Let me now deal with the photo copies of some of the documents filed on record. Section 63 of the Evidence Act provides- for leading secondary evidence. Secondary evidence cannot be accepted without sufficient reason being given for non production of the original. The loss of original document must be shown in order to lead secondary evidence. Secondary evidence of the document can be allowed to be lead only where original is proved to have existed but was lost or misplaced (see MANU/MH/0097/1973 : AIR1973Bom66 . Filmistan Private Ltd. Co. v. The Municipal Corporation for Greater Bombay). The document unless shown to have been compared with original one, mere copy of the document does not become secondary evidence. The person giving oral evidence who accounts for the contents must have himself seen the original document and not a mere copy. "Seen" here will obviously mean "read". A person who proposes to testify the contents of a document, either by copy or otherwise, must have read it. The contents of private documents may be proved as secondary evidence by any witness who has in fact read them. The secondary evidence is required to be proved in the same manner in which primary evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION.
SUIT No.485 of 1989
Bank of India, V M/s Allibhoy Mohammed, a
CORAM: V.C. DAGA,J.
DATED: 29th January,2008.
Citation: AIR2008Bom81, 2008(4)ALLMR808, 2008(5)BomCR847
1. The plaintiff (the bank) has filed the
suit against the defendant No.1 partnership
firm, and it’s partners, the defendant Nos. 2
to 5, holding them jointly and severally
responsible for recovery of the suit claim.
THE FACTUAL MATRIX
------------------
2. The plaint allegations reveal, sometime
in the months of January and April,1988 on the
request of the defendant No.1, who is engaged
in the trading activities of import and export
of leather merchandise, the plaintiffs’ Null
Bazar Branch granted certain financial
facilities to the defendant No.1 which it
failed to pay. Hence present suit was filed
for recovery of their dues.
3. The plaintiff bank claims that the
defendant No.1 failed to repay financial
facility granted against Letter of Credit
(L.C.) inspite of repeated demands and
reminders.
4. The plaintiff-bank also allege that the
defendant No.1 was granted over draft
facility, in consideration of which it has
executed Promissory Note on 31.12.1987 for Rs.
15,000/-; whereunder defendant No.1 agreed to
pay Rs. 15,000/- to the plaintiff with
interest thereon at the rate of Rs.6.5% over
minimum 16.5% of the interest with quarterly
rests.
5. The plaintiff allege that the defendant
no.1 has also executed continuing security
letter; letter of lien and set off dated
31.12.1987, together with letter declaring
partnership and holding all the partners,
jointly and severally, liable to pay
outstanding dues of the plaintiff-bank.
According to the plaintiff, outstanding dues
under the temporary over draft facility is in
the sum of Rs.11,238.25 with interest thereon.
6. The plaintiff-bank claims to have sent
demand notice through it’s Advocate on
7.12.1988 requesting defendants to pay
outstanding dues, due and recoverable from
them.
7. According to the plaintiff, aggregate
amounts which it has to recover on various
counts are in the sum of Rs. 1,20,456.48 ps.
together with Rs. 12,372.83 ps in the L.C.
account with interest thereon. Since this
amount was not paid by the defendants, the
plaintiff-bank has filed the present suit.
8. On being summoned, the defendants
appeared and filed their written statement,
denying their liability to pay suit claim.
9. Considering the rival pleadings,
following issues were framed.
ISSUES:
-------
1. Whether the plaintiffs prove
that the Letter of Credit facility and
Temporary Overdraft facility were opened
on request of the defendants?
2. Whether the plaintiffs prove
that pursuant to the Letter of Credit
facility the plaintiffs have parted with
money aggregating to Indian Rs.94,936.68
to one M/s. K. Chhatwani of West
Germany?
3. Whether the plaintiffs prove
that the Bill of Exchange was noted and
protested?
4. Whether the plaintiffs prove
that the sum of Rs.. 1,20,456.48 is due
and payable by the defendants to the
plaintiffs under letter of Credit
facility and a sum of Rs. 12,372.83 is
due and payable by the defendants under
the temporary overdraft facility?
5. Whether the defendants prove
that it was the obligation of the
plaintiffs to pay custom duty and Bombay
Port Trust charges and Clearing Agents
charges?
6. Whether the defendants prove
that he has cleared the goods from the
Custom Authority?
7. What reliefs?
8. What order?
EVIDENCE
--------
10. The parties were directed to file their
documents and affidavit by way of evidence.
Accordingly, the plaintiff has filed two
affidavits; one duly sworn by Shri Rajkumar
Bandi, Chief Manager, dated 13.9.2007; and
another dated 17.12.2007 duly affirmed by Shri
S.D. Thakore, another Chief Manager of the
plaintiff-bank. The documents in support of
the suit claim are also produced on record.
11. In addition to the above two affidavits,
plaintiff-bank has produced photostat copies
of two applications dated 21.1.1986 and
30.4.1986 made by the defendant No.1 for grant
of documentary credit facility without
producing originals thereof.
12. The plaintiff-bank has also produced
original D.P.Note for Rs. 15,000/-, letter of
continuity letter of lien and set off dated
31.12.1987 alongwith undated letter of
partnership. The photostat of the carbon copy
of the typed demand notice dated 7.12.1988
without signature of any Advocate, without any
proof of despatch or acknowledgement
evidencing receipt thereof is produced on
record. Two extracts of accounts without any
certification under the Bankers Books Evidence
Act are also produced on record, out of which,
one extract of account contains only one entry
with short signature of unidentified person;
whereas another extract of account does not
bear signature of anybody except round rubber
stamp of the bank.
13. With the aforesaid quality of evidence,
learned counsel for the plaintiff prayed for
decree in favour of the plaintiff-bank.
14. Now, first question which needs
consideration is; whether the evidence
tendered by the plaintiff-bank can be accepted
as legal evidence by this Court. Secondly,
whether the documents tendered by the bank can
be accepted as proved as per the provisions of
the Indian Evidence Act and can they be read
in evidence.
15. During the course of hearing, I tried to
put the learned Advocate for the
plaintiff-bank on notice that looking to the
quality of the affidavits and evidence on
record, suit might fail. However, learned
counsel for the plaintiff-bank, without taking
any hint, left it to the decision of this
Court saying that the Court may decide the
suit on its own merits in accordance with the
law on the basis of material available on
record.
16. Faced with the above situation and
approach of the learned Advocate for the
plaintiff-bank, suit in question is being
decided.
CONSIDERATION AND FINDINGS:-
--------------------------
17. The affidavits filed by the
plaintiff-bank cannot be read in evidence.
Firstly, because no legal authorisations are
produced on record by any of the swearers of
the affidavits. The original Power of
Attorney held by them are not produced. What
is produced on record are only the photostat
copies of Powers of Attorney without any
notarisation or authentication made by any
person authorised by law. The question is:
can they be read in evidence?
18. Let me turn to the Legal Provisions;
namely, Section 85 of the Evidence Act which
lays down that the Court shall presume due
execution and authentication of power of
attorney when executed before and
authenticated by a Notary Public, or any
Court, Judge, Magistrate, Indian Counsel or
it’s Vice Counsel or representative of the
Central Government, etc. This presumption is
available in favour of the original Power of
Attorney holder provided mandate of Section 85
is duly followed. In the case on hand,
neither the original power of attorney was
produced nor notarised photo copy was produced
on record. Consequently, both affiants failed
to prove that they are the duly authorized
persons to give evidence on behalf of the
plaintiff bank.
19. Now, the second question is : Can
affidavits in support of suit claim be read as
evidence? The legal position is that the
affiants, filing an affidavits, are required
to appear before the Court. They are required
to enter the witness box to testify the
contents of their respective affidavits as
laid down by this Court in the case of F.D.C.
Ltd v. Federation of Medical Representatives
Association India (FMRAI) and others, A.I.R.
2003 Bombay 371. The relevant extract of the
said judgment is reproduced hereinbelow for
immediate reference.
(A) Civil P.C. (5 of 1908), O.18,Rr. 4,
examination-in-chief in each and every
case is permitted in form of affidavittaking
affidavit on record- procedure to
be followed in appealable cases is
prescribed in R. 5- in Non-appealable
cases procedure under R. 13 is to be
followed.
" In other words, in the appealable
cases though the examination-in-chief of
a witness is permissible to be produced
in the form of affidavit, such affidavit
cannot be ordered to form part of the
evidence unless the deponent thereof
enters the witness box and confirms that
the contents of the affidavit are as per
his say and the affidavit is under his
signature and this statement being made
on oath to be recorded by following the
procedure prescribed under R.5".
(Emphasis supplied)
20. The above judgment is approved by the
Apex Court in the case of Ameer Trading
Corporation vs. Shapoorji Data Processing
Ltd.1 (2004) 1 S.C.C. 702.
21. In the above view of the matter, since
none of the affiants have entered the witness
box, the said affidavits can not form part of
evidence. Thus, they cannot be read in
evidence.
22. Apart from the above findings, assuming
that the affidavits can be read in evidence,
even then plaintiff-bank cannot succeed in the
suit for want of proof of loan documents and
extract of accounts as per the provisions of
Indian Evidence Act.
23. If one turns to the contents of both the
affidavits, which are identical in material
particulars, it would be clear that the
affiants have not stated as to how they became
conversant with the facts of the case and able
to depose in support of suit claim. None of
them have stated that they were in the subject
branch either as Branch Manager or in any
other capacity at the time when the subject
loan documents were executed and loan amounts
were disbursed. They do not say that they are
the scribe of the documents. They do not say
that documents were executed in their presence
by either of the defendants. It has also not
been stated as to on what basis the statements
were made in the affidavits; whether on the
basis of record or personal knowledge. Even
the signatures of the defendants on the loan
documents have not been identified by any of
the affiants.
24. At this juncture, Sections 61,62 and 63
of the Evidence Act need to be looked into
Section 61 lays down that contents of the
documents may be proved either by primary or
by secondary evidence. This Section is based
upon the principal that "best evidence" in the
possession or power of the party must be
produced. What the best evidence is, it
depends upon facts and circumstances of each
case. Generally speaking, the original
document is the best evidence. The contents
of every written paper are, according to the
ordinary and well established rules of
evidence, required to be proved by the
original document, and by that alone, if the
document is in existence. It is, therefore,
necessary that when a document is produced as
primary or secondary evidence, it will have to
be proved in the manner laid down in Sections
67 to 73 of the Evidence Act.
25. Where the execution of the document like
promissory note was denied, it is required to
be proved through the scribe, where the truth
of the facts stated in the affidavit is in
issue mere proof of handwriting and execution
of the document would not furnish evidence of
the truth of the facts stated in the document
or contents. Truth or otherwise of the facts
or contents so stated would have to be proved
by admissible evidence, i.e. by the evidence
of person who can vouchsafe for the truth of
the facts in issue as held by the Apex Court
in Ramji Dayawala and Sons Pvt. Ltd Vs.
Invest Import, A.I.R. 1981, S.C. 2085.
Person with knowledge must be examined. Every
document should first be started by some proof
before the person who disputes that document
can in any way be considered bound by it.
Document cannot be considered as proved
because it’s genuineness is not disputed by
the opposite party. Documents do not prove
themselves.
26. In the case on hand, person who can
vouch for truth of the facts in issue has not
been examined. Hence, documents cannot be
said to have been proved in accordance with
the provisions of Evidence Act.
27. Let me now deal with the photo copies of
some of the documents filed on record.
Section 63 of the Evidence Act provides- for
leading secondary evidence. Secondary
evidence cannot be accepted without sufficient
reason being given for non production of the
original. The loss of orignal document must
be shown in order to lead secondary evidence.
Secondary evidence of the document can be
allowed to be lead only where original is
proved to have existed but was lost or
misplaced (see A.I.R. 1973 Bom 66. Filmistan
Private Ltd, a Co. Vs. The Municipal
Corporation for Greater Bombay). The document
unless shown to have been compared with
original one, mere copy of the document does
not become secondary evidence. The person
giving oral evidence who accounts for the
contents of the document must have himself
seen the original document and not a mere
copy. "Seen" here will obviously mean "read".
A person who proposes to testify the contents
of a document, either by copy or otherwise,
must have read it. The contents of private
documents may be proved as secondary evidence
by any witness who has in fact read them. The
secondary evidence is required to be proved in
the same manner in which primary evidence.
28. Section 65 of the Evidence Act provides
that in each type of cases secondary evidence
relating to the document may be given. This
Section enumerates the seven exceptional cases
in which secondary evidence is admissible.
Secondary evidence is of the contents which
cannot be admitted without the production of
document in such a manner within one or the
othor of the cases as provided for in the
Section.
29. The prior permission of the Court is
required to be taken for producing secondary
evidence of the documents on the grounds that
original documents were lost. To sum up, when
anybody wants to lead secondary evidence, two
things are required to be proved; there must
be evidence of the existence of the original
documents and there must be evidence of their
loss. No permission to lead secondary
evidence was obtained by the plaintiff-bank.
30. So far as the case in hand is concerned,
the applications dated 21.1.1980 and 30.4.1986
and demand notice filed on record cannot be
said to be primary evidence since they are
mere photo copies. No evidence is on record
to show that at any time in the past, original
documents were in existence and that they are
lost. Nobody has deposed with respect to the
fact of having seen and compared original
document with the copy produced. The
secondary evidence of the contents of document
is inadmissible until non production of the
original is first accounted for, so as to
bring it within one or the other category of
the cases provided for in Section 65. For the
reasons recorded above secondary evidence
tendered is inadmissible and cannot be read in
evidence. Hence, these three documents
referred hereinabove are excluded from
consideration.
31. So far as the demand notice is
concerned, the same is a photo copy of the
typed copy without having the signature of the
Advocate; who had issued this demand notice.
Nobody has proved contents thereof. There is
no evidence on record showing despatch of this
notice or receipt thereof by the defendants.
Under these circumstances, this notice also
cannot be said to be a legal evidence. It
cannot be relied upon.
32. Moving ahead, so far as the other
primary evidence/original documents; namely,
D.P. Note, Letter of Continuity and letter of
lien, all dated 31.12.1987 are concerned, none
of these documents are proved by examining
scribe or person acquainted with the contents
of the documents or the signatures of the
executants. There is no statement made on
oath to prove contents in either of the
affidavits filed on record in lieu of
examination-in-chief.
33. The mode of proving the contents of the
documents has been dealt with in Sections
61-66. As already stated hereinabove the
production of the document purporting to have
been signed or written by a certain person is
no evidence of its authorship. It is
necessary to prove their genuineness and
execution. Proof, therefore, has to be given
of the handwriting, signature and execution of
a document. No writing can be received in
evidence as a genuine writing until it has
been proved to be a genuine one, and none as a
forgery until it has been proved to be a
forgery. A writing, by itself, is not
evidence of the one thing or the other. A
writing, by itself, is evidence of nothing,
and therefore is not, unless accompanied by
proof of some sort, admissible as evidence.
34. Section 67 refers to documents other
than documents required by law to be attested.
It says that the signature of the person
alleged to have signed a document (i.e.
execution) must be proved by producing
evidence to the effect that the signature
purporting to be that of the executant is in
fact in his handwriting as laid down by the
Apex Court in Venkatachala v. Thimmajamma,
A.I.R. 1959 S.C. 443 and the other matter in
the document (i.e. its body) must also be
proved by proof of the handwriting of the
person or persons purporting to have written
the document. Execution is proved by the
first (i.e. proof of handwriting), and the
genuineness of the document is proved by the
second (i.e. proof of handwriting), unless
they are admitted by the other side. The term
"execution" is not defined in any statute. It
means completion, i.e. the last act or acts
which complete a document and in English law
this is known as "signing, sealing and
delivering". The ordinary meaning of
executing a document is signing it as a
consenting party thereto.
35. The execution of authorship of a
document being a question of fact, it can be
proved like any other fact by direct or
circumstantial evidence. The internal
evidence provided by a document may also be of
some help. In most cases the nature of
evidence will depend on the nature of the
documents and the circumstances of each case.
Section 67 does not require any particular
mode of proof that any writing or signature is
in the hand of a particular person. If it is
a letter, it must be proved as to who was the
writer and who signed it. If it is an entry
in a diary or notebook, its authorship must be
proved, i.e. it is the diary or note book of
the person whose statement it is alleged to
contain. In a suit for money on account of
sale of goods, the ledgers, challans and
corresponding bills have to be proved to be in
the handwriting of the person who has written
them.
36. The definition of "proved" given under
Section 3 must be read along with Section 67
which requires that there must be specified
evidence that the signature purporting to be
that of the executant is in the handwriting of
the executant. Until this is proved the Court
cannot proceed to consider whether execution
is proved. In other words Section 67 makes
proof of execution of a document something
more difficult than proof of matter other than
execution of a document. Original of the
public document must be proved in the manner
required by the provisions of the Act (See
C.H. Shah v. S.S. Malpathak, A.I.R. 1973
Bombay, 14).
37. Under Section 67, if a document is
alleged to be signed by any person, the
signature of the said person must be proved to
be in his handwriting in the manner laid down
in Sections 45 and 47 (Venkatachala v.
Thimmajamma, A.I.R. 1959 S.C. 443).
38. A party seeking to prove the execution
of a document is not required to prove that
the executant knew the contents thereof when
the execution denies having signed it and
pleads forgery, but if the executant pleads
ignorance then in certain circumstances it may
be necessary to satisfy the court that the
executant had knowledge of the contents
(Dattatraya v. Rangnath, A.I.R. 1971 S.C.
2548). So where the correctness of the
contents of a document is in issue, it should
be proved by calling the person who executed
the document. It is not sufficient to merely
prove through a witness the signature of the
handwriting of the person who signed or wrote
it (Madholal v. Asian Ass Co. Ltd A.I.R.
1954 Bombay 305; Md. Yusuf v. D. A.I.R.
1968 Bombay 112. The signature of the
executant of a sale deed must be proved before
it can be admitted in evidence. A sale deed
cannot be proved by mere production of the
Register in which it is copied out in the
registration office. Consequently, documents
could not be said to have been proved in
accordance with the Evidence Act. Similar is
the case, with regard to the letter of
partnership. Hence, documents produced on
record though originals or primary evidence
cannot be read in evidence for want of legal
proof. As such, they are required to be
excluded from consideration.
39. So far as the particulars of claim are
concerned, it can hardly be said to be
document in the eye of law. Apart from the
fact that the figures stated therein are also
not proved by any cogent evidence.
40. Having said so, now what now remains to
be considered is the extracts of account
produced on record. None of the extracts bear
certification under the Bankers Books Evidence
Act. Apart from this there is no reference to
these two documents in any of the affidavits
filed on record by way of
examination-in-chief. As such these documents
can hardly be said to have been proved by
plaintiff in accordance with the law of
Evidence.
41. Had these extracts of accounts documents
carried the certification under Bankers Books
Evidence Act, then they could have been read
in evidence. Even this basic requirement has
not been complied with by the plaintiff-bank.
Under these circumstances, there is absolutely
no legal evidence on record in support of the
suit claim. None of the documents, referred
hereinabove, are proved by the plaintiff-bank
in accordance with the provisions of the
Evidence Act.
42. Having said so, there is no legal
evidence on record to show that loan amounts
were disbursed by the plaintiff-bank to the
defendants by way of various loan facilities.
43. In para 11 of the affidavits affiants
(by both the witnesses of the bank) have
stated that the defendant no.3 has stated as
under:-
"I further state that they have
noted and protested the said
bill on 4.10.1988. In the
report, defendant No.3 has
stated that they are ready and
willing to make payment of the
said payment in 2-3 weeks."
However, no evidence in support of the above
statement is tendered on record. One fails to
understand on what basis above statements are
made in para 11 of the affidavits. There is
no mention in the affidavits, whether any of
the affiants had personally contacted
defendants or in their presence any such
statement was made by any of the defendants
No.3. Hence, statement made cannot be relied
upon.
44. I may place it on record that affidavits
placed on record appears to have been prepared
in the mechanical manner without looking into
the provisions of Evidence Act or without
doing any home work by the plaintiff. The
suit is getting dismissed only because of
negligence on the part of plaintiff-bank in
conducting this suit, though this Court tried
to put plaintiff on notice with regard to the
deficiencies suffered by them out without
success.
45. In the aforesaid scenario, looking to
the quality of the affidavits and evidence
tendered, I have no option but to hold that
the bank has failed to prove issue Nos.1 to 4,
hence these issues are answered against them.
The defendants chose to remain absent. They
did not lead any evidence. Consequently,
issue Nos. 5 and 6 are answered against
defendants.
46. In the totality of the circumstances,
for the reasons recorded, suit is dismissed
with no order as to costs.
47. Decree be drawn accordingly.
JUDGE.
Print Page
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION.
SUIT No.485 of 1989
Bank of India, V M/s Allibhoy Mohammed, a
CORAM: V.C. DAGA,J.
DATED: 29th January,2008.
Citation: AIR2008Bom81, 2008(4)ALLMR808, 2008(5)BomCR847
1. The plaintiff (the bank) has filed the
suit against the defendant No.1 partnership
firm, and it’s partners, the defendant Nos. 2
to 5, holding them jointly and severally
responsible for recovery of the suit claim.
THE FACTUAL MATRIX
------------------
2. The plaint allegations reveal, sometime
in the months of January and April,1988 on the
request of the defendant No.1, who is engaged
in the trading activities of import and export
of leather merchandise, the plaintiffs’ Null
Bazar Branch granted certain financial
facilities to the defendant No.1 which it
failed to pay. Hence present suit was filed
for recovery of their dues.
3. The plaintiff bank claims that the
defendant No.1 failed to repay financial
facility granted against Letter of Credit
(L.C.) inspite of repeated demands and
reminders.
4. The plaintiff-bank also allege that the
defendant No.1 was granted over draft
facility, in consideration of which it has
executed Promissory Note on 31.12.1987 for Rs.
15,000/-; whereunder defendant No.1 agreed to
pay Rs. 15,000/- to the plaintiff with
interest thereon at the rate of Rs.6.5% over
minimum 16.5% of the interest with quarterly
rests.
5. The plaintiff allege that the defendant
no.1 has also executed continuing security
letter; letter of lien and set off dated
31.12.1987, together with letter declaring
partnership and holding all the partners,
jointly and severally, liable to pay
outstanding dues of the plaintiff-bank.
According to the plaintiff, outstanding dues
under the temporary over draft facility is in
the sum of Rs.11,238.25 with interest thereon.
6. The plaintiff-bank claims to have sent
demand notice through it’s Advocate on
7.12.1988 requesting defendants to pay
outstanding dues, due and recoverable from
them.
7. According to the plaintiff, aggregate
amounts which it has to recover on various
counts are in the sum of Rs. 1,20,456.48 ps.
together with Rs. 12,372.83 ps in the L.C.
account with interest thereon. Since this
amount was not paid by the defendants, the
plaintiff-bank has filed the present suit.
8. On being summoned, the defendants
appeared and filed their written statement,
denying their liability to pay suit claim.
9. Considering the rival pleadings,
following issues were framed.
ISSUES:
-------
1. Whether the plaintiffs prove
that the Letter of Credit facility and
Temporary Overdraft facility were opened
on request of the defendants?
2. Whether the plaintiffs prove
that pursuant to the Letter of Credit
facility the plaintiffs have parted with
money aggregating to Indian Rs.94,936.68
to one M/s. K. Chhatwani of West
Germany?
3. Whether the plaintiffs prove
that the Bill of Exchange was noted and
protested?
4. Whether the plaintiffs prove
that the sum of Rs.. 1,20,456.48 is due
and payable by the defendants to the
plaintiffs under letter of Credit
facility and a sum of Rs. 12,372.83 is
due and payable by the defendants under
the temporary overdraft facility?
5. Whether the defendants prove
that it was the obligation of the
plaintiffs to pay custom duty and Bombay
Port Trust charges and Clearing Agents
charges?
6. Whether the defendants prove
that he has cleared the goods from the
Custom Authority?
7. What reliefs?
8. What order?
EVIDENCE
--------
10. The parties were directed to file their
documents and affidavit by way of evidence.
Accordingly, the plaintiff has filed two
affidavits; one duly sworn by Shri Rajkumar
Bandi, Chief Manager, dated 13.9.2007; and
another dated 17.12.2007 duly affirmed by Shri
S.D. Thakore, another Chief Manager of the
plaintiff-bank. The documents in support of
the suit claim are also produced on record.
11. In addition to the above two affidavits,
plaintiff-bank has produced photostat copies
of two applications dated 21.1.1986 and
30.4.1986 made by the defendant No.1 for grant
of documentary credit facility without
producing originals thereof.
12. The plaintiff-bank has also produced
original D.P.Note for Rs. 15,000/-, letter of
continuity letter of lien and set off dated
31.12.1987 alongwith undated letter of
partnership. The photostat of the carbon copy
of the typed demand notice dated 7.12.1988
without signature of any Advocate, without any
proof of despatch or acknowledgement
evidencing receipt thereof is produced on
record. Two extracts of accounts without any
certification under the Bankers Books Evidence
Act are also produced on record, out of which,
one extract of account contains only one entry
with short signature of unidentified person;
whereas another extract of account does not
bear signature of anybody except round rubber
stamp of the bank.
13. With the aforesaid quality of evidence,
learned counsel for the plaintiff prayed for
decree in favour of the plaintiff-bank.
14. Now, first question which needs
consideration is; whether the evidence
tendered by the plaintiff-bank can be accepted
as legal evidence by this Court. Secondly,
whether the documents tendered by the bank can
be accepted as proved as per the provisions of
the Indian Evidence Act and can they be read
in evidence.
15. During the course of hearing, I tried to
put the learned Advocate for the
plaintiff-bank on notice that looking to the
quality of the affidavits and evidence on
record, suit might fail. However, learned
counsel for the plaintiff-bank, without taking
any hint, left it to the decision of this
Court saying that the Court may decide the
suit on its own merits in accordance with the
law on the basis of material available on
record.
16. Faced with the above situation and
approach of the learned Advocate for the
plaintiff-bank, suit in question is being
decided.
CONSIDERATION AND FINDINGS:-
--------------------------
17. The affidavits filed by the
plaintiff-bank cannot be read in evidence.
Firstly, because no legal authorisations are
produced on record by any of the swearers of
the affidavits. The original Power of
Attorney held by them are not produced. What
is produced on record are only the photostat
copies of Powers of Attorney without any
notarisation or authentication made by any
person authorised by law. The question is:
can they be read in evidence?
18. Let me turn to the Legal Provisions;
namely, Section 85 of the Evidence Act which
lays down that the Court shall presume due
execution and authentication of power of
attorney when executed before and
authenticated by a Notary Public, or any
Court, Judge, Magistrate, Indian Counsel or
it’s Vice Counsel or representative of the
Central Government, etc. This presumption is
available in favour of the original Power of
Attorney holder provided mandate of Section 85
is duly followed. In the case on hand,
neither the original power of attorney was
produced nor notarised photo copy was produced
on record. Consequently, both affiants failed
to prove that they are the duly authorized
persons to give evidence on behalf of the
plaintiff bank.
19. Now, the second question is : Can
affidavits in support of suit claim be read as
evidence? The legal position is that the
affiants, filing an affidavits, are required
to appear before the Court. They are required
to enter the witness box to testify the
contents of their respective affidavits as
laid down by this Court in the case of F.D.C.
Ltd v. Federation of Medical Representatives
Association India (FMRAI) and others, A.I.R.
2003 Bombay 371. The relevant extract of the
said judgment is reproduced hereinbelow for
immediate reference.
(A) Civil P.C. (5 of 1908), O.18,Rr. 4,
examination-in-chief in each and every
case is permitted in form of affidavittaking
affidavit on record- procedure to
be followed in appealable cases is
prescribed in R. 5- in Non-appealable
cases procedure under R. 13 is to be
followed.
" In other words, in the appealable
cases though the examination-in-chief of
a witness is permissible to be produced
in the form of affidavit, such affidavit
cannot be ordered to form part of the
evidence unless the deponent thereof
enters the witness box and confirms that
the contents of the affidavit are as per
his say and the affidavit is under his
signature and this statement being made
on oath to be recorded by following the
procedure prescribed under R.5".
(Emphasis supplied)
20. The above judgment is approved by the
Apex Court in the case of Ameer Trading
Corporation vs. Shapoorji Data Processing
Ltd.1 (2004) 1 S.C.C. 702.
21. In the above view of the matter, since
none of the affiants have entered the witness
box, the said affidavits can not form part of
evidence. Thus, they cannot be read in
evidence.
22. Apart from the above findings, assuming
that the affidavits can be read in evidence,
even then plaintiff-bank cannot succeed in the
suit for want of proof of loan documents and
extract of accounts as per the provisions of
Indian Evidence Act.
23. If one turns to the contents of both the
affidavits, which are identical in material
particulars, it would be clear that the
affiants have not stated as to how they became
conversant with the facts of the case and able
to depose in support of suit claim. None of
them have stated that they were in the subject
branch either as Branch Manager or in any
other capacity at the time when the subject
loan documents were executed and loan amounts
were disbursed. They do not say that they are
the scribe of the documents. They do not say
that documents were executed in their presence
by either of the defendants. It has also not
been stated as to on what basis the statements
were made in the affidavits; whether on the
basis of record or personal knowledge. Even
the signatures of the defendants on the loan
documents have not been identified by any of
the affiants.
24. At this juncture, Sections 61,62 and 63
of the Evidence Act need to be looked into
Section 61 lays down that contents of the
documents may be proved either by primary or
by secondary evidence. This Section is based
upon the principal that "best evidence" in the
possession or power of the party must be
produced. What the best evidence is, it
depends upon facts and circumstances of each
case. Generally speaking, the original
document is the best evidence. The contents
of every written paper are, according to the
ordinary and well established rules of
evidence, required to be proved by the
original document, and by that alone, if the
document is in existence. It is, therefore,
necessary that when a document is produced as
primary or secondary evidence, it will have to
be proved in the manner laid down in Sections
67 to 73 of the Evidence Act.
25. Where the execution of the document like
promissory note was denied, it is required to
be proved through the scribe, where the truth
of the facts stated in the affidavit is in
issue mere proof of handwriting and execution
of the document would not furnish evidence of
the truth of the facts stated in the document
or contents. Truth or otherwise of the facts
or contents so stated would have to be proved
by admissible evidence, i.e. by the evidence
of person who can vouchsafe for the truth of
the facts in issue as held by the Apex Court
in Ramji Dayawala and Sons Pvt. Ltd Vs.
Invest Import, A.I.R. 1981, S.C. 2085.
Person with knowledge must be examined. Every
document should first be started by some proof
before the person who disputes that document
can in any way be considered bound by it.
Document cannot be considered as proved
because it’s genuineness is not disputed by
the opposite party. Documents do not prove
themselves.
26. In the case on hand, person who can
vouch for truth of the facts in issue has not
been examined. Hence, documents cannot be
said to have been proved in accordance with
the provisions of Evidence Act.
27. Let me now deal with the photo copies of
some of the documents filed on record.
Section 63 of the Evidence Act provides- for
leading secondary evidence. Secondary
evidence cannot be accepted without sufficient
reason being given for non production of the
original. The loss of orignal document must
be shown in order to lead secondary evidence.
Secondary evidence of the document can be
allowed to be lead only where original is
proved to have existed but was lost or
misplaced (see A.I.R. 1973 Bom 66. Filmistan
Private Ltd, a Co. Vs. The Municipal
Corporation for Greater Bombay). The document
unless shown to have been compared with
original one, mere copy of the document does
not become secondary evidence. The person
giving oral evidence who accounts for the
contents of the document must have himself
seen the original document and not a mere
copy. "Seen" here will obviously mean "read".
A person who proposes to testify the contents
of a document, either by copy or otherwise,
must have read it. The contents of private
documents may be proved as secondary evidence
by any witness who has in fact read them. The
secondary evidence is required to be proved in
the same manner in which primary evidence.
28. Section 65 of the Evidence Act provides
that in each type of cases secondary evidence
relating to the document may be given. This
Section enumerates the seven exceptional cases
in which secondary evidence is admissible.
Secondary evidence is of the contents which
cannot be admitted without the production of
document in such a manner within one or the
othor of the cases as provided for in the
Section.
29. The prior permission of the Court is
required to be taken for producing secondary
evidence of the documents on the grounds that
original documents were lost. To sum up, when
anybody wants to lead secondary evidence, two
things are required to be proved; there must
be evidence of the existence of the original
documents and there must be evidence of their
loss. No permission to lead secondary
evidence was obtained by the plaintiff-bank.
30. So far as the case in hand is concerned,
the applications dated 21.1.1980 and 30.4.1986
and demand notice filed on record cannot be
said to be primary evidence since they are
mere photo copies. No evidence is on record
to show that at any time in the past, original
documents were in existence and that they are
lost. Nobody has deposed with respect to the
fact of having seen and compared original
document with the copy produced. The
secondary evidence of the contents of document
is inadmissible until non production of the
original is first accounted for, so as to
bring it within one or the other category of
the cases provided for in Section 65. For the
reasons recorded above secondary evidence
tendered is inadmissible and cannot be read in
evidence. Hence, these three documents
referred hereinabove are excluded from
consideration.
31. So far as the demand notice is
concerned, the same is a photo copy of the
typed copy without having the signature of the
Advocate; who had issued this demand notice.
Nobody has proved contents thereof. There is
no evidence on record showing despatch of this
notice or receipt thereof by the defendants.
Under these circumstances, this notice also
cannot be said to be a legal evidence. It
cannot be relied upon.
32. Moving ahead, so far as the other
primary evidence/original documents; namely,
D.P. Note, Letter of Continuity and letter of
lien, all dated 31.12.1987 are concerned, none
of these documents are proved by examining
scribe or person acquainted with the contents
of the documents or the signatures of the
executants. There is no statement made on
oath to prove contents in either of the
affidavits filed on record in lieu of
examination-in-chief.
33. The mode of proving the contents of the
documents has been dealt with in Sections
61-66. As already stated hereinabove the
production of the document purporting to have
been signed or written by a certain person is
no evidence of its authorship. It is
necessary to prove their genuineness and
execution. Proof, therefore, has to be given
of the handwriting, signature and execution of
a document. No writing can be received in
evidence as a genuine writing until it has
been proved to be a genuine one, and none as a
forgery until it has been proved to be a
forgery. A writing, by itself, is not
evidence of the one thing or the other. A
writing, by itself, is evidence of nothing,
and therefore is not, unless accompanied by
proof of some sort, admissible as evidence.
34. Section 67 refers to documents other
than documents required by law to be attested.
It says that the signature of the person
alleged to have signed a document (i.e.
execution) must be proved by producing
evidence to the effect that the signature
purporting to be that of the executant is in
fact in his handwriting as laid down by the
Apex Court in Venkatachala v. Thimmajamma,
A.I.R. 1959 S.C. 443 and the other matter in
the document (i.e. its body) must also be
proved by proof of the handwriting of the
person or persons purporting to have written
the document. Execution is proved by the
first (i.e. proof of handwriting), and the
genuineness of the document is proved by the
second (i.e. proof of handwriting), unless
they are admitted by the other side. The term
"execution" is not defined in any statute. It
means completion, i.e. the last act or acts
which complete a document and in English law
this is known as "signing, sealing and
delivering". The ordinary meaning of
executing a document is signing it as a
consenting party thereto.
35. The execution of authorship of a
document being a question of fact, it can be
proved like any other fact by direct or
circumstantial evidence. The internal
evidence provided by a document may also be of
some help. In most cases the nature of
evidence will depend on the nature of the
documents and the circumstances of each case.
Section 67 does not require any particular
mode of proof that any writing or signature is
in the hand of a particular person. If it is
a letter, it must be proved as to who was the
writer and who signed it. If it is an entry
in a diary or notebook, its authorship must be
proved, i.e. it is the diary or note book of
the person whose statement it is alleged to
contain. In a suit for money on account of
sale of goods, the ledgers, challans and
corresponding bills have to be proved to be in
the handwriting of the person who has written
them.
36. The definition of "proved" given under
Section 3 must be read along with Section 67
which requires that there must be specified
evidence that the signature purporting to be
that of the executant is in the handwriting of
the executant. Until this is proved the Court
cannot proceed to consider whether execution
is proved. In other words Section 67 makes
proof of execution of a document something
more difficult than proof of matter other than
execution of a document. Original of the
public document must be proved in the manner
required by the provisions of the Act (See
C.H. Shah v. S.S. Malpathak, A.I.R. 1973
Bombay, 14).
37. Under Section 67, if a document is
alleged to be signed by any person, the
signature of the said person must be proved to
be in his handwriting in the manner laid down
in Sections 45 and 47 (Venkatachala v.
Thimmajamma, A.I.R. 1959 S.C. 443).
38. A party seeking to prove the execution
of a document is not required to prove that
the executant knew the contents thereof when
the execution denies having signed it and
pleads forgery, but if the executant pleads
ignorance then in certain circumstances it may
be necessary to satisfy the court that the
executant had knowledge of the contents
(Dattatraya v. Rangnath, A.I.R. 1971 S.C.
2548). So where the correctness of the
contents of a document is in issue, it should
be proved by calling the person who executed
the document. It is not sufficient to merely
prove through a witness the signature of the
handwriting of the person who signed or wrote
it (Madholal v. Asian Ass Co. Ltd A.I.R.
1954 Bombay 305; Md. Yusuf v. D. A.I.R.
1968 Bombay 112. The signature of the
executant of a sale deed must be proved before
it can be admitted in evidence. A sale deed
cannot be proved by mere production of the
Register in which it is copied out in the
registration office. Consequently, documents
could not be said to have been proved in
accordance with the Evidence Act. Similar is
the case, with regard to the letter of
partnership. Hence, documents produced on
record though originals or primary evidence
cannot be read in evidence for want of legal
proof. As such, they are required to be
excluded from consideration.
39. So far as the particulars of claim are
concerned, it can hardly be said to be
document in the eye of law. Apart from the
fact that the figures stated therein are also
not proved by any cogent evidence.
40. Having said so, now what now remains to
be considered is the extracts of account
produced on record. None of the extracts bear
certification under the Bankers Books Evidence
Act. Apart from this there is no reference to
these two documents in any of the affidavits
filed on record by way of
examination-in-chief. As such these documents
can hardly be said to have been proved by
plaintiff in accordance with the law of
Evidence.
41. Had these extracts of accounts documents
carried the certification under Bankers Books
Evidence Act, then they could have been read
in evidence. Even this basic requirement has
not been complied with by the plaintiff-bank.
Under these circumstances, there is absolutely
no legal evidence on record in support of the
suit claim. None of the documents, referred
hereinabove, are proved by the plaintiff-bank
in accordance with the provisions of the
Evidence Act.
42. Having said so, there is no legal
evidence on record to show that loan amounts
were disbursed by the plaintiff-bank to the
defendants by way of various loan facilities.
43. In para 11 of the affidavits affiants
(by both the witnesses of the bank) have
stated that the defendant no.3 has stated as
under:-
"I further state that they have
noted and protested the said
bill on 4.10.1988. In the
report, defendant No.3 has
stated that they are ready and
willing to make payment of the
said payment in 2-3 weeks."
However, no evidence in support of the above
statement is tendered on record. One fails to
understand on what basis above statements are
made in para 11 of the affidavits. There is
no mention in the affidavits, whether any of
the affiants had personally contacted
defendants or in their presence any such
statement was made by any of the defendants
No.3. Hence, statement made cannot be relied
upon.
44. I may place it on record that affidavits
placed on record appears to have been prepared
in the mechanical manner without looking into
the provisions of Evidence Act or without
doing any home work by the plaintiff. The
suit is getting dismissed only because of
negligence on the part of plaintiff-bank in
conducting this suit, though this Court tried
to put plaintiff on notice with regard to the
deficiencies suffered by them out without
success.
45. In the aforesaid scenario, looking to
the quality of the affidavits and evidence
tendered, I have no option but to hold that
the bank has failed to prove issue Nos.1 to 4,
hence these issues are answered against them.
The defendants chose to remain absent. They
did not lead any evidence. Consequently,
issue Nos. 5 and 6 are answered against
defendants.
46. In the totality of the circumstances,
for the reasons recorded, suit is dismissed
with no order as to costs.
47. Decree be drawn accordingly.
JUDGE.
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