Power of Attorney

Power of Attorney In the modern world where commerce and industry have assured large and long roles to play , the need for entering into contracts of agreements in relation to business and other transactions have become a common and necessary feature of daily life. As man became busier it became more and more necessary for him to depend on others for getting his things done. The hectic activities of the businessmen and industrialists have made the execution of power of attorney for delegating his functions. A "power of attorney" is a legal instrument whereby one person gives another person the authority to act on his or her behalf as his legal representative, and to make binding legal and financial decisions on your behalf. In Strouds judicial dictionary "power of attorney is defined extensively as an authority whereby one is set in the stead or place of another to act for him". In Blacks dictionary it is described as the instrument by which a person is authorized to act as an agent of the granting it It is pertinent to mention here a person need not be a lawyer to hold a Power of Attorney as an agent for someone else. The power of attorney can grant considerable power to a third party to act on your behalf. Therefore, before you sign your name to legal contracts, you should give careful consideration to the person to whom you choose to grant those powers, and whether any limits should be imposed in the time the power of attorney will last, or in its scope. Granting a Power of Attorney is a legal process that involves the drafting of a document which assigns to another person the power to act as your legal representative. Every adult has day-to-day affairs to manage. Many a times even when joint ownership situations exist it is not possible for a spouse or child to act for in the event of catastrophic illness or injury them. .The lack of properly drafted and executed power of attorney can lead to a lot of complications when an individual is incapacitated due to severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. It often happens that, due to ignorance of law, people fail to make a proper power of attorney. It must be remembered that it is preferable that one should make a power of attorney to avoid the inconvenience and expense of legal proceedings. It must be done while the principal is competent, alert and aware of the consequences of his/her decision.. The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following ( they are only inclusive not exhaustive) REAL ESTATE • • •

To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, To manage, compromise, settle, and adjust all matters pertaining to real estate. To lease, collect rents, grant, bargain, sell, or borrow and mortgage

CONTRACTS, AGREEMENTS

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To enter into contacts, Perform any contract, agreement, writing, or thing To make, sign, execute, and deliver, acknowledge any contract, agreement,

STOCKS, BONDS, AND SECURITIES • •

To sell any and all shares of stocks, bonds, or other securities To make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities.

BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS • • • •

To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. To make, execute, endorse, accept and deliver any and all cheques and drafts Execute or release such deeds of trust or other security agreements as may be necessary Deposit and withdraw fundsAcquire and redeem certificates of deposit, in banks, savings and loan

TAX RETURNS, INSURANCE AND OTHER DOCUMENTS • •

To file, sign all tax returns, insurance forms and any other documents To represent in all matters concerning the foregoing.

TYPE OF POWER OF ATTORNEY Every act performed by your agent within the authority of the Power of Attorney is legally binding upon the persons granting it. A power of attorney should be given only to a trustworthy person, and only when absolutely necessary. The person who empowers is the Principal and the person to whom the power is conferred is the Agent There are two types of power of attorney; "general" and "special" (or limited). A general power of attorney: • •

The principal empowers the agent with the right to carry out all legal acts on his behalf without restricting it to a particular transaction or act, Gives the agent very broad powers to act on behalf of the Principal

A special power of attorney: • •

The authority is restricted to act only on certain matters or only a particular kind of transaction or to carry out a specific legal transaction for the Principal. The agent's power of attorney expires on the completion of the transaction

POINTS TO REMEMBER • •

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The general rule of power of attorney is that it should be strictly construed. Unless an express power is conferred on an agent to enter into contracts of guarantees on behalf of his principal or to execute or negotiate , negotiable instruments for his principal jointly with others An agent cannot by his acts bind the principal to a larger extent than he is empowered to do under the power of attorney. Fraud by the power agent does not bind the principal. He cannot be sued or otherwise held responsible for fraud by the agent If the power does not authorize the agent to carry on a business except with limitations any act done by him in excess of such power will not bind the principal. For example power to dispose of property does not confer a power to mortgage the property. Power to manage immoveable property cannot permit principal's ornaments which are a moveable proper

IMPORTANT RULES FOR CONSTRUCTION OF POWER OF ATTORNEY • •

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The operative part of the deed is controlled by the recitals Where authority is given to do a particular act, followed by general words, the general words are restricted to do what is necessary for the proper performance of the particular acts. General words do not confer general powers, but are limited to the purpose for which the authority is given, and are construed as enlarging the special powers only when necessary for that purpose The deed must be construed so as to include all powers necessary for its execution

REVOCATION OF POWER OF ATTORNEY Power of Attorney can be revoked or would stand revoked if : • • • • •

Revoked by the principal himself The principal dies or becomes insane or becomes bankrupt The business for which the agent was appointed is over Mutually agreed upon by the principal and agent The right under the power of attorney is renounced by the agent

REGISTRATION OF POWER-OF-ATTORNEY • •

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Registration of power of attorney is not compulsory. it is optional In India, where the Registration Act, 1908, is in force, the Power of Attorney should be authenticated by a Sub Registrar only, (Whenever a person signs the document and his attorney presents/ admits execution). In other areas, attestation should be by a Notary or diplomatic agents In case an attorney under a valid Power of Attorney himself signs a document, he may, as an executing (signing) party present/admit execution of a document though it is attested by a Notary, unless the text of the power specifically excludes such powers Foreign Power of Attorney should be got stamped by the Collector after its receipt in India within prescribed time of 3 months Registration of power of attorney authenticates the deed of power of attorney Power of Attorney shall be attested by two or more adult independent witnesses who are of sound mind

If a power of attorney is in respect of an immovable property of value more than Rs100 it must be registered.

What does power of attorney mean? A power of attorney (PoA) is an instrument in writing empowering a specified person to act for and in the name of a person executing it. In other words, a power of attorney is an authorisation to act on someone else's behalf in a legal or business matter. The person authorising the other to act is the grantor/principal of the power and the one authorised to act is the attorney/agent. It is a unilateral document signed and executed only by the grantor or principal. A PoA may be revoked at the instance of the grantor or due to his death or incapacity. A PoA is usually construed very strictly. The PoA is frequently used in the event of a principal's illness or disability, or when the principal is out of the country and can't be present to sign necessary legal documents for financial transactions. Why should one make a PoA? Who should one choose? There are many reasons to make a PoA, as it ensures that someone will look after your financial affairs in case you are not available. You should choose a trusted family member, a proven friend or a honest professional with past reputation. However, one must remember that signing a power of attorney that grants broad authority to an agent is very much like signing a blank check — so make sure you choose wisely and understand the laws that apply to the document. What are the types of PoA? General purpose PoA: The PoA holder can perform all activities on behalf of the original holder(s) Specific purpose PoA: The PoA holder can perform only certain operations. A power of attorney conferring on the agent the authority to act in a single transaction in the name of the principal is a Special Power of Attorney. If the power of attorney authorises the agent to act generally or in more than one transaction in the name of a principal, it is a General Power of Attorney. A single act or transaction is meant to imply either a single act or acts so related to each other as to form one judicial transaction. For example power of attorney for sale of a particular property. How do you execute your PoA if you are within India/outside India? The PoA should be signed and duly executed on a non-judicial stamp paper per

prescribed stamp duty, if executed within India. The power of attorney should be duly signed by the person executing the same. It may be accepted by the person in whose favour it is drawn and should be duly attested by two witnesses. The power of attorney should be duly executed before and authenticated by a Notary Public, or any court, Judge, Magistrate, Indian Consul or Vice Consul or representative of the Central government. In case it is executed outside India, it should be on a plain paper without any stamp. The same is required to be stamped within three months after it is received in India by the Collector of Stamps.

General Power Of Attorney

This Packet Includes: 1. Description and Instructions 2. General Power of Attorney

Description and Instructions General Power Of Attorney A "power of attorney" is a legal instrument whereby one person gives another person the authority to act on his or her behalf as his legal representative and to make binding legal and financial decisions on his behalf. It must be noted that here a person need not be a lawyer to hold a Power of Attorney as an agent for someone else. The power of attorney can grant considerable power to a third party to act on your behalf. Therefore, before you sign your name to legal contracts, you should give careful consideration to the person to whom you choose to grant those powers, and whether any limits should be imposed in the time the power of attorney will last, or in its scope. Granting a Power of Attorney is a legal process that involves the drafting of a document which assigns to another person the power to act as your legal representative. The lack of properly drafted and executed power of attorney can lead to a lot of complications when an individual is incapacitated due to severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. It also often happens that, due to ignorance of law, people fail to make a proper power of attorney. Hence it must be remembered that it is preferable that one should make a power of attorney to avoid the inconvenience and expense of legal proceedings. It must be done while the principal is competent, alert and aware of the consequences of his/her decision.

POINTS TO REMEMBER •

The general rule of power of attorney is that it should be strictly construed.

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An agent cannot by his acts bind the principal to a larger extent than he is empowered to do under the power of attorney.

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Fraud by the power agent does not bind the principal. He cannot be sued or otherwise held responsible for fraud by the agent.

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If the power does not authorize the agent to carry on a business except with limitations any act done by him in excess of such power will not bind the principal. For example power to dispose of property does not confer a power to mortgage the property.

REGISTRATION OF POWER-OF-ATTORNEY •

Registration of power of attorney is only optional and not compulsory.

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In India, where the Registration Act, 1908, is in force, the power of attorney should be authenticated by a Sub Registrar only, (whenever a person signs the document and his attorney presents/ admits execution).

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Foreign power of attorney should be got stamped by the Collector after its receipt in India within prescribed time of 3 months

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Power of attorney should be attested by two or more adult independent witnesses who are of sound mind

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If a power of attorney is in respect of an immovable property of value more than Rs. 100 it must be registered.

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The purchase and use of these forms is subject to the “Disclaimers and Terms of Use” found at www.findlegalforms.com . A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor (of the power), and the one authorized to act is the agent, donee, or attorney[1] or, in some common law jurisdictions, the attorney-in-fact. Formerly, a power referred to an instrument under seal while a letter was an instrument under hand, but today both are under hand (i.e., signed by the donor), and therefore there is no difference between the two.[citation needed]

Contents [hide]

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1 Attorney-in-fact 2 Structure and requirements o 2.1 Capacity of the grantor o 2.2 Oral and written powers of attorney o 2.3 Equal dignity rule o 2.4 Signatures and notarization 3 Types of power of attorney o 3.1 Durable power of attorney o 3.2 Health care power of attorney  3.2.1 Relationship with advance health care directive o 3.3 Springing power of attorney o 3.4 Standardized forms 4 Specialized uses o 4.1 Proxy voting o 4.2 Finance 5 Legal situation by country o 5.1 England and Wales o 5.2 Russian Law o 5.3 Ukrainian Law 6 See also

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7 References

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[] Attorney-in-fact The term attorney-in-fact is commonly used in the United States to make a distinction from the term attorney-at-law. An attorney-at-law in the United States is a lawyer — someone licensed to practice law in a particular jurisdiction.

In most other common law jurisdictions, lawyers are not called attorneys. In those jurisdictions the term "attorney" is used instead of "attorney-in-fact".[citation needed] As an agent, an attorney-in-fact is a fiduciary for the principal, so the law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other. If the attorney-in-fact is being paid to act for the principal, the contract is usually separate from the power of attorney itself, so if that contract is in writing, it is a separate document, kept private between them, whereas the power of attorney is intended to be shown to various other people. In the context of the unincorporated reciprocal inter-insurance exchange (URIE) the attorney-in-fact is a stakeholder/trustee who takes custody of the subscriber funds placed on deposit with him, and then uses those funds to pay insurance claims. When all the claims are paid, the attorney-in-fact then returns the leftover funds to the subscribers.

[] Structure and requirements [] Capacity of the grantor Main article: Capacity (law) The person creating a power of attorney, also known as the "grantor", can only do so when he/she has the requisite mental capacity. However, if the donor loses capacity (from, for example, Alzheimer's disease or a head injury in a car crash) to grant permission at any time after the power of attorney has been created, the document will probably stop being effective and enforceable unless the grantor specifically states in that power of attorney that he/she wishes the document to remain in effect even if he/she becomes incapacitated. This type of power of attorney, that stays in effect even after the grantor becomes incapacitated, is commonly referred to as a durable power of attorney. It is important to note that if someone is already incapacitated, it is not possible for that person to sign and/or execute a valid power of attorney. A person must have capacity in order to validly sign legal documents, including a power of attorney. If a person does not have the capacity to execute a power of attorney (and does not already have a durable power of attorney in place), often the only way for another party to act on their behalf is to have a court impose a conservatorship.

[] Oral and written powers of attorney Depending on the jurisdiction, a power of attorney may be oral and whether witnessed or not, will hold up in court, the same as if it were in writing.[2] For some purposes, the law requires a power of attorney to be in writing. Many institutions, such as hospitals, banks and, in the United States, the Internal Revenue Service, require a power of attorney to be in writing before they will honor it, and they will usually keep an original copy for their records. In some countries and situations, an electronic power of attorney can also be considered valid.

[] Equal dignity rule The equal dignity rule is a principle of law that requires an authorization for someone performing certain acts for another person to have been appointed with the same formality as required for the act the representative is going to perform. This means, for example, that if a principal authorizes someone to sell the principal's house or other real property, and the law requires a contract for the sale of real property to be in writing (which is required under the Statute of Frauds in most U.S. jurisdictions), then the authorization for the other person to sign the sales contract and deed must be in writing too.

[] Signatures and notarization In order for a power of attorney to be a legal document it must be signed and dated at a minimum by the principal.[3] This alone, however, is not usually considered sufficient if the legality of the document is ever challenged by a third party.[citation needed] Having the document reviewed and signed (and often stamped) by a notary public increases the likelihood of withstanding such a challenge.[citation needed] However, such notarization is not always necessary for such a document to be considered legal — in California and in South Carolina a power of attorney is considered legally valid by the state if it is signed by the principal, by the agent, and then either by two witnesses OR by a single notary public;[4] In Arizona and Illinois, a power of attorney requires notarization and the signature of at least one witness. Each state has specific process and it is important to confirm the most recent version.

[] Types of power of attorney A power of attorney may be special or limited to one specified act or type of act, or it may be general, and whatever it defines as its scope is what a court will enforce as being its scope. (It may also be limited as to time.)

[] Durable power of attorney Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes "incapacitated," meaning unable to grant such a power, because of physical injury or mental illness, for example, unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated. This type of power of attorney is called "power of attorney with durable provisions" in the United States or "enduring power of attorney" elsewhere. In effect, under a durable power of attorney, the authority of the attorney-in-fact to act and/or make decisions on behalf of the grantor continues until the grantor's death.[5]

[] Health care power of attorney In some jurisdictions, a durable power of attorney can also be a "health care power of attorney", which empowers the attorney-in-fact (proxy) to make health care decisions for the grantor, up to and including terminating care and ending life supports that are keeping a critically and terminally ill patient alive. Health care decisions include the power to consent, refuse consent or withdraw consent to any type of medical care, treatment, service or procedure.[6] In many jurisdictions, a health care power of attorney is also referred to as a "health care proxy" and, as such, the two terms are sometimes used interchangeably.[7]

[] Relationship with advance health care directive Related to the health care power of attorney is a separate document known as an advance health care directive or "living will". A living will is a written statement of a person's health care and medical wishes but does not appoint another person to make health care decisions.[8] Depending upon the jurisdiction, a health care power of attorney may or may not appear with an advance health care directive in a single, physical document. For example, the California legislature has adopted a standard power of attorney for health care and advance health care directive form that meets all the legal wording requirements for a power of attorney and advance health care directive in California.[9] Compare this to New York State, which enacted a Health Care Proxy law that requires a separate document be prepared appointing one as your health care agent.

[] Springing power of attorney In some U.S. states and other jurisdictions it is possible to grant a springing power of attorney; i.e., a power that only takes effect after the incapacity of the grantor or some other definite future act or circumstance. After such incapacitation the power is identical to a durable power, but cannot be invoked before the incapacity. This may be used to allow a spouse or family member to manage the grantor's affairs in case illness or injury makes the grantor unable to act.[10] If a springing power is used, care should be given to specify exactly how and when the power springs into effect. As the result of privacy legislation in the U.S., medical doctors will often not reveal information relating to capacity of the principal unless the power of attorney specifically authorizes them to do so. Determining whether or not the principal is "disabled" enough for the power of attorney to "spring" into action is a formal process. Springing powers of attorney are not automatic, and institutions may refuse to work with the attorney-in-fact. Disputes are then resolved in court, which is of course a costly, and usually unwanted, procedure. Unless the power of attorney has been made irrevocable (by its own terms or by some legal principle), the grantor may revoke the power of attorney by telling the attorney-infact it is revoked; however, if the principal does not inform third parties and it is reasonable for the third parties to rely upon the power of attorney being in force, the

principal may still be bound by the acts of the agent, though the agent may also be liable for such unauthorized acts.

[] Standardized forms Many standardized forms are available for various kinds of powers of attorney, and many organizations provide them for their clients, customers, patients, employees, or members. [citation needed] In some states statutory power of attorney forms are available. Some individuals have used powers of attorney to unscrupulously waste or steal the assets of vulnerable individuals such as the elderly (see elder abuse).[citation needed]

[] Specialized uses [] Proxy voting Robert's Rules of Order notes that proxy voting involves granting a power of attorney. The term "proxy" refers to both the power of attorney itself and the person to whom it is granted.[11]

[] Finance In financial situations wherein a principal requests a securities broker to perform extensive investment functions on the principal's behalf, independent of the principal's advice, power of attorney must be formally granted to the broker to trade in the principal's account. This rule also applies to principals who instruct their brokers to perform certain specific trades and principals who trust their brokers to perform certain trades in the principal's best interest.

I. What is a Power of Attorney ?

(a) Definition :

(1) According to S. 1A of the Powers of Attorney Act, 1882 (‘POA Act’) a power of attorney includes any instrument empowering a specified person to act for and in the name of the person executing it.

(2) Power of Attorney is also defined under S. 2(21) the Indian Stamp Act, 1899 (‘Indian Stamp Act’) according to which — ‘Power of attorney’ includes any instrument (not chargeable with a fee under the law relating to the Court fees for the time being in force) empowering a specified person to act for and in the name of the person executing it.

(b) Power of Attorney as an Agency :

(1) A power of attorney is a delegation of authority in writing by which one person is empowered to do an act in the name of the other. The person who acts on behalf of another person (the principal) by his authority, express or implied, is called an agent and the relation between him and his principal is called agency.

(2) A power of attorney holder is nothing but an agent as defined in S. 182 of the Indian Contract Act, 1872 (‘Contract Act’). The authority of an agent is his power to affect his principal’s position by doing acts on his behalf. Actual authority is the legal relationship between the principal and agent created by a consensual agreement to which they alone are parties.

(3) A power of attorney is a document of convenience. Where circumstances require appoint-ing an agent formally to act for the principal in a particular transaction, or a

series of transactions, or to manage the affairs of the principal generally, the necessary authority is conferred by a power of attorney.

(4) In typical commercial transactions, a power of attorney may also purport to act as security to enable the security holder to exercise the powers conferred on him, which would be difficult for the donor to perform at a subsequent time. This subsequent nature of a power of attorney is dealt with herein. II.

Termination of a Power of Attorney :

(a) Generally speaking, a power of attorney can be terminated or cancelled by the principal by revoking his authority or by the power of attorney holder renouncing his authority.

(b) According to S. 201 of the Contract Act, an agency can be terminated by the principal by revoking his authority or by the agent renouncing his authority, unless such revocation is prohibited under S. 202 of the Contract Act (quoted hereinbelow). S. 201 of the Contract Act also states that an agency terminates, inter alia, by death of principal or agent.

(c) Now, the questions that arise are whether a power of attorney can be irrevocable in nature, and, whether an irrevocable power of attorney granted would terminate on death of a donor ? In such an event, would the security holder under a power of attorney, cease to hold such security in the event the donor dies ? III. When does a power of attorney become irrevocable ?

(a) Legal provisions :

(1) The POA Act does not state when a power of attorney is irrevocable. However, in various commercial transactions, a donor gives an irrevocable power of attorney, on contractual basis, to secure the interest of the donee of the power.

(2) Under S. 4 of the (English) Powers of Attorney Act, 1971 a power of attorney is irrevocable if it is expressed to be so and is given to secure :

(i) a proprietary interest of the donee of the power; or

(ii) the performance of an obligation owed to the donee. Then, so long as the donee has the interest or the obligation remaining undischarged, the power cannot be revoked by the donor without the consent of the donee, or by death, incapacity, insolvency, winding up or dissolution of the donor.

(3) Illustration :

In a typical Mumbai scenario, where redevelopment of property is common, A, being the owner of a piece of land over which he resides, gives B, a developer, an irrevocable power of attorney to develop such land and ultimately transfer the same in favour of a Society or Condominium or such Association of Persons. Such a power of attorney is given for a valuable consideration. In the event A dies whilst the property is in the process of being redeveloped, such an irrevocable power of attorney granted by A to B cannot be revoked or terminated and B is entitled to complete such redevelopment.

(4) Where a power of attorney is given for a valuable consideration and expressed to be irrevocable, or is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the obligation remains undischarged, the power is irrevocable.

(b) Authority coupled with interest :

(1) S. 202 of the Contract Act lays down the rule that ‘authority coupled with interest is irrevocable’.

(2) S. 202 of the Contract Act states that "where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest."

(3) Illustrations :

(a) A gives authority to B to sell A’s land, and to pay himself out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.

(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor can it be terminated by his insanity or death.

(4) In the aforesaid illustrations, authority is given for the purpose of being a security for a debt, therefore it is irrevocable.

(5) Where the authority of an agent is given by deed, or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest.

(6) To make the authority irrevocable, the agent must have an interest in the property which forms the subject matter of the agency. Where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of any express contract, be terminated to the prejudice of such interest.

(7) The mere fact that a power is declared in the instrument granting it to be irrevocable, does not make it irrevocable.

(8) The exceptional case dealt with here is that in which the authority or power is coupled with an interest in the thing on which power is to be exercised.

(9) Instead of the words ‘authority coupled with an interest’ used in the English and American systems of law, the Section contains the words ‘the agent has himself an interest in the subject mater of the agency.’ Under the English law, what is meant by an authority coupled with an interest is this — that where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable. [Clerk v. Laurie, 2 H & N 199].

(10) In Prahlad v. T. F. Kumari, AIR 1956 Pat 233 where, under a document drawn in the form of a power of attorney, a lady agreed that the debts raised by X for her should be realised out of the collections of a particular estate and the effect of the document though not described as one of agency was to create an agency in favour of X, it was held that the agency was one coupled with an interest and therefore irrevocable and in substance amounted to an allocation of the funds to be appropriated towards the repayment of the debts.

(11) Similarly, when an agent is employed to enter into any contract, or do any other lawful act involving personal liability, or is expressly or impliedly authorised to discharge such liability on behalf of the principal, the authority becomes irrevocable as soon as the liability is incurred by the agent [Read v. Anderson, (1884) 13 QBD 779], and where an agent is authorised to pay money on behalf of his principal to a third person, the authority becomes irrevocable as soon as the agent enters into a contract, or otherwise becomes bound to pay or hold such money to or to the use of such person [Robertson v. Fauntleroy, (1823) 8 Moore 10].

(12) So, where a principal and agent agree for valuable consideration or under a seal that the agent is to have authority, for example, to collect rents in order to secure a

loan [Spooner v. Sandilands, (1848) I Y & C. Ch. 390], or to sell certain land and to discharge a debt owed to him by the principal out of the purchase money [Gaussen v. Morton, (1830) IO B & C 731], the principal thereby confers an interest on the agent, and the agency cannot be revoked unilaterally.

(13) As decided in Pestanji Mancharji Wadia v. Matchett, (1870) 7 BHC AC 10, where an agent is authorised to recover a sum of money due from a third party to the principal, and to pay himself out of the amount so recovered the debts due to him from the principal, the agent has an interest in the subject matter of the agency, and the authority cannot be revoked.

(14) Illustration : A owes B a certain sum of money. A authorises B to recover from C, the rent which C owes A, and to pay himself (B) out of the rent recovered, the debts due to him from A. Such an authority cannot be revoked by A, because such authority confers an interest on B.

(15) So also a vendor promoter of a company, who is to be paid a commission out of the money raised by the issue of shares, has a clear and direct interest in raising the capital. An underwriter who promises to buy a certain number of shares from the promoter and authorises him to make the necessary application, cannot revoke the authority, this being an authority coupled with interest. [Carmichael’s case (1896) 2 Ch. 643]

(16) "If a borrower, in consideration of a loan, authorises the lender to receive the rents of Blackacres by way of security, the authority remains irrevocable until repayment of the loan in full has been effected. This doctrine applies only where the authority is created in order to protect the interest of the agent; it does not extend to a case where the authority is given for some other reason and the interest of the agent arises later." [Cheshire on the Law of Contracts, 6th Ed.]

(17) Illustration :

A (lender) has given B (borrower) a certain loan. As a security for repayment of the loan, B authorises A to receive all the rent which B is entitled to — arising out of a certain property owned by B — until such loan is repayed by B to A. Such an authority created to protect the interest of A, is irrevocable.

(18) Further, the principle applies only to cases where authority is given for the purpose of being a security or a part of the security, and not to cases where the interest of the donee arises afterwards and incidentally. In such cases there is no authority coupled with an interest; but an independent authority, and an interest subsequently arising [Garapati Venkanna v. Mallupudi Atchuta-ramanna, AIR 1938 Mad. 542].

(19) However, it is pertinent to note that mere right to remuneration or commission does not constitute an agency coupled with interest.

(20) For example, the agents for the sale of cloth who are entitled to keep for themselves any excess over rates that they might secure from purchases have no interest in the property to be sold or in the sale proceeds thereof, so as to attract S. 202 of the Contract Act [Dalchand v. Seth Hazarimal, AIR 1932 Nag. 34].

(21) In another Bombay case, it was held that the mere fact that the salary of an agent collecting rents was to be paid out of the collections, did not create an interest sufficient to make the authority irrevocable [Vishnucharya v. Ramachandra, ILR 3 Bom. 253].

(22) For instance, as held in Lakshmichand Ramchand v. Chotooram Motiram, (1900) 24 Bom. 403, the interest which the agent has in effecting a sale and the prospect of remuneration to arise therefrom, do not constitute such an interest as would prevent the termination of the agency.

(23) If any such interest were to be created for the benefit of the agent, it should be contem-poraneously provided for in the instrument of agency itself and should not only be express but also be explicit. It should not give any room for doubt, nor could

it be a matter of interpretation. An agency to be irrevocable should therefore create in the agent an interest in the subject matter contemporaneously with the document wherein such agency is created and it cannot be left to chance or guess or inference.

(24) In Corporation Bank v. Lalitha H Holla, AIR 1994 Kant. 133, held : the fact whether the power of attorney is given for securing the interest of the agent, can be ascertained from the facts de hors the express terms of the contract.

(25) In Kondayya Chetti v. Narasimhulu Chetti, (1986) 20 Mad. 97, held : The interest of the agent in the subject matter of the agency may be inferred from the language of the document creating the agency, and from the course of the dealings between the parties, it need not be expressly given. It is the existence of the interest and not the mode in which it is given, that is of importance.

(26) In Mariyakutty v. Chalandian Bank Ltd., AIR 1957 TC 174, the hypothecation deed showed that the shares and the right to the dividends on the same were all charged for the amount borrowed. It was further stipulated that as long as the debt was in existence, the pledgee was authorised to receive directly from the bank any dividend declared and appropriate the same towards interest. It was held that these words clearly created an agency in favour of the pledgee in view of the hypothecation deed which clearly authorised the pledgee to represent the owner of shares with regard to receipt of dividends from the bank, and that the agency created was one contemplated in S. 202, and could not be determined at the instance of the principal alone. IV. Whether an irrevocable power of attorney would terminate on death of donor ?

(a) Indian Law :

(1) The Supreme Court of India, in the case of Seth Loon Karan Sethiya v. Ivan E. John, AIR 1969 SC 73, held : where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked.

(b) English Law :

(1) According to S. 4(1) of the (English) Powers of Attorney Act, 1971 a power of attorney is irrevocable if it is expressed to be so and is given to secure :

(i) a proprietary interest of the donee of the power; or

(ii) the performance of an obligation owed to the donee. Then, so long as the donee has the interest or the obligation remaining undischarged, the power cannot be revoked by the donor without the consent of the donee, or by death, incapacity, insolvency, winding up or dissolution of the donor.

(2) According to S. 126 of the (English) Law of Property Act, 1925 (15 & 16 Geo. V, c.20) Powers of attorney, which are given for a valuable consideration and which are stated in the instrument creating them to be irrevocable, cannot be revoked at any time either by any thing done by the donor of the power without the concurrence of the donee, or by the death, disability, or bankruptcy of the donor of the power. Any purported revocation will be ineffective both as regards the donee and a purchaser for value.

(3) Adopting the classical statement of the rule given by Wilde, C.J. in Smart v. Sandars, (1848) 5 CB 895, 917, Bowstead on the Law of Agency, 14th Edition, page 423, states as follows : ]

"(i) Where the authority of an agent is given by deed or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. But it is not irrevocable merely because the agent has an interest in the exercise of it or has a special property in, or lien for advances upon, the subject matter of it, the authority not being given expressly for the purpose of securing such interest or advances :

(ii) Where a power of attorney whenever created is expressed to be irrevocable and is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the obligation remains undischarged, the power is irrevocable;

(iii) Authority expressed by this article to be irrevocable is not determined by the death, insanity or bankruptcy of the principal, nor . . . where the principal is an incorporated company, by its winding or dissolution, and cannot be revoked by the principal without the consent of the agent."

V. Conclusion :

What emerges from the above is that an irrevocable power of attorney creating an agency, wherein the agent (the donee) has an interest in the property and which forms the subject matter of such agency created for valuable consideration, the agency cannot be terminated to the prejudice of such interest, unless there is an express contract to the contrary. It can, therefore, be inferred that an irrevocable power of attorney granted in relation to a subject matter in which the donee has an interest, cannot be revoked by the donor, nor can it be terminated by the death, unsoundness of mind or insolvency of the donor to prejudice such interest created by the donor in favour of the donee.

A power of attorney is a basically a letter which enables you to authorize another person to act on your behalf for a specific purpose that is clearly stated in the drafted letter. This person is known as your agent and you are known as the principal. Under the Indian Contract Act, any individual may be appointed an agent, provided s/he is a major and of sound mind. A power of attorney may also be issued by a partnership firm, provided it is signed by all partners. Similarly, a company can issue a valid power of attorney if it bears the common seal of the company.

How to Issue a Power of Attorney as a Legally Binding Document To ensure that a power of attorney is a legally binding document, it must be duly stamped and attested. Under Section 85 of the Indian Evidence Act, all documents purporting a power of attorney must be authenticated by a magistrate, court, notary, Indian counsel or a central government representative. If the power of attorney is executed in a foreign nation, the signatures of the judge or notary who is overseeing the execution must be legalized by an authorized representative of the Indian embassy in that particular country.

How to Choose The Power of Attorney Carefully The person you choose as your power of attorney should be one whom you are sure would act in your best interest. In legal parlance, the agent is a ‘fiduciary.’ This is to say that the agent must act with the highest degree of trust and good faith to act in your best benefit. Before you choose the agent, ask the following questions: • • •

Do I trust this agent to act in fiduciary capacity, even in emergency situations where I am incapable of making a decision for my benefit? Is this person trustworthy and honest to handle my transactions and financial/commercial/business tasks on my behalf? Is this person knowledgeable about the tasks ahead? If not, would this person know how to get it done responsibly and keep me updated at all times?

Remember, the agent is some one who is accountable to you. He/she has to keep clear records and documents about transactions, communications and all actions for which he/she represented your interests. If this is not shared with you, you have every right to ask.

How to revoke the Power of Attorney Revocation or termination of a power of attorney is valid in the following circumstances:

• • • • •

On the expiry of stipulated term of the contract On renunciation of the agency or business On dissolution of the partnership firm If an act related to the execution of power of attorney is deemed illegal or impossible On account of bankruptcy, mental incapacity or death of the principal.

APR

Power of attorney in court proceedings TAGS: EVIDENCE AND POWER-OF-ATTORNEY / HOW & WHEN TO FILE POWER-OF- ATTORNEY IN CIVIL/CRIMINAL COURTS/IN FAMILY COURTS/LABOUR COURTS/RENT CONTROL COURTS/CHEQUE DISHONOUR/SEC.138 N.I.ACT CASES[courtesy : authors of many books I referred.] WHEN AND HOW TO FILE POWER OF ATTORNEY IN COURT PROCEEDINGS? Representation by Power-of Attorney Holder in Civil Cases: A party to the Court Proceedings may be represented by a Power-of Attorney holder duly authorized by the Party/Principal. Under Order 3 Rule 1 & 2 of Civil Procedure Code any appearance application or act in or to any Court except otherwise provided by any law made or done by the party in person or by his recognized agent or by a pleader on his behalf. Order 3 Rule 2 of C.P.C. specifies the Power-of-Attorney holder as recognized agents for the Party. Therefore the power-of-Attorney holder who is authorized to appear on behalf of the party can appear, file application engage advocates and act on behalf of parties. The process to be served to the Party shall be served to the power agent[Order 3 Rule 3 C.P.C.] Besides the recognized agents, any person residing within the jurisdiction of the Court may be appointed as agent to accept service of process [Order 3 Rule 6 C.P.C.] The appointment may be special or general and shall be made by an instrument in writing signed by the principal and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court.

The Court may, at any stage of the suit, order any party to the suit not having a recognized agent residing within, the jurisdiction of the Court, or a pleader who has been duly appointed to act in the Court on his behalf, to appoint, within a specified time, an agent residing within the jurisdiction of the Court to accept service of the process on his behalf. Rule 16 and 17 of the Civil Rules of Practice [T.N.] enumerates the procedure to file power of attorney by the agent and recognizing the same by the Court as follows: Rule 16: PARTY APPEARING BY AGENT: 1. When a party appears by an agent other than a pleader or advocate the agent shall before making or doing any appearance, application, or act in or to the Court file in Court the power of attorney or written authority thereunto authorizing him, or a properly authenticated copy thereof/ or in the case of an agent carrying on a trade or business on behalf o9f a party without a written authority an affidavit stating the residence of his principal, the trade or business carried on by the agent on the behalf and the connection of the same with the subject matter of the suit and that no other agent is expressly authorized to make or do such appearance, application or act. 1. The judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party and unless and until the said permission is granted no appearance, application or act of the agent shall be recognized by the Court. Rule 17: SIGNING OR VERIFICATION BY AGENT: If any proceeding which under any provision of law or these rules is required to be signed or verified by a party is signed or verified by any person on his behalf a written authority in this behalf signed by the party shall be filed, in Court. Together with an affidavit verifying the signature of the party and stating the reason of his inability to sign or verify the proceedings and proving the means of knowledge of the facts set out in the proceeding of the person signing or verifying the same. Relevant Rules from the Madras High Court Original Side Rules with regard to filing of proceedings before High Court by the power of attorney:

Rule 7 Order II: Affidavit of recognized agent as defined in Order III, Rule 2, Civil Procedure Code to be filed: Except as provided for by the Code if a plaint is subscribed and verified by a person other than the party on whose behalf it is presented it shall not be admitted or filed unless it is made to appear, upon affidavit that such person is a recognized agent of the party as defined by Order III Rule 2 of the Code and is duly authorized and competent so to do. Rule 37 of Order XXV: Registrar may require further proof of execution of Power of Attorney: Unless a power of attorney constituting such attorney can under section 85 of the Indian Evidence Act, 1872 be presumed to have been executed and authenticated as in the said section mentioned, the Registrar may require further proof of its due execution. Rule 1 of Order XXIX: Application for execution to be made to the Registrar: All application for the execution of decrees or orders whether of the High Court or of any o0ther Court (except as otherwise provided by these rules) shall be made by advocates or by parties in person to the Registrar. The transmission of decrees and the issue of all necessary warrants and notices by him and all amendments thereof shall be deemed quasi-judicial acts. Procedure in filing power-of-attorney in Civil Court: When the Power-of-attorney holder appears for a party he has to file: 1. Authenticated copy of the Power-of-Attorney to be filed. The Original power-of-Attorney may be produced to the officer of the Court for verification and will be taken back after due verification. 1. A petition with supporting affidavit to be filed along with an affidavit under Rule 16(2) of Civil Rules of Practice[T.N.] seeking permission to appear and act on behalf of the principal/Party as a recognized agent. The Attorney (agent) should also state that the executor is alive at the time of filing the suit and further to aver that the power of attorney is still in force.

1. The attorney should state in the affidavit verifying the signature of his principal and stating the reasons for the principal’s inability to sign or verify the proceedings and proving the means of knowledge of the facts set out in the proceedings by the attorney signing or verifying the same. The agent also should aver that no other agent is expressly authorized to make any such appearance or application or do such an act. 1. With regard to filing of the cases and taking part in the proceedings by the power of attorney holder, in the proceedings before the Madras High Court (Original Side) the Madras High Court Original Side Rules recognizes the power of attorney executed and authenticated as per section 85 of the Indian Evidence Act only. In all other kinds of power-of attorney if needed the Registry may require further proof of due execution of the power-of-attorney relied upon. 1. In the true copies of the power-of-attorney a Court fee of Rs.5/to be affixed as per the Article15, Schedule II of the Tamil Nadu Court Fees and Suits Valuation Act 1955. Appearance by power agent in Court: In Surender Raj Jaswal Vs. Smt. Vijaya Jaiswal [AIR 2003 AP 317], the question as to whether the General Power of Attorney holder of the respondent is entitled to appear and prosecute the case considered. In this case the plaintiff gave power of attorney to her husband who is well acquainted with the facts of the case and who is looking after her affairs. The Court permitted the plaintiff’s power of attorney holder under Rule 32 and 33 of Civil Rules of Practice (A.P.) to prosecute the case of the plaintiff by tendering evidence. The Power of Attorney holder cross examined the defendant which was agitated by the defendant. It was held that when the trial Court permitted the power agent to prosecute the case and to cross examine the witnesses, the said agent was helping the Court by appearing for the plaintiff and there was no remark noticed by the trial Court. It was held further that it is always open to the Court to withdraw or cancel permission if the power of attorney holder is unworthy or reprehensible. When can a General Power of Attorney holder give evidence: When once a person files a suit on behalf of the party, as a G.P.A. holder he enters into the shoes of that party and except to the extent of personal knowledge, he is entitled to depose on other facts. In the instant case, what was relied upon by the plaintiffs is entirely documentary evidence, which are public

documents and no personal knowledge was required to be pressed into service to establish the case of plaintiff [Secretary to Govt. of India Vs. Indira Devi, AIR 2003 A.P. 329 (DB)] In Shanthi Devi Agarwal Vs. V.H. Lulla [AIR 2004 M.P. 58], the Madhya Pradesh High Court while considering letting of evidence by Power-of-Attorney holder held that a power of attorney holder, who virtually steps into shoes of a party can place materials in terms of the definition of ‘evidence’ as above, on behalf of that p0arty, before a Court under Section 118 of the Evidence Act unless he stands disqualified for the reasons given in that section itself and further, admissibility of his evidence would be subject to rigorous procedure contained in Chapter X thereof. That apart a bona fide requirement is also with reference to family and it can be proved by any member of the family. In the instant case old age of the plaintiff is a good ground that her son, the power of attorney holder, should have been allowed to tender evidence on her behalf. In P.Punnaiah Vs./Jeypore Sugar Co. Ltd.,[AIR 1994 SC 2258], the Supreme Court held that the normal rule is that whatever a person can do himself, he can do it through his agent, except certain functions which may be personal in nature or otherwise do not admit of such delegation. In Humberto Luis Vs. Floriano Armando Luis [2000 AIHC 1572 (Bom.) = 2000(1) Mah LJ 690] it was held that a person holding a power of attorney can depose in the witness box on behalf of the party. In Moulasab Vs. Sri Mohammed Hasim deceased by LRs and others [2003 (1) KCCR 239 = ILR 2003 (2) Kar 1041 =2003(2) KLJ 48]. It was held that the recognized agent holding GPA cannot be allowed to plead and argue. He can only appear and conduct the judicial proceedings and has no right of audience. Power to plead on behalf of a party to judicial proceedings is vested only with the pleader. This is vbery clear from the provisions contained in Order 3, Rule 2 and Orde3rs 3 Rule 4 of CPC. In Jaymal Thakore Vs. Charity Commissioner, Ahmedabad [AIR 2001 Guj. 279], it was held that a chartered accountant holding a power of attorney can file application on behalf of a party in the proceedings but he cannot act as pleader for the party as contemplated by the provisions of the Advocate Act. When Power of Attorney holder cannot give evidence:

In a latest Supreme Court case Janki Vashdeo Bhojwani Vs. Industrial Bank Ltd., [(2005) 2 SCC 217 =AIR 2005 SC 439 =2005 (3) CTC 128 (SC)], It was held that power of attorney holder cannot depose for principal in respect of matters of which only the principal can have personal knowledge and in respect of which principal is entitled to be cross-examined. It is further observed that persons claiming share in property should have entered the witness box and discharged burden. The power of attorney holder cannot enter a witness box and depose instead of persons claiming such share. Such persons have to show that they have got an independent source of income and they contributed for the purchase of property from such independent income. It was observed that where a person does not appear in a witness box and state his/her case on oath and does not offer to be cross examined by the other side, the presumption would arise that the case set up by such person is not correct. In S.Padmavathamma Vs. S.Sudha Rani [AIR 2004 AP 309] the Andhra Pradesh High Court held that the general power of attorney holder can appear as a witness only in his personal capacity. He cannot appear as witness on behalf of the plaintiff in the capacity of plaintiff as he cannot speak about the facts which are within the personal knowledge of the party. The Court approved that a power of attorney is not a substitute for his principal, and he cannot speak about the facts which are within the personal knowledge of the party. In R.Subba Rao Vs. Commissioner of Income Tax, Madras [AIR 1956 SC 604], the Supreme Court held that under rule 6 of the Income Tax Rules a person who seeks relief under the section 26 A of the Income Tax Act, 1922 for Registration of Firm the partner alone is a competent person to sign on the form and the agent has no such power. It is observed and distinguished in P.Punnaiah Vs.Jeypore Sugar Co.Ltd., [AIR 1994 SC 2258], as the matter arose under section 26( A) of the Indian Income Tax Act, 1922 read with Rules 2 and 6 of the rules framed in that behalf. The Rules provided that an application for renewal of registration of the firm “shall be signed personally by all the partners”. It is because of the said requirement that it was held that the partners must sign such a application personally. In Kailashi Devi Vs. Matadeen Agrawal [AIR 2001 Raj 306], it was held that the power of attorney holder is a competent witness and is entitled to appear as such. His statements in the Court cannot be ignored or it canno9t be said that the statement of such a witness shall not be read in evidence only because of the reason that he had appeared as power of attorney and the parties to suit i.e. plaintiff or

defendant do no0t choose to appear as a witness in witness box. His evidence is to be evaluated as per his deposition before the Court and in case the Court finds that evidence or such power of attorney does not depose confidence, the Court is at liberty to evaluate the same. There is no jurisdiction with the Court to say that the evidence of such person shall not be read at all and that the plaintiff must appear in the case in her support. In Smt.Gangavva Vs. Arjunsa [AIR 2001 Kant.231] it was held that the attorney of plaintiff can be examined for and on behalf of the plaintiff as her substitute. There is no express bar made in the provisions of C.P.C. to debar the power of attorney to be examined as a witness on behalf of the parties to the proceedings. A party without examining himself can as well establish his case if possible by examining the witnesses who are competent to testify. However, in cases where there is onus placed on the party to discharge and if the facts required to be deposed are necessarily to be testified by the party in person, in such a situation, however, such a party runs the risk of facing adverse inference for non-examination . Otherwise, it also open to the party to give evidence through the power of attorney and such evidence would be a valid substituted evidence of the plaintiff. Power of Attorney and Advocate: In Thaamammal Vs. Kuppuswami Naidu (M.Krishnamal Vs. T.Balasubramania) [AIR 1937 Mad.937 (1937) 2 MLJ 552 (FB), the Full Bench of the Madras High Court observed that the power of attorney agent cannot be accorded all the rights and privileges which are enjoyed by members of legal profession and cannot carryon business as a solicitor or attorney drafting engrossing and filing p0laints, judge’s summons, affidavits and generally issuing legal process and charge fees to the principal. Hence, the power of attorney is not entitled to appear and conduct the proceeding himself o9r appoint an advocate to appear for him as his power of attorney and authorize him to plead. In Divaliben Vs. Mavijibhai Vasanjibhai Ahir [AIR 1995 Guj.151], it was held that a power of attorney holder of a party can certainly be examined as a witness in any proceeding. A power of attorney holder is given power to act on behalf of the person giving such power. That would possibly include all acts which a party could do. If the power of attorney holder has no personal knowledge as to certain facts deposed by him at trial, his evidence can be disbelieved or even discarded. Simply because he is examined as a witness at trial on behalf of a party, it cannot be said that there was a defect in following the procedure provided by the Act. The Code nowhere prohibits

examination of a power of attorney holder as a witness in any proceeding. Even a third party can be examined as a witness on behalf of a party to the proceeding. In Mannlal Vs. Bherulal [AIR 1965 Mys.272], it was held that power of attorney executed for doing all acts and things necessary in connection withy suits gives imp0lied authority to attorney to bring suits on behalf of a minor represented by next friend without consent of next friend. In Sikhar Chand Vs. Santi kumar {2002 AIHC 575(Raj)] it was held that a person holding power of attorney can appear as a witness for the party and not as a plaintiff. The plaintiff has to discharge the burden of proving a certain fact/issue which the law requires him to do so. In State Bank of India Vs. Prem Dass [AIR 1998 Del. 49], it was held that in a suit for recovery of loan by the Bank a person notified on the gazette and under bank with regulations is competent to sign and verify the plaint. In a complaint under section 138 of the negotiable Instruments Act, the original complainant died. The legal heirs of the deceased complainant appointed agents under power of attorney to proceed with the complaint. The power of attorney holders filed petition u/s 302 of Cr.P.C. to continue the prosecution. In this case the Supreme Court held that neither heirs of the complainant who filed petition u/s 302 of the Code to continue the prosecution nor any permission was sought by them from the competent Court that they should be allowed to continue the prosecution through their power of attorney holders, rather the prayer was made by the power of attorney holders, which is not permissible under law. But the liberty was given to the heirs either to make application themselves before the Court concerned to continue the prosecution or apply to the Court to grant permission to them to authorize a power of attorney holder to continue the prosecution on their behalf.[Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley AIR 2005 SC 48 = (2204) 12 SCC 509] DEFECTIVE POWER OF ATTORNEY AND REPLACEMENT BY SECOND ONE: In Jugraj Singh Vs. Jaswant Singh [AIR 1971 SC 761] the Supreme Court held that6 when the first power of attorney was not complied with the requirements of the law and was ineffective and was not authenticated as required by section 33 of the Indian Registration Act, 1908, a second power of attorney with proper authentication by a Notary of the foreign country is valid. It was

further observed that the second power of attorney being a document ratifying a former inconclusive act related back, to the time when the first document was made3 and cured the illegality in the presentation for registration which had taken place. Non-filing of power of attorney at the time of initiation of the proceedings whether fatal: In Ashok Kumar Vs.Gobind Dhandra [AIR 1984 Cal. 337], it was observed and pointed out that during the course of hearing, it was transpired that Mr.P.N. Mukherjee, the learned advocate on record of the appellant had not filed his power of attorney and on such a further point for consideration arose as to whether because of such admitted non-filing of the power at the initiation of proceedings. The present application and all the orders obtained earlier or passed by the court. It was held that non-filing of the power of attorney at the initial stage was a mere irregularity, which could be cured. The power of attorney was not filed at the time of filing of the suit. But ratification of earlier power of attorney was produced by the principal. It was held that the agent can not be deemed to have taken authority on behalf of the principal for prosecution of the cases by producing originals hearing altogether different dates [State of Karnataka Vs. M. Muniraju, AIR 2002 Kant. 287]. A plaint in a suit filed on behalf of a Bank was signed and verified by its manager who under the Articles of Association of the Bank was authorized, with the previous sanction of the directors, to take legal proceedings to recover the dues of the Bank. He did not hold any power of attorney on the date of the suit. On an objection by the defendant, an amended plaint was filed by the Bank stating that the Bank had, by its resolution, confirmed and ratified the manager’s action. The Court allowed the amendment of plaint. On revision against the order held that as the initiative to institute the suit could be properly transferred to the Manager under the Articles of Association, the subsequent ratification of the act of the agent by the principal could cure the original defect. AIR 1936 Lah 321 and 25 All 635. Relied on AIR 1932 Lah 388 and AIR 1935 Lah 345 distinguished [Kirpal Chand Vs. The Traders Bank Ltd., AIR 1954 J 7 K 45]. A Power of attorney filed at a later stage within limitation period in execution proceedings can be acted upon [Addeison J Vs. Chhajju, AIR 1929 Lah 478].

POWER OF ATTORNEY IN FAMILY COURTS: Representation of power of attorney holder in Family Court:Papers may be presented in the Family Court by the Power of attorney:In the Family Court the petitioner shall have the right to present the papers through a recognized agent other than legal practitioner, as contemplated U/O 3 R 1 of C.P.C. [Syed Amina Beevi,S.M., Mrs. Vs. Mr.Thaika Sahib alim, 1993-2-L W 604 (Mad.) = I (1994) DMC 557] A Divorce petition was filed by husband on the ground of cruelty. After the chief examination, cross examination and re-examination of the petitioner (husband) was over, and when the wife was being examined in chief Family Court passed order allowing the petition filed by husband praying that his presence may be dispensed with as the husband’s father and power of attorney holder informed the Court that the husband has proceeded to Saudi Arabia, the petition filed on behalf of the husband was held to be permissible in such peculiar circumstances [Dr.K.Malathi Vs. Dr. S.Rajasekaran, 2003 – L.W. 870 (Mad.)] An authorized agent can represent in the Family Court but whenever the presence of party is necessary, the party must be present [Pavithra, represented by power agent S.Rajkumar Vs. Rahul Raj, 2003-2-L.W. 431 (Mad.)]. POWER OF ATTORNEY IN RENT CONTROL COURTS: Petition for eviction by the power of attorney holder from landlady: Under the power of attorney, power is given to the attorney to carry out repairs, remodel, renovate, reconstruct or alter all or any of the properties, incur the necessary expenses for the same and engage qualified workman to carry out the said items of work. The undertaking in the present case is therefore, one coming within the meaning of section 14(2) of the Tamil Nadu Buildings(Lease and Rent Control) Act, 1960, and the principal or landlord cannot escape the penal consequences for the non performance of the undertaking by astute arguments or contentions on the basis that the undertaking was only given by the agent [S.A.M. Jameema Beevi Vs. Easwarlal Patel,1979-2-MLJ 355 (Mad.)]. POWER OF ATTORNEY IN LABOUR COURTS: A power of attorney holder from an employer held, not liable for Provident Fund contributions for period before and after it was in

force. The petitioner was a power of attorney holder from the employer of a proprietary establishment and he challenged in his petition a direction by the Provident Fund authority to pay large sum of Provident Fund dues. The High Court held the petitioner was liable only for the period during which the power of attorney was in force and not for period before or after that. While on this, it was observed that the Powers of Attorney Act of 1882 indeed requires a thorough examination, so as to plug the loopholes, and cover areas, where essentially more legislative attention is necessary. Situations have come before Courts, when it had been felt that a better statement of rights and liabilities of parties and areas where the facility could and should not be resorted to are to be concisely defined [Sajeev T.K. Vs. Provident Fund Commissioner, 2004 – III-LLJ (Ker.)]. POWER OF ATTORNEY IN CRIMINAL COURTS: Complainant through Power-of-Attorney holder cannot file a Criminal Complaint under section 500 IPC: A Complainant residing in Dubai executed a power-of-Attorney in favor of another person to file complaint for offence under section 500 IPC. It is observed that Section 199(1) of Code of Criminal Procedure lays down that where a complainant is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint or is a woman who according to the local customs and manner, ought not be compelled to appear in public some other person may with the leave of the Court make a complaint on his or her behalf. Complainant residing outside India cannot authorize a person through power-of attorney to file a complaint U/S 55 IPC[Fr.Thomas Maniankerikalam Vs. Thomas J Pudiyath, 2005(3) CTC 567 (SC)]. In T.C.Mathai Vs. District and Sessions judge,Thiruvananthapuram [AIR 1999 SC 1385 = 1999 Cri.L.J. 2092 (SC), the Supreme Court pointed out that the accused cannot appear through a power of attorney holder unless permission for such appearance is sought by the accused himself and the Court expressly granted such permission. In T.C. Mathai Vs. District and Sessions Judge, Thiruvananthapuram [1999 Cri.L.J. 2092 (SC), the Supreme Court pointed out that a power of attorney holder who is not authorized by Court cannot become a pleader and cannot appear for the accused before the criminal Court like that of an advocate.

POWER-OF-ATTORNEY IN CHEQUE DISHONOUR CASES (COMPLAINT U/S 138 OF NEGOTIABLE INSTRUMENTS ACT,1881) Power-of-attorney holder of legal heirs of the deceased complainant cannot file petition to continue the prosecution: U/S 138 of the N.I. Act, the original complainant died. The legal heirs of the deceased complainant appointed agents under power of attorney to proceed with the complaint. The power-of-attorney holders filed petition U/S 302 of Cr.P.C. to continue the prosecution. In this case the Supreme Court held that neither heirs of the complainant filed petition U/S 302 of the Code to continue the prosecution nor any permission was sought by them from the competent Court that they should be allowed to continue the prosecution through their power-of-attorney holders, rather the prayer was made by the power-of-attorney holders, which is not permissible under law. But the liberty was given to the heirs either to make an application themselves before the Court concerned to continue the prosecution or apply to the Court to grant permission to them to authorize a power-of-attorney holder to continue the prosecution on their behalf [Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley, AIR 2005 SC 48 = (2004) 12 SCC 509]. Guidelines to file complaint by power of attorney holder: A complaint can be presented by General power of attorney on behalf of the payee, provided •

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i.

the complaint shall be signed by the payee himself,

i.

there shall be also an affidavit of the complainant in proof of his execution of GPA added to the production of the said power-of-attorney document

i.

a sworn statement of GPA can be recorded on the date of presentation of the complaint

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a sworn statement of payee (complaint) shall have to be taken at a future date on his appearance in Court, the Magistrate shall thoroughly examine the statements of GPA holder as well as the original complaint and the documents produced before him and exercise his discretion vested under sections 202 and 203 of Cr.P.C. The above guidelines are not exhaustive and in other circumstances the Magistrate shall exercise his discretion judiciously and in conformity with other provisions of law applicable [Y. Vijayalaskhmi @Rambha Vs. Manickam Narayanan, Proprietor, Seventh Channel Communications, reptd. By its power-of-attorney Agent, Thanigaivelan, 2005(3) CTC 480 (MAD) – Date of judgment 8/6/2005]

A power-of-attorney holder cannot depose for principal in respect of matter of which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross examined [Janki Vashdeo Bhojwani Vs. Industrial Bank Ltd., (2005) 2 SCC 217 = 2005 (3) CTC 128 (SC) – AIR 2005 SC 439]. The power-of-attorney of a payee or a holder in due course of a dishonoured cheques can file a complaint for an offence U/S 138 of N.I.Act after obtaining permission from the Court, either before or after filing of the complaint [Ramachandra Rao K Vs. State of A.P., 2005 (2) CTC 417 (A.P.-FB) = 2005 (2) ALT 607]. Representation by subsequent person: No Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that there may be occasions when different persons can represent the company. It has been held that it is open to the dejure complainant company to seek permission of the court for sending any other person to represent the company in the court [M/s M.M.T.C. Ltd., Vs. M/S Medchl Chemicals & Pharma (P) Ltd., 2002 (1) Crimes 156 (SC) = 2002 Cri.L.J. 266 =AIR 2002 SC 182 = (2002) 108 Comp. Cas 48 =(2002) 1 SCC 234]. Notice on behalf of power-of-attorney holder by Advocate: Power-of-Attorney holder of payee instructing an advocate to send notice. The said notice is valid [S.G.Pandalai Vs. Jacob C. Alexander & State of Kerala, 2002 (108) Comp. Cas. 841 (Mad)].

Notice by power-of-attorney: Notice on the instruction of power-ofattorney holder is valid [S.G. Pandalai Vs. Jacob C.Alexander, 2000 Cri L.J. 2155 (Ker) =2000 (3) Crimes 232]. Complaint by power-of-attorney holder: A power-of-attorney holder of a payee or holder in due course can make a complaint U/S 142 of the N.I. Act, but still the principal has to bear the ultimate responsibility [Hamsa Vs. Ibrahim, 1994 (1) Crimes 395 (Mad.) See also Manimekalai Vs. Ghopaldas Kalyanji Sanghvi, 1995 Cri>L>J> 1102 (Mad.), Sova Mukherjee Vs. Rajeev Mehra 1997 (2) CCR 313 (Cal.)] If a power of attorney agent can act instead of an individual payee or a holder in due course, it will equally be competent for a power-ofattorney agent of a company explained U?S 141 of the N.I.Act, meaning any body corporate including a firm or other association of individuals to file a complaint on behalf of the company. But, it has been observed that a non-filing of authorization while taking cognizance would bar the impugned complaint U/S 142(a) of the N.I.Act [Ruby Leather Exports Vs. K. Venu Reg. Vandana Chemicals etc., 1994 Crimes (1) 820 (Mad.)] Non-filing of power-of-attorney at the time of filing complaint The Manager of the company who has not filed power-of-attorney at the time of filing complaint and not being the payee of the cheques cannot file the complaints [Sudesh Kumar Sharma Vs. K. Selvamani 1994 -1- L.W. (Crl.) 337 (Mad.) = 1995 (1) KLT (SN 14)] Fresh Power-of-attorney in the place of previous power-ofattorney: The power-of-attorney holder should be permitted to file complaint U/S 138 of the N.I. Act. There is nothing wrong in substituting a fresh power-of-attorney holder or representative of the company in the place of previous power-of-attorney holder or representative {Benhur T. & I. Pvt. Ltd., Vs. State of Kerala 1995 (2) KLT 985 (Ker.)] Complaint filed basing on power-of-attorney is valid: It is well settled that any person can set the criminal law in motion and as such, a complaint regarding an offence, can be filed by any person who knows about the commission of the offence[Dr.Pradeep Mohanbhay Vs. Mr.Minquel Carloes Dias, 2000 (102) (1) Bom LR 908]. Cheque issued by power-of-attorney holder: Principal is liable:

The principal is always bound by the act of power-of-attorney holder. A cheques issued by the constituted attorney in partial discharge of debt deemed to be issued by the principal and the principal is liable for prosecution [Smt. Sova Mukherjee Vs. Rajiv Mehra[ 1 (1997 CCR 135 (Ca.l.)] Without an authorization a complaint cannot be filed: Without an authorization a Director or any person similarly situated cannot maintain a complaint U/S 142 of the N.I.Act [Swastik Coaters Pvt. Ltd. Vs. Deepak Brothers 1997 Cri.L.J. 1942 (A.P.)] Subsequent filing of power-of-attorney is valid: Complaint filed on 24/9/97 authorization to Manager only on 17/11/97, subsequent to filing a complaint. The authorization held to be valid, subsequent authorization given cannot be thrown out on the ground that there was no authorization at the time of filing complaint [Modern Denim Ltd., Vs. Luca TVS Ltd. 1999 (3) CTC 143 (Mad.)]. A power-of-attorney holder cannot represent for accused: When the code requires appearance of an accused in a court it is no compliance with it if a power-of-attorney holder appears for him. T.C.Mathai Vs. Dist. & Sessions judge, Thiruvananthapuram, 1999 Cri. L.J. 2092 (SC)]. Procedure to be followed before initiating prosecution U/S 138 of Negotiable Instruments Act by the Power-of-a-Attorney holder: Any payee or a holder in due course of a cheques may initiate prosecution if the cheques has been duly presented in time and dishonored for want of funds in the Account of the drawee or on such other grounds stated in the statute, after giving the requisite notice on this behalf. A complaint U/S 200 Cr.P.C. read with Section 138 Negotiable Instruments Act shall be filed in the competent Magistrate Court or initiating prosecution against the drawer of the Cheque. But there is an impediment with regard to filing of the complaint by a payee or a holder of the cheques who is unable to personally initiate action due to ill health, old age, frequent absence in the jurisdiction of the Court. Generally in Magistrate Courts, a private complaint has to be presented by a party-in-person or by his pleader. Further the proviso

in Section 199(1) of Cr.P.C. with regard to prosecution in defamation cases states that a person who is unable to make a complaint by himself may present a complaint, only with the leave of the Court, Recently in Fr.Thomas Maniankerikalam Vs. Thomas J Padiyath 2005(3) CTC 567 the Supreme Court in a complaint initiated in a defamation case by a power-of-attorney holder without the leave of the Court has held that the complaint is not maintainable. Applying the same analogy, it is clear that unless an app0lication seeking leave to prosecute is filed and orders are obtained, no complaint u/s 138 of the N.I. Act can be filed by a power-of-attorney holder on behalf of his principal. In K.Ramachandra Rao Vs. State of A.P. 2005(2) CTC (FB) 417 the Full Bench of the Andhra Pradesh Court has held that the power-of-attorney of the payee or the holder in due course of a dishonored cheques can file a complaint for an offence u/s 138 of the N.I Act after obtaining permission from the Court either before or after filing of the complaint. Rule 111 of the Criminal Rules of Practice as applicable to the State of Tamil Nadu runs as follows: Rule111:Complaints to be presented in person or by pleader: All complaints applications etc. shall be presented to the Magistrate by a party in per5son or by his pleader. The complainant shall present along with the complaint as many copies on plain paper of the complaint as the number of accused persons complained against. Therefore in order to maintain a complaint U/s 138 of the N.I. Act by a power-of-attorney holder he has to seek the leave of the Court to file a complaint. For instance if the Managing Director of a Company is at Mumbai and there are various branches throughout India, he cannot sign in all the Complaints filed by the Company in various places. So the direction given by the Madras High Court in Vijayalakshmi Y @ Rambha Vs. manickam Narayanan 2005(3) CTC 480 requires reconsideration.