ORDER
K. Gnanaprakasam, J. (Chairperson)
1. This appeal has been preferred as against the order dated 16.11.2004, passed by the DRT, Hyderabad, in OA-583/2001, whereby dismissing the OA filed by the appellant herein.
The case of the appellant is that the 1st defendant is a partnership firm and defendants Nos. 2 to 4 are its partners and the 4th defendant is represented by a Power of Attorney Ramesh K. Harjani. At the request of the defendants, the appellant Bank sanctioned Cash Credit Hypothecation facility to a limit of Rs. 5 lakhs. The defendants have executed a demand promissory note for Rs. 5 lakhs on 1.4.1992, and they have also executed instrument of hypothecation of goods and letter of details of partners. The defendants have also executed letters of acknowledgment of debt on 20.3.1995 and on 9.3.1998, acknowledging the debt. As the defendants did not repay the loan amount, the plaintiff filed the OA.
2. The defendant Nos. 1 to 3 remained ex pane. The 4th respondent/defendant alone filed the written statement and contested the matter. The 4th defendant denied her liability. Her case is that she is a doctor practicing in United Kingdom since 1975, and she got married to Dr. Krishna Mohan Patchava on 3.9.1995. The loan was sanctioned by relying upon some forged documents. The partnership is unregistered one and, therefore, the loan should not have been sanctioned. She further stated that the power of attorney said to have been given by her to her brother, which is relied upon by the plaintiff, is a rank forged. The partnership deed relied upon by the appellant is signed by her brother as if he was a General power of attorney holder prior to the formation of this partnership firm. Loan was sanctioned on forged documents produced by her brother and, therefore, she is in no way responsible to repay the loan due to the appellant. She has not given power of attorney to her brother Ramesh K. Harjani, in the year 1980, and it is a forged one. She is not aware of the loan obtained by the defendants. She came to know of the loan only in the year 2001, through the Counter filed by the appellant Bank to the complaint given by the 4th defendant to the Banking Ombudsman, when the Bank exercised its right of lien on her individual FCNR Account. The appellant Bank gave wrong address of the defendant. The defendant is not liable to pay any amount.
3. DRT has observed that the evidence affidavit filed by the appellant Bank does not disclose on what date the loan facility was sanctioned and the Bank has also not filed the loan application of the defendants nor the loan sanction letter and the statement of account relied upon by the appellant does not reflect any transaction prior to 2.11.1992, and the Demand Promissory Note (Exhibit A3) and the statement of account (Exh. A10), are not interrelated. The appellate has not proved the sanction of the loan and that the non-filing of the sanction letter, the non-filing of the original GPA, the failure on the part of the appellant Bank to establish that the GPA was subsisting on the date of Ex. A3 and also about the non-reply of the Bank to Ex. D 4 i.e. letter written by 4th defendant, would go to show that the appellant has not established its case against the 4th defendant and dismissed the OA. Aggrieved by the same, this appeal has been filed.
Heard the learned Advocate for the appellant and the respondent.
4. The learned Advocate for the appellant submits that the 1st defendant firm is a family concern and 4th defendant is the daughter of the 2nd defendant and 3rd defendant is the daughter-in-law of the 2nd defendant. The defendants 2 and 3 along with the Power of Attorney Agent of the 4th defendant have approached the appellant Bank for the loan and loan was granted to the limit of Rs. 5 lakhs on Cash Credit Hypothecation facility and the defendants 2 and 3 along with the power of attorney agent of the 4th defendant have executed the promissory note dated 1.4.1992, and a copy of the power of attorney was also furnished to the appellant, which was duly notarised. Further, the defendants 2 and 3 have not raised any objection with regard to the power of attorney executed by the 4th defendant in favour of her brother and on the strength of the same, the 4th defendant’s brother signed in the loan documents and as such the contention of the 4th defendant that she has not executed the power of attorney and it is a forged one, cannot at all be accepted. It is further pointed out that the amount deposited by the 4th defendant in FCNR deposit was attached by the appellant Bank towards this loan amount and to which the 4th defendant and her husband Dr. Krishna Mohan Patchava, have sent a legal notice through their Advocate P.V. Prasad on 16.8.2001, under Ex. D4, wherein, she has admitted that she was a partner in the 1st defendant firm as per the original partnership deed dated 20.2.1976. But, however, she stated that she retired from the partnership with effect from 1.4.1988, as per the agreement of retirement dated 1.4.1988. The 4th defendant also accepted about the General Power of Attorney executed in favour of the brother Ramesh K. Harjani on 26.4.1980, but she would say that she had cancelled the same on 5.2.1980. By pointing out these admissions, it was argued on behalf of the appellant that the fact that the 4th defendant is a partner in the 1st defendant firm and that she has also executed a power of attorney in favour of her brother, are made out. Though the 4th defendant would say that she had retired from the partnership on and from 1.4.1988, and she had cancelled the power of attorney on 5.2.1990, those things were not informed to the Bank then and there itself. It is, therefore, argued that the 4th defendant’s brother on the strength of the power of attorney given by her, the loan was sanctioned and the defendants had the benefit of the loan and, therefore, the 4th defendant is also liable to repay the loan amount. The learned Advocate for the appellant has further pointed out that the 4th defendant in her Advocate’s notice having admitted about her status as a partner in the 1st defendant firm and that she has also executed a power of attorney in favour of her brother, has filed the statement making contradictory statement that she did not execute any power of attorney at all in favour of her brother on 26.4.1980, and the power of attorney is a forged one. It clearly exhibits that she having accepted the power of attorney executed in favour of her brother has denied the same subsequently to extricate herself from the liability.
5. On the contrary, the learned Advocate for the 4th respondent would contend that she never executed any power of attorney in favour of her brother nor approached the Bank for sanction of loan, nor paid any amount in respect of the loan. She has been made as a party only with a view to get attachment of her FCNR Account in the appellant Bank. It is further argued that the appellant has not chosen to file the original power of attorney into the Court and the name of the appellant is Dr. Maya Patchava, but whereas in the power of attorney, she was described as Maya, wife of Sri Krishna Mohan Patchava, and these are all the infirmities in the power of attorney and, therefore, it could easily be concluded that the 4th defendant has not given any power of attorney in favour of her brother.
6. From the arguments advanced on behalf of the appellant and the respondent, it is very clear that the 1st defendant firm is a partnership firm and that the 4th defendant is the daughter of the 2nd defendant and 3rd defendant is the daughter-in-law of the 2nd defendant and, therefore, the 1st defendant’s firm is a family partnership firm. Though in the written statement, the 4th defendant denied about the execution of power of attorney, she had admitted the execution of power of attorney in favour of her brother and the same was accepted in the Advocate notice sent by her to the Chief Manager, Bank of Baroda at Secunderabad, on 16.8.2001. This Advocate notice issued by the 4th defendant was earlier in point of time than the written statement filed by her before the Tribunal, which was filed on 11.11.2002. The respondent having admitted the execution of the power of attorney in favour of her brother, it is for her prove the cancellation of the same. She has also not intimated the same to the Bank and, therefore, the Bank was kept in dark about the cancellation. In fact, the 4th defendant has not chosen to file the deed of cancellation of the power of attorney. As long as the revocation of power of attorney was not informed to the appellant Bank, it could rely upon the power of attorney and could act upon the same and, therefore, the duty is heavily cast upon the respondent alone to show and prove that the loan was given by the appellant after having full knowledge about the cancellation of power of attorney and in the absence of the same, the respondent’s contention cannot be accepted.
7. The DRT having accepted that the defendants 1 to 3 are jointly and severally liable to pay the loan amount, failed to take note of the fact that the defendants 2 and 3 have not chosen to deny the power of attorney executed by the 4th defendant in favour of her brother. DRT had also observed that the appellant has not produced the original power of attorney and it should be remembered that the original power of attorney will always be with the party and in such circumstances, we cannot expect the appellant to file the same. Further observation that the appellant failed to establish that the General Power of Attorney was subsisting on the date of getting loan, is not correct for the reason that the general presumption is that the General Power of Attorney is subsisting and the contrary alone has got to be proved. Further observation that the appellant Bank has not filed the loan sanction letter and they have not replied to Exh.D4, would go to show that the appellant Bank has not established their case. The appellant Bank has filed the statement of account and it is not disputed. In fact, the persons who are competent to dispute the statement of account are defendants 1 to 3 and they have not chosen to do so and remained ex pane. As such, the statement of account filed by the appellant Bank has got to be treated as it stands proved. The non-filing of the sanction letter would not militate the case of the appellant Bank. As far as Ex. D4 is concerned, it was sent during the pendency of the OA and the appellant during the course of the argument has stated that as the lis pending, they have not given any reply. Even otherwise, the non-giving the reply in no way, disproves the claim of the appellant.
8. After having gone through the records and also analysing the submissions made on either side, it is apparent that the 4th defendant who was admittedly a partner in the 1st defendant firm, had also executed a power of attorney in favour of her brother to join with the defendants 2 and 3 in running the business. Having done so, the 4th defendant who is solvent and capable of giving a discharge to the liability, is trying to extricate herself from the liability by taking a dual stand that she has not executed any power of attorney in favour of her brother and it is a forged one and she is not liable to pay any amount to the Bank. The 4th defendant having admitted about the execution of power of attorney in favour of her brother, the onus is heavily upon the 4th defendant to prove that on the date of obtaining loan from the appellant Bank, the same was not subsisting and the 4th defendant miserably failed in establishing the same and, therefore, the 4th defendant is also jointly and severally liable to pay the loan amount to the appellant Bank.
9. In the result the appeal is allowed and the order dated 16.11.2004, passed by the DRT, Hyderabad, as against the respondent 4th defendant, is set aside. No costs.