è PÀÆqÁ ºÁzÀÄ ºÉÆÃUÀĪÀ gÀ¸ÉÛAiÀÄ£ÀÄß G¥ÀAiÉÆÃV¸ÀĪÀ ºÀPÀÄÌ PÀÆqÁ ¤ªÀÄVgÀvÀPÀÌzÀÄÝ."18
15. A perusal of the said recital in Ex.D-3 clearly discloses that the plaintiff had an intention to part with the suit schedule property. It is also to be noticed that the relevant documents relating to the suit property have come from the custody of the defendant, that is Ex.D-2, Saguvali Chit dated 26.5.1981, Exs.D-6 to D-18, Tax paid receipts with reference to the suit property. Indeed, if it is the case of the plaintiff that the suit property was sold by defendant No.1 in favour of defendant No.2 on the strength of the irrevocable Power of Attorney Ex.D-4, much more was required. A perusal of Ex.D-4, the Power of Attorney, clearly discloses that the said Power of Attorney shall be irrevocable till 31.12.1996 which certainly corresponds with the duration of the non- alienation period pursuant to the Saguvali Chit at Ex.D-2.
16. Point No.2: It is also to be noticed that the said Power of Attorney-Ex.D-4 is certainly coupled with interest. It is not a Power of Attorney simplicitor wherein the principal relegates his powers to the agent. The 19 Clauses in the said Power of Attorney are essential to appreciate as to whether it is coupled with interest. The said clause would read as under:
"1. To enter possession of above plot, to cultivate same in any manner he chooses, to raise and sell crops raised therein of any nature of his choice.
2. To invest his own monies in above property for the purpose of carrying on agricultural or other operations or for erection of necessary buildings of his choice and reimburse said investments out of income from above property.
4. To borrow monies from Banks, financial institutions or co-operative societies, for improvements of above land, execute necessary documents evidencing such borrowal, to secure above borrowals by executing mortgage or other deeds, to sign such documents and present them for registration and admit execution of such deeds, receive any of such monies borrowed and issue full discharge receipts, or other monies due connected with or pertaining to above plot.
5. To erect buildings or other structures of any nature which my attorney deems fit and apply to Local Authorities for above purpose."20
17. A perusal of these clauses would clearly disclose that pursuant to the said Power of Attorney, the agent was permitted to exercise his rights of ownership. There is nothing even remotely suggesting that it is the Power of Attorney simplicitor and it is not coupled with interest. In this regard, it is useful to refer to Section 202 of the Contract Act, which would read as under:
"Termination of agency, where agent has an interest in subject-matter - Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest."
18. A perusal of the said provision discloses that it is an exception to the rule that any agency can be revoked. Where an agent has been appointed in respect of the subject-matter, and he has an interest in the subject- matter, such an agency cannot be terminated in any manner so as to prejudice such an interest, unless there is 21 an express contract to that effect. The principle is that where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable. In fact, the circumstance must be such that revocation of the authority would be a breach of faith against the agent. The interest of the agent in the subject matter of the agency may be inferred from the language of the document creating the agency, and from the course of dealings between the parties. It need not be expressly given. It is the existence of the interest and not the mode in which it is given, that is of importance. The interest which an agent has in effecting a sale and the prospect of remuneration to arise therefrom, do not constitute such an interest as would prevent the termination of the agency. But however, in the case on hand, the first defendant was authorised and permitted to put-up construction, make use of the land as if it is his own, mortgage the property, receive the money, discharge the loans and issue necessary certificates, in this 22 regard. A comprehensive reading of the clauses, which are referred to above would clearly indicate that the Power of Attorney executed is coupled with interest, which certainly cannot be revoked at the instance of the principal.
19. Having said so, I am of the view that the Power of Attorney which was executed by the plaintiff in favour of the first defendant on 27.7.1983 at Ex.D-4 certainly could not have been revoked, inasmuch as there is a reference to the parting of the suit property in the sale deed executed by the plaintiff in favour of defendant No.1 pursuant to Ex.D-3.
20. Point No.3: This takes us to the plea that the Power of Attorney was obtained pursuant to fraud and misrepresentation. What is fraud is defined under Section 17 of the Contract Act and what is misrepresentation is defined under Section 18 of the Contract Act. This is not a case where the plaintiff has pleaded that there was undue 23 influence and the circumstances compelled him to execute the Power of Attorney. It is his case that there is fraud and misrepresentation, inasmuch as the contents of the document-Ex.D-3 were not at all read over to him. What is significant to note is that fraud and misrepresentation are required to be pleaded in no uncertain terms and there must be enough evidence in support of such plea. A perusal of the pleadings disclose that except a fleeting plea that there was fraud and misrepresentation, nothing is forthcoming. A perusal of the evidence of PW-1, that is the plaintiff, does not show as to what is the fraud committed or what is the misrepresentation. It is no doubt true that a phrase is used in the evidence that the fraud has been committed, but however, fraud and misrepresentation is required to be stated with reference to what is stated in the Indian Penal Code and evidence has to be adduced in support of such plea during the course of trial.
24
21. Section 17 of the Indian Contract Act, 1872, would define as to what is 'fraud'. It would mean that the acts committed by a party to a contract with intent to deceive another party thereto or to induce him to enter into the contract, namely;
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specifically declares to be fraudulent.
22. In the case on hand, it is to be noticed that it was within the knowledge of the plaintiff that he had executed the said general Power of Attorney in favour of defendant No.1. He was aware of the contents. He came to know about insertion of conditions within one year of 25 the execution of the said document, that is in the year 1984, but however, for nearly 12 years, does not take any action which would necessarily imply that no fraud was committed and the Power of Attorney was executed by the plaintiff knowing fully well as to the contents and the effect of executing such a Power of Attorney. Indeed, fraud is committed where one makes another to act on his false plea by representing he himself does not believe it to be true.
23. Insofar as misrepresentation is concerned, Section 18 of the Contract Act would give illustration as follows:
"Misrepresentation defined - Misrepresentation means and includes -
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains an advantage of the person committing it, or any one claiming under him, 26 by misleading another to his prejudice, or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.
24. In a mere generic terms, misrepresentation means a false representation. The law can be stated as follows:
"A false representation by one party in regard to the material fact made for the purpose of inducing the other party to enter into a contract and actually inducing the latter renders the contract voidable."
25. The principal difference between fraud and misrepresentation is that in the first case the person making the suggestion does not believe it to be true and in the other he believes it to be true, though in both the cases, it is a misstatement of fact which misleads the promisee.
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26. In the case on hand, there are no such pleadings and evidence, except an assertion that it is fraud and it is also not a case of misrepresentation.
27. Having perused the evidence, both oral and documentary, and on reappreciation, I am of the view that the finding recorded by the learned trial Judge on the material issues cannot be faulted. Having said so, there is no merit in the appeal.
27. The appeal is dismissed.
SD/-
JUDGE KM