Power of Attorney under Bangladeshi Law
by Miss Mardiah Chowdhury
The power of attorney is an agreement between two parties of the principal and the agent, the principal through a legal document grants agent the power which enables the agent to make legal decisions on their behalf. Section 7 of The Power of Attorney Act 2012 states that any act done by the agent shall be deemed done by the principle. Any person or company shall be liable if any work is done through a power of attorney for example in Janata Bank Vs. M/S Ahmedia Garments 16 CLC (HCD) 1987 the contractual obligation between two parties arises by the irrevocable power of attorney done by Janata Bank.
Section 4 of The Power of Attorney Act states that in case of irrevocable power of attorney the power can not be revoked before the expiration of the period and if any land-related transaction done within the period shall continue further after the expiration. Though the power cannot be revoked if an agent failed to serve any such condition or purpose then the party may by serving 30 days’ notice end the transaction, a copy of such have to submit to the sub-register office.
In case of irrevocable power of attorney as per section 9 of the Power of Attorney Rules, 2015 the parties have to follow the from 1 of schedule A and shall attach passport size picture, the signature of both parties. Also, have to attach the NID or Birth Certificate, or Passport. In the form along with the purpose and responsibility of the agent, some other information have to mention in the also-
Firstly, in the case of immovable property, the power is given for sale or for mortgage or receive money against the sale. Also, the schedule of the land and details of the plot or building or others.
Secondly, if power of attorney made for the development of any land then to what extent the agent can transfer or sell the plot or space shall have to be mentioned.
Thirdly, the value of the property.
Fourthly, any transaction between the principle and agent if done, any condition by the parties and under section 52A of the Registration Act if required and others.
After the expiration of the period the date can be extended by the consent of both parties through an agreement. If any party dies during the period his/her representative can continue as if the person has not died subject to section 9 of The Power of Attorney Act, 2012.
Section 6 of the Power of Attorney, 2015 defines special power of attorney where the agent submits the agreement to the sub-register office or any agreement for the benefit of the principle does and submits to the sub-register office. This kind of power of attorney shall be done under from 1 of schedule A as per section 7 of the following rules.
Section 5 of The Power of Attorney Act, 2012 deals with the serving of notice. Where if no party opinion’s different then the notice shall consider as served. The notice shall be served to the residence or was carrying business if not possible then the last residence he resides or the last carrying business. Section 14 of the Power of Attorney Rules states the provision of serving notice to a company or firm. For a company, a notice has to serve to the chairman or managing director or secretary or chief member and have to serve in the office address if not mention any then to the place where last carried business. For a firm to any or every one of the members to the official address if not mention any then carried business.
It is to mention that the registration of power of attorney is mandatory as per section 6 of the following Act but the procedure shall be followed according to section 52A of the Registration Act. In the power of attorney document, the purpose and the responsibility of the agent must be to be mentioned. Section 3 of the Power of Attorney Rules, 2015 states that alo0ng with the purpose the period and condition if any with details also the details information about the property, any other details if mention by section 52A of the Registration Act. The limitations of power of attorney extend to will, gifts or trust agreement or others as under section 4 of the Power of Attorney Rules, 2015.
In case of the principle not living in Bangladesh then section 33(1)(c) of the Registration Act shall apply, also should attach a stamp as per section 18 of the Stamp Act, 1899. A copy of such must have to send to the sub-registry office. According to section 10 of the Power of Attorney Rules if the principal living outside Bangladesh along with the procedure mention following the agent shall after receiving the power of attorney document within two months have to certify by a government official. Also, within three months shall attach an appropriate stamp and after that shall send a copy to the sub-register office. If the power of attorney document will also use in outside of Bangladesh then have to certify by notary publication as according to section 4 of the notaries Ordinance, 1961.
Section 8 of the Power of Attorney Act provides that in case of death of the principle his heirs or representative can continue. Section 9 provides that if an agent dies the document shall not be canceled rather will apply to the rest of the agents.
If the principle for any reason became lunatic or insolvents or dies but any bona fide party does any transaction then the agent shall be liable as like the principle as per section 10 of the following Act.
The fee of the registration of a power of attorney shall be fixed as per section 78 of the Registration Act. Section 13 states that in case of any dispute between the parties they shall mediate between themselves if fails to such can file a suit in the appropriate court that has the jurisdiction. The procedure of mediation has to follow as per section 16 of the Power of Attorney Rules.
Section 11 states that the power of attorney shall end on completion of the purpose, after expiration of the date or the purpose for which the agreement has done does not exist or vanished or others. If the principal becomes lunatic or becomes insolvents then the agreement shall also be ended. Also, the principle by providing 30 days’ notice can end the agreement.
Lastly from the above discussion, it can be said that though by the power of attorney the agent can do transaction but in case of immovable property the agent can only transaction or sale any plot or others on behalf of his principle to the extent mentioned in the agreement. Any work done by the agent shall be deemed done by the principle. Also, evidence can be taken on the basis of power of attorney as this can be seen in the case of Shaherunnessa Vs. Shamsunnahar 36 CLC (HCD) 2007.