Bombay High Court
Kbc Bank Nv Is A Belgian Universal ... vs Hvk International Pvt.Ltd on 5 April, 2021
Bench: S.C. Gupte
sg 36. comss210-16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL SUMMARY SUIT NO.210 OF 2016
WITH
SUMMONS FOR JUDGMENT NO.15 OF 2017
IN
COMMERCIAL SUMMARY SUIT NO.210 OF 2016
KBC Bank NV is a Belgian Universal Multi-Channel Bank ...Plaintiff
vs.
HVK International Pvt. Ltd. ...Defendant
.....
Mr. Shanay Shah, a/w. Mr. Pushkal Mishra and Mr. Kunal Chheda, i/b. Mr.
Chetan Mhatre, for the Plaintiff.
Mr. Gaurang Mehta, a/w. Ms. Sneha Shukla and Ms. Snehlata Srivastav, i/b.
Mr. Somnath Vora, for the Defendant.
....
CORAM : S.C. GUPTE, J.
DATED : 5 APRIL 2021
P.C. :
. The affidavit of evidence dated 4 February 2019 of Mr. Vinod K.
Sharma (P.W.1) is taken on record as examination-in-chief of P.W.1. Based
on this deposition, the following order is passed.
2. Having regard to the original document of power of attorney
produced in Court and the deposition of P.W.1, the original (of document at
Sr. No.1 of the Plaintiff's first compilation of documents) is marked as
Exhibit "P1/4".
3. Based on the deposition of P.W.1, in paragraph 4 of his
examination-in-chief, document at Sr. No.2 is marked as Exhibit "P1/5".
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4. Considering that the documents at Sr. Nos. 3, 4 and 5 of the
Plaintiff's compilation are public documents, they are admitted in evidence,
marked as Exhibits "P1/6", "P1/7" and "P1/8".
5. Document at Sr. No.6 has already been marked as Exhibit
"P1/1".
6. The document at Sr. No.7 of the first compilation of documents
is a copy of Bill of Exchange dated 7 May 2015. The deposition in respect of
this document is to be found in paragraph 10 of further affidavit dated 23
March 2021 of P.W.1 in lieu of examination-in-chief. The witness has
deposed to having personally seen the original Bill of Exchange and made a
photocopy thereof, the correctness of which he also deposes in the same
paragraph. The witness has also identified the signature of the authorised
signatory of Bel Star and the stamp of Bel Star appearing on the document,
claiming to have seen the same during the course of his professional
interaction with the staff of Antwerp Diamond Bank N.V. and
correspondence received from the signatory in the course of business over
many years. The witness has also confirmed the correctness of the
document. The witness has deposed to the circumstances in which
secondary evidence of the document is admissible. He has deposed to the
fact of the document not being traceable by the Plaintiff's head office and
also produced with his affidavit of evidence (affidavit dated 21 February
2020) an e-mail of the Plaintiff's head office indicating that the original was,
once again, searched at his request, but was found not traceable. This
amounts to an adequate formal evidence for admitting the document as the
Plaintiff's evidence. This Court does not find merit in the objections of the
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Defendant, which have inter alia been particularised in paragraph 8 of the
written statement. The objections pertain to stamp duty in accordance with
the laws of Dubai on the instrument executed in Dubai. There is no
indication that (and no material produced by the Defendant to show that)
any particular stamp duty is payable on the instrument in Dubai. It is
submitted that the copy of the instrument annexed to the plaint does not
indicate any stamp duty as having been paid on the instrument as per Indian
Law and, in the absence of such indication, the original instrument itself
never operated as a valid bill. Payment of stamp duty on the original bill of
exchange, if any, or want of such payment, does not reflect on the
genuineness or effectiveness of the instrument; it merely reflects on the
admissibility of the document in evidence in accordance with the stamp law.
According to the Plaintiff, the document, though was brought in India and
presented for payment, was sent back by the Plaintiff to Antwerp after its
dishonour. The document presently relied upon is a photocopy of the
instrument, which was made when the document was in India. Since, as I
have noted above, payment of stamp duty on the original does not reflect on
the efficacy of the original document, but merely on its admissibility in
evidence, and since what is being produced is not the original instrument
itself, but its copy made when the instrument was in India, the Defendant's
objection on account of want of payment of stamp duty on the instrument
has no merit. Learned Counsel for the Defendant also submits that the
deponent cannot be said to have any personal knowledge of the making of
the instrument. The deponent himself has claimed such knowledge and, on
the basis of his deposition, the document has to be admitted in evidence as
the Plaintiff's evidence. It is now for the Defendant to bring out in its cross-
examination of P.W.1 all aspects, which bear on the authenticity or
genuineness of the document. These matters are not to be considered at the
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stage of marking of documents. That is elementary as far as the law of
evidence goes. The objection is, accordingly, overruled and the document is
marked as Exhibit "P1/9".
7. The document at Sr. No.8 of the Plaintiff's first compilation of
documents is a copy of Deed of Pledge dated 7 May 2015. The making of
this Deed, including the signature of the maker thereof, and the
circumstances in which secondary evidence is being led of the document,
have been adequately deposed to in the examination-in-chief of P.W.1
(paragraph 11 of his further affidavit in lieu of examination-in-chief.).
Broadly the same objections are raised as regards this document as the
document at Sr. No.7. In particular, it is claimed by learned Counsel for the
Defendant that the circumstances for leading secondary evidence of this
document have not been adequately made out in the deposition of P.W.1.
The objection has no merit. The copy is clearly admissible as the Plaintiff's
evidence, on the same basis as disclosed in connection with the document
at Sr. No.7. As for the circumstances for leading of secondary evidence,
there is adequate formal proof in the examination-in-chief that the
document, despite due diligence, could not be traced and that its photocopy
was made by mechanical process, and compared by the deponent with the
original, which the deponent himself had seen. It is now for the Defendant
to cross-examine P.W.1 on the authenticity or genuineness of the document.
The document is, accordingly, marked as Exhibit "P1/10".
8. The documents at Sr. Nos.9 and 10 of the Plaintiff's first
compilation of documents have already been marked as Exhibit "P1/2" and
Exhibit "P1/3", and need not be considered again.
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9. Coming now to the additional compilation of documents on
behalf of the Plaintiff, out of the seven documents listed in this compilation,
learned Counsel for the Plaintiff proposes for marking of the first three (Sr.
Nos. 1 to 3), since the other documents (Sr. Nos. 4, 5 and 6) have already
been marked in evidence.
10. The first of these documents (Sr. No.1) is the original letter
dated 1 July 2015 addressed by the Plaintiff to P.W.1. Having regard to the
original document tendered in evidence and the deposition of P.W.1 in
paragraph 2 of his additional affidavit dated 24 February 2020 in lieu of
examination-in-chief, the document is marked as Exhibit "P1/11".
11. The document at Sr. No.2 of the additional compilation, which
is an e-mail of 1 February 2019, addressed by the Credit Officer of the
Plaintiff to the Plaintiff's Advocate, is marked as Exhibit "P1/12", based on
the deposition of P.W.1 in his additional affidavit dated 24 February 2021.
It is made clear that marking of this document is subject to the proof of the
truth of its contents.
12. Stand over to 16 April 2021, for further marking of the
Plaintiff's documents.
( S.C. GUPTE, J. )
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