CANARA BANK Vs. GARTS IND TEX PVT LTD

JUDGEMENT

(1.) The inherent powers of the Court to pass such orders required in the ends of justice and for preventing abuse of the process of court have been saved under Section 151 of the Code of Civil Procedure. Certain specific provisions have also been provided in the Code to deal with such situations, in dealing with false and vexatious claims and abuse of the process of the court. In this appeal we are called upon to deal with some such powers specifically provided under the Code.

(2.) The appeal is filed against the Order dated 27-3-2006 in I.A. No. 5243/2005 in O.S. No. 452/2002 on the file of the I Additional Sub Court, Ernakulam. The plaintiff is the appellant. Parties are referred to as plaintiff and defendants. The plaintiff Bank instituted the suit for realisation of amounts advanced to the first defendant firm. Defendants 3 and 4 are the sureties. According to the plaintiff the second defendant had executed a power of attorney in favour of the 4th defendant and using the said power of attorney the 4th defendant mortgaged the property belonging to the second defendant towards security. According to the second defendant, the 4th defendant had forged the power of attorney and as soon as he came to know of the same, he filed a suit, O.S. No. 1568/2003 before the Munsiff Court, Ernakulam, for a declaration that the power of attorney is null and void. (The said suit was later transferred to the Sub Court and renumbered as O.S. No. 29/2005 to be tried along with O.S. No. 452/2002).

(3.) On the date of execution of the power of attorney, ie. on 17-10-1997, the second defendant was not in India and the passport was produced before the court to establish his case. It was also brought to the notice of the court that the plaintiff had not produced the original of the power of attorney. Thus, according to the second defendant, since the whole case is rested on a forged power of attorney, no cause of action is made out and the suit is liable to be rejected under Order VII Rule 11 (a) of the Code of Civil Procedure. I.A. No. 5243/2005 was filed for that purpose. The plaintiff Bank contended that the application is premature and it is intended only to circumvent the limitation pleaded by the Bank in O.S. No. 29/2005. It was also contended that any order passed in I.A. No. 5243/2005 would affect the trial and disposal of O.S. No. 29 of 2005.