JUDGMENT
N.A. Britto, J.
1. Admit. By consent, heard forthwith.
2. This appeal is directed against order dated 9/11/2006 by which the application for temporary injunction, filed by the plaintiff has been dismissed.
3. Some facts are required to be stated to dispose of the present appeal.
4. The appellant is the plaintiff in C.S. No. 47/2006 and shall be referred to as plaintiff, hereinafter. The plaintiff and defendant No. 1 (defendant, for short) were divorced by a decree dated 20/06/1998. The plaintiff executed a power of attorney in favour of the defendant on 13/09/2005, but revoked the same by a notice published on 12/10/2005, and again revalidated the same by another notice dated 10/12/2005.
5. The said power of attorney, had amongst others, the following clauses:
9. To negotiate, agree to sell, dispose off or transfer by way of exchange, lease (whether permanent, for long or short period) the entire property or any part thereof, at such terms which my said lawful general attorney at her sole discretion deems fit and proper, with any person, whatsoever including herself and to enter into any agreement with the purchaser, to receive earnest money in her own name and to issue receipts thereof.
12. To execute, sign and present for registration, before the proper Registering Authority, proper Sale/Conveyance Deed, for conveying my rights, interests, liens and titles in the property of the said Properties, and the land beneath the same, or any part thereof, in favour of the intended purchaser(s) or her nominee(s) and to do all other acts, deeds and things which are necessary for the purpose i.e. to receive the consideration and to admit the receipt thereof, and to deliver the possession to the said purchaser(s) or her nominee(s) either physical or constructive as may be feasible.
Reference to the above clauses has been made in particular by the learned Senior Counsel appearing on behalf of the plaintiff.
6. Pursuant to the said power of attorney, the defendant on 6/10/2005 executed six sale deeds of properties selling the same to herself, out of eighteen properties mentioned on the said power of attorney. It appears that the said properties belonged to the plaintiff and the defendant, and it is the plaintiff’s share which the defendant sold to herself by virtue of the said sale deeds and presented the same for registration on 7/10/2005, but they were actually registered on 16/10/2005. There is also no dispute that the sale price for which the said properties were sold by the defendant through the said power of attorney to herself, has not been paid to the plaintiff and in fact a submission was made by Shri Bhobe, the learned Counsel on behalf of the defendant, that the defendant was ready and willing to deposit the said amount in Court.
7. The first submission of Shri Kakodkar, the learned Senior Counsel appearing on behalf of the plaintiff is that minimum which was expected by the trial Court was a direction to maintain a status quo, considering the plaintiff’s allegation that the properties sold were under valued, and consideration was not paid to the plaintiff. In this context, Shri Kakodkar, the learned Senior Counsel has placed reliance on Maharwal Khewaji Trust (REGD.), Faridkot v. Baldev Dass , wherein the Apex Court observed that:
Unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings.
In the facts and circumstances of that case, the Apex Court also observed that:
The High court was not justified in permitting the respondent to change the nature of the property by putting up construction as also by permitting the alienation of the property, whatever may be the conditions on which the same is done, since in the event the appellant’s claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the Court may itself award damages for the loss suffered.
8. Be that as it may, the learned Senior Counsel also submitted that assuming the sale deeds were executed pursuant to the power given on 13/09/2005, there was no power with the defendant, after it was revoked on 12/10/2005 to get them registered on 16/10/2005. As regards this aspect, Shri Bhobe on behalf of the defendant referred to Section 47 and submitted that the registration on 16/10/2005 is relatable to the date of execution on 7/10/2005. This controversy need not detain us for long. The sale deeds were executed on 6/10/2005 and presented for registration on 7/10/2005 before the power was revoked on 12/10/2005. That registration is relatable to the date of execution is a principle which has been laid down by the apex Court in K.J. Nathan v. S.V. Maruthi Rao and Ors. .
9. Shri Kakodkar, the learned Senior counsel then submitted that law frowns upon a constituted attorney purchasing properties pursuant to a power of attorney given by the principal, without making a disclosure to the principal and the entire onus that there was such disclosure made was entirely upon the defendant. In this context, learned Senior Counsel referred to Halsbury’s Laws of England, Bowstead on Agency and Pollock & Mulla.
10. In Halsbury’s Laws of England at page 470, it is stated as follows:
787. Conflict of interest. An agent will not be allowed to put his duty in conflict with his interest, and therefore he must not enter into any transaction likely to produce that result, unless he has first made to his principal the fullest disclosure of the exact nature of his interest, and the principal has assented. An agent does not discharge his duty in this behalf merely by disclosing that he has an interest, or by making statements which might put the principal on inquiry. In particular, notwithstanding any usage to the contrary, he must not sell his own property to the principal, nor buy the principal’s property, nor, by acting as agent for the principal and the other contracting party, obtain remuneration from both, without the knowledge of the principal, and to act as agent for both principals without the knowledge and consent of the first principal will amount to a breach of duty to that principal.
11. Bowstead on Agency, at page 75, it is states as follows:
Article 47
DUTY TO MAKE FULL DISCLOSURE WHERE HE DEALS WITH THE PRINCIPAL
(1) Where an agent enters into any contract or transaction with his principal, or with his principal’s representative in interest, he must act with perfect good faith, and make full disclosure of all the material circumstances, and of everything known to him respecting the subject-matter of the contract or transaction which would be likely to influence the conduct of the principal or his representative.
(2) Where any question arises as to the validity of any such contract or transaction, or of any gift made by a principal to his agent, the burden of proving that no advantage was taken by the agent of his position, or of the confidence reposed in him, and that the transaction was entered into in perfectly good faith and after full disclosure, lies upon the agent.
An agent who is appointed to sell any property whatsoever for his principal cannot purchase it for himself without full and fair disclosure of all the facts to the principal. The onus is on the agent to show that the price was adequate, that the sale was as advantageous to his principal as any other sale he could have obtained from a third person and that he disclosed all the relevant facts to his principal before the purchase and that the principal gave his informed consent.
12. In Pollock & Mulla, at page 2120 it is stated thus:
Authority however widely expressed, should not be construed as authorising the attorney to deal with the property of his principal for the attorney’s own benefit. Something more specific and quite unambiguous is needed to justify such an interpretation. The object of a power of attorney is to enable the attorney to act in the management of his principal’s affairs and not in the absence of a clear power to do so, make presents to himself or to others of his principal’s property.
13. Next, the learned Senior Counsel submitted that Clauses 9 and 12 reproduced herein above of the said power of attorney required strict construction and when so construed the said power of attorney did not give power to sell any of the properties to herself as the said two clauses do not authorise her to sell the properties and at the most she could have transferred by way of exchange only as contemplated by Clause 9, reproduced herein above. Alternately, learned Senior Counsel also submitted that the said two clauses otherwise would be void for uncertainty under Section 29 of the Indian Contract Act. Learned Senior Counsel also submitted that in the event the defendant sells the said property to third party, the plaintiff would be put to a loss as third party rights would be created. That power of attorney has to be construed strictly. Learned Senior Counsel again referred to page 438 of the Halsbury’s Laws of England, wherein it is stated that:
An instrument conferring authority by deed is termed a power of attorney. The person conferring the authority is termed the donor of the power, and the recipient of the authority, the donee. A power of attorney is construed strictly by the Courts, according to well-recognised rules, regard first being had to any recitals which, showing the general object, control the general terms in the operative part of the deed.
In Bowstead on Agency, where again at page 75 it is stated that:
Powers of attorney must be strictly construed, and are interpreted as giving only such authority as they confer expressly or by necessary implication.
Reference was also made to Pullock & Mulla, at page 2118 wherein it is stated that:
A power of attorney is a formal instrument by which authority is conferred on an agent. Such an instrument is construed strictly, and confers only authority given expressly or by necessary implication.
14. Reliance was also placed on Bhatori (SMT) v. Ram Piari (SMT) , wherein the Apex Court on facts of the case came to the conclusion that:
Respondent No. 2, Patwari, having had power of attorney in his favour from the appellant obviously had played fraud upon the appellant and got her lands transferred in the name of his wife. The fraud played had produced damage to the appellant depriving her of the valuable property denuding right, title and interest to claim compensation in respect of her lands acquired by the Government. Having been defrauded, she is entitled to lay the suit for declaration of title and other reliefs in the suit. It would, therefore, be a clear case of fraud played by the respondent upon the appellant. The fraud unravels the contract and it is void.
15. Shri Bhobe, the learned Counsel appearing on behalf of the defendant submits that the submission made by the learned Senior Counsel are de hors the case set out by the plaintiff in the plaint. Shri Bhobe, further submits that the suit was filed suppressing that the power of attorney, after it was revoked on 12/10/2005, was revalidated on 10/12/2005 and the only case pleaded by the plaintiff was that the sale deeds were executed pursuant to a revoked power of attorney and because of that it is found in the plaint, as many as 20 times, that the sale deeds were executed on 16/10/2005. Learned Counsel further submits that the said averment that the sale deeds were executed on 16/10/2005 after the power was revoked on 12/10/2005, was made with a view to mislead the Court and to obtain an ex-parte order. Shri Bhobe further submits that the plaintiff has vaguely pleaded fraud having been committed by the defendant but no particulars how the fraud has been committed has been spelt out. Shri Bhobe further submits that the power of attorney was drafted and signed by the plaintiff himself and the properties sold belonged to the plaintiff and the defendant and what was intended to be sold by virtue of the said power of attorney was the share of the plaintiff which the defendant had sold to herself pursuant to the said power of attorney.
16. The power of attorney dated 13/09/2005, prima facie, shows that the plaintiff was a joint owner of the properties listed therein. Clause 9, inter alia, also stipulates that the defendant, as attorney could negotiate, agree to sell, dispose off or transfer by way of exchange, lease (whether permanent, for long or short period) the entire property or any part thereof, at such terms which the attorney at her sole discretion deemed fit and proper, with any person, whatsoever including herself and to enter into any agreement with the purchaser, to receive earnest money in her own name and to issue receipts thereof. The law, may otherwise frown upon, the agent buying the principal’s properties without making full disclosure, but, here we have a case where the plaintiff gave power to the defendant power to sell the properties to any one including herself. It is difficult to accept that on a plain and bare reading of the said two clauses that they do not confer on the defendant as the attorney of the plaintiff, power to sell the properties. Prima facie reading of the said two clauses shows that the defendant was entitled to not only negotiate or agree to sell, but also to dispose of as well as transfer by way of exchange the properties to any person including herself and which the defendant did in this case and registered the sale deeds. It is not the case of the plaintiff that power of attorney did not confer power to sell or to sell to herself. The plaintiff’s right, if any, would remain only to receive the consideration for which the properties were sold, but for that no temporary injunction is required to be granted. Nevertheless, the matter cannot be allowed to stand at that.
17. As rightly pointed out by Shri Bhobe, the substratum of the case of the plaintiff, even if the plaint is read as a whole, was that the defendant pursuant to the said power of attorney, sold the said properties on 06/10/2005, inspite of the revocation of the said power of attorney on 12/10/2005. The plaintiff suppressed the fact that the said power of attorney was revalidated on 10/12/2005. The averment that the execution of the sale deeds took place on 16/10/2005, cannot be considered as a simple typing mistake since the crux of the case of the plaintiff was that the properties were sold on 16/10/2005, inspite of revocation of the power of attorney on 12/10/2005, when indeed the said properties were sold on 6/10/2005, and presented for registration on 7/10/2005, and were accordingly registered on 16/10/2005. The defendant had clearly stated in her reply that the plaintiff had obtained ex-parte order by making misleading statement and suppressing material documents. The defendant had also stated that the plaintiff had even gone to the respondent for giving her address at Torda, Britona, Bardez, Goa when in fact the plaintiff well knew that the defendant was residing in Bombay and only after the summons were returned unserved at the said Torda address, that they were published in a newspaper, and the defendant came to know about the filing of the suit through the said publication. A relief of injunction is discretionary and equitable. It is well settled principle that the party who suppresses from the Court, material facts, does not deserve the grant of any discretionary relief, much less a temporary injunction. It is also well settled that a Court will not help a party who has not come with clean hands. In this view of the matter also, the application ought to have rejected.
There is no merit in this appeal and, accordingly, the same is hereby dismissed.
18. At this stage, learned Counsel on behalf of the plaintiff prays for stay of operation of this judgment. Learned Advocate Shri Bhobe objects. Considering the facts and circumstances of the case, prayer for stay of operation is rejected.