K.T. Joseph vs The State of Kerala and Others

K.P. Radhakrishna Menon, J.—The sixth Respondent is the power holder of the Guruvayoor Co-operative Urban Bank Ltd. represented by the third Respondent the Secretary. The power of attorney authorises the sixth Respondent to represent the cause of the bank before the arbitrator within the meaning of Section 69 of the Co-operative Societies Act. Though the sixth Respondent is the power holder of the bank, he cannot represent the bank in the proceedings u/s 69 in view of the provisions contained in Rule 67(8) of the Co-operative Societies Rules is the case of the Petitioner.

On behalf of the contesting Respondents it is argued that Rule 67 however, does not prohibit the power holder to appear before the arbitrator and represent the case of his principal who is a party to the said proceedings. Rule 67(8) in fact imposes certain restrictions only on the right of an advocate to represent parties in the proceedings before the arbitrator.

The question thus arising for consideration is: does Rule 67(8) prohibit the donee of a power of attorney within the meaning of Section 2 of The Powers of Attorney Act from representing his principal who is a party to the proceedings u/s 69 of The Co-operative Societies Act. To find an answer to this question it is necessary to construe Section 2 of The Powers of Attorney Act. It reads:

Execution under power of attorney.--The donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the names and with the signature and seal, of the donor thereof.

This Section applies to powers of attorney created by instruments executed either before or after this Act comes into force.

The common law principle which stands codified by this Section can be stated thus: Every person who is sui juris has a right to appoint an agent for any purpose whatever, and that he can do so when he is exercising a statutory right not less than when he is exercising any other right. This Rule however is subject to certain well known exceptions as when the act to be performed is personal in character, or is annexed to a public office, or to an office involving fiduciary obligations. To put it differently: Apart from such exceptions the well established law is that whatever a person can do himself, he can do through an agent. That is why it has been held that "at common law, when a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorising it." See the decision of the Supreme Court in Ravula Subba Rao and Another Vs. The Commissioner of Income Tax, Madras, . The 6th Respondent who is the donee of the power of attorney of the bank has therefore the right to represent the case of the bank in the proceedings initiated by the Petitioner tinder Section 69 of The Co-operative Societies Act and pending before the arbitrator.

But that is not the case with a lawyer who will be engaged by a party to the said proceedings. His right to appear in the proceedings is circumscribed by Rule 67(8). I shall now read the said rule:

In the proceedings before the Registrar or such other person deciding the dispute or the arbitrator, legal practitioners shall not be entitled, as a matter of right, to appear to represent parties.

Construing this Rule a Division Bench of this Court in Parli S.C. Bank v. State of Kerala 1978 KLT 4 has held thus:

Rule 67(8) does not entitle the Registrar automatically to reject an application for permission to engage a Counsel or to refuse the assistance of a Counsel to a party seeking to engage one, but it required the Registrar to apply his judicial mind and to exercise his judicial discretion in regard to the prayer for assistance of a Counsel.

From the discussion above it is clear that Rule 67(8) has no application to the facts of the case.

The above position notwithstanding the learned Counsel for the Petitioner argues that since the sixth Respondent is not an advocate within the meaning of The Advocates Act he has no right to represent the bank before the authorities merely on the strength of power of attorney executed in his favour by the bank. In support of this argument he relied on the decision of the Jamrnu and Kashmir High Court in Amita Misri and Ors. v. State of Jammu and Kashmir and Ors. 1988 (2) CCC 889. The Jammu and Kashmir High Court was considering the scope of Section 32 of The Advocates Act, 1961 with particular reference to Order 3 Rule 1 Code of Civil Procedure. The question that arose there was: "Whether an attorney holder be permitted to argue before the Court on the strength of power of attorney made in favour of a private individual, who is not a pleader or an Advocate duly enrolled entitled to practice in the Courts".

The High Court answered the question in the negative. For two reasons this ruling has no application here; (1) the question considered was whether a donee of power of attorney can represent a parry in a proceeding before the civil court within the meaning of the Code of Civil Procedure: that is not the case here; and (2) the High Court had no occasion to consider the scope of Section 2 of The Powers of Attorney Act, 1882. The only question arising for consideration here is whether Rule 67(8) as already noted prohibits the donee of a power of attorney from representing a party in a proceeding initiated u/s 69 of The Co-operative Societies Act. The said decision therefore has no application here. Yet another decisions cited namely Hari Om Rajender Kumar and others Vs. Chief Rationing Officer of Civil Supplies, A.P., Hyderabad, also has no application here because there also the question mooted was as to whether an ''attorney holder'' can represent his principal in a proceeding before the civil court.

From what is stated above it is clear that the answer to the question posed can only be in the negative namely that Rule 67(8) does not prohibit the power holder from representing the case of his principal who is a party to the arbitration proceedings u/s 69 of The Act.

The Petitioner then argued that the ''attorney holder'', in as much as he is a retired Deputy Registrar of Co-operative Societies, is capable of influencing the arbitrator who is an Assistant Registrar of Co-operative Societies and therefore for this reason it should be held that the ''attorney holder'' is not competent to represent the bank in the proceedings. This argument is liable to be rejected for the simple reason that the ''attorney holder'' admittedly had retired from service about seventeen years ago.

The challenge against Ext.P-3 fails. The OP. accordingly is dismissed. No costs.