Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., observed that an advocate who is engaged by a client has to play only one role, either of the advocate in the proceedings or the power of attorney holder.

Question for Consideration

Whether Mr Amarjeet Singh Sahni, who was acting as the power of attorney holder of the plaintiff, Mr Amit Ved/Plaintiff/Respondent and had verified the plaint on behalf of the said plaintiff could appear also as a counsel in the matter?

High Court made it clear that the practice of advocates acting as power of attorney holders of their clients, as also as advocates in the matter is contrary to the provisions of the Advocates Act, 1961.

Any advocate who is engaged by a client would have to play only one role, i.e., that of the advocate in the proceedings and cannot act as a power of attorney holder and verify pleadings and file applications or any other documents or give evidence on behalf of his client. This aspect has to be scrupulously ensured by all the Trial Courts.

Plaintiff Mr Amit Ved was a resident of Bangkok, Thailand. Mr Sahni claimed to be his power of attorney holder. Mr Sahni verified the plaint and all other pleadings on behalf of Plaintiff. He was also appearing as the counsel for Plaintiff which would be impermissible. However, since in the present case, Mr Sahni assured the Court that he would no longer act as an advocate in the matter, no further observations were being passed in this regard.

Since this Court has perused the original MoU and both Mr Pankaj and Mr Sahni, confirmed that the MoU/Deed of Settlement were executed, the petitions are disposed of as the disputes have been settled.

In view of the above, parties have been directed to appear before the trial court on the date fixed i.e. 28-01-2022 for presenting the settlement and for the recording of the same. [Anil Kumar v. Amit, 2021 SCC OnLine Del 5020, decided on 17-11-2021]

Case BriefsHigh Courts

Bombay High Court: Dama Seshadri Naidu, J., in a suit for specific performance, observed that:

“..in a suit for specific performance, a third party’s assertion that he has a stake in the subject matter of the suit counts to noting (sic). What matters is the contract, not the property covered by the contract. “

Background

‘A’ engaged in a contract with B for purchasing some property and B defaulted. Later, C the brother of A, represented A as his power of attorney agent (POA) and after a few years, A discharged C from being his POA and pursued the case independently and got a decree – not for specific performance but for the return of money.

Now an objection arose when A wanted to withdraw the deposited decretal amount and the objection was raised by C.

The ground for objection was that C wanted a part of the decretal amount since he too had contributed to the sale consideration.

Question for Consideration

Can C’s claim be countenanced? Is such an ‘intervention application’ maintainable?

Discussion

Code of Civil Procedure must be interpreted in a manner to subserve and advance the cause of justice. 

— C.K. Thakker’ s Code of Civil Procedure, Vol. 1, EBC, p. 200 (EBC Reader) 

Bench noted that in the present matter, firstly, there was no lis before the Court for it to entertain an interlocutory application. Thus, Court was proverbially functus officio. 

Adding to the above, Court stated that C wanted the Court to revive and resurrect a disposed of suit and to do that the Court must set aside the decree that was already passed.

But the question was, can the Court do so?

To the above, the answer was Court cannot. Further, it was elaborated that “A decree can be set aside under Order 9 Rule 13 CPC. In the Supreme Court decision of Ram Prakash Agarwal v. Gopi Krishna, (2013) 11 SCC 296, it was held that the applicant must have been a party to the suit, in the first place, whereas Supreme Court in Raj Kumar v. Sardari Lal, (2004) 2 SCC 601, took a different view and stated that the same was in the context of a lis pendens purchaser.

Bench coming back to the present matter, expressed that:

Subhash has a highway or a thoroughfare to travel on if ever he wants to reach his judicial destination: a separate suit, seeking a declaration.

Looking at the issue from another perspective, Court stated that in a suit for specific performance, whatever be its outcome, no third party can have the role to play.

Precedential Position

Ajay Kumar v. Tulsabai, 1973 SCC OnLine Bom 4, Court held that by very nature, a suit for specific performance confines itself to the agreement and several please that can either defeat or lead to its enforcement. The cause of action in such a suit is the agreement and its enforceability.

In the above-cited case, Court posed a question unto itself: Can it really be said that the stranger to an agreement is concerned with the relief sought by the plaintiff or the defences raised against such specific performance? The answer was that, firstly the stranger not being a party to the suit, any decision in that suit does not affect him. Secondly, the Court is being called upon to enforce the agreement but not to settle any disputes between the plaintiff and the stranger, therefore such a person’s presence is not necessary for the Court to decide the controversy of the suit.

In Panne Khushali v. Jeewanlal Mathoo Khatik,  AIR 1976 MP 148,  a Full Bench of the High Court of Madhya Pradesh has held that strangers to the contract making a claim adverse to the title of the defendant—for example, that they are the co-owners of the contracted property—are neither necessary nor proper parties. So they are not entitled to be joined as parties to the suit.

Delhi High Court in its decision of Raj K. Mehra v. Anjali Bhaduri, 1981 SCC OnLine Del 105, echoed the same view as above.

Analysis, Law and Decision

In view of the above, Court proceeded to examine the issue:

(1) The agreement was between Rajesh and Sudarshan.

(2) From the very inception, Subhash represented Rajesh as his POA in the suit; thus, he knew his brother’s pleadings and assertions to the exclusion of everyone else.

(3) Despite that, Subhash never objected to his principal’s (Rajesh’s) contentions.

(4) Though Rajesh, as the principal, cancelled GPA in 2017, Subhash never attempted, if ever permissible, to come on record as a defendant to protect his independent interest, if any.

(5) The suit was eventually decreed in 2001.

(6) Sudarshan willingly suffered the decree and deposited the amount to be appropriated by Rajesh alone.

Collateral Issue:

Subhash insisted that this Court in its Order dated 16-04-2012 noted that Subhas, too, contributed to the sale consideration.

To the above contention Bench stated that to facilitate adjudication of the matter, the Court undertakes various steps and during that process, Court prima facie observe or record certain aspects based on the counsel’s representation but the same does not acknowledge the parties existing rights if any, but they do not create rights on their own.

A Court’s observation cannot give rise to a right unless it has already existed, nor does it provide a cause of action. Here, in this case, it had never been in the Court’s contemplation as to who contributed the sale consideration. It is a non sequitur.

Concluding the matter, Court held that however strong a person’s right to recovery may be, he cannot file an intervention application in an already disposed of matter and stay the execution of the decree or nullify the decree without proper judicial recourse.

In view of the above discussion, Court dismissed the application. [Rajesh Saichand Sharma v. Sudershan Gangaram Rajula,  2021 SCC OnLine Bom 835, decided on 11-06-2021]


Advocates before the Court:

Mr. Sanjiv Sawant a/w Mr. Abhishek P. Deshmukh – Advocate for the Applicant.

Sukeshi Bhandari a/w Akshay Chauhan – Advocate for the Defendants.

Mr. Chandrakant N. Chavan a/w Mr. Rajesh Sharma – Advocate for Plaintiff.

Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua, J., laid down directions to avoid future abuse of judicial process like in the instant case and granted bail to the petitioner.

The present case was a shocking case before the Bench as it involved 2 separate bail petitions being filed by the same bail petitioner arising out of the same FIR represented by separate counsels. Incidentally both the petitions got listed before the same bench which appalled the judge stating that there was a high chance of the two petitions being listed before separate benches and it would have led to grave abuse of the judicial process of the court.

 Cr MP (M) No. 1303 of 2020– It was stated in the Court that the present petition was filed at the instance of a local lawyer. It was instituted through an email on 04-08-2020 on a Power of Attorney signed by the petitioner with endorsement of the Assistant Superintendent Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, Himachal Pradesh, dated 14-07-2020. This petition was represented by Mr. Vijendra Katoch.

 Cr. MP (M) No.1321 of 2020– It was stated in the Court that the present petition was filed at the instance of the relatives of the petitioner. It was also instituted through an e-mail on 06-08-2020. It was also on the power of attorney signed by the petitioner with the endorsement of the same Assistant Superintendent Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, Himachal Pradesh, dated 30-07-2020.  This petition was represented by Mr. Gobind Korla.

Both these petitions, i.e. Cr. MP (M) Nos. 1303 of 2020 and 1321 of 2020, were listed on 06-8-2020 and 07-8-2020, respectively and incidentally before the same court. Resultantly, both the above petitions were ordered to be listed together on 20-08-2020 which on the said listed date was represented by two different counsels having separate instructions to represent the case.

The disclosure regarding at whose instance two Power of Attorney (POA) was given could not be obtained. It was also noticed that the Assistant Superintendent Jail did not maintain any record for the same but endorsed, attested and issued two separate POA’s.

The Court expressed its disapproval over the manner in which simultaneously two bail petitions were filed before the Court and recorded its indignation. The Court chose not to take action against the accused but gave a stern warning to the bail petitioner to not indulge in such activities on the request of the counsel and amicus curiae present in the case.

However, the court laid down certain directions to evade future incidents like this:

  1. It is necessary that the status report filed by the State should reflect details of all previous bail petitions filed by the petitioner irrespective of the fact whether the same were eventually withdrawn by him or not.
  2. Status reports should also clearly indicate the criminal history of the accused persons involved in the FIR, as available with the investigating agency. Director-General of Police, Himachal Pradesh was directed to issue necessary orders in this regard to all authorities concerned and ensure compliance.
  3. Maintenance of record with respect to the execution of power of attorneys by the persons in custody is essential not only to avoid situations like the present one, but also to prevent mischief which may be caused to the accused in custody.
  4. It was directed to all Jail Superintendents to maintain proper records with respect to identification of the person at whose instance the power of attorney of the person in custody are being attested and endorsed by the Jail Superintendents.
  5. The record should contain details of name/address/Aadhar Card detail/telephone numbers/ relation with the accused/purpose for obtaining power of attorney etc. The Director-General of Prisons & Correctional Services, Himachal Pradesh was directed to issue necessary orders in this regard to all the Jail Superintendents and ensure compliance.
  6. It was directed to try and evolve a software wherein filing of more than one bail petition in this Court by the same petitioner during pendency of previous bail petition, arising out of the same FIR can be detected and consequent steps can be taken at the threshold.

In the instant case, Court granted bail observing that the trial of the case will take sufficient time and the petitioner cannot be kept behind the bars for an indefinite period.

In view of the above, the petition was disposed off. [Sunil Kumar v. State of HP, 2020 SCC OnLine HP 1334, decided on 31 08-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. dismissed a writ petition by the petitioner challenging the show cause notice issued against him whereby the dealership of his fair price shop was threatened to be cancelled. 

The counsel appearing for the petitioner is K. Nath and learned Additional GA appearing for the State-respondent is D. Sharma.

Petitioner was appointed as a dealer of a fair price shop in 1968. A show-cause notice was issued upon him in 2018 stating that he had violated the guidelines provided under Tripura Foodgrains Dealers Licensing Order, 1964 for his personal gain. The petitioner replied to the show cause stating that he was aged 86 years and suffering from Parkinson’s disease due to which he could not move independently. As a result, he had to appoint one person or employee for the smooth functioning of the fair price shop licensed to him. Thus, he urged that the person in whose favour he had executed a power of attorney (one Ratan) for running the dealership of shop, not be treated as a proxy dealer. 

The Court noted that it was evident from the Power of Attorney that the petitioner had bestowed the responsibilities and the liabilities upon Ratan and that he has no involvement with the running of the shop. Thus, it was true that the petitioner has not been running the business for which the dealership was provided to him. Further, it was also admitted by the petitioner that he has nominated a person (apart from his family members) to run his fair price shop. 

The Court also took note of a memorandum dated 18-03-2011 issued by the Director, Food, Civil Supplies & Consumer Affairs, Government of Tripura wherein it was clearly mentioned that “no F.P. Shop shall be allowed to run by any person other than the original licensee (i.e. in favour of whom the license has been issued by the Licensing Authority) for an unlimited or unreasonable period”. 

In view of the above, it was held that the petitioner was running his business of contradictory to the directives of the government, and the court had no jurisdiction to invade or replace the decision of the government. Thus, due to lack of merit, the petition was dismissed.[Sachindra Chandra Das v. State of Tripura, 2019 SCC OnLine Tri 500, decided on 20-11-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Exchange Board of India (SEBI): Anant Barua, Whole Time Member, denied KSBL’s request to permit the continuation of Karvy Stock Broking Limited (KSBL) using the Power of Attorney (PoA) for the purpose of transfer of securities.

SEBI had passed an ad-interim order against the Power of Attorney. Following directions were issued by SEBI:

“(i) KSBL is prohibited from taking new clients in respect of its stockbroking activities;

(ii)  The Depositories i.e. NSDL and CDSL, in order to prevent further misuse of clients’ securities by KSBL, are hereby directed not to act upon any instructions given by KSBL in pursuance of power of attorney given to KSBL by its clients, with immediate effect;

(iii)  The Depositories shall monitor the movement of securities into and from the DP account of clients of KSBL as DP to ensure that clients’ operations are not affected;

(iv)The Depositories shall not allow the transfer of securities from DP account no. 11458979, named KARVY STOCK BROKING LTD (BSE) with immediate effect. The transfer of securities from DP account no. 11458979, named KARVY STOCK BROKING LTD (BSE) shall be permitted only to the respective beneficial owner who has paid in full against these securities, under supervision of NSE; and

(v) The Depositories and Stock Exchanges shall initiate appropriate disciplinary regulatory proceedings against the Noticee for misuse of clients’ funds and securities as per their respective bye-laws, rules and regulations;………….”

Letters were sent by KSBL to SEBI with respect to placing the request in order to permit the continuation of KSBL using the power of attorney (PoA) only for the limited purpose of the transfer of securities for settling the client’s pay-in obligations to the Stock Exchanges.

KSBL had filed an appeal before SAT, Mumbai and for the same SAT had passed the following order:

“…7. We accordingly dispose of this appeal at this stage with a direction to the WTM to consider the request of the appellant which has been made vide letters dated November 24, 25 and 26, 2019 and pass an appropriate order after giving an opportunity of hearing by December 02, 2019…..”

Analysis & Decision

SEBI on considering the facts and submissions stated that the interim order that was passed by SEBI was at the time when it was found that KSBL had misused the clients’ securities by misusing the PoA given to it by its clients.

Further, the Commission noted that the clients of stockbrokers are free to avail various modes for giving instructions to the brokers including through PoA.

“..As per the Business Rules of depositories, the mode of affecting transfer by book entry based on electronic instruction received from the client such as through Speed e facility eliminating the need to deliver the DIS in physical form. If any client seeks to give instruction in physical form, he may also do so by sending the DIS through fax to depository participant and the original DIS may be sent within three days of the fax. The client who seeks to send physical DIS, in addition to sending it by fax has the option to deliver the same at the offices of the broker of depository participant (DP)..”

Thus, the Commission noted that the enormity of the prima facie violations observed against the KSBL in the interim order, it would not be prudent to allow the use of PoA by KSBL given to it by its clients, as prayed by KSBL. The clients of KSBL who seek to sell securities through KSBL may do so by using electronic or physical DIS only. [Karvy Stock Broking Ltd., In Re, 2019 SCC OnLine SEBI 303, decided on 29-11-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Petitioner had prayed for anticipatory bail in FIR registered under Sections 420, 465, 467, 471 and 120-B of the Penal Code before a Single Judge Bench of Arvind Singh Sangwan, J.

Facts of the case are that petitioner had executed a sale deed and sold a house of the complainant on the basis of alleged forged Special Power of Attorney of the complainant. Later, petitioner was granted interim anticipatory bail. Whereas complainant submitted that huge amount was transferred in the account of the petitioner. Petitioner had not accounted for the same and had mis-utilized. On request of the petitioner, matter was referred to Mediation and Conciliation Centre of the High Court which was contested by the complainant by stating that petitioner was not inclined to any amicable settlement pertaining to the FIR. The state opposed grant of bail to petitioner alleging him of committing of a serious offence.

The High Court was of the view that petitioner had forged and fabricated power of attorney related to the property of the complainant. The Court considered the allegations on the petitioner to be of serious offence. Therefore, this petition for grant of anticipatory bail was dismissed. [Gurdeep Singh v. State of Punjab,2018 SCC OnLine P&H 1843, decided on 21-11-2018]