Karnataka High Court
Mr R B Kamath vs Official Liquidator Of M/S Kamath ... on 20 February, 2026
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2026:KHC:10730
CA No. 10 of 2026
A/W CA No.31 of 2026
in CA No.863 of 2002
HC-KAR in COP No.3 of 1994
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
COMPANY APPLICATION NO. 10 OF 2026
A/W
COMPANY APPLICATION NO.31 OF 2026
IN
COMPANY APPLICATION NO.863 OF 2002
IN
COMPANY PETITION NO.3 OF 1994
IN CA NO.10/2026:
BETWEEN:
MR. R.B. KAMATH
S/O LATE B.S. KAMATH,
AGED ABOUT 63 YEARS
RESIDING AT 1206, PLANET SKS,
Digitally signed
by SHWETHA KADRI HILLS, MANGALORE-575 008.
RAGHAVENDRA ...APPLICANT
Location: HIGH
COURT OF
KARNATAKA (BY SRI. A.S. VISHWAJITH AND
SMT. MALAVIKA PRASAD, ADVOCATES)
AND:
OFFICIAL LIQUIDATOR OF
M/S. KAMATH PACKAGING LIMITED
(IN LIQUIDATION)
ATTACHED TO HIGH COURT OF
KARNATAKA
CORPORATE BHAWAN,
NO.26-27, 12TH FLOOR,
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NC: 2026:KHC:10730
CA No. 10 of 2026
A/W CA No.31 of 2026
in CA No.863 of 2002
HC-KAR in COP No.3 of 1994
RAHEJA TOWERS, M.G. ROAD,
BANGALORE-560 001.
...RESPONDENT
(BY SRI. SHRISHAIL NAVALGUND, ADVOCATE)
THIS COMPANY APPLICATION IS FILED BY APPLICANT
UNDER SECTION 65 OF THE INDIAN EVIDENCE ACT, 1872
READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE,
1908 AND RULES 6, 9 OF THE COMPANIES (COURT) RULES,
1959, PRAYING TO PERMIT RESPONDENT NO.1 IN C.A. 863 OF
2002 (THE APPLICANT HEREIN) TO PRODUCE AND MARK
SECONDARY EVIDENCE IN LIEU OF THE ORIGINALS OF THE
ANNEXURES RELIED ON IN THE STATEMENT OF OBJECTIONS,
NAMELY: (1) ORDER DATED 06.11.1993 PASSED IN HRC
10386/1993; (2) MAHAZAR DRAWN BY THE SUPERINTENDENT
OF CENTRAL EXCISE; (3) LETTER DATED 06.01.1995 ISSUED
BY THE COMPANY IN LIQUIDATION TO THE KARNATAKA STATE
INDUSTRIAL AND INFRASTRUCTURE DEVELOPMENT
CORPORATION (KSIIDC) ALONG WITH THE ANNEXURES TO
THAT LETTER INCLUDING THE MAHAZAR PREPARED BY
KSIIDC.
IN CA NO.31/2026:
BETWEEN:
MR. R.B. KAMATH
S/O LATE B.S. KAMATH,
AGED ABOUT 63 YEARS
RESIDING AT 1206, PLANET SKS,
KADRI HILLS, MANGALORE-575 008.
... APPLICANT
(BY SRI. A.S. VISHWAJITH AND
SMT. MALAVIKA PRASAD, ADVOCATES)
AND:
OFFICIAL LIQUIDATOR OF
M/S. KAMATH PACKAGING LIMITED
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NC: 2026:KHC:10730
CA No. 10 of 2026
A/W CA No.31 of 2026
in CA No.863 of 2002
HC-KAR in COP No.3 of 1994
(IN LIQUIDATION)
ATTACHED TO HIGH COURT OF KARNATAKA
CORPORATE BHAWAN, NO.26-27,
12TH FLOOR, RAHEJA TOWERS,
M.G. ROAD, BANGALORE-560 001.
...RESPONDENT
(BY SRI. SHRISHAIL NAVALGUND, ADVOCATE)
THIS COMPANY APPLICATION IS FILED BY APPLICANT
UNDER RULE 9 OF THE COMPANIES (COURT) RULES, 1959,
PRAYING TO DISPENSE WITH TYPED / MORE LEGIBLE COPIES
OF THE ANNEXURES PRODUCED ALONG WITH CA 10/2026.
THESE APPLICATIONS, COMING ON FOR ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
ORAL ORDER
1. CA No.10/2026 has been filed under Section 65 of the erstwhile Indian Evidence Act, 1872 (for short 'Act') r/w Section 151 of the Code of Civil Procedure seeking permission to lead secondary evidence by production of 3 documents namely, the final judgment dated 06.11.1993 in HRC No.10386/1993 to try and establish that the Company was no longer in possession of the property post that date. Annexure-B being the mahazar drawn by the Central -4- NC: 2026:KHC:10730 CA No. 10 of 2026 A/W CA No.31 of 2026 in CA No.863 of 2002 HC-KAR in COP No.3 of 1994 Excise Department before the shifting of the material from the bonded factory. Annexure-C is a letter issued by the Company to the Karnataka State Industrial and Investment Corporation regarding the takeover of the Company, along with annexures. Annexure-D is the application.
2. Submission of the learned counsel for the applicant is that the originals of these documents are not available with the applicant, and it is for that reason that the secondary evidence is proposed to be led. If not for these documents, there are no other documents that the petitioner could place on record to try to establish its contentions.
3. Sri Shrishail Navalgund, learned counsel for the Official Liquidator, strenuously objects to the said application. Firstly, contending that there was an earlier application that had been filed in CA No.244/2025, which had been withdrawn on -5- NC: 2026:KHC:10730 CA No. 10 of 2026 A/W CA No.31 of 2026 in CA No.863 of 2002 HC-KAR in COP No.3 of 1994 23.10.2025, the very same application with the very same contention being filed cannot be sustained. Secondly, he submits that the said application is now to be filed in CA No.863/2002 after a long lapse of time, and as such, at this length of time, an application for secondary evidence cannot be allowed. Lastly, he submits that there is no relevance or foundation established by the applicant to produce those documents at this stage.
4. Heard Ms. Spoorthi Cotha, learned counsel appearing for the applicant and Sri Shrishail Navalgund, learned counsel for the Official Liquidator.
5. Insofar as the first contention, namely that an earlier application had been filed and withdrawn, a perusal of the order dated 23.10.2025 clearly indicates that liberty had been expressly reserved in favour of the applicant. Once such liberty is granted, it preserves the right of the applicant to re-agitate the matter in -6- NC: 2026:KHC:10730 CA No. 10 of 2026 A/W CA No.31 of 2026 in CA No.863 of 2002 HC-KAR in COP No.3 of 1994 accordance with law. The withdrawal, therefore, cannot operate as a procedural bar. The filing of the present application cannot be rejected merely on the ground that it is a second application, when the earlier withdrawal was accompanied by an express reservation of liberty.
6. As regards the contention that the present application is belated, the same does not merit acceptance. Though the applicant had earlier entered appearance in the proceedings, the applicant was placed ex-parte owing to the non-appearance of the then counsel. Upon change of counsel, an application was filed for setting aside the ex-parte order. The ex- parte order was thereafter set aside by a co-ordinate Bench on 25.08.2025, thereby restoring the applicant to the position of a contesting party. Once such restoration was effected, the applicant was entitled to prosecute and defend the matter effectively. The present application, having been filed -7- NC: 2026:KHC:10730 CA No. 10 of 2026 A/W CA No.31 of 2026 in CA No.863 of 2002 HC-KAR in COP No.3 of 1994 after the setting aside of the ex-parte order, cannot be characterised as belated. A litigant cannot be permanently prejudiced on account of the default of earlier counsel, particularly when the Court itself has restored the right of participation.
7. Insofar as the contention that there is no foundation laid for the relevance of the documents sought to be produced, the proceedings are under Section 543(2) of the Indian Companies Act, 1956, which pertain to misfeasance. In such proceedings, the applicant must necessarily be afforded an opportunity to demonstrate that there was no misfeasance on his part, that the acts complained of were bona fide, or that the allegations made by the Official Liquidator are not attributable to him. The documents sought to be placed on record are for the purpose of showing that the possession of the property was not with the Company, that the goods shifted from the bonded warehouse do not correspond to the goods alleged to -8- NC: 2026:KHC:10730 CA No. 10 of 2026 A/W CA No.31 of 2026 in CA No.863 of 2002 HC-KAR in COP No.3 of 1994 have been misappropriated, and that the KSIIDC had taken over the running unit of the Company. These assertions bear a direct nexus to the allegations in the misfeasance proceedings. At this stage, the Court is concerned only with whether there is ex facie relevance.
8. The evidentiary value of the documents and the truth of the assertions must necessarily be tested in cross- examination. However, for the limited purpose of determining whether the documents can be received on record, sufficient foundational relevance is established. Though the application is filed under Section 65 of Indian Evidence Act, the same would have to be considered with reference to Section 60 of the Bharathiya Sakhsya Adhiniyum, 2023 (BSA), which is reproduced hereunder for easy reference.
60. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely: --
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NC: 2026:KHC:10730 CA No. 10 of 2026 A/W CA No.31 of 2026 in CA No.863 of 2002 HC-KAR in COP No.3 of 1994
(a) when the original is shown or appears to be in the possession or power--
(i) of the person against whom the document is sought to be proved; or
(ii) of any person out of reach of, or not subject to, the process of the Court; or
(iii) of any person legally bound to produce it, and when, after the notice mentioned in section 64 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 Adhiniyam, or by any other law in force in India to be given in evidence;
(g) when the originals consist 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. Explanation.--For the purposes of--
(i) clauses (a), (c) and (d), any secondary evidence of the contents of the document is admissible;
(ii) clause (b), the written admission is admissible;
(iii) clause (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible;
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NC: 2026:KHC:10730 CA No. 10 of 2026 A/W CA No.31 of 2026 in CA No.863 of 2002 HC-KAR in COP No.3 of 1994
(iv) clause (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such document.
9. The evidentiary value of the documents and the veracity of the assertions founded upon them must necessarily be subjected to the rigours of cross- examination. At this stage, the Court is not concerned with conclusively determining their probative worth. The enquiry is confined to whether the documents may be received on record and whether the threshold requirements for permitting secondary evidence stand satisfied.
10. The statutory scheme under Section 60 delineates the contingencies in which secondary evidence may be adduced regarding the existence, condition, or contents of a document.
11. Under clause (a), secondary evidence is permissible where the original is shown or appears to be in the possession or power of the person against whom it is
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NC: 2026:KHC:10730 CA No. 10 of 2026 A/W CA No.31 of 2026 in CA No.863 of 2002 HC-KAR in COP No.3 of 1994 sought to be proved, or any person beyond the reach of, or not subject to, the process of the Court, or a person legally bound to produce it, and such person fails to produce the same despite notice under Section 64.
12. Clause (b) enables reception of secondary evidence where the existence, condition, or contents of the original stand admitted in writing by the person against whom it is proved or by his representative in interest.
13. Clause (c) contemplates situations where the original has been destroyed or lost, or cannot be produced within reasonable time for reasons not attributable to the default or neglect of the party seeking to rely upon it.
14. Clause (d) applies where the original is of such a nature as not to be easily movable.
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NC: 2026:KHC:10730 CA No. 10 of 2026 A/W CA No.31 of 2026 in CA No.863 of 2002 HC-KAR in COP No.3 of 1994
15. Clause (e) relates to public documents within the meaning of Section 74.
16. Clause (f) concerns documents of which certified copies are statutorily permissible in evidence.
17. Clause (g) addresses cases involving voluminous accounts or documents, where proof of the general result of the collection is sufficient.
18. The Explanation appended to Section 60 clarifies the nature of secondary evidence admissible in each category. In cases falling under clauses (a), (c), and
(d), any form of secondary evidence of the contents may be admitted. In respect of clause (b), the written admission itself constitutes admissible evidence. For clauses (e) and (f), only certified copies are admissible. In cases under clause (g), evidence as to the general result may be tendered by a person who has examined the documents and possesses the requisite skill to do so.
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NC: 2026:KHC:10730 CA No. 10 of 2026 A/W CA No.31 of 2026 in CA No.863 of 2002 HC-KAR in COP No.3 of 1994
19. Therefore, while the ultimate appreciation of the documents must await trial and cross-examination, the present consideration is limited to whether the case falls within any of the statutorily recognised contingencies for reception of secondary evidence. If the foundational requirements under Section 60 are prima facie established, the documents may be received, leaving their evidentiary weight to be determined at the appropriate stage.
20. A plain reading of Section 60 of the Bharatiya Sakshya Adhiniyam makes it clear that secondary evidence is not a matter of course, but is permissible only in defined contingencies. Broadly stated, secondary evidence may be permitted where the primary evidence is unavailable, has been lost or destroyed, or cannot be procured within reasonable time for reasons not attributable to the default or neglect of the party seeking to rely upon it. The provision thus embodies the principle that best
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NC: 2026:KHC:10730 CA No. 10 of 2026 A/W CA No.31 of 2026 in CA No.863 of 2002 HC-KAR in COP No.3 of 1994 evidence must ordinarily be produced, but recognises practical impossibility as a legitimate exception.
21. It is no doubt true that one of the contingencies contemplated under Section 60 is where the primary evidence is in the custody or power of the opposite party and is not produced despite notice. That limb of the provision is not attracted in the present case. However, the matter falls within the other recognised contingencies.
22. The documents which the applicant proposes to rely upon are admittedly of considerable antiquity. Insofar as the decree is concerned, it is submitted that a certified copy is no longer capable of being obtained. With respect to the mahazar conducted several years ago, it is asserted that even recourse to the Right to Information mechanism would not yield the document from the concerned Excise Department at this stage. These circumstances prima
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NC: 2026:KHC:10730 CA No. 10 of 2026 A/W CA No.31 of 2026 in CA No.863 of 2002 HC-KAR in COP No.3 of 1994 facie indicate that the originals or certified copies cannot be secured within reasonable time and that such non-production is not attributable to any deliberate default on the part of the applicant.
23. The third document is a letter addressed by the Company to KSIIDC, which is stated to be available only as an office copy. An office copy, by its very nature, constitutes secondary evidence of the original communication. If the original cannot be produced for reasons falling within the scope of Section 60, the applicant would be entitled to lay the necessary foundation and seek permission to adduce secondary evidence thereof.
24. In these circumstances, though the contingency relating to custody with the opposite party is not attracted, the case, at least prima facie, satisfies the statutory requirements under the other limbs of
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NC: 2026:KHC:10730 CA No. 10 of 2026 A/W CA No.31 of 2026 in CA No.863 of 2002 HC-KAR in COP No.3 of 1994 Section 60, warranting consideration of the request to lead secondary evidence.
25. For all the aforesaid reasons, I proceed to pass the following:
ORDER i. CA No.10/2026 is allowed. The applicant is permitted to lead secondary evidence in respect to the documents mentioned therein. ii. CA No.31/2026 does not survive for consideration and stands dismissed accordingly. iii. The applicant shall appear before the Central Project Co-Ordinator on 23.02.2026 and lead the secondary evidence without seeking any further adjournment.
Sd/-
(SURAJ GOVINDARAJ) JUDGE TL/List No.: 1 Sl No.: 3