UNION BANK OF INDIA vs O L SHREE LAXMI TRADERS LTD. on 28 May 2024

1. By way of the present IA, the Applicants are praying for leading Secondary Evidence in respect of Documents at Annexure Nos.Y1, Y2 and Annexure No.Y3 and producing and relying upon the Statement of Account of Defendant No.1 in evidence.

2. It is stated that the Applicants have filed the Claim Affidavit of Mr. Rajendra V. Mane, the Director of the Applicants and also filed Completion of Applicant’s Documents in the present OA. The Applicants have filed the office copies of the notices issued by the Applicant’s Advocate to the Defendant at Annexure Nos.Y1, Y2 and Y3 to the completion of documents. After verification of the documents by the Registry, the objections have been raised as to the proof of dispatch or delivery of the said notices issued by the Applicant’s Advocate to the Defendants. At the time of filing of the Suit in 1986, all the relevant papers, correspondences exchanged between the parties and the security documents relating to the credit facilities availed by the Defendant No.1 were handed over to their Solicitors M/s Gagrat & Co for drafting the Plaint and other Interim Applications and taking further steps as may be necessary in the matter. The said matter was handled by the said Solicitors up to the stage when it was pending in the Hon’ble High Court of Mumbai. Subsequently upon the matter being transferred to this Tribunal, the Applicants officers approached their Solicitors for obtaining “NOC” for appointing a new Advocate as also for taking back the original documents. It was then learnt that the solicitors firm of M/s Gagrat & Co. has been wound up and their office at Flora Fountain was closed down. At the said time whatsoever papers available were handed over to the Applicants Officers.

3. It is further submitted that on going through the papers, it was noticed that though the office copies of the notices issued by the Applicant’s Advocate to the Defendants which are produced at Annexure Nos. Y1, Y2 and Y3 to the completion of documents are handed over to the Applicant, the acknowledgment or proof of dispatch or delivery of the said notices are not available with the Applicants and the same is either lost or misplaced and not traceable after due diligent search at the Branch. The Applicants have made several enquiries with their Solicitors, however, no further papers could be traceable at their end. The Applicants have also searched with their branch however, the aforesaid documents are not traceable in the record of the Applicants Branch. In the aforesaid circumstances, the same cannot be produced in original in evidence.

4. It is also stated that the Defendants have not denied the existence of the said notices in their Written Statement and therefore, the receipt thereof is deemed to be admitted by the Defendants.

5. It is also stated that the applicants have filed the Particulars of Claim showing balance due at the foot of the account however, inadvertently the Statement of Account remained to be produced at the Completion. It is submitted that the statement of account shows the same amount which is the amount of the Balance Confirmation Letters executed by the defendants. Thus, the Applicants are seeking leave of this Tribunal to produce the said certified true copies of statement of account in respect of the Term Loan (Account No.1) and Term Loan (Account No.2) as and by way of evidence and pray that the Applicants be permitted to produce the said true copies which are filed at Annexure A and B respectively to the additional compilation filed alongwith the present Application and the same may be taken on record.

6. On the other hand, Ld. Counsel for the Defendant No.2 objected to the Application for Leading Secondary Evidence and Producing Certified True Copy of the Statement of Accounts. She submitted that there are no pleadings/averments either in the OA or in the Claim Affidavit regarding the statement of Accounts in respect of term loan 1 and term loan account no.2 of which the Applicant Bank wants to produce certified copies. Also the statement of account is not annexed to the OA or the Completion of Documents and has been relied upon for the first time in the present IA, therefore, the Applicant cannot be permitted to produce the certified copy and lead secondary evidence on the same in the absence of any pleadings.

7. She further submitted that there are no pleadings either in the Plaint/OA or in the claim affidavit regarding proof of service of the documents at serial 53, 54 and 55 (Y-1 to Y-3) on the Defendants.

8. She also submitted that the Defendant No.2 has specifically pleaded that the Applicant Bank has not annexed the statement of account to the Plaint and in para 25 of its written statement has specifically pleaded that it has not received any demand notice dated 10.10.1986 in view of these pleadings the Applicant cannot lead the secondary evidence on (Y-1 to Y-3).

9. She further submitted that the reason given by the Applicant Bank for not producing the acknowledgment of service of demand notice, is unbelievable, frivolous and unacceptable. No affidavit is filed by any partner, advice or clerk from Gagrat & Co testifying the veracity of statement made by the Applicant Bank regarding the acknowledgment being lost/misplaced, its mere statement of a person who is not authorized to file any application and therefore, cannot be accepted, also the said Ramkrishna does not have personal knowledge of the fact which he has deposed.

10. I have heard the arguments advanced by both the sides and perused the record.

11. According to the Applicants, the documents i.e. Annexure Nos. Y1, Y2 and Y3 to the completion of documents, the acknowledgment or proof of dispatch or delivery of the said notices are not available with the Applicants and the same is either lost or misplaced and not traceable after due diligent search at the Branch. Therefore, the true copies of the same may be taken on record.

12. It is trite law that the party must adduce primary evidence to prove the documents and only in eventualities elucidated in Section 65 (a) to (g) of the Evidence Act 1872, secondary evidence can be adduced to prove the extension, contents of the documents.

13. Section 65 of the Indian Evidence Act, 1872 is extracted herein below: “Cases in which secondary evidence relating to documents may be given. —Secondary evidence may be given of the existence, condition, or contents of a document in the following cases: —

(a) When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in to be given in evidence; to be given in evidence;"

(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.” (emphasis provided)

14. Thus, in sub–Section (c) of Section 65 of the Evidence Act, 2022, the eventuality of destroyed or lost original documents has been mentioned.

15. Further, Section 63 of the Evidence Act, 1872, provides the types of secondary evidence which is reproduce herein below: “Secondary evidence. —Secondary evidence means and includes—

(1) Certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) Copies made from or compared with the original;

(4) Counterparts of documents as against the parties who did not execute them;

(5) Oral accounts of the contents of a document given by some person who has himself seen it.” (emphasis provided)

16. Thus, the Indian Evidence Act, 1872, provides the condition and scheme for the secondary evidence of the photo state copy.

17. Hon’ble Supreme Court in Benga Behera & Onr Vs. Braja Kishor Nanda (2007) 9, SSC 728 while, dealing a matter of the lost will, in para 29 of the said judgement recorded inter alia that: “................................ No information was lodged about the missing of the documents before any authority. Even the approximate point of time the will was lost, was not stated……..” (emphasis provided)

18. Further in para 31 of the said Judgement inter alia it is held that: “The loss of the original, therefore, was required to be proved.” (emphasis provided)

19. Admittedly, in the present matter no information was lodged regarding the missing of the documents with any authority by the Applicants.

20. Further, this is the case of the Applicant that the documents were handed over to their Solicitors

M/s Gagrat & Co for drafting the Plaint and other Interim Applications when the Applicants approached their Solicitors for taking back the original documents, it was learnt that solicitors firm of M/s Gagrat & Co. has been wound up and their office at Flora Fountain was closed down and at the said time whatsoever papers available were handed over to the Applicants Officers. The office copies of the notices issued by the Applicant’s Advocate to the Defendants which are produced at Annexure Nos. Y1, Y2 and Y3 to the completion of documents are handed over to the Applicant, the acknowledgment or proof of dispatch or delivery of the said notices are not available with the Applicants and the same is either lost or misplaced and not traceable.

21. However, when these documents were lost and what step has been taken by the Applicant, nothing has been provided on record. Moreover, how the bank got the Xerox copy of the original documents was also not proved.

22. Insofar as Statement of Account is concerned, since the Applicant has already produced the Particulars of Claim showing balance due at the footing of the account therefore, the statement of account is only a complete detail of the said claim and hence, same is taken on record.

23. In view of the above the present IA is hereby disposed off. PO DRT-I