Summary Suit No. 2828 of 1998. Case: Mrs. Prabha P. Shenai Vs M/s. Ispat Industries Ltd.. High Court of Bombay (India)
| Case Number | Summary Suit No. 2828 of 1998 |
| Counsel | For Appellant: Mr. Prakash Shenai, Constituted Attorney and For Respondents: Mr. U.J. Makhija, a/w. Mr. Ashish Mehta, Ms. Shivani Deshmukh, Ms. Avani Rathod and Ms. Sarbani Chatterjee, i/b. Mr. Ashish Mehta, Advs. |
| Judges | S. C. Gupte, J. |
| Issue | Advocates Act, 1961 - Sections 29, 30, 32, 33; Code of Criminal Procedure - Section 303; Code of Civil Procedure - Order III Rules 1, 2 |
| Judgement Date | March 09, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
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This Summary Suit is filed for a decree in the sum of Rs.1,13,06,769.40 together with interest on the basis of a written contract evidenced by four documents, all in connection with earth filing work carried out by the Plaintiff for the Defendant. Upon unconditional leave to defend being granted to the Defendant, the Defendant contested the suit by filing a written statement. Issues were thereupon framed and oral and documentary evidence was led by the parties. I have heard the constituted attorney of the Plaintiff and learned Counsel for the Defendant. This order disposes of the suit.
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The Plaintiff claims to be carrying on business in civil construction works as a proprietress through herself and earlier through her predecessor in title in the name and style of M/s. Sterling Engineering Co.(The references to 'Plaintiff' hereafter include her predecessor in title as well.) It is the case of the Plaintiff that in or around March 1994, the Defendant approached the Plaintiff for earth filling work at Dolvi Village, Pen Taluka, District Raigad in Maharashtra on cubic metre basis. By an offer letter dated 14 March 1994, the Plaintiff submitted a quotation for the work. The quotation was revised after negotiations and discussions between the parties by a letter dated 21 March 1994. By letter dated 25 April 1994, the Defendant accepted the revised quotation and offered the work to the Plaintiff on terms and conditions mentioned therein. The Plaintiff accepted the offer with certain variations, modifications and limitations set out in letter dated 2 May 1994. The Plaintiff, thereafter, mobilised machinery and manpower and started the contract work at the site under the supervision and approval of the site engineer of the Defendant. The Plaintiff raised invoices from time to time. It is the Plaintiff's case that all invoices were duly received and accepted by the Defendant and no objection was raised as to the quality or quantity of the work referred to therein or the rates or amounts claims therein. The Plaintiff claims that after adjusting various sums paid by the Defendant towards these invoices, there is due and payable by the Defendant to the Plaintiff a sum of Rs.1,13,06,769.40, in accordance with particulars of claim annexed as Exhibit "M" to the plaint.
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These are the bare facts of the Plaintiff's case. There is one more additional aspect of her case. The PlaintiffPrabha Shenaiclaims to have taken over the assets, book debts and liabilities of the proprietorship firm from its erstwhile proprietorPrakash Shenai -- under a writing dated 30 April 1998. Prakash Shenai is the husband of the Plaintiff. (Incidentally, it was he who appeared as a constituted attorney of the Plaintiff at the trial and at the hearing before me.) One of the issues arising in this suit concerns the entitlement of the Plaintiff to recover the suit dues.
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The Defendant, in its written statement, apart from contesting the Plaintiff's locus, on the ground of lack of privity, disputes the Plaintiff's entitlement to payment under the invoices, referred to as 'on account bills', on the ground of want of certification of the bills by the Engineer of the Defendant. The Defendant submits that the Plaintiff failed and neglected to perform the contractual obligation of 50000 cubit metres of earth filling per month and barely managed 6000 cubic metres work per month. It is submitted that the work was not completed/done properly; that the work was of poor quality; and that as a result the Defendant suffered damages.
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On these pleadings, the following issues were framed by my predecessor:
"1. Whether the Plaintiff is the sole proprietor of M/s. Sterling Engineering Co., entitled to file the present suit.
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Where there is a privity of the contract between the Plaintiff and the Defendants.
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Whether the contract between the parties was modified on 02.05.1995 by the parties.
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Whether the parties performed their reciprocal promises under the contract that prevailed between them.
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Whether the Defendant validly terminated the contract between the parties.
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What relief, if any, is the Plaintiff entitled to?"
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The Plaintiff produced voluminous documentary evidence. (The documents are marked in evidence as Exhibits 'A' to 'DDD'.) Mr. Prakash Shenai, the former proprietor of the firm Sterling Engineering Co. and constituted attorney of the Plaintiff, was examined by the Plaintiff as her witness. He was crossexamined by Mr. Makhija, learned Counsel for the Defendant. The Defendant relied on the documentary evidence on record, but did not lead any oral evidence.
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Before I take up the issues for consideration, I must dispose of one particular objection raised by Counsel for the Defendant. The objection was to the authority of the constituted attorney of the Plaintiff to file the suit and appear in it. First of all, an objection was raised on the ground that the power of attorney executed by the Plaintiff in favour of the constituted attorney do not bear serial number in the notarial register. Learned Counsel for the Defendant relied on some judgments of our Court in this behalf. Recording of the serial number on a notorised document bears on proof of the document and its notarisation and not validity thereof. In my view, the execution of the documents before the notary public is sufficiently proved by the Plaintiff through PW1. The proof inspires confidence and the mere absence of serial number of the notarial register on the documents does not shake the testimony. What, however, learned Counsel really objected to was to the constituted attorney of the Plaintiff appearing at the hearing and arguing her case. He submitted that a nonadvocate cannot be permitted to address the Court on the strength of a power of attorney. He submitted that the right to practise in Courts belongs to advocates alone, by virtue of Sections 29, 30 and 33 of the Advocates Act, 1961. This right to practise covers authority to 'act, appear and plead' for the principal or client. Section 32 of the Advocates Act authorizes the court to permit any other person, including the power of attorney holder of a party, to appear, but such appearance cannot include pleading the party's case before the Court. Learned Counsel relied on Order III Rules 1 and 2 of the Code of Civil Procedure in this behalf and also cited the judgments of Andhra Pradesh and Gujarat High Courts in Hari Om Rajender Kumar v. Chief Rationing Officer of Civil Supplies, AIR 1990 AP 340 and Jaymal Thakore v. Gujarat State Charity Commissioner, Ahmedabad, AIR 2001 Guj 279 in support of his contentions.
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Section 32 of the Advocates Act provides as follows:
"32. Power of Court to permit appearances in particular cases.-- Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case."
Now the question is, whether a person permitted by the Court to "appear" within the meaning of Section 32 of the Act can address the Court and argue the matter. That would depend on what is meant by the word "appear". The word itself not having been defined in the Act (or, for that matter, even in the Code of Civil Procedure or Rules of our High Court), its meaning will have to be gathered from the context in which it is used. In the Advocates Act, Section 32, which deals with permission to 'appear', comes within Chapter IV titled "Right to Practise". This Chapter obviously deals with the right to practise the profession of law. Section 29 of this Chapter provides that with effect from the appointed date only one class of persons is entitled to practise the profession of law, namely, advocates. Under Section 30, this right extends to all courts, tribunals or persons authorized to take evidence and authorities or persons before whom advocates are, by virtue of any law, entitled to practise. Section 32 begins with a nonobstante clause. It is clearly an exception to the rule that only advocates can practise law. The court, authority, or person, before whom advocates practise, may in a given case permit 'any person' to appear in any particular case by virtue of this Section. Is it then to be meant that when a person is so permitted, he cannot actually address the Court, authority or...
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