Dismissed

M/S M.R.F. Limited through Its Attorney Shri. Michael Gracias, Senior General Manager v. Goa Mrf Employees Union Rep. by Its President and 4 Ors.

Bombay HC18 Feb 2014WP/47/2014

Case brief

AI extract

What is this about?

The petitioner challenged the trial court's rejection of an application to produce a power of attorney for a party witness who had already testified during final arguments. The High Court upheld the impugned order, finding that the trial court's doubts regarding the genuineness of the document and the timing of its production justified dismissal.

What did the court decide?

The writ petition was dismissed with no order as to costs.

M/S M.R.F. Limited through Its Attorney Shri… — Civil Procedure and Limitation | Bombay HC (2014)

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WP47/14

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 47 OF 2014

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M/s. M. R. F. Limited, a company Registered under the companies Act, 1936, with its registered office at 124, Greams Road, Chennai – 600 006, Through its constituted attorney Shri Michael Gracias, major of age, Senior General Manager.

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.. Petitioner.

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V/s.

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Goa MRF Employees Union, A registered Trade Union represented by its President and having its registered office at Saidham, Dhavlimol, P.O. Quelem, Ponda, Goa 403 401.

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Shri E. M. Mathai, major of age, Senior General Manager, MRF LTD., Usgaon, Ponda, Goa 403 401.

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Shri Claudio Fernandes, major of age, Deputy Manager, Human Resources, MRF LTD., Usgaon, Ponda, Goa 403 401.

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Shri Ramesh Shivan, Major of age, Plants Accounts Manager, MRF LTD., Usgaon, Ponda, Goa 403 401.

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Shri George Ninan, Major of age, Plant Human Resources Manager, MRF LTD., Usgaon, Ponda, Goa 403 401. .. Respondents.

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WP47/14

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Mr. G. K. Sardessai and Mr. V. Palekar, Advocates for the petitioner.

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Mr. V. Menezes, Advocate for respondent no.1.

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CORAM :- U. V. BAKRE, J.

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DATE : 18th February, 2014

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ORAL ORDER :

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Heard Mr. Sardessai, learned Counsel appearing on behalf of the petitioner and Mr. Menezes, learned Counsel appearing on behalf of the respondent no.1.

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2. By this petition, the petitioner has taken exception to the order dated 06/12/2013 passed by the learned Civil Judge, Junior Division at Ponda (trial Court) in Regular Civil Suit No. 8/1999/B.

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3. Respondent no.1 is the plaintiff whereas the petitioner and respondents no. 2 to 5 are the defendants, in Regular Civil Suit No. 8/1999/B. Parties shall hereinafter be referred to as they are arrayed in the said suit.

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4. The suit was filed claiming that defendant no.1, in contravention of a scheme known as “Thrift Scheme”, disbursed

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loans to its workmen, who were not members of the plaintiff union. In the said suit after the issues were framed, the plaintiff examined their witness namely Mr. Rohidas Naik and closed the case. Defendant no.1 examined one Kenneth Dias as DW1. An affidavit-in-evidence of said Mr. Kenneth Dias on behalf of the defendant Company was filed. He was cross-examined by the Counsel for the plaintiff. Ultimately, the matter came up for final arguments and during the course of arguments, objections were raised by the learned Counsel for the plaintiff regarding the competency of Mr. Kenneth Dias to depose in the matter on behalf of the Company in the absence of Board resolution in his favour.

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5. On 10/10/2013, the defendants filed an application before the trial Court for leave to produce the power of attorney given to Mr. Kenneth Dias. In the application, it was stated that while the matter was for final arguments, it came to the notice that the defendants had not filed power of attorney of its witness Mr. Kenneth Dias and this omission was noticed only at the stage of final arguments and it was further alleged that no prejudice will be caused to the plaintiff if the proposed application for production of the said document is allowed. It was stated that the power of attorney was relevant for proper adjudication of the

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matter and that grave prejudice would be caused to the defendants if the same was not taken on record. It appears that the plaintiff filed its reply dated 18/10/2013 to the said application filed by the defendants and thereafter, defendant no.1 filed rejoinder. Along with the rejoinder, defendant no.1 filed affidavit of Shri Michael Rodrigues, Deputy Manager- Production of defendant no.1 in support of the application. The said Michael stated that the power of attorney dated 11/08/2008 was executed by the Company authorising Mr. Kenneth Dias to depose on behalf of the Company and that Mr. Kenneth Dias deposed on 06/06/2012. He further stated that the power of attorney was handed over to him earlier by Mr. Michael Gracias and the same was to be produced in the Court by Mr. Kenneth Dias on the date of his deposition. It was stated in the affidavit that inadvertently the said power of attorney remained with Michael Rodrigues and was not handed over to the Lawyer and therefore, the same could not be produced before the Court. Shri Michael Rodrigues further stated in the affidavit that on the date of final arguments i.e. on 30/09/2013, he was present in the Court and in the course of arguments, objections were raised by the Advocate for the plaintiff with regard to the competency of Mr. Kenneth Dias to depose in the matter in the absence of resolution or power of attorney in favour of Mr. Kenneth Dias. It was further stated in

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the affidavit that at that stage, Mr. Michael Rodrigues realised that the power of attorney given to Mr. Kenneth Dias by the Company may not have been produced in the Court and he, therefore, checked the affidavit-in-evidence and found no reference to the power of attorney. He further stated that with the assistance of his Lawyer, the Court file was verified and it was found that the power of attorney was not in the Court file. Mr. Michael Rodrigues further stated that he searched for the power of attorney and was able to trace the same in the office and handed over the same to their Lawyer Mr. Vijay Palekar.

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6. By order dated 06/12/2013, the learned trial Court rejected the application. The trial Court has observed that if there was power of attorney executed in favour of the DW1, then, this fact would have been reflected in his affidavit-in-evidence. The trial Court further observed that during the crossexamination of DW1, the question was put to him as to his authority to depose and at that stage also, he did not disclose that he had power of attorney to depose on behalf of the defendant. The trial Court held that it was for DW1 to state during his examination-in-chief and cross-examination about the power of attorney and also that he is deposing on behalf of defendant no.1. The trial Court has observed that DW1 in his cross-examination

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deposed that he is not aware whether he is authorised to depose in the present matter. The trial Court held that the ground that the fact of non-production of power of attorney was realised at the time of final arguments, was without any basis. The trial Court further observed that the application was filed with a casual approach without mentioning the cause for not producing the power of attorney at the time of evidence, but in rejoinder to the reply, the defendant came up with a specific case that the power of attorney remained with Shri Michael Rodrigues, who did not hand over the same to the Advocate and thus, put the entire blame on Shri Michael Rodrigues, overlooking the fact that the Company is represented by an Advocate and by officers, who are educated and holding responsible posts. The trial Court held that the negligence on the part of the defendant raises a doubt that there may not have been any power of attorney to DW1 to depose and that the same is prepared at a later stage. The trial Court observed that such a possibility cannot be ruled out. The trial Court held that the defendants have not shown cause as to why the power of attorney could not be produced earlier, though it was in the possession of some officer. The trial Court observed that the evidence of DW1 to the effect that he is not aware whether he is authorised, coupled with non-mentioning of his authorisation in the affidavit-in-evidence, raises a serious doubt

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… 7 …

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about the said document.

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7. Mr. Sardessai, learned Counsel appearing on behalf of defendant no.1, submitted that the said power of attorney was executed before a Notary Public. He further submitted that the finding of the trial Court that the power of attorney was prepared at a later stage amounts to a finding of fabrication of the power of attorney by the petitioner in connivance with concerned Notary. According to him, fabrication of the document in the nature of power of attorney would be a serious charge for which there was no evidence on record. He also added that such a finding ought not to have been rendered, since the Notary was not before the Court. The learned Counsel further submitted that the plaintiff had not stated in the reply that the said power of attorney was prepared at a later stage. He further submitted that in the crossexamination of DW1, he was only asked whether the Company has passed any resolution in the matter authorising him to depose in the matter and that at no stage, it was the contention of the plaintiff that DW1 was not authorised to depose in the matter on behalf of the petitioner. He submitted that DW1 deposed in the matter on behalf of the Company as a party to the proceedings and was duly authorised by the power of attorney which was inadvertently not produced. The learned Counsel submitted that

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this was a fit case for exercise of inherent powers under Section 151 of C.P.C. He urged that since non-production of power of attorney would cause grave prejudice to the case of the defendants and since there are valid reasons for not producing the same earlier, interference of this Court in the exercise of writ jurisdiction is warranted. He, therefore, submitted that the petition be allowed.

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8. On the other hand, Mr. Menezes, learned Counsel appearing on behalf of the plaintiff invited my attention to the affidavit-in-evidence of DW1 which clearly states that the same is on behalf of the defendant Company. He, therefore, submitted that DW1 has deposed as party witness. He pointed out that in the entire affidavit-in-evidence, DW1 did not state that he has been empowered by the defendant Company to depose in the matter. The learned Counsel further pointed out that in the crossexamination, DW1 was asked whether there was resolution authorising him to depose in the matter and the witness answered that he is not aware of the same. He further submitted that the power of attorney has been given by Company Secretary, who has otherwise not been authorised by defendant no.1 by way of resolution taken by the Board. He further submitted that the said power of attorney given to DW1 also does not mention about

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any resolution of the Board taken to appoint DW1 as power of attorney to depose in the matter. He pointed out from the crossexamination of DW1 that at various stages, the competence of this witness was challenged. He further pointed out that the order dated 06/12/2013 was not immediately challenged, but the present writ petition was filed on 16/01/2014 and in the meantime, the defendants filed an application under Order XVIII, Rule 3-A of C.P.C. for permission to lead further evidence and examination of party witness, since the Court by rejecting the application for production of power of attorney, has held that Mr. Kenneth Dias (DW1) cannot be treated as party witness. The learned Counsel submitted that the defendant cannot be allowed to cover up the lapses in this manner. He submitted that absolutely no cause was made out for allowing the application to produce the power of attorney which was not beyond suspicion and the impugned order is neither arbitrary nor perverse, but is perfectly legal with which no interference is called for.

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9. I have gone through the material on record and have also considered the submissions advanced by the learned Counsel for the parties.

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10. It is pertinent to note that though the affidavit-in-

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evidence was filed by DW1 on behalf of the defendant Company, DW1 nowhere in the said affidavit stated that he has been authorised by the defendant Company to depose in the matter. The power of attorney dated 11/08/2008 sought to be produced by way of application dated 10/10/2013 was never referred to at any time and anywhere by the defendants, prior to filing it along with the application dated 10/10/2013. DW1 was questioned in the cross-examination whether the Company has passed any resolution authorising him to depose in the matter. DW1 answered that he does not know. Admittedly, DW1 had not signed the pleadings in the suit on behalf of the defendant Company nor had signed any other document on behalf of the Company. When such a question was put to him and if really, DW1 was power of attorney holder of the defendant Company, nothing had prevented him from saying so in his deposition. The deposition of DW1 was not completed on one day, but it was spread over various dates like 05/09/2012, 21/11/2012, 09/01/2013, 30/01/2013, 13/03/2013, 08/04/2013 and 24/07/2013. As rightly submitted by the learned Counsel for the plaintiff, the defendant Company was represented by Senior General Manager namely Mr. Michael Gracias as its constituted attorney and other senior and responsible officers of defendant no.1 Company were also parties to the suit. He submitted that the defendants were

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also represented by an Advocate. In the deposition of DW1, there is no whisper about any power of attorney being executed by the Company Secretary in favour of DW1. It is pertinent to note that in the power of attorney dated 11/08/2008, it is nowhere stated that a resolution was taken by the Board of Company to appoint DW1 as power of attorney of the Company. No resolution of the Board has been produced.

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11 . The submission of the learned Counsel appearing on behalf of defendant no.1 that there is a finding of the trial Court that the power of attorney was prepared at a later stage and this amounts to a finding of fabrication of power of attorney by defendant no.1 in connivance with the concerned Notary and that such a serious charge should be expunged from the impugned order, does not bear any substance. In the impugned order, the learned trial Court has explained as to how there was negligence on the part of the defendants and it is observed that this negligence on the part of the defendants only raises a doubt that there may not have been any power of attorney to DW1 to depose and that the same is prepared at a later stage and that this possibility cannot be ruled out. The trial Court has further observed that the evidence of DW1 to the effect that he is not aware whether he is authorised by means of resolution coupled

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with the fact that in the affidavit-in-evidence, there is no mention about any authorisation, raises a serious doubt about the power of attorney. Such observations cannot amount to making any serious charge against anyone. These are the observations borne out from the record. In my view, the learned trial Court has rightly rejected the production of the said power of attorney at the stage when the matter was for final arguments and after the objection was raised by the learned Counsel for the plaintiff on the competency of DW1 to depose in the matter. There is no scope for interference with the impugned order, since the order is in accordance with law.

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12. In the result, the petition is dismissed. However, in the facts and circumstances of the case, no order as to costs.

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U. V. BAKRE, J.

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SMA

M/S M.R.F. Limited through Its Attorney Shri. Michael Gracias, Senior General Manager v. Goa Mrf Employees Union Rep. by Its President and 4 Ors.

Case brief

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What did the court decide?

M/S M.R.F. Limited through Its Attorney Shri. Michael Gracias, Senior General Manager v. Goa Mrf Employees Union Rep. by Its President and 4 Ors.

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