Mohinder Kaur Vs. Sant Paul Singh - (Supreme Court) (01 Oct 2019)

Power of attorney holder cannot testify in respect of matters which principal alone have knowledge

MANU/SC/1358/2019

Civil

The Defendant is in appeal, aggrieved by the concurrent findings decreeing the suit for specific performance filed by the Respondent. The Plaintiff filed the instant suit seeking specific performance of the agreement by the Defendant. The suit was decreed and the appeal preferred by the Defendant was also dismissed.

It is an undisputed fact that, the suit property stood redeemed from mortgage on 4th July, 1989. The Appellant sent due intimation by registered post to the Respondent on 27th July, 1989 and also provided him with a photocopy of the release deed, requiring the Respondent to take steps for execution of the sale deed. The Respondent by reply dated 2nd August, 1989 insisted on the no-dues certificate, denying receipt of the release deed. The Respondent then gave a power of attorney on 2nd November, 1989 to PW-1. The witness was naturally unaware of the preceding events and denied receipt of the notice dated 27th July, 1989 itself. The witness was therefore also incompetent to deny receipt of photocopy of the release documents by the Respondent.

It was for the Respondent to establish his readiness and willingness for execution of the agreement by entering the witness box and proving his capacity to pay the balance consideration amount. Except for the solitary statement in the plaint, no evidence whatsoever was led on behalf of the Respondent with regard to the same, if PW-1 was competent to depose with regard to the same because these were facts which had to be personal to the knowledge of the Respondent alone. The witness also sought to deny any knowledge regarding the cancellation of the agreement on 1st September, 1989.

In Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors., it was held that, a power of attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power of attorney holder. Likewise, the power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. The failure of the Respondent to appear in the witness box can well be considered to raise an adverse presumption against him. The agreement was cancelled by the Appellant on 1st September, 1989 and the consideration already paid confiscated under intimation to the Respondent. The Respondent never challenged the communication of cancellation.

Merely because the Respondent may not have been satisfied by the intimation given by the Appellant regarding release of the property from mortgage, it cannot be construed as readiness and willingness on part of the Respondent and his capacity to perform his obligations under the agreement, particularly when he is stated to have subsequently migrated to America and in which circumstance he executed the power of attorney in favour of PW-1. The relief of specific performance being discretionary in nature, the Respondent cannot be held to have established his case for grant of same. The conclusions of the High Court, both on aspects of readiness and willingness of the Respondent and lack of due intimation by the Appellant to the Respondent regarding redemption of the mortgage are held to be unsustainable. The appeals are allowed.

Relevant : Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. MANU/SC/1030/2004

Tags : SPECIFIC PERFORMANCE DECREE VALIDITY