Calcutta High Court
A.M. Industries Ltd. & Anr vs Inderchand Rajgarhia & Sons Pvt. ... on 18 November, 2022
OD-9
IA No. GA/4/2019
(Old No. GA/2823/2019)
CS/15/2010
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
A.M. INDUSTRIES LTD. & ANR.
VS.
INDERCHAND RAJGARHIA & SONS PVT. LTD. & ANR.
BEFORE :
The Hon'ble JUSTICE KRISHNA RAO
Heard On : 15.11.2022
Order On : 18.11.2022
Appearance:
Mr. Atish Ghosh. Adv.
Mr. Debmalya Ghosal, Adv.
Mr. Tanmoy Sett, Adv.
Ms. Sumana Biswas, Adv.
...for the plaintiff.
Mr. Arik Banerjee, Adv.
Mr. K. R. Das, Adv.
...for the respondent.
1
ORDER
The defendant has filed the instant application praying for
correction/modification/rectification of the deposition of the witness no. 1 of
the plaintiff namely Pradeep Kumar Banka examined on 13.11.2019 by
recording objections in connection with documents marked as Exhibit - 'A',
Exhibit - 'B' and Exhibit - 'C'.
The statement of plaintiff's witness no. 1 was recorded in part before this
Court on 13.11.2019 and during the examination of the said witness the
plaintiff has exhibited three documents i.e. Exhibit - 'A' (objected to validity of
the document), Exhibit - 'B' and Exhibit - 'C'.
The Counsel for the defendant submits that while recording the
statement of plaintiff's witness no. 1 namely Pradeep Kumar Banka, the
Counsel for the defendant has raised objection with regard to questions no. 12
to 14 and questions no. 26 to 28 but inspite of the objection raised by the
Counsel for the defendant while tendering the documents such objection has
not been recorded in the said deposition.
The Counsel for the defendant submits that the Exhibit - 'A' which is the
extract of the minutes of the meeting of Board of Directors of the Company dt.
31.03.2016 was not the original one and it was the copy of the same but
inspite of the objection raised by the Counsel for the defendant, the same was
exhibited as Exhibit - 'A' without any objection.
Counsel for the defendant submits that the defendant has raised specific
objection when a general diary was sought to be exhibited through the
plaintiff's witness on the ground that the general diary did not contained
specific particulars of the plaintiff's documents being the part of CS 15 of 2010
which was allegedly lost on 26.07.2019 but inspite of the objection the said
General Diary was exhibited as Exhibit ''B' without recording any objection.
Counsel for the defendant further submits that while tendering the
document dt. 16.08.1996 i.e. extract of meeting of the Board of Directors, the
defendant has raised objection for exhibiting the same as neither the said
document was in original nor the witness was the signatory of the said
document but inspite of the objection raised by the defendant the said
document was exhibited as Exhibit - 'C' without any objection.
The Counsel for the defendant submits that without proving that the
existence of primary document is not available, secondary evidence in the form
of photocopies of the said documents would not be allowed under the
provisions of Section 65 of the Evidence Act, 1872.
Learned Counsel for the defendant submits that admittedly all the
documents are the Xerox copy and not in original and there was no explanation
with regard to original document and inspite of objection raised by the
defendant, said documents were exhibited and as such the exhibits being
Exhibit - 'A', Exhibit - 'B' and Exhibit - 'C' should not be exhibited or it is to be
exhibited only for identification.
Learned Counsel for the defendant relied upon the judgment reported in
(2004) 7 SCC 107 (Dayamathi Bai -versus- K.M. Shaffi) submits that if the
foundation is laid under Section 65 and if the plaintiff was able to prove that
the original document was lost, then the secondary evidence was admissible
but in the absence of the such foundation the secondary evidence is
inadmissible.
Per contra, Learned Counsel for the plaintiff submits that while tendering
the document being extract of the meeting of the Board of the Directors of the
plaintiff's company, this Court had exhibited the said document as Exhibit - 'A'
and while exhibiting the same this Court has recorded the objection raised by
the defendant.
Learned Counsel for the plaintiff further submits that apart from the
aforementioned objection, other objections were raised by the Counsel for the
defendant which was duly considered by this Court at the time of evidence of
the witness of the plaintiff and since this Court did not find any merit in the
said objection, the objections were not recorded and accordingly the said
documents were exhibited as 'Exhibit - 'B' and Exhibit - 'C' without any
objection.
Learned Counsel for the plaintiff further submits that after the
examination of the witness on 13.11.2019, till 04.12.2019 the defendant has
not made any application for any clarification and only after 04.12.2019 the
defendant has filed the instant application.
Learned Counsel for the plaintiff further submits that the examination of
witness no. 1 was held before Hon'ble Justice Shivakant Prasad and on
21.02.2020, the matter was placed before His Lordship but the Learned
Counsel for the defendant had not appeared before His Lordship and
accordingly the said matter was released.
Learned Counsel for the plaintiff further submits that the defendant has
filed the instant application after thought to fill up lacuna and the documents
were exhibited by this Court in presence of the Counsel for the defendant and
as such the application filed by the defendant is required to be rejected.
Learned Counsel for the plaintiff relied upon the judgment reported in
(2003) 8 SCC 752 (R.V.E. Venkatachala Gounder -versus- Arulmigu
Viswesaraswami & V.P. Temple & Anr.) and submits that Order 13, Rule 4 of
CPC provides for every document admitted in evidence in the suit being
endorsed by or on behalf of the Court which endorsement signed or initial by
the Judge amounts to admission of document in evidence. It is further
submitted that an objection to the admissibility of the document should be
raised before such endorsement is made and the Court is obliged to form his
opinion on the question of admissibility and express the same on which
opinion would depend the document being endorsed as admitted or admitted in
evidence.
Learned Counsel for the plaintiff further submits that in the instant case
though the Counsel for the defendant has raised objection and this Court has
finds that the Exhibit - 'A' is to be exhibited with objection and accordingly the
objection was recorded but with regard to other two documents this Court
finds that the objection raised by the Counsel for the defendant was not
sustainable and accordingly the said documents were exhibited without any
objection.
Heard, the Learned Counsel for the respective parties perused the
pleadings, documents and the judgments relied by the parties.
While examination of the plaintiff's witness no. 1 namely Pradeep Kumar
Banka, Exhibit - 'A' was tendered before the said witness and after the
objection raised by the Counsel for the defendant the same was exhibited as
Exhibit - 'A' (objected to the validity of the documents), Exhibit - 'B' is the letter
dt. 26.07.2019 submitted by the plaintiff to the Officer-in-Charge of the Police
Station which was recorded as G.D. Entry No. 2546 at the police station. After
going through the documents it is find that the said document is in original
and the signature of the witness no. 1 is also appearing as original signature in
the said letter and accordingly this Court has not recorded any objection while
exhibit the same as Exhibit 'B'. As regard Exhibit - 'C', the Xerox copy of the
minutes of the meeting of the Board of Director dt. 16.08.1996, the said
document was exhibited through the witness no. 1 vide question no. 27.
Question 27 reads as follows :
"Q.27. (Shown another document) - Where is the original of this
document?/ The original of this document was lost as I had just deposed
in my earlier answer.
(Tendered and marked as Exhibit - 'C').
Order dt. 13.11.2019, this Court recorded as follows :
"Plaintiff's witness action is commenced and examined in chief and
deferred on the prayer of the plaintiff.
Documents are marked Exhibit as per exhibit list.
List the matter on 04.12.2019."
From the deposition of the witness no. 1 and from the order dt.
13.11.2019, it reveals that there is no mentioning whether the Counsel for the
defendant has raised any objection or this Court has considered the objection
and rejected the objection raised by the Counsel for the defendant.
In the affidavit-in-opposition, the plaintiff has made out a specific case
that the defendant has raised objection but this Court did not find any merit in
the said objection and accordingly the documents were exhibited without any
objection.
The averment made by the plaintiff is contrary to record. The Counsel for
the defendant has raised objection with regard to Exhibit 'A' and this Court had
recorded the objection of the defendant while exhibiting the said document.
Exhibit - 'C' is also a Xerox copy of the extract of minutes of the meeting of the
Board of Directors dt. 16.08.1996 and the witness no. 1 is not the signatory of
the said document and as such the said document ought not to have been
exhibited and if it is exhibited, it could have been exhibited with objection.
The witness was examined in part on 13.11.2019 and thereafter the case
was adjourned till 04.12.2019. The defendant has filed the instant application
on 16.12.2019 i.e. within a short span of time.
The Hon'ble Supreme Court in the case of R.V.E Venkatachala Gounder
(supra) held that an objection to the admissibility to the document should be
raised before such endorsement is made and the Court is obliged to from its
opinion on the question of admissibility and express the same on which
opinion would depend the document being endorsed as admitted or not
admitted in evidence.
In the instant case, it is the specific case of the plaintiff that the
defendant has raised objection but this Court has rejected the objection and
exhibited the document but neither in the deposition of the witness no. 1 nor
in the order dt. 13.11.2019, it reveals that this Court has expressed any
opinion with regard to the admissibility of the document after the objection
raised by the defendant.
In view of the above, this Court is of the view that Exhibit - 'A' is marked
with objection and Exhibit - 'B' is the original document and need not to record
the objection and with regard to Exhibit - 'C', in the said exhibit an objection is
to be recorded.
Accordingly, in question no. 27 of the witness no. 1 after the Exhibit - 'C'
(with objection) is to be recorded. The Assistant Registrar of this Court is
directed to incorporate the word (with objection) after Exhibit - 'C'.
GA 4 of 2019 (Old GA 2823 of 2019) is thus disposed of.
(KRISHNA RAO, J.)
p.d
