IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 RSA.No. 744 of 2010() ---------------------------- AS.112/2008 of I ADDL. DISTRICT COURT, PALAKKAD OS.528/2005 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/DEFENDANT : -------------------------------------- RAJAN, S/O.MAYANDI, RESIDING AT KULAPPURA HOUSE, KAKKATHODE, THENARI, PALAKKAD TALUK. BY ADVS. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENTS/PLAINTIFFS : ----------------------------------------- 1. PADMAVATHY GOPALAN NAIR, W/O.GOPALAN NAIR, "SREELAKSHMI, DEVI NILAYAM, YAKKARA, PALAKKAD NOW RESIDING AT NEW YORK.(RESPONDENTS ARE REPRESENTED BY THE POWER OF ATTORNEY HOLDER OF THE 1ST RESPONDENT AND THE ORALLY AUTHORIZED PERSON OF THE 2ND RESPONDENT.MR.P.P.VASU, S/O.PAZHANIKUTTY. 2. JOSE PRAKASH CHANDRAN, S/O.CHANDRAN, SREELAKSHMI, DEVI NILAYAM, YAKKARA, PALAKKAD NOW RESIDING AT NEW YORK. (RES.ARE REP. BY THE P/A HOLDER OF THE 1ST RES.AND THE ORALLY AUTHORISED PERSON OF 2ND RESPONDENT, MR.P.P.VASU,S/O.PAZHANIKUTTY RESIDING AT PUPPULI HOUSE, KONGAD, PALAKKAD.) ADV. SRI.A.R.GANGADAS THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ln M.SASIDHARAN NAMBIAR, J ........................................... RSA No.744 of 2010 ............................................ DATED THIS THE 19th DAY OF SEPTEMBER, 2011 JUDGMENT Defendant in O.S.528 of 2005 on the file of Additional Munsiff Court, Palakkad is the appellant. Plaintiffs are the respondents. The suit was filed by the respondents through their power of attorney holder for realisation of the advance of Rs.40,000/- paid under Ext.A1 agreement for sale. The appellant resisted the suit contending that though first respondent authorised the power of attorney holder to institute the suit, as admitted in the plaint, second respondent has only orally authorised the person to institute the suit and without a written authority, the suit could not be instituted and therefore the suit is not maintainable. Appellant also contended that though he executed Ext.A1 agreement for sale and received Rs.40,000/- as advance, he is not liable to repay the advance amount as he was always ready and willing to perform his part of the agreement and sale deed was not executed due to the failure of the respondents to perform their part of the contract. RSA 744/2010 2 2. Learned Munsiff on the evidence found that first respondent has authorised the power of attorney holder to institute the suit by Ext.A3 power of attorney and though second respondent has only orally authorised the first respondent as there is no necessity to have a written authority as held by this court in Narayanan Nair V. John Kurien (1988 (1) KLT 673) and the suit is maintainable. Learned Munsiff on the evidence found that appellant has admitted execution of Ext.A1 agreement as well as receipt of Rs.40,000/- as part of the sale consideration and the agreement was not performed. Learned Munsiff also found that though appellant is entitled to forfeit the advance amount, it could only be subject to the provisions of Section 74 of the Indian Contract Act and appellant did not establish that he sustained any loss and therefore the respondents are entitled to realise Rs.40,000/- paid as advance. A decree was granted permitting the respondents to realise Rs.40,000/- with interest at the rate of 6% per annum from 9.7.1998, the date fixed for performance of the agreement. 3. Appellant challenged the decree and judgment before District Court, Palakkad in A.S.112 of 2008. Learned Additional RSA 744/2010 3 District Judge on re-appreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. When the appeal came up for admission, notice before admission was ordered. After respondents appeared, on the submission that there is a chance for settlement, the case was referred to High Court Permanent Lok Adalath. The appeal was subsequently returned as it was not settled at the Adalath. 5. Learned counsel appearing for appellant and respondents were heard. The argument of the learned counsel appearing for appellant is that courts below did not properly consider the plea of the appellant that the suit is not maintainable, in the absence of a written authorisation by the second respondent, to enable the power of attorney holder of the first respondent to institute the suit. Relying on the decision of a learned single Judge in K.A.Pradeep V. Branch Manager, Punjab National Bank Ltd and others (2007(3) KLJ 333), learned counsel appearing for appellant argued that courts below should not have granted a decree based on the decision in Narayanan Nair's case. Learned counsel argued that even if an agent is entitled to institute the RSA 744/2010 4 suit without a written authority, as provided under Rule 23 of the Kerala Civil Rules of Practice, the agent is competent to sign and verify the plaint only on production of a written authority in that behalf signed by the party and also by filing an affidavit by the person verifying the signature of the party stating the reason for the inability to sign or verify the proceedings. As no such affidavit or authority was produced, the suit is not maintainable. 6. On hearing the learned counsel appearing for the appellant, I do not find any substantial question of law involved in the appeal. It is true that there was no written authorisation by the second respondent, authorizing the power of attorney holder of the first respondent, to institute the suit on his behalf also. The question is whether a written authorisation is necessary. 7. Rule 14 of Order VI of Code of Civil Procedure which provide the requirement of signature in the plaint reads as follows:- “ Pleading to be signed – Every pleading shall be signed by the party and his pleader (if any): RSA 744/2010 5 Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or sue or defend on his behalf”. Under the rule any person duly authorised by a party is competent to sign or to sue or defend on behalf of that person. It does not say that the due authorisation must be in writing. This court in Narayanan Nair's case supra has considered the question whether a written authority is necessary. This court held:- “ No written authority has been produced either by the plaintiff or by Kurien in support of the case that Kurien has been duly authorised to institute the suit. Nor has Kurian filed an affidavit verifying the signature of the plaintiff stating the reasons of plaintiff's inability to sign in the plaint. The particular rule in the Civil Rules of Practice (quoted above) applies only to cases where proceedings are required to be signed or verified by parties concerned. The said rule need not be imported to a case where plaint or written statement can be signed, as sanctioned by the substantive law, by any RSA 744/2010 6 other person duly authorised by the party concerned. Order 6 Rule 14 permits such a course to be adopted in making the pleadings. The scope of Order 6 Rule 14 is not to be curtailed or restricted by unduly reading of Civil Rules of Practice into it. Nor could the sanction offered by the substantive law be stultified by resort to the rule framed under such law. The proviso in Rule 14 (of Order 6) does not insist on production or even creation of a power of attorney or written authorisation. There is nothing in the said provision suggesting that a written authorisation is indispensible for the proper compliance thereof. Case law seems to be very much in support of the view that even oral authorisation would be sufficient to constitute due authorisation. (Vide Bengal Jute Mills V. Jewraj Heeralal, AIR 1943 Calcutta 13; Subbiah Pillai V. Sankarapandian Pillai AIR 1948 Madras (vol.35) 369; Sarju Prasad V. Badri Prasad, AIR 1939 Nag.242; and Netram V. Bhagwan, AIR 1941 Nag.159. Those decisions were referred to and discussed in detail by a Division Bench of the Bombay High Court in All India Reporter Ltd V. Ramachandra (AIR 1961 Bombay 292). The Bombay High RSA 744/2010 7 Court, in concurrence with the preponderant view held that oral authorisation is good enough to constitute a valid authorisation under Order 6 Rule 14 of the Code”. 8. Though the learned counsel appearing for appellant relied on the decision of another single Judge in Pradeep's case supra, the learned single Judge in that case did not consider the question settled in Narayanan Nair's case. Paragraph 9 of the decision in Pradeep's case makes the position clear. “In the above view of the matter it is not necessary for me to consider the argument of Sri Vinod Madhavan based on the decision of Thomas, J (Narayanan Nair V. John Kurien) (1988(1) KLT 673) that an oral authorization will suffice. In that decision the learned Judge noticed that an affidavit was filed by the principal himself in which he had stated that he had authorised his agent to defend him in the suit. In the instant case no such affidavit is seen sworn to by the principal. It is the agent alone who claims that he has been authorized. Thus the principles laid down in Narayanan Nair's case (supra) may not be applicable to the present case”. RSA 744/2010 8 9. The question considered in Pradeep's case was the legality and the value of the power of attorney produced, on the objection raised that the notary has not made an endorsement that the executant signed in the power of attorney in his presence. The learned Single Judge found that identity of the signatory in the power of attorney is not disputed and what is disputed was only its value as a power of attorney and therefore the trial court should have permitted the signatory to the writ petition to defend the suit. In the light of that finding, learned single Judge found it not necessary to consider the plea based on the decision in Narayanan Nair's case. 10. When this court has settled the question holding that “when Order VI Rule 14 permits a course to be adopted in making the pleading, the scope of Order VI Rule 14 cannot be curtailed or restricted by unduly reading of Civil Rules of Practice into it nor could the sanction offered by the substantive law be stultified by resort to the rule framed under such law.” Appellant in the light of the settled position cannot contend that for non- compliance of the provisions of rule 23 of the Kerala Civil Rules of Practice, courts below cannot grant the decree. RSA 744/2010 9 11. Courts below based on the evidence, rendered a factual finding that appellant did not establish any loss consequent to the non compliance of the agreement for sale and directed the appellant to repay the advance amount received with interest at 6% per annum. On the facts and evidence, I find no substantial question of law is involved. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk