The Supreme Court has observed that a power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross¬-examined.
The contention raised in this appeal arising from a suit for specific performance was that the plaintiff did not enter the witness box to establish his readiness and willingness to perform his obligations under the agreement for sale. It was urged that the power of attorney holder from the plaintiff by execution was not competent to depose with regard to events prior to the execution of PoA, especially with regard to facts personal to the knowledge of the plaintiff. (Mohinder Kaur vs. Sant Paul Singh)
Referring to Janki Vashdeo vs. Indusind Bank Ltd., the bench comprising Justice Navin Sinha and Justice Indira Banerjee observed that that a power of attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power of attorney holder.
Likewise, the power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him
The court also noted that, in this case, the agreement was cancelled by the defendant on 01.09.1989 and the consideration already paid confiscated under intimation to the plaintiff and the said communication of cancellation was never challenged. Merely because the plaintiff may not have been satisfied by the intimation given by the defendant regarding release of the property from mortgage, it cannot be construed as readiness and willingness on part of the respondent and his capacity to perform his obligations under the agreement, the bench said while allowing the appeal.
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