1 NOV 2010

Deposition by Power of Attorney holders: The principles formulated

While deposition of evidence is required to be given by the witness itself, given the
fact that evidence and knowledge of facts is a facet personal to the individual, in
certain circumstances the law allows deposition of evidence by the witness through a
person authoried in this regard! This, however, is not a general rule but a rule of
e"ception wherein a power of attorney holder is allowed to depose before a court in
proceedings required to be attended by the witness! #eing a deviation from the norm,
naturally different rules of appreciating such evidence are required to be observed!
$n a recent decision the %upreme &ourt formulated the principles underlying
deposition by power of attorney holders inter alia in the following terms'
()! We may ne"t refer to two decisions of this &ourt which considered the evidentiary
value of the depositions of attorney holders! This &ourt in Janki Vashdeo Bhojwani
vs. Indusind Bank Ltd. 2005 (2) SCC 217, held as follows:
*+rder $$$, ,ules ( and - &P&, empowers the holder of power of attorney to .act. on
behalf of the principal! $n our view the word .acts. employed in +rder $$$, ,ules (
and - &P&, confines only in respect of .acts. done by the power of attorney holder in
e"ercise of power granted by the instrument! The term .acts. would not include
deposing in place and instead of the principal! $n other words, if the power of attorney
holder has rendered some .acts. in pursuance of power of attorney, he may depose for
the principal in respect of such acts, but he cannot depose for the principal for the acts
done by the principal and not by him! %imilarly, he cannot depose for the principal in
respect of the matter which only the principal can have a personal knowledge and in
respect of which the principal is entitled to be cross/e"amined!
0!$n the case of %hambhu Dutt %hastri v! %tate of ,a1asthan, (234 - W56 7(8 9,a1:
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! ;e can only
appear in his own capacity! 6o one can delegate the power to appear in witness bo"
on behalf of himself! To appear in a witness bo" 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 1udgment was quoted with the approval in the case of ,am Prasad v!
;ari 6arain < A$, (223 ,a1 (3=! $t was held that the word .acts. used in ,ule - of
+rder $$$ of the &P& 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! $f the plaintiff is unable to appear in the court, a commission for
recording his evidence may be issued under the relevant provisions of the &P&! 0!
We hold that the view taken by the ,a1asthan ;igh &ourt in the case of %hambhu Dutt
%hastri followed and reiterated in the case of ,amprasad is the correct view!>
$n Shanka !inan"e # Invest$ents vs. State o% &' (200() ( SCC 5)*, this &ourt
e"plained in what circumstances, the evidence of an attorney holder would be
relevant, while dealing with a complaint under section (83 of the 6egotiable
$nstruments Act, (33( signed by the attorney holder of the payee! This &ourt held :
*A power of attorney holder of the complainant, who does not have personal
knowledge, cannot be e"amined! #ut where the attorney holder of the complainant is
in charge of the business of the complainant and the attorney holder alone is
personally aware of the transactions, and the complaint is signed by the attorney
holder on behalf of the complainant payee, there is no reason why the attorney holder
cannot be e"amined as the complainant0!!$n regard to business transactions of
companies, partnerships or proprietary concerns, many a time the authoried agent or
attorney holder may be the only person having personal knowledge of the particular
transaction' and if the authoried agent or attorney/holder has signed the complaint, it
will be absurd to say that he should not be e"amined under section -)) of the &ode,
and only the %ecretary of the company or the partner of the firm or the proprietor of a
concern, who did not have personal knowledge of the transaction, should be
e"amined!>
((! To succeed in a suit for specific performance, the plaintiff has to prove: 9a: that a
valid agreement of sale was entered by the defendant in his favour and the terms
thereof' 9b: that the defendant committed breach of the contract' and 9c: that he was
always ready and willing to perform his part of the obligations in terms of the
contract! $f a plaintiff has to prove that he was always ready and willing to perform
his part of the contract, that is, to perform his obligations in terms of the contract,
necessarily he should step into the witness bo" and give evidence that he has all along
been ready and willing to perform his part of the contract and sub1ect himself to cross
e"amination on that issue! A plaintiff cannot obviously e"amine in his place, his
attorney holder who did not have personal knowledge either of the transaction or of
his readiness and willingness! ,eadiness and willingness refer to the state of mind and
conduct of the purchaser, as also his capacity and preparedness on the other! +ne
without the other is not sufficient! Therefore a third party who has no personal
knowledge cannot give evidence about such readiness and willingness, even if he is
an attorney holder of the person concerned!
(-! We may now summarise for convenience, the position as to who should give
evidence in regard to matters involving personal knowledge:
(a) &n attone+ ho,de who has si-ned the .,aint and instituted the suit/ 0ut has no
.esona, know,ed-e o% the tansa"tion "an on,+ -ive %o$a, eviden"e a0out the
va,idit+ o% the .owe o% attone+ and the %i,in- o% the suit.
(0) I% the attone+ ho,de has done an+ a"t o hand,ed an+ tansa"tions/ in
.usuan"e o% the .owe o% attone+ -anted 0+ the .in"i.a,/ he $a+ 0e e1a$ined
as a witness to .ove those a"ts o tansa"tions. I% the attone+ ho,de a,one has
.esona, know,ed-e o% su"h a"ts and tansa"tions and not the .in"i.a,/ the
attone+ ho,de sha,, 0e e1a$ined/ i% those a"ts and tansa"tions have to 0e .oved.
(") 2he attone+ ho,de "annot de.ose o -ive eviden"e in .,a"e o% his .in"i.a, %o
the a"ts done 0+ the .in"i.a, o tansa"tions o dea,in-s o% the .in"i.a,/ o% whi"h
.in"i.a, a,one has .esona, know,ed-e.
(d) 3hee the .in"i.a, at no .oint o% ti$e had .esona,,+ hand,ed o dea,t with o
.ati"i.ated in the tansa"tion and has no .esona, know,ed-e o% the tansa"tion/
and whee the entie tansa"tion has 0een hand,ed 0+ an attone+ ho,de/
ne"essai,+ the attone+ ho,de a,one "an -ive eviden"e in e-ad to the tansa"tion.
2his %e4uent,+ ha..ens in "ase o% .in"i.a,s "a+in- on 0usiness thou-h
authoi5ed $ana-es6attone+ ho,des o .esons esidin- a0oad $ana-in- thei
a%%ais thou-h thei attone+ ho,des.
(e) 3hee the entie tansa"tion has 0een "ondu"ted thou-h a .ati"u,a attone+
ho,de/ the .in"i.a, has to e1a$ine that attone+ ho,de to .ove the tansa"tion/
and not a di%%eent o su0se4uent attone+ ho,de.
(%) 3hee di%%eent attone+ ho,des had dea,t with the $atte at di%%eent sta-es o%
the tansa"tion/ i% eviden"e has to 0e ,ed as to what tans.ied at those di%%eent
sta-es/ a,, the attone+ ho,des wi,, have to 0e e1a$ined.
(-) 3hee the ,aw e4uies o "onte$.,ated the .,ainti%% o othe .at+ to a
.o"eedin-/ to esta0,ish o .ove so$ethin- with e%een"e to his 7state o% $ind8 o
7"ondu"t8/ no$a,,+ the .eson "on"ened a,one has to -ive eviden"e and not an
attone+ ho,de. & ,and,od who seeks evi"tion o% his tenant/ on the -ound o% his
70ona %ide8 need and a .u"hase seekin- s.e"i%i" .e%o$an"e who has to show his
7eadiness and wi,,in-ness8 %a,, unde this "ate-o+. 2hee is howeve a e"o-ni5ed
e1"e.tion to this e4uie$ent. 3hee a,, the a%%ais o% a .at+ ae "o$.,ete,+
$ana-ed/ tansa"ted and ,ooked a%te 0+ an attone+ (who $a+ ha..en to 0e a
",ose %a$i,+ $e$0e)/ it $a+ 0e .ossi0,e to a""e.t the eviden"e o% su"h attone+
even with e%een"e to 0ona %ides o 7eadiness and wi,,in-ness8. 91a$.,es o% su"h
attone+ ho,des ae a hus0and6wi%e e1",usive,+ $ana-in- the a%%ais o% his6he
s.ouse/ a son6dau-hte e1",usive,+ $ana-in- the a%%ais o% an o,d and in%i$
.aent/ a %athe6$othe e1",usive,+ $ana-in- the a%%ais o% a son6dau-hte ,ivin-
a0oad.