Delhi High Court
Oriental Bank Of Commerce vs Shri Syed Akhlaq Hussain on 21 February, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 368/2001
% 21st February, 2011
ORIENTAL BANK OF COMMERCE ...... Appellant
Through: None.
VERSUS
SHRI SYED AKHLAQ HUSSAIN ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the 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?
VALMIKI J. MEHTA, J (ORAL)
1. This matter is on the „Regular Board‟ of this Court since
3.1.2011. Today, this matter is effective item No.9 on the „Regular Board‟.
It is 12.15 P.M. and no one has chosen to appear for the parties. I have
therefore perused the record and am proceeding to dispose of the appeal.
2. By means of this Regular First Appeal under Section 96 of the
Code of Civil Procedure, 1908 (CPC), the appellant bank challenges the
impugned judgment and decree dated 28.3.2001 whereby the suit of the
appellant bank was dismissed on basically two grounds. First ground was
that it has not been proved that the suit has been properly instituted and
RFA No. 368/2001 Page 1 of 5
second ground was that there seems to be certain difference in figures in
the documentation of the bank at different points of time. The defendant
was proceeded exparte and no evidence was led.
3. The facts of the case are that the respondent/defendant
applied for and was granted the term loan facility for purchase of a
computer machinery on 1.3.1996. The term loan of Rs.80,000/- was
sanctioned and availed of. The respondent/defendant also executed an
acknowledgement of debt dated 27.10.1998 acknowledging an amount of
Rs.1,17,869.50/- to be due as on 30.9.1998.
4. While deciding the question of the competency to file the suit,
the trial Court has referred to the Power of Attorney and the Board‟s
resolution exhibited as Ex.PW1/1 and Ex.PW1/2, and yet has dismissed the
suit holding that the suit has not been validly instituted. The findings of
the trial Court do not carry any conviction, and which findings are as
under:-
"xxxxx
Plaintiff has adduced the evidence by way of affidavit of Shri
S.K. Pasy who was also present in the court at the time of
filing of the affidavit. From the facts and circumstances, I
observe that Shri S.K. Pasy who is officer/manager and duly
constituted attorney of the plaintiff bank has signed, verified
and filed the present suit. In his evidence, he has also
corroborated this fact that he if officer/manager and
attorney of the bank and is duly authorised and competent
to sign, verify the plaint, sign pleadings and to file
documents in terms of a letter of authorisation, resolution of
Board of Directors and General Power of Attorney issued by
the bank in his favour. Photocopies of the same have been
exhibited as Ex.PW-1/1 and Ex.PW-1/2 and I have perused
the same. The plaintiff has not produced the originals of the
same in the court. The Document Ex.PW-1/1 is the
RFA No. 368/2001 Page 2 of 5
photocopy of a resolution No.F.2 dated 8.3.2000 passed by
the Board of Directors and this resolution has not been
produced by the plaintiff before the court. On perusing the
photocopy of the resolution, I observe that it has been
signed by General Manager whose name has not been
mentioned. Vide this resolution, the G.M. decided to file the
present suit against the defendant and in pursuance of said
resolution he is authorised Sh. M.C. Gaur and Sh. S.K. Passy
and Shri Ravinder Sharma jointly and severally to engage
counsels and to institute suit/claim, sign and verify plaint,
petition, written statement, application, affidavits and/or any
other pleadings but the plaintiff has not produced this
resolution before this court nor the copy of the resolution
has been placed on record either. Further, Ex.PW-1/2 is
photocopy of G.P.A. and its first two pages are typed and
pages 3 to 5 are printed. Even this document is not attested
by anyone nor original of the same has been shown to this
court. On perusing the document Ex.PW-1/2, the bank has
conferred powers upon one Shri Santosh Kumar son of Shri
Ram Nath, resident of Meerut who is presently serving the
bank to do certain acts as mentioned in the said power of
attorney. However, Shri S.K. Passy who has deposed before
the court has nowhere deposed that in fact he is Santosh
Kumar and is also known as S.K. Passy and the said power of
attorney has been executed in his favour by the bank. Thus,
the plaintiff bank has failed to prove the authority of Shri
S.K. Passy that he is competent to sign and verify the plaint,
institute the suit against the defendant and to depose before
the court in this case.
xxxxxx"
5. The conclusions of the trial Court are inexplicable to say the
least in view of the provision of Order 29 Rule 1 of the CPC. The decision
of the Supreme Court reported as United Bank of India Vs. Naresh
Kumar and others AIR 1997 SC 3, and which decision existed when the
impugned judgment was passed, clearly holds suits filed by
corporations/banks should not be dismissed on technical grounds and
once it is held that the suit is filed through a Principal Officer, it ought to
be held that the suit has been validly instituted by virtue of Order 29 of
the CPC. The Supreme Court in the aforesaid judgment of United Bank
RFA No. 368/2001 Page 3 of 5
of India (supra) has also held that once the suit is pursued for a long
period of time that itself is sufficient to hold that the suit is validly
instituted. Applying the ratio in the case of United Bank of India
(supra) I therefore hold that the suit has been validly instituted because
there was no cross-examination of the witnesses of the
appellant/plaintiff/bank and the resolution and the power of attorney were
duly exhibited. The exhibited documents, even if they are photocopies
can be looked at if there is no challenge to same for its exhibition at the
stage at which they are exhibited- see R. VE. Venkatachala Gounder
Vs. Arulmigu Viswesaraswami & V.P. Temple and Another 2003
(8) SCC 752. The findings and the conclusions of the trial Court are
therefore clearly illegal and perverse and it is held that the suit was
validly instituted.
6. The second ground for dismissal of the suit was that there
were different amounts shown in the statement of account, legal notice
and the acknowledgement of debt. I may note that the statement of
account exhibited as Ex.PW1/21, the balance confirmation has been
exhibited as Ex.PW1/20 and the legal notice exhibited as Ex.PW1/10 all
these documents show balance at different points of time because surely
balances at different points of time will have to be different in view of the
addition to the amount due towards interest and in certain cases for any
credits which may have to be given or other debits made. The fact of the
matter is that the acknowledgment of debt Ex.PW1/20 clearly shows that
an amount of Rs.1,17,869.50/- was due from the respondent/defendant on
RFA No. 368/2001 Page 4 of 5
30.9.1998. The judgment of the trial Court is therefore clearly illegal and
perverse by which it seeks to draw conclusions of difference in the
amount due on different points of time which are actually not there.
7. In view of the above, the suit of the appellant is decreed for a
sum of Rs.1,44,341/- alongwith pendent lite and future interest @ 9% per
annum till realization with costs being the Court fee paid in the trial Court
and in this appeal. Decree sheet be prepared. Trial Court record be sent
back.
FEBRUARY 21, 2011 VALMIKI J. MEHTA, J.
Ne
