• POA holder age 90 years does not remember that she filed the suit

In a Hindu family partition case, seven children out of nine, gave POA for partition of property to their widowed mother aged 90 years of age. Remaining two children are treated as defendants. POA holder has got lawyer to argue the case. The defendants, myself and another brother, are arguing as :Party in Person". She now has given evidence in the cross examination in the presence of the district judge,that she does not remember filing the suit. Already, she had given affidavit to the court on various points. I was told that there is a supreme court judgement, declaring that suit in such cases is liable to be dismissed. Can any one quote such judgement?  I am the eldest son, being the defendant and appearing as party in person.
The case is filed in chengalpet district court in Tamilnadu.
 
from
A R Srinivasan, Chennai.
16th feb 2015
Asked 2 years ago in Civil Law from Chennai, Tamil Nadu
Hi, Supreme Court in its judgement held power of attorney holder must  have personal knowledge of the transaction which they deposed before the court if GPA holder does not have a personal knowledge of the transaction then his evidence is not valid.

2. I will get back to you exact citation of the Supreme Court.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1) the averments made in Plaint has to be proved by the plaintiff . 

2) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

3) Supreme Court of India
Man Kaur(Dead)By Lrs vs Hartar Singh Sangha on 5 October, 2010
Bench: R.V. Raveendran, Aftab Alam
                                                                                Reportable
                   IN THE SUPREME COURT OF INDIA

                    CIVIL APPELLATE JURISDICTION

                  CIVIL APPEAL NOS. 147-148 OF 2001



MAN KAUR (DEAD) BY LRS.                                      ....APPELLANTS

VS.

HARTAR SINGH SANGHA                                       .....RESPONDENT
12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.

(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.

(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.

(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.

(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.

(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind' or `conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his `bona fide' need and a purchaser seeking specific performance who has to show his `readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or `readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.

4) in your case if POA has no personal knowledge of execution of POA and filing of suit plaintiff would not be able to prove its case   and suit filed would be dismissed .
Ajay Sethi
Advocate, Mumbai
23296 Answers
1220 Consultations
5.0 on 5.0
AIR 2005 Supreme Court 439, please refer this citation.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
Supreme Court of India
Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors on 6 December, 2004
Author: H.K.Sema
Bench: D.M. Dharmadhikari, H. K. Sema
 CASE NO.:
Appeal (civil) 6790 of 2003
PETITIONER:
Janki Vashdeo Bhojwani & Anr.
RESPONDENT:
Indusind Bank Ltd. & Ors.
DATE OF JUDGMENT: 06/12/2004
BENCH:
D.M. DHARMADHIKARI & H. K. SEMA
JUDGMENT:
J U D G M E N T H.K.SEMA,J.
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 appellants at the time possession was taken. The Debt Recovery Tribunal shall
permit the parties to lead evidence, both oral and documentary. It must be clarified that the burden
of proving that the appellants have a share in the property will be on the appellants. The Debt
Recovery Tribunal shall then forward its decision to this Court within a period of six months from
today."
(Emphasis supplied) Avoiding prolixity, but at the risk of repetition the directions were founded on
the following facts:
The 1st appellant is the wife of the 5th respondent and the 2nd appellant is the wife of the 2nd
respondent.
Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors on 6 December, 2004
The respondent-bank extended loan facilities to the 6th and 7th respondents, M/s Bhojwani Hotels
Pvt. Ltd. and Hotel Amir Pvt. Ltd., which are run by respondent Nos. 2 to 5 namely Dr. Laxmikant
Rewachand Bhojwani, Mr. Sanjay Laxmikant Bhojwani, Mr. Romy Laxmikant Bhojwani and Mr.
Vashdeo Rewchand Bhojwani. The loan facilities were to the extent of Rs. 22 crores in one case and
Rs.3.75 crores in the other. Respondents 2 to 5 were also guarantors and some of the properties
belonging to the parties have been mortgaged to the bank. Initially, Plot No.38, Koregaon Park,
Pune was also stated to have been mortgaged to the bank. It is now admitted by the
respondent-bank that the said plot was not mortgaged to the bank. As the loan had not been repaid,
the respondent-bank filed a suit against 2nd and 7th respondents on 3.10.2000, OA No. 159-P of
2001 before the Debt Recovery Tribunal (hereinafter referred to as the DRT) for recovery of a sum of
Rs.3.86 crores. The first respondent-bank also filed another suit against respondent nos. 2 to 6 and
one M/s Progressive Land Development Corporation, OA No. 160-P of 2001 for recovery of a sum of
Rs.27.5 crores. M/s Progressive Land Development Corporation is a partnership firm of which the
appellants are partners, along with others. The DRT by an order dated 11-12-2000 passed an
injunction order in an application made in OA No.160-P of 2001. The plot no.38, Koregaon Park,
Pune was one of the properties which the respondents were restrained from alienating. The DRT
also passed a decree on 13-9-2001 in OA No.159-P of 2001 in favour of the respondent-bank in
which the property at 38, Koregaon Park, Pune was shown as one of the mortgaged properties. A
recovery certificate was also issued by the DRT and pursuant thereto the 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 5th respondent and the 2nd appellant is the
wife of 2nd respondent. On 3.10.2000 the respondent-bank filed a suit against the 2nd 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 25th 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 for recovery of a
sum of Rs.27.5 crores. M/s Progressive Land Development Corporation is a partnership firm of
which the appellants are the partners along with others. Thereafter, as recited above the DRT passed
an injunction order in which one of the properties the respondents were restrained from alienating
was 38, Koregaon Park, Pune. On 13.9.2001, a decree was passed in OA No.159-P of 2001 and in the
said decree the property at 38, Koregaon Park, Pune was shown as one of the mortgaged properties.
All these proceedings against their husbands and M/s Progressive Land Development Corporation
which is a partnership firm and in which the appellants are partners along with others, were within
the knowledge of the appellants. The appellants, however, feigning ignorance of the facts and
proceedings, took a plea that they came to know about the attachment of the property at 38,
Koregaon Park, Pune only through the public notice published in the Times of India of 25.1.2002.
Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors on 6 December, 2004
In the backdrop of given facts and circumstances, this Court has already observed in its order dated
10.2.2004 at page 585 SCC as under:-
"This averment is impossible to believe. It is clear that they were aware of the proceedings against
their husbands and family concerned."
The property at 38, Koregaon Park, Pune was purchased from Ms. Sushila Talera and the
consideration for the purchase was paid to her on 25.8.1987. It is not disputed that the indenture of
sale was executed on 5.9.1991. It is also not disputed that payment on 25.8.1987 was entirely made
by M/s Bhojwani Brothers, HUF, a separate legal entity. It is the case of the appellants that the said
amount was paid by M/s Bhojwani Brothers on behalf of the appellants and the same was treated as
a loan extended to the appellants which was subsequently repaid by the appellants in 1992. In short,
the appellants sought to build up a case, albeit belatedly, that the appellants had contributed the
consideration amount and they are the co-owners in respect of property at 38, Koregaon Park, Pune.
The appellants are neither debtors nor guarantors and, therefore, the property in question to the
extent of their share in the property could not have been sold in the execution of the decree.
Pursuant to the directions quoted above, the DRT has recorded a finding by its order dated
2.8.2004. The parties have filed objections to the finding. 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 a
share in the property will be on the appellants.
The second fallacy of the order of Tribunal was allowing Mr.V.R.Bhojwani (power of attorney
holder), husband of appellant no.2 Ms.Mohini Laxmikant Bhojwani, to appear in the witness box on
behalf of the appellants. It may be noted that that the appellants were shy away from gracing the
box. The respondent-bank vehemently objected to allowing the holder of power of attorney of the
appellants to appear in the witness box on behalf of the appellants. This Court clarified that the
burden of proving that the appellants have a share in the property will be on the appellants and it
Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors on 6 December, 2004
was incumbent on the appellants to have graced the box and discharged the burden that they have a
share in the property, the extent of share, the independent source of income from which they have
contributed towards the purchase of the property. The entire context of the order dated 10.2.2004
was forwarded to the Tribunal for the purpose. It is unfortunate that the Tribunal has framed its
own issues not consistent with the directions and recorded a finding contrary to the directions as
aforesaid.
Dr. Singhvi, learned senior counsel appearing for the respondent-bank vehemently contended that
the appellants did not grace the box to lead evidence but authorised Mr. V.R. Bhojwani (power of
attorney holder) to appear on behalf of the appellants. Learned counsel contended that Mr.
Bhojwani was not an independent person to the litigation but was a judgment debtor in the suit and
a co-owner of the property and there was a clash of interest between the husband and wife and as
such he could not have been permitted to grace the box on behalf of the appellants. He further
contended that under Order III Rules 1 & 2 CPC a power of attorney holder can appear, apply or act
in any court but such act cannot be extended to depose in the witness box. He further submitted that
in the present case a power of attorney holder is not acting as a witness on behalf of the principal but
he is representing the principal himself. He further contended that deposing in a witness box and
being cross- examined is a personal act and cannot be done through an agent/power of attorney
holder.
In the context of the directions given by this Court, 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 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 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 to be cross-examined.
Having regard to the directions in the order of remand by which this Court placed the burden of
proving on the appellants that they have a share in the property, it was obligatory on the part of the
appellants to have entered the box and discharged the burden. Instead, they allowed Mr. Bhojwani
to represent them and the Tribunal erred in allowing the power of attorney holder to enter the box
and depose instead of the appellants. Thus, the appellants have failed to establish that they have any
independent source of income and they had contributed for the purchase of the property from their
Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors on 6 December, 2004

own independent income. We accordingly hold that the Tribunal has erred in holding that they have
a share and are co-owners of the property in question. The finding recorded by the Tribunal in this
respect is set aside.
Apart from what has been stated, this Court in the case of Vidhyadhar vs. Manikrao and Another,
(1999) 3 SCC 573 observed at page 583 SCC that "where a party to the suit does not appear in the
witness-box and states his own case on oath and does not offer himself to be cross-examined by the
other side, a presumption would arise that the case set up by him is not correct". In civil dispute the
conduct of the parties is material. The appellants have not approached the Court with clean hands.
From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in
the execution of Decree. On the question of power of attorney, the High Courts have divergent views.
In the case of Shambhu Dutt Shastri Vs. State of Rajasthan, 1986 2WLL 713 it was held that a
general power of attorney holder can appear, plead and act on behalf of the party but he cannot
become a witness on behalf of the party. He can only appear in his own capacity. No one can
delegate the power to appear in witness box on behalf of himself. To appear in a witness box is
altogether a different act. A general power of attorney holder cannot be allowed to appear as a
witness on behalf of the plaintiff in the capacity of the plaintiff.
The aforesaid judgment was quoted with the approval in the case of Ram Prasad Vs. Hari Narain &
Ors. AIR 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 power of attorney holder to depose on behalf of his principal.
The High Court further held that the word "act" appearing in order III Rule 2 of CPC takes within its
sweep "depose". We are unable to agree with this view taken by the Bombay High Court in Floriano
Armando (supra).
We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri
(supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken
in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and is
accordingly overruled. In the view that we have taken we hold that the appellants have failed to
discharge the burden that they have contributed towards the purchase of property at 38, Koregaon
Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors on 6 December, 2004
Park, Pune from any independent source of income and failed to prove that they were co- owners of
the property at 38, Koregaon Park, Pune. This being the core question, on this score alone, the
appeal is liable to be dismissed.
Despite, we now proceed to consider the documentary evidence produced. The admitted position is
that the consideration for sale was paid by M/s Bhojwani Brothers, a distinct legal entity. M/s
Bhojwani Brothers is a Hindu Undivided Family. The said HUF as a distinct entity filed Income Tax
Returns. Shri L.R. Bhojwani and his two sons Sanjay and Romy Bhojwani had filed income tax
returns showing themselves as owners of 1/4th share each in suit property. In the photo copies of
the income tax returns filed by Shri V.R. Bhojwani (power of attorney holder) 1/4th is struck off and
is interpolated into 1/7th share. This fact was admitted by him in cross- examination, Vol. V at page
115. He has also admitted that the correction is not depicted in the original papers received from
income tax office. The Tribunal also holds that there was interpolation by pencil which was not
depicted in the original papers received from the Income Tax office.
Mr. Rohtagi, learned senior counsel, has drawn our attention to the indenture for sale dated
5.9.1991 and submitted that the name of the appellants appeared at Sl. Nos. 3 and 4 of the sale
indenture. According to the counsel they are the co-purchasers. We are unable to accept this
contention merely because their names appear in the sale indenture by itself would not be a
conclusive proof that they are the co-purchasers. Mr. Rohtagi, learned senior counsel 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 Branch is attached.
b) US$ 25,000 vide TT No. 559271 drawn on Bank of India, Singapore. The Indian currency
equivalent to Rs. 6,43,902 has been deposited in SB A/c No. 7930 with UBI, Pune Camp Br. The
xerox copy of Certificate No.92 issued by UBI, Poona Camp Branch is attached.
At page 160 Vol.V, Sl.No.8 and 9 it is shown that the assessee has deposited Rs. 3,47,465 in CA No.
22035 with Union Bank of India, Poona Camp Branch towards the payment to be made for
construction of residential house at 38 Koregaon Park, Pune, out of sale proceeds of shares and
foreign remittances received. The assessee has paid Rs. 15,03,290/- to M/s Bhojwani Brothers
towards the return of loan taken on CA out of foreign remittances received. He has also shown at
Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors on 6 December, 2004
page 164 Vol.V, Sl.No.6 and 8 that the assessee has invested Rs.75,000/- in construction of
bungalow at 38 Koregaon Park, Poona, out of rent and salary received and balance in SB A/c No.
7930 with UBI, Poona Camp Branch and sale proceeds of shares. The Assessee has paid Rs.
2,26,995/- to M/s Bhojwani Brothers vide Cheque No. 286141 dated 31.3.93 on Current Account out
of gift received from Mr. Arjan Khialani of Singapore. Counsel has also shown at page 167 Vol.V,
Sl.No.8 that during the year 1993- 94 the assessee has acquired 1/7th share in bungalow at 38
Koregaon Park, Pune, which was ready for possession in December 1993. The cost of her share
comes to Rs. 21,25,966/- which was partly financed by M/s Bhojwani Brothers, Poona. There is no
proof that the source is from the independent income of the appellants. As already noticed the figure
1/7th share has been interpolated with pencil and no reliance can be placed on this document.
In respect of appellant No.1 Mrs. Janki Vashdeo Bhojwani, the learned counsel submitted that
during the assessment year 1988-89 it is shown at Sl.No.1 page 169 Vol.V that the appellant has paid
Rs.4,65,000/- to Mrs. Susheela Talera towards purchase of Plot No.38 Koregaon Part out of loan
taken from M/s Bhojwani Brothers of Rs.4,65,000/-. It is also shown at Sl.No.3 at page 178 Vol.V
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 Brothers. At page 182 Vol.V, Sl.No.5 it is shown that the assessee
has received the following remittances under Foreign Exchange (Immunity) Scheme 1991:-
? US$ 50,000 vide DD No. 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 capital received from foreign remittances under Foreign Exchange (Immunity)
Scheme, 1991, learned counsel Mr. Rohtagi contended that under the scheme the appellants are
immune from disclosing the source of receipt. It is true that as per the terms of the scheme the
recipient will not be required to disclose for any purpose the nature and source of remittances and
further no enquiry or investigation will be commenced against the recipient under any law on the
ground that he has received such remittance. It only protects the appellant from prosecution under
FERA and income tax. It does not prohibit the appellants from disclosing the sources. Furthermore,
the remittance, so received by the appellants, could not be described as income, much less an
independent income. As already noticed, in the instant case, a duty is cast upon the appellants to
Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors on 6 December, 2004
discharge the burden of proving that the appellants have a share in the property. The appellants
could have disclosed the source of remittance to discharge the burden.
At this stage we may also notice that the appellants relied upon the gifts from relatives and friends
see Vol.V pages 57-59 which show that the appellants have received some amount of gifts in terms of
US$ from foreign countries. Mr. V.R.Bhojwani admitted that the three donors were not related by
blood and two donors were distant cousins. It is apparent that the so-called gifts made by the donors
were actually sent by the husbands of the appellants through name- lenders and by no stretch of
imagination it could be an income, much less an independent income of the appellants. Similarly,
the net income of the appellants during the year 1992-93 shown at pages 57- 59 (Vol.V) was not
adequate to repay the loan.
For the reasons aforestated the appellants have miserably failed to establish that on the date the
decrees were passed, the appellants were the co-owners of the property at 38, Koregaon Park, Pune.
They further failed to establish that they have any independent source of income and they have
contributed for purchase of the property at 38, Koregaon Park, Pune, from their own independent
income. Further the appellants failed to discharge the burden of proving that the appellants have a
share in the property. The other connected issues are only consequential to this issue and it may not
be necessary for us to deal with them in view of our decision above. Accordingly, the appeal fails and
is dismissed with costs.
Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors on 6 December, 2004
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
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If the POA holder has no personal knowledge about the fact then the case filed by him/her is liable to be dismissed as per the Judgement passed by the the Apex Court of India.
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The case merits dismissal as the POA holder does not have personal knowledge of the facts.
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Advocate, Jaipur
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