Secondary evidence admissibility: unauthenticated bank extracts cannot establish agency, so substitution in liquidation is refused.

Where primary evidence of an agent's authority is absent and conditions for secondary evidence are unmet, extracts from bank books without proof of authorship are inadmissible and insufficient to establish an assignment or authority to seek substitution in liquidation; consequently substitution was refused. Claims of ratification or estoppel raised only on appeal are factual issues not litigated below and cannot be entertained at that stage, so they do not cure defects in authority or proof. The lower court findings stand and the application for substitution in liquidation fails with costs to respondents.

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Issues: (i) Whether the appellant could be permitted to proceed in the liquidation with substitution in a preliminary mortgage decree based on an alleged assignment and alleged authority of an agent where the assignment is unsigned and primary evidence (the principal power of attorney) is not produced; (ii) Whether ratification or estoppel could be relied on when raised for the first time on appeal.

Issue (i): Whether the alleged assignment and authority to act on behalf of the bank were proved so as to justify substitution in the liquidation proceedings.

Analysis: Relevant statutory provisions include Section 171 of the Indian Companies Act, 1913 and the admissibility rules under Section 65 of the Indian Evidence Act. The assignment document on its face lacked signatures on behalf of the bank. The alleged power of attorney (the principal) was not produced and the circumstances did not satisfy the conditions permitting secondary evidence under Section 65. The secondary evidence relied on was an extract purportedly from bank books without proof of authorship or verification, and the concurrent findings of the Indian courts held that authority of the agent (Balakram) from the directors was not established. The evidence of agency was inconsistent and unreliable.

Conclusion: The appellant failed to prove the assignment or the agent's authority; this issue is decided against the appellant.

Issue (ii): Whether ratification or estoppel could be raised at this stage to cure defects in authority or proof.

Analysis: Ratification and estoppel are questions of fact which were not put in issue at trial and were raised for the first time on appeal. Given they were not litigated below, it is procedurally impermissible to entertain them at this late stage.

Conclusion: The issues of ratification and estoppel cannot be raised for the first time on appeal and are rejected.

Final Conclusion: No basis was established for substitution in the liquidation; the application fails and the lower court's determinations remain authoritative, with costs awarded to the respondents.

Ratio Decidendi: Where primary evidence of authority (the principal power of attorney) is not produced and conditions for secondary evidence under Section 65 of the Indian Evidence Act are not satisfied, secondary extracts without proof of authorship are inadmissible or insufficient to establish agency or authority to effect substitution in liquidation.

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