TaxTMI 
TaxTMI 
2004 (12) TMI 646
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....source of income and whether they had contributed for purchase of this property from their own independent income. The Debt Recovery Tribunal will also decide whether this property was the residence of the appellants at the time possession was taken. The Debt Recovery Tribunal shall permit the parties to lead evidence, both oral and documentary. It must be clarified that the burden of proving that the appellants have a share in the property will be on the appellants. The Debt Recovery Tribunal shall then forward its decision to this Court within a period of six months from today." (Emphasis supplied) Avoiding prolixity, but at the risk of repetition the directions were founded on the following facts: The 1st appellant is the wife of the 5th respondent and the 2nd appellant is the wife of the 2nd respondent. The respondent-bank extended loan facilities to the 6th and 7th respondents, M/s Bhojwani Hotels Pvt. Ltd. and Hotel Amir Pvt. Ltd., which are run by respondent Nos. 2 to 5 namely Dr. Laxmikant Rewachand Bhojwani, Mr. Sanjay Laxmikant Bhojwani, Mr. Romy Laxmikant Bhojwani and Mr. Vashdeo Rewchand Bhojwani. The loan facilities were to the extent of Rs. 22 crores in one case a....
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....ry of a sum of Rs.3.86 crores. Again on 25th October, the respondent-bank filed another suit against respondent nos. 2 to 6 and one M/s Progressive Land Development Corporation, OA No.160-P of 2001 for recovery of a sum of Rs.27.5 crores. M/s Progressive Land Development Corporation is a partnership firm of which the appellants are the partners along with others. Thereafter, as recited above the DRT passed an injunction order in which one of the properties the respondents were restrained from alienating was 38, Koregaon Park, Pune. On 13.9.2001, a decree was passed in OA No.159-P of 2001 and in the said decree the property at 38, Koregaon Park, Pune was shown as one of the mortgaged properties. All these proceedings against their husbands and M/s Progressive Land Development Corporation which is a partnership firm and in which the appellants are partners along with others, were within the knowledge of the appellants. The appellants, however, feigning ignorance of the facts and proceedings, took a plea that they came to know about the attachment of the property at 38, Koregaon Park, Pune only through the public notice published in the Times of India of 25.1.2002. In the backdrop of....
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....pendent income. The Tribunal was directed to permit the parties to lead evidence, both oral and documentary. This Court further clarified that the burden of proving that the appellants have a share in the property will be on the appellants. The second fallacy of the order of Tribunal was allowing Mr.V.R.Bhojwani (power of attorney holder), husband of appellant no.2 Ms.Mohini Laxmikant Bhojwani, to appear in the witness box on behalf of the appellants. It may be noted that that the appellants were shy away from gracing the box. The respondent-bank vehemently objected to allowing the holder of power of attorney of the appellants to appear in the witness box on behalf of the appellants. This Court clarified that the burden of proving that the appellants have a share in the property will be on the appellants and it was incumbent on the appellants to have graced the box and discharged the burden that they have a share in the property, the extent of share, the independent source of income from which they have contributed towards the purchase of the property. The entire context of the order dated 10.2.2004 was forwarded to the Tribunal for the purpose. It is unfortunate that the Tribunal....
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....ney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. Having regard to the directions in the order of remand by which this Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr. Bhojwani to represent them and the Tribunal erred in allowing the power of attorney holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to establish that they have any independent source of income and they had contributed for the purchase of the property from their own independent income. We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the property in question. The finding recorded by the Tribun....
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....y the Tribunal in the present case, the High Court took a dissenting view and held that the provisions contained in order III Rule 2 of CPC cannot be construed to disentitle the power of attorney holder to depose on behalf of his principal. The High Court further held that the word "act" appearing in order III Rule 2 of CPC takes within its sweep "depose". We are unable to agree with this view taken by the Bombay High Court in Floriano Armando (supra). We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled. In the view that we have taken we hold that the appellants have failed to discharge the burden that they have contributed towards the purchase of property at 38, Koregaon Park, Pune from any independent source of income and failed to prove that they were coowners of the property at 38, Koregaon Park, Pune. This being the core question, on this score alone, the appeal is liable to be dismissed. Despite, we now proceed to ....
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....The Indian currency equivalent to Rs. 12,88,660 has been deposited in SB A/c NO.7930 with UBI, Pune Camp Branch. The xerox copy of Certificate No.284 issued by UBI, Pune Camp Branch is attached. b) US$ 25,000 vide TT No. 559271 drawn on Bank of India, Singapore. The Indian currency equivalent to Rs. 6,43,902 has been deposited in SB A/c No. 7930 with UBI, Pune Camp Br. The xerox copy of Certificate No.92 issued by UBI, Poona Camp Branch is attached. At page 160 Vol.V, Sl.No.8 and 9 it is shown that the assessee has deposited Rs. 3,47,465 in CA No. 22035 with Union Bank of India, Poona Camp Branch towards the payment to be made for construction of residential house at 38 Koregaon Park, Pune, out of sale proceeds of shares and foreign remittances received. The assessee has paid Rs. 15,03,290/- to M/s Bhojwani Brothers towards the return of loan taken on CA out of foreign remittances received. He has also shown at page 164 Vol.V, Sl.No.6 and 8 that the assessee has invested Rs.75,000/- in construction of bungalow at 38 Koregaon Park, Poona, out of rent and salary received and balance in SB A/c No. 7930 with UBI, Poona Camp Branch and sale proceeds of shares. The Assessee has paid Rs....
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....is income is their own independent income and they had contributed for purchase of the suit property. No reliance can be placed on the said documents. Regarding the capital received from foreign remittances under Foreign Exchange (Immunity) Scheme, 1991, learned counsel Mr. Rohtagi contended that under the scheme the appellants are immune from disclosing the source of receipt. It is true that as per the terms of the scheme the recipient will not be required to disclose for any purpose the nature and source of remittances and further no enquiry or investigation will be commenced against the recipient under any law on the ground that he has received such remittance. It only protects the appellant from prosecution under FERA and income tax. It does not prohibit the appellants from disclosing the sources. Furthermore, the remittance, so received by the appellants, could not be described as income, much less an independent income. As already noticed, in the instant case, a duty is cast upon the appellants to discharge the burden of proving that the appellants have a share in the property. The appellants could have disclosed the source of remittance to discharge the burden. At this sta....