1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6467 OF 2009 Bank of Baroda. .. Petitioner Vs Shri Shivaji Rajaram Jadhav & Ors. .. Respondents ­­ Ms Kavita Archan i/by M/s. M.V. Kini & Co. for the Petitioner. Shri Surel Shah for Respondent No.1. ­­ CORAM : A.S.OKA, J. DATE : 11TH FEBRUARY, 2010 P.C: . Heard learned counsel appearing for the Petitioner and the learned counsel appearing for the 1st Respondent. 2. The office noting shows that the other two Respondents are duly served. The notice for final disposal has already been issued by this Court. 3. The Petitioner is the original Plaintiff who filed a suit for recovery of the sum of Rs.6,25,367.90 ps. An application was made by the Petitioner at Exhibit­85 contending that the power of attorney executed in favour of one Vithal Baburao Chavan by the Petitioner/Bank to institute the 2 suit has been duly proved and the same may be marked as Exhibit. The said application was opposed by the Respondents. By the impugned order, the said application has been rejected. The trial Court observed that the power of attorney has been allegedly executed by the Executant on behalf of the Petitioner/Bank but a resolution passed by the Board of Directors of the Petitioner/Bank in favour of the said Vithal Chavan is not produced on record. Therefore, the learned Judge held that the presumption as to the due execution of the power of attorney under the provisions of Section 85 of the Indian Evidence Act cannot be invoked. 4. The learned counsel appearing for the Petitioner/Bank submitted that the finding of the trial Court is that the original power of attorney was proved but the resolution of the board of Directors was not proved. He submitted that the trial Court was justified in recording a finding that the resolution passed by the Board of Directors of the Petitioner Bank was not placed on record and, therefore, the power of attorney could not have been exhibited. 5. I have carefully considered the submissions. I have perused the affidavit in lieu of the examination­in­chief of Vithal Baburao Chavan at Exhibit­84. In the said affidavit, he stated that on 22nd February, 1996, the Deputy General Manager of the Petitioner/Bank Shri Ramchandran Shastri executed a power of attorney in his presence and at that time the notary was present. He stated that the document was notarized in his presence. 3 The affidavit states that he has filed verified copy of the power of attorney on record and the original thereof was brought by him in the Court. The witness was cross­examined by the Respondents. The cross­examination was as regards the resolution passed by the Board of Directors of the Bank authorising the said witness to file a suit. He admitted that the Board of Directors of the Petitioner/Bank has passed a resolution authorising the said shri Ramchandran Shastri to file the suit. However, the said resolution is not produced on record. He stated that the original power of attorney was not filed in the Court. 6. Perusal of the examination­in­chief shows that the execution of the said power of attorney by Shri Ramchandran Shastri has been duly proved. The original power of attorney was brought to the Court by the witness and a verified copy thereof was filed on record. The contents of the said power of attorney will have to be read in evidence. Whether it was necessary for the petitioner to produce the resolution passed by the Board of Directors or not is an altogether a different issue. The effect of non production of the resolution is bound to be taken into consideration at the time of final hearing of the suit. However, suffice it to say that the power of attorney was duly proved and the same ought to have been exhibited. 7. The trial Judge has completely misdirected himself and without noticing that the execution of the power of attorney has been duly proved, he has gone into to other aspects regarding non­filing of the 4 resolution of the Board of Directors of the Petitioner. 8. Hence, I pass the following order. (a) The impugned order dated 7th March, 2009 is quashed and set aside. (b) The application at Exhibit­85 is allowed and it is directed that the power of attorney shall be exhibited and shall be read in evidence. (c) All contentions of the Respondents on merits are kept open. (d) The Petition is allowed in above terms. (A.S.OKA, J) ash