2019 (6) TMI 1344 - HC - Indian Laws

Dishonor of Cheque - Complaint by Power of Attorney Holder who have no knowledge of facts - whether respondent is a wakf or not - Scope of Affidavit filed with complaints - Maintainability of summon orders - Section 138 of the Negotiable Instruments Act 1881 - HELD THAT - The affidavits appear to prima facie fulfil the parameters of observations in para 8 of the said verdict (A.K.K. NAMBIAR VERSUS U.O.I. 1969 (10) TMI 79 - SUPREME COURT ) in the circumstances put forth. However the same does not suffice to bring forth the maintainability of the complaints as of date. The trustees are joint owners of the trust property and a Trust does not have a legal existence of its own and no single trustee can sue in the name of the Trust and all trustees must be impleaded in the suit and the trustees execute a power of attorney empowering one of them to represent all and cannot do so by passing a resolution and that all trustees should join the suit. It is thus indicated that Rabea Begum Executant No.3 died on 5th October 1949 and Hakim Mohammad Said Executant No.2 was declared an evacuee and his share was taken possession of by the Custodian of Evacuee Property and thus Mr. Hakim Abdul Hameed Executant No.1 became the sole surviving Wakif-Mutawalli and all rights powers and duties of Wakif Mutawalli conferred by the Deed thus vested in him and it was mentioned thereby that he would be construed to mean the sole surviving Wakif-Mutawalli in relation to the all rights powers and duties provided for the Wakif Mutawallis in the Wakf Deed as it has been submitted through the submissions made on behalf of the petitioner and which have not been refuted on behalf of the respondent that even the said Shri Hakim Abdul Hameed who executed the Power of Attorney in favour of Javed Akhtar has since expired there is nothing that has been put forth on the record by the respondent to indicate that there is any other Chief Mutawalli that has been appointed apart from the factum that it has already been laid down by this Court that the respondent is not a Wakf. Petition not maintainable and the summoning orders are thus quashed.

Summary

Issues Involved:
1. Maintainability of complaints based on the deposition of a Power of Attorney holder.
2. Validity of complaints filed by a Trust.
3. Legal status of the respondent as a Wakf.
4. Requirement of affidavit in support of the complaint.
5. Verification of pre-summoning affidavits.
6. Jurisdiction and authority of the complainant.

Detailed Analysis:

1. Maintainability of Complaints Based on the Deposition of a Power of Attorney Holder:
The petitioner contended that the complaints were not maintainable as the summons were issued based on the deposition of a Power of Attorney holder, who lacked personal knowledge of the case facts. The petitioner referenced the Supreme Court's verdict in A.C. Narayanan Vs. State of Maharashtra, which stipulates that a Power of Attorney holder must have personal knowledge of the transactions to issue a complaint under Section 138 of the Negotiable Instruments Act, 1881. The court noted that the affidavit of Mr. Javed Akhtar, the Power of Attorney holder, was on record in pre-summoning evidence, which the summoning orders had considered.

2. Validity of Complaints Filed by a Trust:
The petitioner argued that a Trust is not a legal entity and cannot sue in its name. All trustees must join the action, and a single trustee cannot give a Power of Attorney to sue on behalf of the Trust. The court referred to the judgment in Duli Chand vs. MahabirPershad Trilok Chand Charitable Trust, which established that all trustees must be impleaded in a suit, and a Trust does not have a legal existence of its own.

3. Legal Status of the Respondent as a Wakf:
The petitioner submitted that the respondent was not a Wakf, as held by the court in CS (OS) 116/1972. The court acknowledged this and noted that the complaints were filed based on the assertion that the respondent was a Wakf, which was incorrect.

4. Requirement of Affidavit in Support of the Complaint:
The court observed that no affidavit was annexed to the complaints, but affidavits in pre-summoning evidence were filed. The court referred to the Supreme Court's verdict in A.C. Narayanan, which allows the issuance of process based on the affidavit submitted by the complainant in support of the complaint.

5. Verification of Pre-Summoning Affidavits:
The petitioner contended that the pre-summoning affidavits were not verified to the knowledge of the Power of Attorney holder. The court noted that the verification of affidavits is essential to test the genuineness and authenticity of allegations. The affidavits in the present case appeared to fulfill the parameters of the Supreme Court's observations, but this did not suffice to establish the maintainability of the complaints.

6. Jurisdiction and Authority of the Complainant:
The court noted that the complaints were based on the assertion that the respondent was a Wakf, which was incorrect. Additionally, the court highlighted that there was no indication of any other Chief Mutawalli appointed after the death of the original executants, further questioning the authority of the complainant.

Conclusion:
The court concluded that the complaints in their present form were not maintainable and quashed the summoning orders. However, it allowed the respondent to seek redressal in accordance with the law regarding the dishonored cheques. The Trial Court Records (TCR) were ordered to be returned.