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Nitin Kotian (Advocate)     07 September 2011

Substitution application of representative in 138 matter

Sir/Madam,

Being a Junior lawyer i am asking this query.

I happened to appear in one of Metropolitan Magistrate Courts, Mumbai for a 138 Matter under The Negotiable Instruments Act. The matter was kept for Substitution Application of the Bank's Representative ( hereinafter referred to as B.R.), whereby alongwith the application i annexed the Notarised Copy of the Power of Attorney of the B.R and requested the magistrate to verify the original alongwith the true copy and return back the original since the same is required by the B.R. Now the lawyer for the defendent has raised an objection stating that the original power of attorney be submitted to the court's record. Now our B.R states that he cannot give the original poa to the court as per her bank's rules as she requires the same in many more cases and also in various meetings while representing the bank. The court is however adamant to handover the original poa. However i took an adjournment on the pretext that we need to speak with the senior management of the banks and The matter has been scheduled in next week.


My Query is :

1) Is there any section or any caselaw whereby is can suffice the court from handing the original poa

2) Also does Section 8 of  The Banker's Book Evidence Act 1891 suffice here in producing only the notarised copy of the poa.

 

Regards,

 

Nitin P. Kotian




Learning

 7 Replies

subhash kulkarni (put in more than 40 years practice)     08 September 2011

You can prefer a written application that the original power of attorney being a general power of attorney is required to be produced in number of cases and the true xerox copy of the same be compared with the original by the presiding court or his judicial clerk and on making the endorsement on xerox return the original to your client. However if the otherside is challenging its' genuineness or for insufficient stamp then court may use discretion of not returning the same to you. Whatever the case make a written application so you will have a written order which you feel is open for challenge , you have remedies available to you.

subhash kulkarni

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     08 September 2011

You have to submit original , otherwise original has to be deposited in Dt court and get certified copy from them than it is allowed as evidence.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     08 September 2011

 

This is section 8 and it does not  include POWER OF ATTORNEY.

[(8) "Certified copy" means when the books of a bank, -

 

(a) Are maintained in written form, a copy of any entry in such books together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book is still in the custody of the bank, and where the copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which such copy was prepared has been destroyed in the usual course of the bank's business after the date on which the copy had been so prepared, a further certificate to that effect, each such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title; and

 

(b) Consist of printouts of data stored in a floppy, disc, tape or any other electromagnetic data storage device, a printout of such entry or a copy of such printout together with such statements certified in accordance with the provisions of section 2A.]

 

7[(c) a printout of any entry in the books of a bank stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism obtained by a mechanical or other process which in itself ensures the accuracy of such printout as a copy of such entry and such printout contains the certificate in accordance with the provisions of section 2A.]

Arun Kumar Bhagat (Advocate (criminal))     07 October 2011

The Magistrate should not have asked to deposit original at this stage. However you make an attempt to deosit a notary attested copy if the same is attested then well and good otherwise either you have to assil the illegal order before superior court or alternatively you deposit the same in court then get certified copy of the same from the court and thereafter make a prayer to replace the original with the court certified copy. 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     08 October 2011

Power of attorney act does not recognise notary attested copy as evidence in the court.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     08 October 2011

Dear Nitin

Mr. Subhas Kulkarni is rightly opiened, i am agree with him

Pranav S. Thakkar (advocate)     08 October 2011

Mr. kulkarni, says practical solution....I agree with him. But, her u can ask to the bench cleark wht they required about power of attorny.


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