LexJANKI VASHDEO BHOJWANI AND ANR. versus INDUSIND BANK LTD. AND ORS.
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JANKI V ASHDEO BHOJW ANI AND ANR. A v. INDUS IND BANK LTD. AND ORS. DECEMBER 6, 2004 B [D.M. DHARMADHIKARI AND H.K. SEMA, JJ.] Code of Civil Procedure, 1908: Order 3 rule 1, 2-Power of attorney-Acts done by-Doesn't include deposing in place and instead of the principal-Held, Power of attorney C holder may depose for the principal in respect of the acts rendered in pursuance of power of attorney-He cannot depose for the principal for the acts done by the principal nor in respect of matter which principal can have personal knowledge. D Civil disputes: Conduct of the parties-Significance of-Filing objection claiming ownership after the order of attachment-Getting their power of attorney holder examined to prove their co ownership instead of themselves-Held, parties have not approached the court with clean hands. E Foreign Exchange (Immunity) Scheme, 1991: Foreign exchange-receipt of-Scheme protects the recipient from prosecution under FERA and Income Tax but doesn't prohibit from F disclosing the sources-Remittance so received can't be described as income much less independent income. In the recovery proceeding initiated against the family members including the husbands of the appellants, the Debt Recovery Tribunal (DRT) ordered for attachment inter alia of the Suit property. Appellants G objected to the attachment claiming to have contributed for the purchase of the property from their independent income. While remitting the matter to DRT to record a finding on the ownership of the appellants, the apex court permitted the parties to lead evidences, however, it was clarified that the burden of proving their shares will be on the appellants. H 681 682 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R. A For the remittances under the Foreign Exchange (Immunity) Scheme' 1991 it was contended that the appellants are immune from disclosing the sources of receipt. At the DRT, instead of getting themselves examined they got their B power of attorney holder examined who was none else but the husband, himself a judgement debtor, of one of the appellant. DRT decided in favour of the appellants. High Court set aside that order. In appeal before this court, Respondent inter alia contended that power of attorney holder can apply or act but such act can't extend to C deposing as witness. Dismissing the appeal, the Court HELD 1.1. In the context of the directions given by this Court, D shifting the burden of proving on the appellants that they have a share in the property, it was obligatory on the appellants 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 E 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. (688-F-G-H) F 1.2. The word "acts" employed in Order III, Rules l and 2 CPC, confines only in respect of "acts" done by the power of attorney holder iri 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 G 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 by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled H to be cross-examined. (689-A-B-C) J.V. BHOJWANI v. INDUSIND BANK LTD. 683 1.3. Appellants have failed to establish that they have any A independent source of income and they have contributed to for the purchase of the property from their own independent income. [689-D-E] Shambhu Dutt Shastri v. State of Rajasthan, (1986) 2 WLL 713, approved. Ram Prasad v. Hari Narain & Ors., AIR (1998) Raj 185 and Dr. Pradeep Mohanbay v. Minguel Carias Dias, (2000) Vol.102 Born C.R. 754, referred to. B Humberto Luis v. Minguel Carias, (2002) 2 Born. C.R. 754, overruled. C 2. In ci
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