Monday, 20 May 2013

Defects in power of attorney is a curable defect

Even assuming that there is any defect in the power of attorney since it is a curable defect it does not warrant rejection of the plaint under Rule 11 of Order 7 C.P.C.

Andhra High Court
S.C.Bose & Co., A Partnership Firm ... vs G.Srikanth S/O G.Jagadeshwar, 30 ... on 24 February, 2006




Respondent by paying a Court fee of Rs.1,10,526/- filed a suit for recovery of Rs.1,08,03,110/- as damages from the revision-petitioners under three heads i.e. loss of earnings on account of denial of employment, loss of career development and damages for mental agony. In that suit revision petitioners filed a petition under Rule 11 of Order VII CPC to reject the plaint on various grounds. The learned Judge by the order under revision dismissed the same on the ground that the truth or otherwise of the allegations in the plaint will have to be decided only at the time of trial. Hence this revision.
The learned counsel for the revision-petitioners took me through the entire plaint and all the documents filed therewith in minute detail and argued the case for almost a day by raising several contentions. His first contention is that inasmuch as the trial Court did not advert to the contentions raised and dismissed the petition through a mute order the same is unsustainable and contended that since the criminal case for defamation filed by the respondent in connection with the telegram issued by the revision- petitioners was quashed by this Court under Section 482 Cr.P.C., on a petition filed by the revision-petitioners, the suit is barred under Section 11 CPC, and so the respondent is also estopped under Section 115 of the Evidence Act to prosecute this suit. His next contentions are that there is no cause of action for the respondent to file the suit and the suit is also hopelessly barred by time. His next contention is that since the suit was numbered after coming into force of the CPC Amendment Acts of 1999 and 2002 and since the plaintiff did comply with sub-rules (e) and (f) of Rule 11 of Order VII CPC, the Court below erred in not rejecting the plaint. It is his contention that inasmuch as the plaint was verified on 15.4.2002, and the Court fee stamp was purchased on 16.4.2002, whereby it cannot be said that there is a proper verification and presentation of the plaint. It is his contention that inasmuch as the list of documents was filed on 17.6.2002, only after the office took an objection, and since the original documents are not filed along with the plaint presented into Court on 17.4.2002, mandatory provisions of Order VII CPC are not complied with by the respondent. His next contention is that since the respondent, who claimed damages under several heads, did not pay court fee separately, though the office took an objection that the Court fee has to be paid separately, it is clear that there is deficit court fee on the plaint. His next contention is that since the respondent, in his letter dated 11-8-1999 addressed to the Chief Counsular Officer, admitted that the H1B Visa was not issued because of the complaint lodged by Mr.S.C.Bose but because he had faked his GRE and TOFEL scores, it is clear that there is no cause of action for the respondent to claim damages from the revision petitioner, and in any event since respondent failed to produce any document to show that he came to know about the issuance of the telegram by the 2nd revision petitioner on 19-4-99, and since the counsel for the respondent while representing the plaint on 8-7-2002 endorsed that the respondent came to know about the issuance of telegram by 2nd revision petitioner on 19-6-1999, it should be taken that respondent is not sure about the date on which he came to know about the issuance of the telegram by the 2nd revision petitioner, and that date must have been a chosen date because the plaint with the list of documents was represented on 17.06.2002. His next contention is that in view of Section 28 of the Chartered Accountants Act 1949 (for short ' the 1949 Act') no suit can be instituted without an order of the 'Council' constituted under that Act or of Central Government, and since respondent admittedly did not obtain any such order from the Council under 1949 Act and since there is an averment that a complaint was lodged with the 'Council' constituted under 1949 Act for the alleged misconduct of the defendants the suit is barred under 1949 Act, and in any event the communication received by the revision petitioners from the Council constituted under the 1949 Act in October 2005 shows that it closed the complaint of the respondent, respondent has no cause of action against the revision petitioners. His next contention is that in view of Article 72 of the Limitation Act, 1963 the period of limitation for filing the suit is only one year, and since a careful reading of the plaint shows that the respondent was aware of the issuance of the telegram even in 1995 the suit filed in 2002 is hopelessly barred by time and in any event since the telegram was received at Chennai, cause of action should be taken to have arisen at Chennai where the American Counsulate is situate and so, the Court at Hyderabad have no jurisdiction to entertain the suit. His next contention is that inasmuch as the power of attorney, basing on which the suit is filed, does not empower its donee to file the suit, and the copy of the power of attorney filed in the Court is not attested by any responsible officer, the suit is barred under the provisions of the Power of Attorney Act and so, Section 85 of Evidence Act, and in view of the above incurable defects the trial Court ought to have rejected the same in limine on the ground of its being speculative, and to gain wrongfully at the expense of the revision petitioners. He relied on AZMEER KAUR AND OTHERS V. PUNJAB STATE AND OTHERS (1), ADI BAPUJI RABADI V. SARADINDU BANERJEE (2), SALIM BHAI AND OTHERS V. STATE OF MAHARASHTRA (3) and CHANUMOLU RADHARANI V. THOTA VISHNU RAO AND ANOTHER (4) in support of the contentions raised by him.
The first contention that in view of the crimnal complaint filed by the respondent against the revision petitioners being quashed by this Court under Section 482 Cr.P.C. the suit for damages is liable to be dismissed in limine, cannot be countenanced because the proceedings before and the Judgment in, a criminal case have no relevance or bearing in the proceedings in a civil Court. Therefore, question of rejecting a plaint claiming damages on the ground that a criminal complaint for defamation was quashed by the High Court under Section 482 Cr.P.C., or by invoking Section 115 of Evidence Act, as contended by the learned counsel for the revision petitioners, does not arise. The next contention relates to clauses (e) and (f) in Rule 11 of Order 7 C.P.C which contemplate the plaint being filed in duplicate and filing the number of copies of the plaint on plain paper as there are defendants, with requisite fee for service of summons on defendants, within seven days of the order of the Court. The contention of the learned counsel for the revision petitioners is that though the plaint was presented before the coming into force of the amendments made by C.P.C. Amendment Acts of 1999 and 2002 to the CPC, since it was numbered subsequent to 01.07.2002, and since Clauses (e) and (f) of Rule 11 of Order 7 C.P.C, admittedly, are not complied with, the Court ought to have rejected the plaint, as according to him, the date of registration, but not the date of initial presentation of the plaint, is the date of presentation of the plaint. I am unable to agree with the said contention because a suit would and should be deemed to be pending from the date on which it was instituted but not on the date of its registration. Sub Rules (e) and (f) to Rule 11 of Order 7 C.P.C were introduced into CPC by Section 17 of the C.P.C Amendment Act, 1999. Section 32(2) (k) CPC Amendment Act 1999 specifically lays down that the provisions of Rules 9, 11, 14, 15 and 18 of Order 7 of the first Schedule amended or, as the case may be, substituted or amended by Section 17 of that Act, do not apply in respect of any proceedings 'pending' before the commencement of Section 17 of C.P.C Amendment Act 1999. The Amendment Acts of C.P.C 1999 and 2002 came into force on 1.7.2002. Since the suit admittedly was instituted prior to the commencement of the C.P.C Amendment Act 1999, question of the Court taking aid of Sub-rules (e) and (f) of Rule 11 of Order 7 C.P.C to reject the plaint does not arise.
The next contention relates to the plaint being verified on 15.4.2002 and Court fees stamp being purchased on16-4-2002. Since no provision either in C.P.C or in the Civil Rules of Practice which mandates the Court fee being purchased before the drafting of plaint is brought to my notice and since the Court both under Section 149 CPC and under the provision of A.P. Court Fee and Suits Valuation Act, 1956, has power to grant time for payment of Court fee and since the Court at any time during the pendency of the suit can decide the question whether the Court fee paid is correct or not, and can grant time to pay the Court fee determined by it as payable, question of rejecting the plaint merely on the ground that the plaintiff purchased court fees after verification of the plaint, does not arise. If I may say so this plea ex-facie is untenable and vexatious plea.
The next contention relates to non-production of original or copies of the documents along with the plaint initially and filing copies documents on 17.6.2002 while representing the plaint. The contention of the learned counsel for the revision petitioners is that since the telegram which is said to have given raise to the cause of action for filing the suit, is to be considered as the suit document, presentation of plaint without the same entails its rejection, as it according to the learned counsel for the revision petitioners, is an incurable defect. When I wanted the learned counsel to clarify what are 'curable' and what are 'incurable defects' that can arise while presenting a plaint, he stated that 'incurable defect' is a defect which goes into the root of the case, and which cannot be cured subsequently and all other defects are curable and so, by virtue of Rule 14 of Order 7 C.P.C which contemplates the plaintiff filing the documents on which he relies along with the plaint, failure on the part of the plaintiff to file such documents along with the plaint, would be an incurable defect, and so, if a plaint is presented without the documents on which the plaintiff is relying on the Court has no other option except to reject it out-right, and cannot grant time to the plaintiff to present the said document at a subsequent stage. I am unable to agree with the above contentions of the learned counsel for revision petitioners. Non-production of documents on which the plaintiff relies on, when the plaint is initially presented, can be due to several reasons. No provision either in CPC or in the Civil Rules of Practice, which empower the Court rejecting the plaint without affording an opportunity to cure the defect, is brought to my notice by the learned counsel for the revision petitioners. The practice in the Courts from several decades is to afford an opportunity to the plaintiff to cure the defects, if any, found at the time of its presentation. So merely because plaintiff did not produce the documents on which he is relying at the time of initial presentation of the plaint, it need not and cannot reject the same even without affording an opportunity to the plaintiff to cure the defect. So defect in presenting the plaint unaccompanied by the document on which the plaintiff is relying on cannot be said to be an incurable defect, warranting rejection of the plaint, more so because Rule11 of Order VII CPC does not contemplate the same, and since Rule 14(3) of Order VII CPC empowers the Court to grant leave to the plaintiff to produce such document at any subsequent stage, if he satisfactorily explainss the reasons for its non-production earlier.
Question whether the copy of a document presented with the plaint can be admitted in evidence, without the original being produced or not is a matter to be considered at the time of trial but not at this stage. The next contention relates to non-payment of Court fee separately for the damages claimed under different heads. The cause of action for filing the suit for damages is issuance of a telegram.
As per Section 6 of the AP Court Fees and Suits Valuation Act, in any suit in which separate and distinct reliefs are sought based on the same cause of action, the plaint shall be chargeable with a fee on the aggregate value of the reliefs. Since respondent is claiming damages under different heads on the basis of a telegram he need pay court fee on the consolidated amount of the damages claimed by him, as per the above section and so he need to pay Court fee for the damages claimed by him under different heads separately. Moreover, when the Court accepted the valuation, it cannot merely on a plea taken by a defendant in a petition filed under Rule 11 of Order VII CPC and without giving a specific finding on the adequacy or otherwise of the court fee paid and without affording an opportunity to the plaintiff to pay the deficit Court fee determined by it, reject the plaint.
The learned counsel for the petitioner relying on the contents of the letter dated 11-08-1999 addressed by the respondent to the Chief Counsular Officer, American Consulate, Chennai, shown as document No. 13 in the list of documents annexed to the plaint, contended that there is no cause of action to file the suit. The relevant portion of the letter reads as follows: "...S.C.Bose & Co had a tie-up with Raj Consultants (See Enclosure #6, page 3/6).
I had approached the consulate on 28th of June 1999 for a H1B visa with all the legal documents to prove my innocence, but was informed by the officer at the counter that my H1B visa application is rejected due to the clause invoked against me in 1995. He added that the clause invoked against me was not because of the complaint lodged by Mr. S.C.Bose but because I had faked my GRE and TOFEL scores. This is totally untrue and I was utterly shocked. I was rejected a student visa on 20th June, 1994 and since I had a poor GRE score I retook the test in October 94 and presented the new scores when I attended for student visa on 16th February, 1995. to prove my innocence I tried obtaining the scores in ETS, but since my first GRE and TOFEL scores are more than five years old I could not get them from ETS. I obtained my second GRE score from ETS recently. I have the original of the old GRE score and a copy of TOFEL score, which I am enclosing with this letter. These score cards are original cards sent by ETS and these prove my innocence. My GRE score (Test taken October 94) will be available with ETS till October 99 for your reference" The averment in para 3(b) at page 4 of the plaint is:
"...Thereafter when the plaintiff approached the Consulate General of American Consulate, Chennai for issuance of Visa, the Consular General while refusing student visa, made an endorsement on the passport of the plaintiff by noting 212(a)6(c). In December, 1998 the plaintiff got appointment offer from MS IT Professionals incorporation a U.S.A. based software company. The liason agency of the said MS IT Professionals Incorporation informed the plaintiff that this endorsement in passport of the plaintiff is a serious one. Then the plaintiff caused enquires and came to know that 1st defendant filed criminal case against the 4th defendant with Police Station, Saifabad, which was ultimately tried as C.C.No.654 of 195 for forging the signatures on the Financial viability certificates. Therefore, the plaintiff applied for certified copies of the documents in C.C.No.654 of 1995 so as to know what actually is the controversy. The said documents were obtained from the Court on 19-4-1999 and the plaintiff came to know about the meaning of the endorsement made on his passport when the Consulate General intimated about it at a get together conducted on 21-4-1999 that 212(a)(6)(c) means presentation of false documents."
Question whether respondent was denied visa because of the telegram issued by the revision petitioners, or because of his allegedly faking GRA and TOFEL certificates has to be decided on the basis of the evidence to be adduced during the course of trial but not at this stage, because the respondent in his letter dated 11.08.1999 clearly stated that he did not fake any GRA and TOFEL certificates.
The other contention relates to the respondent not producing any document to establish that he came to know about the issuance of the telegram by the revision petitioners on 19-04-1999. In fact, this is a matter of evidence. Even otherwise, also from the above extracted para 3(b) of the plaint, it is seen that the respondent obtained certified copy from the Court on 19-04-1999. Document No.6 filed along with the plaint is a certified copy of the telegram dated 14-2-1995 sent to the American Consulate. The endorsement of the copying Superintendent thereon shows that it was issued in April, 1999. The date is not clearly visible from the Xerox copy of the certified copy produced before me. The learned counsel for the revision petitioners produced some other certified copies of the said telegram, which contain endorsements that they were issued on 20-04-1999. Assuming that those certified copies also were obtained by the respondent since they were furnished to him only on 20.04.1999, which is later than to 19-04-1999, it prima facie cannot be said that respondent had knowledge of the telegram prior to 19-4-1999. Therefore, it cannot, at this stage, be said that the date of accrual of cause of action mentioned in the plaint is not correct because none of the documents produced along with the plaint by the respondent show that he had knowledge of the telegram issued by the 2nd respondent prior to 19-4-99.
The next contention of the learned counsel for the revision petitioners is that since Document No.9 filed along with the plaint i.e. charge sheet filed by police against Ramachandra Murthy, through whom, respondent is said to have approached the American Counsulate earlier, shows that the respondent, when he was examined as a witness by the police, stated to them about his approaching the complainant therein with the certificates issued by the accused (i.e. 1st revision petitioner) it should be taken that respondent had knowledge about the telegram issued by the 2nd revision petitioner even by the time he was examined by the police in 1995. I am unable to agree with the said contention. That charge sheet was filed on the basis of a complaint given by the 2nd revision petitioner on behalf of the 1st revision petitioner against Ramachandra Murthy. Neither the FIR, nor the charge sheet filed by police, (copies of which are filed by the respondent along with his plaint) make a reference to the telegram said to have been issued by the 2nd respondent to the American Consulate, which gave raise to the cause of action for the suit. As stated earlier, the documents produced by the respondent along with the plaint do not disclose that he had knowledge about the issuance of the telegram by the 2nd revision petitioner prior to 19-4-99.
The next contention relates to the suit being bared under the provisions of 1949 Act, because of the closure of the complaint made to the Council under that Act sent to it by the respondent. The statement of Objects and Reasons for the 1949 Act shows that, that Act is intended to regulate the profession of Chartered Accountants, and to establish and institution of Chartered Accounts. That Act does not deal with the procedure to claim damages for the commissions and omissions of the Chartered Accountants. Section 28 of that Act relates to Criminal proceedings and has no application for suits claiming damages against Chartered Accountants. Therefore, I am unable to agree with the contention of the learned counsel for the revision petitioners that the suit is barred under the provisions of 1949 Act.
The next contention is that in view of Article 72 of Limitation Act, the suit is barred by time. The said Article 72 prescribes the period of limitation for filing of suits for compensation for doing, or for omitting to do, an act in pursuance of any enactment in force. The cause of action for the suit is issuance of a telegram by the 2nd revision petitioner to the Counsulate General. Since that telegram was not issued under the provisions of 1949 Act or any other enactment. Article 72 of Limitation Act does not apply to the facts of this case. From the averments made in the plaint, it cannot, even prima-facie, be said that the suit is barred by limitation. Since a suit for damages is cognizable by a civil Court and since no enactment barring the jurisdiction of a Civil Court to entertain a suit for damages is brought to my notice, I find no force in the contention that the suit is barred under Section 9 CPC. The next contention relates to the Courts at Hyderabad not having jurisdiction. At the out set, I must state that this is not a ground for rejection of the plaint under Rule 11 of Order VII CPC. If the Court has no territorial or pecuniary jurisdiction to try it, it cannot reject it but has to return it for presentation to the proper Court. As per Section 29 C.P.C, in case of suits for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted, at the option of the plaintiff in either of the said Courts. The fact that the revision petitioners are within the jurisdiction of the Chief Judge, Civil Court, Hyderabad is not, and cannot be, denied or disputed because the addresses of the revision petitioners given in the revision petition shows that they are all residents of Hyderabad. So respondent can file the suit either at Hyderabad where the revision petitioners are residing, or at Chennai, to which place the telegram was sent and where the telegram was received. The next contention relates to non-production of the telegram along with the plaint. Since the telegram was not issued to the respondent, he cannot be in possession thereof and so question of his producing the original telegram does not arise. Copy of the telegram furnished to him, though not filed initially at the time of presentation of the plaint was filed when the plaint was returned for compliance with certain objections taken by the office. Since the Court returned the plaint for filing it along with the documents it is clear that the Court itself has given the opportunity to the respondent to comply the omission. When the omission is complied or supplied question of rejection does not arise. Copy of the power of attorney given by the respondent to his father was produced along with the plaint. A copy thereof is also filed along with this petition. It shows that the donee of power of attorney is authorized to present the plaint.
Even assuming that there is any defect in the power of attorney since it is a curable defect it does not warrant rejection of the plaint under Rule 11 of Order 7 C.P.C.
The other contention relates to the plaint being presented with several defects. Since defects were rectified and the plaint was numbered as a suit question of its being rejected under Rule 11 of Order VII CPC does not arise. The ratio in Ajmer Kaur Case (supra-1) is that an order returning a plaint under Rule 10 of Order VII CPC is appealable under Rule 1(a) of Order 43 CPC. The said decision has no application to the facts of this case. The facts in Adi Bapuji Rabadi case (supra-2) are entirely different from the facts of this case. That case relates to a suit for damages for malicious arrest. Hence that decision has no applicable to the facts of this case. In Sallem bhai case (3-supra), defendants therein without filing their written statement filed a petition under Order 7 rule 11 CPC to reject the plaint. The Court without hearing the petition under Order 11 Rule 7 CPC directed the defendants to file their written statement. That order of the trial Court was upheld by the High Court in revision holding that the defendants have to file his written statement. On further appeal, the Apex Court set aside the direction directing the defendants to file the written statement and observed that only after deciding the petition to reject the plaint filed under Order 7 Rule 11 CPC can the defendants be called upon to file their written statement. In para 9 of the said Judgment, it is clearly held that for deciding an application under Rule 11 of Order 7 CPC the averments in the plaint alone will have to be taken into consideration, and the pleas taken by the defendants are wholly irrelevant at that stage.
In Chanumolu Radhamani's Case (4-supra), order rejecting the plaint by the trial court was upheld by the appellate court and confirmed in revision in the facts and circumstances of that case i.e. on the ground that it is barred by limitation. Since the facts in that case are different from the facts of this case that decision is of no help in deciding this case. Thus, I find no merit in any of the contentions raised by the learned counsel for the revision petitioner and so this petition deserves dismissal.
Before parting with the case, I wish to stated that as per the new roster fixed, on every Wednesday Civil Revision Petitions pending in this High Court, in which orders of stay of the trial of the suits in the trial Courts are granted, have to be heard and disposed of by all single Judge bench Courts. On 8-2-2006, this case is listed for hearing on 22-2-2006 showing the names of Sri V.Hariharan and Sri B.Prayaga Murthy as counsel for the revision petitioners. When the case was called for hearing on 22-2-2002, Sri V.Hariharan, who was present in the Court, sought time on the ground that Sri B.Prayaga Murthy, his senior, who has to argue the case, is engaged in another Court and sought time on that ground. So, I posted the case to 23-2-2005. Sri Prayaga Murthy was present but the case could not be taken up due to other part heard cases and was posted to 24-02-2005 i.e. yesterday. The learned counsel argued the case for the whole of Yesterday and to-day morning also by taking me through the averments in the entire plaint and all the documents. Since I held that all the points on which the revision petitioners seek rejection of the plaint are untenable and since valuable time of more than five hours of the Court is consumed for hearing of an absolutely meritness revision, this revision deserves to be dismissed with heavy costs, which are to be deposited in the Chief Justice Relief Fund.
Therefore, the revision petition is dismissed directing the petitioners to deposit Rs.7000/- (Rupees seven thousand only) into the Chief Justice Relief Fund as costs. A copy of this order be marked to the Registrar General, High Court of Andhra Pradesh, Hyderabad, for execution of the order relating to costs in case of failure of the revision petitioners to deposit the costs imposed.
?1 AIR 1991 Punjab &Haryana (12)
2 AIR 1991 CALCUTTA 3
3 2002(9) SCALE 616
4 2005(6) ALD 458
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