This article is written by Saurabh, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from Lawsikho.com.
Table of Contents
Introduction
Court discipline has certain rules & regulations which is the priority in court proceedings. For that, the aggrieved party appoints an advocate to plead for the case in front of the court. But, the lawyer has to have the approval of the party to plead for the case and there has to be a physical document which states that the advocate has been given the authority by the client on his behalf to plead for the case in front of the court. For this, the Vakalatnama is the authoritative document to be submitted to the court. Vakalatnama can be defined as a written document signed by the grantor to allow his advocate to plead the case in front of the court for the respective legal dispute the advocate is assigned for through which the advocate gets legal powers to handle the case.
Power of attorney, as the name itself suggests, it is a power given to a substitute. The advocate can just plead in the cases for the desired output of the client, but if the court suggests a remedy, the advocate doesn’t have the power or authority to take decisions on behalf of the client. The client himself can communicate with the advocate but there is a representing party as well for the communication and decision making between the client and the advocate. So, the client can give the right to a person who has the power & authority to take decisions on his behalf for the court. So, power of attorney can be defined as the document which allows the person to appoint another person or an organization that gives power to act as the person executing it to manage the affairs regarding the dispute submitted in the court.
Vakalatnama & the governing law
Vakalatnama is a procedure and part of High Court rules but there has been no mention of Vakalatnama in Code of Civil Procedure, 1908 as well as in the Power of Attorney Act, 1882. It’s a legal procedure which is mandatory when the advocate pleads over his advocate’s case in the court but none of the Acts state the procedure of the application of a Vakalatnama. But under Section 2(u) of Advocates’ Welfare Funds Act, 2001, the definition of Vakalatnama can be found which says,
“Vakalatnama” includes a memorandum of appearance or any other document by which an advocate is empowered to appear or plead before any court, tribunal or other authority;
which basically explains that by Vakalatnama, the document absorbs the motive of presenting oneself, i.e. the advocate, on behalf of another person, i.e. the client, which allows the advocate to plead the case in front of any legal authority covering court authorities. This document holder is called the pleader & the validity shall remain till:
- The end of the case.
- The client of the pleader allows it.
- Death of the pleader or client.
Power of attorney & the governing law
Unlike the Vakalatnama, there is a complete Act governing power of attorney which is called the ‘Powers of Attorney Act, 1882’ which governs the whole of India except Jammu & Kashmir. Section 1A of this Act governs the definition of the whole Act ‘Power of attorney’ which says,
“Power-of-attorney” includes any instrument empowering a specified person to act for and in the name of the person executing it;
which defines, that the authority given by the person to any other person or organization to act as a representative in governing his affairs by taking decisions on behalf of the person who has given the authority to do so. The Power of attorney doesn’t have any restriction to its validity apart from the following factors:
- Duration of the grant of power is mentioned in the document.
- Power of attorney is revoked by the grantor himself by registered cancellation deed.
- Under Section 202 of Indian Contracts Act, 1872, if an agency is coupled with interest and an express contract for termination is absent, the Power of attorney cannot be terminated even by the Principal’s death.
The provisions do differ from state to state as laid by their respective governments. For example, initially for general power of attorneys, there was no fixed term for its validity in Tamil Nadu. But new rules have been amended where the principal has to obtain a ‘live’ certificate with a passport photograph affixed on it from a medical practitioner or gazetted officer which basically is evidence that the power grantor is a living person and is alive at the time of granting the power. The certificate shall be valid for 30 days from the date of issue.
Similarly in Gujarat Amendment Bill 2018, the President of India assented and made it mandatory to register the Power of attorney within the state to prevent frauds and illegal transactions as there were observations by the court where the Principal used to refuse the grant of power given to the other person.
Vakalatnama & power of attorney – Similar or different
There have been various theories of similarities between the two but the powers covered by both the documents are different than perceived.
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Power of Attorney |
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Relevant case laws
- M/s Goa Antibiotics & Pharmaceuticals Ltd. vs. R.K. Chawla & Another
An application was filed by Mr. Vishu Kerikar, claimed to be having Power of attorney who wished to appear and argue on behalf of his petitioner who was M/s Goa Antibiotics & Pharmaceuticals Ltd. which is a company registered under Companies Act, 2013.
It was held that any natural person can appear in the court proceedings to argue on behalf of his own case instead of the advocate but when it comes to the concept of Power of attorney, the order said that the person who is enrolled as an attorney has to be a registered advocate to appear on the client’s behalf. The person not being an advocate when it comes to being the Power of attorney violates and defeats the purpose of Indian Advocates Act, 1861 which comes under Section 29. A Power of attorney cannot be appointed on behalf of someone else until & unless he is an enrolled advocate. The court asked the petitioner to engage a lawyer and argue on the behalf of the entity.
It shall also be noted that Section 32 of the Indian Advocates Act, 1861 says that the Court has the power to permit any person to appear before it who is not registered as an advocate in particular cases.
- M/s Shree Chem vs. The Rajasthan Financial Corporation, Jaipur & Others
The respondents had raised an objection to the appearance of Power of attorney for making submissions before the court. The powers granted to the attorney were including filing of suits & other applications in the court also allowing commencement of the other proceedings including civil & criminal. The attorney was also granted power to sign, to attest plaints, to swear to affidavits or to oath of a party or witness to accept service and defend in suit or other proceedings arising out of the said business. The issue raised was whether the Power of attorney holder can argue the matter.
Supreme Court held that Power of attorney can be the only person who is an enrolled advocate but in certain cases, the court has the authority to make a person permissible in the court who may not be registered as an advocate which is also covered in Section 32 of the Indian Advocates Act but particularly in this case, the application submitted to the court was incomplete and did not convince the court to allow the attorney to not be a registered advocate for arguing the matter in the court & thus the Supreme Court asked the petitioner to engage a lawyer to appear & argue on its behalf.
- Jagadheesh Chandra Dhabal Deb vs. Satya Kinkar Shahana
In Calcutta High Court, it appeared that the pleader who acted on behalf of the decree-holder did not file a Vakalatnama which came into notice after 3 years of the petition being filed i.e. in 1933 & the petition was filed in 1930. It was noticed in 1933 and the Vakalaktnama was duly stamped but the pleader again omitted to write his acceptance on the back of the document.
But, the application was signed & verified by the decree holder in 1934 which was accepted by the court and was not barred by limitation as the proceedings had already begun & the advocate & the decree-holder did not have raised any appeal against it.
- Bansh Narain Singh vs. Ashish Kanodia
Substitute application for Vakalatnama was filed in this case as the original decree holder passed away. The learned counsel did not find out that the application was defective as no affidavit was filed for the substitute and also, the substitute’s address was not mentioned in the application which made the document look suspicious.
But the learned Additional Commissioner still considered the length of the matter and allowed the substitute in place of the deceased. The review application for this Vakalatnama was dismissed by the Court.
Conclusion
The difference between Vakalatnama & Power of attorney is evident now. There are only two acts which have the definitions of both the documents. Clarity between the two hasn’t been expressed in any of the acts but there have been multiple case laws redefining & differentiating the same. Vakalatnama is the only valid authority for pleading the case by decree-holder to the advocate, whereas Power of attorney is the grant given to a registered advocate allowed to take decisions with respect to business affairs of the client. Vakalatnama doesn’t offer the flexibility as that document only defines the pleading authority relationship between the advocate & the decree-holder. The court can offer flexibility in case of Power of attorney as there are certain business offers which a person can know & understand better while taking decisions which can benefit the court proceedings as well as the decree-holder provided sufficient proof is submitted to the court and the court is satisfied to grant the same.
Vakalatnama sample
Power of attorney sample
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