Catholic Svrian Bank Ltd. vs Jyothi Trading Company

M.R. Hariharan Nair, J.—The question that falls for consideration in this case is whether in a case of decreed passed on concession in terms, of the plaint and where portions of the plaint claims are left out in the judgment and decree, an application to supply the deficient parts will amount to a review of the judgment and decree or whether it is only a correction, as contemplated in Section 152 of the Code of Civil procedure.

The revision petitioner is the plaintiff bank. In answer to the suit for realisation of money by sale of the schedule properties, the defendants submitted during hearing that they were withdrawing the contentions raised earlier and agreeing for a decree in terms of the plaint. The suit was accordingly disposed of on 17.3.1998 stating as follow:

D1 to D3 filed petition to set aside ex parte order. Allowed. D4 is absent. Set ex parte. Dl to d3 filed consent statement. Suit is decreed in terms of plaint. Refund 1/2 Court fee. The plaintiff is allowed to recover rupees Two Lakhs Ninety three thousand and one hundred with future interest of 22.25% per annum from date of decree till realisation. In default of such deposit plantiff is allowed to recover the said amount by sale of properties mortgaged and from the defentdents and their assets. Refund 1/2 Court fee to plantiff. No Costs.

The grievance of the revision petitioner is that in spite of the suit being decreed in terms of the plaint, there was failure on the part of the Court to provide for pendente lite interest at 22.25% as sought for in the plaint though the Court allowed the claim for interest for the post-decretal period. The other grievance of the petitioner is that in spite of the suit being decreed in terms of the plaint, there is an omission to include the cost clement in the judgment and decree. It was to provide for the said corrections that he filed I. A. No. 880/99. The Court below has treated the application as one for review of the judgment and directed in the impugned order that he should pay requisite Court fee provided for review.

I heard both sides. Here is a case where the plaintiff had prayed for a decree allowing him to recover a sum of Rs. 293,100/- with future interest at 22.25% per annum thereon until realisation and the cost of the suit from the defendants charged on the property scheduled in the plaint and also directing the defendants to deposit such sum, calculated as above, in Court, within specified time and in default, to recover the amount by sale of the mortgaged properties. There is no dispute that the defendants, in the course of the suit, withdrew their contentions and agreed for a decree in terms of the plaint. It necessarily pre-supposes that the court was to grant all the relief''s prayed for in the plaint which would include interest at 22.25% per annum from the date of the suit till payment, as also the plaintiffs'' costs in this suit.

A perusal of the judgment passed in the case on 17.3.1998 shows that the Court found it fit to decree the suit in terms of the plaint. It was. however, observed further in the later portion of the judgment that further interest will be at 22,25% per annum. There was no reason given in the judgment which justifies the denial of interest at the same rate for the period of pendency of the suit. The last portion of the judgment says that costs are not allowed. It is obvious that the denial of interest for the period of pendency of the suit and denial of costs go against the earlier observation contained in the judgment that the suit was decreed in terms of the plaint.

What falls for consideration next is the relief that the petitioner should seek for to correct the aforesaid defects contained in the judgment.

Section 152 of the CPC provides as follows:

Clerical or arithmetical mistakes in judgment, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court cither of its own motion or on the application of any of the parties.

It is clear from a reading of the provision that it is not only clerical or arithmetical mistakes in judgment but also errors arising in the judgment from such accidental slip or omission that can be corrected u/s 152.

Varghese v. Indian Bank, 1998 (2) KLT 601 dealt with a case where there was no contest to the claim of the plaintiff for interest at 24.25% per annum with quarterly rests. When the judgment was passed, the words "quarterly rests" were, however, left out. An application for correction made u/s 152 of the CPC was resisted. This Court found that the act of the Court should not prejudice any party and Courts have the duty to see that their records are true and present the correct state of affairs. When the Judge carelessly and unintentionally said something in the judgment or order which he did not mean to say or omitted something which he meant, it could not said to be an error arising out of accidental slip or omission. The prayer to include ''quarterly rests'' in the decretal portion of the judgment was. therefore, allowed invoking the power u/s 152 of the CPC.

The position was reiterated by this Court in Pradeep Kumar v. S.B.T. 1998 (2) KLT 927 also. The power of the Court to make corrections necessary for the ends of justice, it was held, is not confined only to powers exercisable u/s 152 and extensive powers may be exercised u/s 152 and 153 of the CPC as well.

In the instant case, having found on the basis of withdrawal of the entire contention and the concession made for decree in terms of the plaint, that the plaintiff was entitled to get such a decree in terms of the plaint, it was inappropriate for the Court to have withheld the claims for pendente lite interest and for the costs of the suit. The prayer of the plaintiffs made in I.A. No. 880/99 was only to make appropriate correction to rectify the said errors arising from accidental slip or omission. The petition certainly (sic) as such, there is lacuna in continuing the suit which is fatal to the very prosecution of the suit.

The Trial Court passed orders rejecting I.A. Nos. VIII and IX. Being aggrieved, this revision is filed.

The admitted facts disclose that at the lime of filing of the suit, the plaintiff-company was duly represented by Mr. T. Kobayashi, a power of attorney holder. From the averments in the written statement and the observations made by the Trial Court in its order, it became explicitly clear that the defendant did not object the propriety of Mr. T. Kobayashi representing the plaintiff-company when he filed the suit.

However, during the course of evidence, when Mr. T. Kobayashi was insisted to be summoned only for the purpose of cross-examination, it was submitted that Mr. T. Kobayashi has left the services and he is no more associated with the plaintiff-company. At that stage, a short question was posed by the defendant in I. A, No. IX regarding the maintainability of the suit for lack of proper representation of the plaintiff-company by a competent person as envisaged in law.

The learned Counsel for the revision petitioner strenuously contended that in the objections filed to I.A. No. VII, it disclosed that Mr. T. Kobayashi no more associated with the Company, and therefore, it is impermissible in law for a corporate body to maintain and continue the prosecution of the suit without being represented by any physical person which is mandatory under Order 29. Rule 1 of the CPC. It is further contended that the observations made by the Trial Court that P,W. I validly represents the company by virtue of the power of attorney produced during the course of his evidence is untenable in law and thus, the Trial Court grossly erred in rejecting the request made to dismiss the suit.

The learned Counsel for the respondent per contra submitted, that it is open to the party in civil proceedings to examine any witness on his behalf and close the case without examining himself. It is not necessary that always the party who has filed the suit should be examined under Order 18. Rule 3-A of the CPC. The respondent''s learned Counsel however conceded that fact that P. W. 1-Bhaktavatsalam who is examined, could be considered in law only as a witness to the case and that he is not representing the company as such for prosecution of the suit. The Counsel submitted that the power of attorney given to Mr. T. Kobayashi to represent the plaintiff-company in the suit continues to be in operation until the power is terminated. Merely because Mr. T. Kobayashi has disassociated himself with the company, it docs not mean in law that the power of attorney given is terminated. It is only in the case of death of the power of attorney holder or the principal the contract of agency gets terminated. In all other cases, even though the agent who is a party to the contract might rescind the terms of the contract the principal can keep the contract open without terminating the same. In such cases, there would be no termination of the contract of agency. In the instant case, it was submitted that the allegations made in the objections to I. A. No. VIII do not disclose that the power of attorney given to Mr. T. Kobayashi has been terminated. Therefore, technically. Mr. T. Kobayashi continues to represent the plaintiff-company

After carefully examining the submissions made at the Bar. a very peculiar situation is evident in the facts of the case. It is not in dispute that at the lime when the suit was filed, the corporate body was duly represented by an individual person and his authority was not questioned. But however, during the continuation of the suit, if appears that Mr. T. Kobayashi has left the services. As pointed out by the learned Counsel for the respondent, the power of attorney given to Mr. T. Kobayashi is not terminated. Nowhere in the objections it is submitted that the power of attorney given to Mr. T. Kobayashi is terminated. Even, though there arc averments that disclose that Mr. T. Kobayashi has disassociated himself from the affairs of the company, and may be that his whereabouts arc not known for the present, it docs not mean that the contract of agency constituted in Mr. T. Kobayashi gets automatically terminated. Examination of Mr. Bhaklavatsalam as P.W.1. at the most, can be termed as a witness in law. competent to testify on behalf of the plaintiff. The production of power of attorney by Mr. Bhaklavatsalam does not indicate that he gets substituted in place of Mr. T. Kobayashi to represent the plaintiff-company in the suit.

Under the circumstances, merely the averment that Mr. T. Kobayashi has left the services of the plaintiff-company even though he may not be effectively assisting the prosecution of the suit, it does not create a void or a vacuum-like situation for the company to say that it is not represented by any physical person. In law. the contract of agency gels automatically terminated by death of either of the parties, or the principal who has appointed the power of attorney can terminate the contract of agency either expressly or by implication. As long as the power of attorney is not terminated by the principal, the power of attorney continues to represent the company for all technical purposes.

After the conclusion of arguments, the learned Counsel for the petitioner brought to my notice the fact that Mr. Bhaktavatsalam-P. W. 1 has lodged caveat for the plaintiff-company. Therefore, it has to be understood that the power of attorney given to Mr. T. Kobayashi is deemed to have been terminated.. Although it is a seeming fact that Mr. Bhaktavatsalam has lodged the Caveat, it does not mean that the power of attorney given to Mr. T. Kobayashi gets terminated, since Caveat is an independent proceeding, by virtue of the power of attorney given to Mr. Bhaktavatsalam, he is entitled to lodge and prosecute independent proceedings, and the said circumstances does not appear to be an adverse circumstances to uphold the contention of the petitioner.

In the result, the revision petition is dismissed with costs.