Bombay High Court
Anand Bose Construction Pvt. Ltd., Thr. ... vs Agency Real Vasco Pvt. Ltd., Rep. By Its ... on 2 August, 2024
2024:BHC-GOA:1247
2024:BHC-GOA:1247 19 WP-409-2024.DOC
Meena
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.409 OF 2024
M/s Anand Bose Construction Pvt Ltd,
office at 801, Anand Square "B"
Near Sanjeevani Hospital,
Baina, Vasco da Gama, Goa,
Through its Managing Director,
Shri Anand Chandra Bose,
S/o Nitesh C Bose,
49 years of age, Indian National,
Business, Married,
R/0801, Anand Square "B" .....Petitioner
Near Sanjeevani Hospital,
Baina, Vasco da Gama, Goa
V/s
M/s Agency Real Vasco Pvt Ltd,
A company incorporated under the
Companies Act, 1956,
With its registered office at
Mascarenhas Building, 3rd Floor,
MG Road, Panaji, Goa 403001,
Represented in this act by its
Authorised signatory,
.....Respondent
Shri Nishakant Pednekar,
s/o Narsiha Pednekar,
41 years of age, Indian National,
r/o H No 667, St Anthony Waddo,
Guirim, Bardez, Goa
Mr. Gaurang Panandikar, Advocate for the Petitioner.
Mr. J.E. Coelho Pereria, Senior Counsel with Mr. Vinod
Korgaonkar, Advocate for the Respondent.
CORAM: BHARAT P. DESHPANDE, J
DATED: 2nd August, 2024.
Page 1 of 6
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19 WP-409-2024.DOC
ORAL JUDGMENT:
1. Rule. Rule is made returnable forthwith. Heard finally with
the consent of the parties.
2. Mr. Panandikar appearing for the Petitioner submits that the
application is filed on affidavit for production of secondary
evidence on the ground that original documents were lost during
shifting of office, as not been considered by the trial Court and the
application came to be rejected.
3. The petitioner is the original Defendant who filed an affidavit
in evidence and when he stepped into the witness box for
production of documentary evidence, it was objected by the
Plaintiff on a ground that the original is not produced. Accordingly,
he filed an application for leading secondary evidence under
Section 65 of the Evidence Act. Said application was objected by
the Plaintiff and accordingly the impugned order was passed.
4. Mr. Panandikar would submit that by a wrong interpretation
of Section 65(c), first paragraph, Defendant/Petitioner was asked
to give reason, which is incorrect. He submits that the contents of
the affidavit disclosed that the originals were lost and for that
purpose, no other explanation is required. As far as the other two
19 WP-409-2024.DOC
documents are concerned i.e. the Demand Drafts, Mr. Panandikar
fairly submits that other parameters are available to the Petitioners
to prove such documents. However, he submits that the
documents which Respondent Nos.1, 2, 3, 5, 7 and 8 were in
custody of the Petitioner, however, the same were lost during
shifting of the office. This reason could have been accepted by
permitting the Petitioner to produce secondary evidence however
such opportunity has been denied by passing the impugned order.
5. Mr. Pereira would submit that the impugned order neither
suffers from illegality nor impropriety as specific reasons are
disclosed by considering the provisions therefore no interference is
warranted.
6. The application was filed by the Defendant for permitting to
lead secondary evidence, squarely covered under Section 65(c) of
the Evidence Act wherein the Petitioner/Defendant on affidavit
disclosed that the originals have been lost. Mr Panandikar is right
in submitting that the first part that the document is lost requires
no further explanation and in fact it implies in it that the party was
unable to keep the document properly and there is clearly
negligence on the part of such party in protecting such document.
19 WP-409-2024.DOC
7. He submits that the second part of clause (c ) requires
reasons as to not arising from his own default or neglect which is
required to be considered. In the first part since there is 'comma' in
between and thereafter the word 'or' is separate from the first part
from the second part and required to be interpreted separately.
8. The learned trial Court has in fact mixed both these aspects
and sought an explanation from the Petitioner with regard to the
aspect of the document being lost.
9. In the case of Pandurang G. Dodke v/s. Lanka P.
Kshirsagar and Anr. [AIR 2005 Bom 427], the learned Single
Judge of this Court discussed the aspect that the first part of clause
(c ) of Section 65 of the Evidence Act wherein a statement on
affidavit that the document is lost is sufficient enough to allow the
party to lead secondary evidence.
10. It is no doubt true that the learned trial Court has considered
the decision of the Apex Court in the case of H. Siddhiqui(Dead)
by LRs v/s. A. Ramalingam [(2011)4 SCC 240] and more
particularly paragraph No.12 which shows that there should be a
foundation to establish that the original document is lost.
19 WP-409-2024.DOC
11. By filing an affidavit in the present matter disclosing that the
original is lost, in fact shows that the foundation was laid for the
purpose of allowing the party to lead secondary evidence. The
question whether the document is proved and the contents are to
be looked into as evidence, will have to be decided only on
appreciation of evidence however restricting the party at the
threshold from leading secondary evidence when it is claimed on
affidavit that the original is lost, would be denying an opportunity
to produce such document in evidence.
12. As far as the objections which the Plaintiff could raise at the
time of production of such secondary evidence is concerned, the
same is always open and it is for the Court to decide whether it
could rely such secondary evidence, only at the time of appreciating
such evidence while deciding the matter finally.
13. The documents at Sr.No.1, 2, 3, 5, 7 and 8 therefore could be
allowed to be produced as secondary evidence since there is
foundation to show that these documents are lost.
14. As far as the document at Sr.No.6 is concerned, the same is a
office copy and the letter was forwarded to the MD of the
Plaintiff/Respondent in his personal capacity, which is covered
under Section 65(a). Admissibility of such document could be
19 WP-409-2024.DOC
considered at the time of production of such document subject to
the objection which could be raised by the Plaintiff. Accordingly,
the impugned order needs interference.
15. The impugned order is therefore quashed and set aside.
16. The Defendant is allowed to produce documents at Sr. Nos.1,
2, 3, 5, 6, 7 and 8 by way of secondary evidence. However, it is
made clear that the Plaintiff is at liberty to raise relevant objections
to such document including admissibility of the contents therein
which the trial Court will have to decide at the appropriate stage.
17. Mr. Panandikar submits that he will take necessary steps
with regard to document Nos. 4 and 9 which are the Demand
Drafts, by summoning the necessary witnesses from the Bank.
18. With these observations, Rule is made absolute in the above
terms.
BHARAT P. DESHPANDE, J.
