R-10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.63/1995
Date of decision: 03rd December, 2008
%
SYNDICATE BANK ..... Appellant
Through : Ms. Sumati Anand, Adv.
versus
SHRI MOHINDER PAL SINGHAL & ANR. ..... Respondents
Through : None.
CORAM :-
THE HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may
be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
Pradeep Nandrajog, J. (Oral)
1. The appellant has succeeded on all material issues which were settled between the parties being issue Nos.2 to 5 but having failed on issue No.1 has get no relief under issue No.6.
2. Issue No.6 was „Relief‟.
3. Issue No.1 was whether the plaint has been signed and verified and the suit has been filed by duly authorized person?(OPP).
4. The appellant instituted the suit under the authority of Sh. H.R. Issarani, the Manager as well as the Principal Officer RFANo.63/1995 Page 1 of 4 of the Bank. In support of his authorization Mr. Issarani relied upon a power of attorney executed on 22nd November, 1988 by the Deputy General Manager of the Bank who acted under Board Authorization. The said power of attorney was executed before a Notary Public on the same day, i.e., 22 nd November, 1988 and the Notary Public endorsed the same as under: -
"Signed and execution admitted before me at Banglore on 22nd day of November. 1988".
5. Learned Trial Judge has opined on the same by noting that the original minute book containing the board resolution was not produced; and in respect of the presumption under Section 85 of the Evidence Act noting that there is no authentication by the Notary it has been held that even Section 85 of the Evidence Act does not come to the rescue of the appellant.
6. Section 85 of the Evidence Act reads as under: -
"85. Presumption as to powers-of-attorney.- The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated."
7. It is true that Section 85 uses both words „Execution‟ and „Authenticated‟, but mere omission by the Notary public to record authentication would not mean that a document executed before the Notary Public on the same day as of its RFANo.63/1995 Page 2 of 4 execution would not attract Section 85 of the Evidence Act merely because the Notary Public does not use the word authenticated.
8. We find that the view taken by the Learned Trial Judge is contrary to the law enunciated by the Supreme Court in the decision reported as Jugraj Singh & Anr. vs. Jaswant Singh & Ors. AIR 1971 SC 761. We also have the decision reported as United Bank of India vs. Naresh Kumar AIR 1997 SC 3 which has taken a view that where the Manager of the Bank is litigating on behalf of the Bank a presumption has to be raised that the Manager of the Bank was duly authorized to act on behalf of the Bank and would have the authority to institute the suit as also sign and verify the pleadings.
9. The decision of the Learned Trial Judge is reversed on issue No.1. It is held that the evidence on record establishes the authority of Sh. H.R. Issarani to file the suit on behalf of the Bank has also signed and verified the pleadings.
10. Since the Bank has won on all other issues; noting that the contractual rate of interest was 4½% above the Reserved Bank of India rate with a minimum of 13½% per annum; noting that the during the pendency of the appeal the borrowing and the lending rates varied, we pass a decree in favour of the appellant and against the respondent in sum of Rs.76,947.43 together with interest @ 13.5% per annum from the date of the suit till realization.
RFANo.63/1995 Page 3 of 4
11. The appellant shall be entitled to cost all throughout.
PRADEEP NANDRAJOG, J J.R. MIDHA, J DECEMBER 03, 2008 mk RFANo.63/1995 Page 4 of 4