JUDGMENT
M.M. Kumar, J.
1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 is directed against the order dated 22.4.1995 passed by Sub Judge, 1st Class, Ambaja City dismissing the application of the petitioner presented under Section 17 of the Arbitration Act, 1940 (for brevity ‘the Act’). The Civil Judge has held that the petitioner who is general power of attorney which has been cancelled would not be competent to present the application.
2. Brief facts of the case are that one Chander Singh, Contractor-respondent No. 1 secured a contract for executing certain works from the Haryana State Agricultural arketing Board, (for brevity ‘the Board’), respondent Nos. 2 and 3. Some differences have arisen between the parties which resulted into reference to the Arbitration, respondent No. 4. The award was announced by the Arbitrator. The petitioner claiming to be the assignee of the Contractor for a valuable consideration of Rs. 40,000/- by respondent No. 1 claimed that general power of attorney was executed by respondent No. 1 on 19.4.1988 in his favour which was irrevocable and thereafter the agreement was executed on 10.5.1988 assigning the contract to the petitioner for a consideration of Rs. 40,000/-. On the basis of the afore mentioned documents, the petitioner filed an application before the Civil Judge, Ambala City under Section 17 of the Act praying that the award dated 11.3.1994 announced by the Arbitrator be made the rule of the Court. The application was opposed by Contractor-respondent No. 1 by taking the plea that the general power of attorney relied upon by the petitioner was revoked by registered document which was exhibited as Ex.A2 and therefore on the basis of the afore mentioned general power of attorney, the petitioner was not competent to file an application under Section 17 of the Act. It was further pleaded that no agreement dated 10.5.1988 was ever executed by contractor-respondent No. 1 in favour of the petitioner. The Civil Judge after detailed consideration of the evidence recorded the following finding holding that the general power of attorney in favour of the petitioner stood revoked:
“After giving due consideration to the respective submissions of both the parties and going through the material evidence placed on the file, I am of the considered opinion that General Power of Attorney in favour of Raj Kumar stands revoked by a registered document Ex.A2 and the agreement dated 10.5.1988 Ex.R1 has no bearing upon General Power of Attorney Ex.R2. The agreement dated 10.5.1988 Ex.R1 was scribed by notary Sh. Rishikesh Aggarwal, Advocate and it was signed by two attesting witnesses i.e., Shiv Kumar Bhola, Advocate and Mahabir Singh, Advocate. Despite the fact that notary public has stepped up in the witness box and has stated on oath that agreement dated 10.5.1988 Ex.R1 was got scribed by him at the instance of the parties and the same attesting witnesses of this document has been examined by Ram Kumar General Power of Attorney in order to prove the due execution of this document. It is admitted before me at the time of arguments that Mahabir Singh is the brother of petitioner Chander Singh, but there is no reason as to why Mr. Bhola Advocate who is other attesting witness of the agreement dated 10.5.1988 has not been brought before the Court in order to prove the due execution of the agreement dated 105.1988. There appears to be a logic in the contention of Sh. Raj Kumar, General Power of Attorney that witness Mahabir Singh if examined would have supported the version of petitioner Chander Singh, but the same cannot be’said about Mr. Bhola, Advocate, who is admittedly working as Chairman of Service Selection Board during these days. In order to prove the due execution of agreement dated 10.5.1988, it was incumbent upon Raj Kumar General Power of Attorney to bring the entire evidence on the file.”
3. The Civil Judge concluded that the agreement dated 22.4.1988 was not supported by any consideration as no evidence could be adduced by the petitioner to that effect. The conclusion reached by the Civil Judge reads as under:-
“(on) question of payment of consideration has also raised some doubt about the execution of this document dated 10.5.1988. As per the allegations of Sh. Raj Kumar, General Power of Attorney, he has paid Rs. 40,000/- to the petitioner Chander Singh in the presence of witnesses Sh. Shiv Kumar. Ashok Kumar and three other persons whose names he did not remember. Had he really made the payment he could have definitely examined either of these five witnesses who were allegedly present at the time of alleged payment of Rs. 40,000/-. Admittedly and evidently, Shiv Kumar Ashok Kumar and other persons are still alive and an adverse inference is to be drawn against Raj Kumar, General Power of Attorney for not bringing any of the witnesses in the witness box in order to make the payment of Rs. 40,000/- as full and final payment for the sale of the contract, Moreso, Raj Kumar, General Power of Attorney while replying a specific question in the cross-examination did not specify as to from whom he had collected the amount of Rs. 40,000/- in order to make the payment. He has given an evasive reply to the effect that he had borrowed Rs. 15,000/- from one Ashok Kumar, Rs. 8000/- from one Sh. S.K.Gupta and Rs. 4000/- from a third friend. He was unable to tell the fathers name of all these three friends. It has further come in the cross-examination of Raj Kumar, General Power of Attorney that all this three friends are alive and no reason has been assigned to the court as to why those have not been produced in the witness box in order to fortify his allegations. In the cross-examination, it is admitted by notary public Sh. Rishikesh Aggarwal, Advocate that payment was not made in his presence and in the given circumtances, it was obligatory on the part of Raj Kumar, General Power of Attorney to convince the court about the payment of Rs. 40,000/- as full and final settlement by bringing on the record evidence which was available to him”.
4. The other reasons for rejection of the application of the petitioner filed under Section 17 of the Act are that no plea was taken by him with regard to General Power of Attorney or the agreement dated 22.4.1988 when he filed the original petition with the prayer that award dated 11.3.1994 be made rule of the Court. Had he purchased the contract from Contractor respondent No. 1, he should have mentioned this fact in the original petition. Grave doubts have been entertained about the execution of the agreement Ex.R.1 dated 22.4.1988. The findings of the Civil Judge in this regard are as under :-
“The alleged agreement Ex.R1 was allegedly read over and signed by petitioner Chander Singh on 22.4.1988 whereas General Power of Attorney Ex.R2 was read over and signed by Chander Singh on 19.4.1988. If petitioner Chander Singh has sold the contract in favour of Raj Kumar, General Power of Attorney, this fact must have found mention in the agreement Ex.R1 which was admittedly got signed by Chander Singh three days after the General Power of Attorney. There is no mention of execution of any General Power of Attorney in favour of Sh. Raj Kumar in the alleged agreement Ex.R1 which was admittedly read over and signed by petitioner Chander Singh on 22.4.1998. There is one another circumstances which creates doubt about the execution of Ex.R1 and it is that if the contract was sold by petitioner Chander Singh and the General Power of Attorney was with consideration why these documents were not got written and signed by petitioner Chander Singh on the same date despite the fact that they were got registered and attested on the same day 10.5.1988.”
5. The Civil Judge has also found that without the written statement obtained from respondent No. 2 i.e, the Board the contract could not have been assigned by respondent No. 1 to the petitioner. On the aforementioned basis, the petition filed by the petitioner under Section 17 of the Act has been dismissed by the Civil Judge.
6. Shri J.R. Mittal, learned Senior Counsel has argued that the General Power of Attorney supported with consideration cannot be revoked without the consent of the petitioner assignee because it would result into complete frustration of the rights assigned. Leaned counsel has referred to the provisions of Sections 202, 203 and 204 of the Indian Contract Act., 1872 and has also placed reliance on various judgments of this Court as well as of the Supreme Court which are as follows;- i) Ramesh Mohan and Anr. v. Raj Krishan and Ors., 1984 L.R. 211; (ii) Seth Loon Karan Sethiya v. I.E. John, A.I.R. 1969 S.C. 73: (iii) Saliq Ram and Anr. v. Shiv Shankar and Ors., A.I.R. 1971 P&H 437; iv) N.A. Mohammed Kasim and Anr. v. Sulochana and Ors., J.T. 1995(4) S.C. 194; v) Banarsi Dass alias Banarsi Lal v. Maman Chand, (1992-1)101 P.L.R. 54; vi) Naranjan Dass and Ors. v. State of Punjab and Ors., 1992(1) S.L.J. 136; vii) Jugraj Singh and Anr. v. Jaswant Singh and Ors., A.I.R. 1971 S.C. 761 and viii) Bhaskar v. Shrinarayan, A.I.R. 1990 S.C. 301.
7. Therefore, according to the learned counsel the findings recorded by the Civil Judge are not sustainable and the impugned order is liable to be set aside.
8. Shri Raman Sharma, learned counsel for the Contractor-respondent No. 1 has argued that the agreement dated 22.4.1980 has never been executed nor any consideration has passed under the afore mentioned agreement. Referring to the way in which the agreement is typed, the learned counsel has pointed out that to the naked eye it is apparent that the typing is sought to be adjusted in accordance with the signatures of the parties on the blank paper as the typing is single space in between. The space where typing ends and the signatures starts is very vide. This fact leves considerable doubt about the authenticity of the document. The learned counsel has also argued that the execution of the document was required to be proved in accordance with the provisions of Sections 61 and 62 of the Indian Evidence Act, 1872 and for this proposition he has placed reliance on a Division Bench judgment of the Kerala High Court in the case of Achuthan Pillai v. Mrikar (Motors) Ltd. and Ors., A.I.R. 1983 Kerala 81 and also a judgment of the Supreme Court in the case of Ramji Dayawala and sons v. Invest Import, A.I.R. 1981 S.C. 2085.
9. After hearing the learned counsel for the parties and perusing the record produced by the counsel for respondent No. 1, I am of the considered opinion that the instant petition is devoid of any merit and is thus liable to be dismissed. The Civil Judge has categorically found that the agreement dated 27.4.1988 is without any consideration. There are valid suspicions entertained by the Civil Judge. No reference of the power of attorney alleged to be executed on 19.4.1988 is found in the agreement recorded three days later i.e., 22.4 1988. Even otherwise, the agreement appears to have been typed on a blank signed paper as the typist appears to have made effort to adjust the material firstly by typing in double space and then in single space. Even the space between the portion where the typing ends and the signatures of the parties are appended is very wide. It has also been found by the courts below that the General Power of Attorney executed in favour of the petitioner stood effectively withdrawn. The case of respondent No. 1 appears to be correct that the petitioner was working as Work Munshi with him. The petitioner failed to produce any evidence showing that he spent the capital from his own sources in order to execute the work under the Contract. Even otherwise no consent was obtained from the Board because assignment of contract was not possible by respondent No. 1 to any body else in the absence of such a consent. In view thereof, I do not find any legal infirmity in the order passed by the Civil Judge.
10. It is trite that without consideration no contract can ever come into being. Section 2(d) of the Indian Contract Act, 1872 has provided an elaborate definition of the expressed contract which reads as under:-
“When at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing or promises to do or to abstain from doing, something such act or abstinence or promise is called a consideration for the promise.”
11. The aforesaid definition is clearly enunciation of the principle that a contract comes into being when it is supported by consideration of those promises which have been bargained for or given in exchange for some other promise or act. If the promisor requests another for a promise and the promisee gives that promise, the contract thereby concluded is described as bilateral contract. Such a contract would show the mutuality and the promise by one and the other would be consideration. It is well settled that without consideration no contract comes into being. In this regard, reference may be made to the leading case of Raja of Venkatagiri v. Sri Krishanaya Rao Bahadur, A.I.R. 1948 Privy Council 150.
12. The argument raised on behalf of the petitioner that once the right under the contract was not for a valuable consideration, the same could not be withdrawn tinder Sections 202, 203 and 204 of the Contract Act would not require any detailed examination because the basic ingredient of consideration as required by the aforementioned section is found lacking in the instant case. From the findings of facts, it is apparent that there was no valuable consideration in support of the agreement dated 22.4.1988. The judgments of the Supreme Court and various other Courts relied upon by the learned counsel proceeds on the assumption that there was a contract which had consideration at its base. Therefore, the principles laid down in those judgments or Sections 202, 203 and 204 of the Act would not be attracted to the facts of the present case because in all those the assignee or General Power of Attorney has been executed by passing valuable consideration. Such power under Sections 202, 203 and 204 of the Contract Act could be held to be irrevocable unless consent of the assignee is obtained. Therefore, I have no hesitation in rejecting the aforementioned argument. The revision petition is thus without any merit and is liable to be dismissed.
13. Moreover, the powers of the High Court under Section 115 of the Code are supervisory in nature and could be exercised only for the purpose of correcting jurisdictional errors. Under the garb of revisional powers,this Court cannot exercise powers of the Appellate Court. In this regard, reference may be made to the judgment of the Hon’ble Supreme Court in the case of ITI Ltd. v. Siemens Public Communications Network Ltd, 12 2002(5) S.C.C. 510; State of Orissa v. Siba Aram Bared, 13 1996(10) S.C.C. 93 and Sushila Devi v. Avinash Chander Jain, (1987)2 S.C.C. 219.
14. For the reasons recorded above, this petition fails and the same is dismissed.