TMI Blog2004 (12) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... 003 - - - Dated:- 6-12-2004 - D.M. DHARMADHIKARI H. K. SEMA, JJ. JUDGMENT This appeal is directed against the judgment of the Bombay High Court dated 23-4-2003. The appeal has been heard at length by a Bench in which one of us was a Member, Sema,J and by an order dated 10-2-2004 reported as Janki Vashdeo Bhojwani And Another vs. Indusind Bank Ltd. And others, (2004) 3 SCC 584) it was remitted to the Tribunal with the following directions in paragraphs 24 at Page SCC 587: "In our view, it is essential, before any further orders can be passed to first decide whether or not the appellants have a share in this property. We therefore remit the matter back to the Debt Recovery Tribunal to record a finding whether or not on the date the decrees were passed, the appellants were co-owners of the property at 38, Koregaon Park, Pune and if so, to what extent. In so deciding the Debt Recovery Tribunal will undoubtedly ascertain whether the appellants had any independent source of income and whether they had contributed for purchase of this property from their own independent income. The Debt Recovery Tribunal will also decide whether this property was the residence of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e properties were attached on 8.11.2001 in which the property at 38, Koregaon Park, Pune was also attached. Thereafter, pursuant to attachment, a public notice was published in the Times of India of 25.1.2002 publication, notifying that the properties of the second respondent have been attached. It is only at this stage, the appellants have filed objections before the DRT against the attachment of the residential property at 38, Koregaon Park, Pune on 16.4.2002, which were rejected by the Recovery Officer on the premise that he could not go beyond the decree. In the application, the appellants claimed that they came to know of the attachment through the advertisement published in the Times of India of 25.1.2002. As already noticed, the 1st appellant is the wife of the 5 th respondent and the 2nd appellant is the wife of 2nd respondent. On 3.10.2000 the respondent-bank filed a suit against the 2 nd respondent and the 7th respondent, OA No.159-P of 2001 before the DRT for the recovery of a sum of Rs.3.86 crores. Again on 25 th October, the respondent-bank filed another suit against respondent nos. 2 to 6 and one M/s Progressive Land Development Corporation, OA No.160-P of 2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Tribunal has framed the following issues, purportedly pursuant to the directions by this Court: (i) Whether the appellants have any share in the property (38, Koregaon Park, Pune) subject matter of dispute? (ii) Whether on the date decrees were passed, the appellants were co-owners of the said property? (iii) Whether the said property was the residence of the appellants at the time possession was taken? The fallacy of the Tribunal begins with the framing of the issues. The issues as noticed above are inconsistent with the directions of this Court. The directions contained in paragraph 24 are that the Tribunal was directed to record a finding whether or not on the date the decrees were passed the appellants were co-owners of the property at 38, Koregaon Park, Pune and if so to what extent. In deciding the aforesaid issue, the DRT will ascertain whether the appellants had any independent source of income and whether they had contributed for purchase of this property from their own independent income. The Tribunal was directed to permit the parties to lead evidence, both oral and documentary. This Court further clarified that the burden of proving that the appellants have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1998 Raj. 185. It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC. In the case of Dr.Pradeep Mohanbay Vs. Minguel Carlos Dias reported in 2000 Vol.102 (1) Bom.L.R.908, the Goa Bench of the Bombay High Court held that a power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness. However, in the case of Humberto Luis Anr. Vs. Floriano Armando Luis Anr. reported in 2002 (2) Bom.C.R.754 on which the reliance has been placed by the Tribunal in the present case, the High Court took a dissenting view and held that the provisions contained in order III Rule 2 of CPC cannot be construed to disentitle the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the appellants, referred to the Income Tax Return for the Assessment year 1988-89 in which at Sl.No.6 (Vol.V at page No.144) it is shown that during the year the assessee, 2nd appellant, has paid Rs.4,65,000/- to Mrs. Susheela Talera towards purchase of Plot No. 38, Koregaon Park, Pune, out of loan taken from M/s Bhojwani Bros. Counsel also drew our attention to Sl.Nos. 3 and 4 at page 155 Vol.V showing that the assessee has paid Rs. 45,000/- towards Stamp Duty for Plot at 38, Koregaon Park, Pune, out of loan taken from M/s Bhojwani Bros. and deposited Rs. 76,000/- in Dr.L.R.Bhojwani Jt. A/c towards the payment for plot at 38, Koregaon Park, Pune, out of sale proceeds of 100 shares of Bajaj Auto Ltd. at Rs. 710 per share. He has also drawn our attention to Sl.No.5 at page 159 Vol.V showing that during the year assessee has received the following foreign remittances under Foreign Exchange (Immunities) Scheme 1991: a) US$ 50,000 vide DD No. 484485 drawn on Marine Midland Bank dt 19.10.91, NA, New York. The Indian currency equivalent to Rs. 12,88,660 has been deposited in SB A/c NO.7930 with UBI, Pune Camp Branch. The xerox copy of Certificate No.284 issued by UBI, Pune Camp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 484486 at 19.10.91 drawn on Marine Midland Bank, NA, New York. The Indian Currency equivalent to Rs. 12,88,660 has been deposited in SB A/c No. 14910 with UBI, Pune Camp Br. The Xerox copy of the Cert No. 285 issued by UBI, Pune Camp Branch is attached. US$ 25,000 vide TT No. 559271 Bk of India, Singapore. The Indian Currency equivalent to Rs. 6,43,902 has been deposited in SB A/c No.14910 with UBI, Poona Camp Br. The xerox copy of Cert. No.92 issued by UBI, Poona Camp Branch is attached. At Sl.no.8 it is shown that the assessee has deposited Rs. 2,87,037/- in CA A/c No.22035 with Union Bank of India, Poona Camp Br. towards the payment to be made for construction of residential house at 38 Koregaon Park, Pune out of LIC loan, sale of shares and partly from foreign remittances received. At Sl.No.9 it is shown that the assessee has paid Rs. 13,90,383/- to M/s Bhojwani Bros towards the return of loan taken on CA out of foreign remittances received. The above figures do not disclose the source of income and that this income is their own independent income and they had contributed for purchase of the suit property. No reliance can be placed on the said documents. Regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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