J. Joshi vs Bank Of Baroda
2004 Latest Caselaw 696 Del

JUDGMENT

Vijender Jain, J.

1. This appeal has been filed by the appellant who was defendant no.3 in the suit filed by the respondent. The suit was filed by the respondent for a decree of recovery of an amount of Rs.2,04,303.59 with interest and costs. The suit has been decreed in favor of plaintiff/respondent herein. The judgment and decree is impugned in the present appeal by the appellant who was defendant no.3 in the suit. On the pleadings of the parties, following issues were framed:

1. What is the amount due under the hypothecation of goods account which defendant no.1 opened with the plaintiff bank?

2. Was the guarantee extended by defendants 2-4 for payment of the amount due under the said account subsisting on the date of the institution of the suit?

3. Is the suit barred by time?

4. Has this Court no jurisdiction to try this suit?

5. Relief. . .

2. It was contended before us by the learned counsel for the appellant that no guarantee was given by defendant no.3. Defendant no.3 was only a working Director of the company on salary and he never executed any guarantee in his personal capacity in favor of the plaintiff bank for any loans advanced to the defendant no.1, i.e., M/s. Navratan Trading Company Pvt. Ltd. The learned Trial Judge took note of the fact that in his examination in chief he admitted that he had signed several documents on behalf of defendant no.1. In cross-examination by counsel for the respondent bank, suggestion was denied that he had signed the guarantee and he denied that he had executed any guarantee for repayment of the loan by defendant no.1. However, on the basis of Ex.P -1/8, guarantee of Defendant no.4 and two letters dated 25.11.1978 and 19.12.1978 the Trial Court passed a decree against the appellant. Mr. Aggarwal, learned counsel appearing for the respondent bank has admitted that no guarantee purported to have been executed by the appellant was produced before the Trial Court. However, he emphasised that the same could not be produced as the same was lost. The stand taken by the respondent before the Trial Court was that the bank guarantee was not traceable. He has placed reliance upon the letter dated 25.11.1978 written by the respondent to the Managing Director of M/s. Navaratan Trading Company Pvt. Ltd. Ex.PW2/1, ''we refer to your letter No. Nil of 6th October, 1978 advising us of your withdrawing the guarantee from the credit facilities extended to M/s. Navratan Trading Company Pvt. Ltd. and right to advise you that the limit etc. were sanctioned to the firm in addition to other securities on the personal guarantee of Dr. J Joshi. The debit balance in the C/C account of Navaratan Trading Co. as on date is Rs.1,49,772.34 paise. Since you are interested in withdrawing the guarantee, you are advised to reap the sum of Rs.1,49,772.34 immediately to liquidate this account.''

3. Learned counsel for the respondent has relied upon the copy of the same having been sent to the appellant. The respondent again wrote a letter on 19th December, 1978 which was addressed to one Mr. S S Dutt and a copy of which was sent to the appellant. On the basis of these two letters, it was contended before us that this was sufficient material before the Trial Court to come to the conclusion that defendant no.3, i.e., appellant before us had executed the guarantee. We have heard the learned counsel for the parties at length. Alleged personal guarantee alleged to have been executed by the appellant has not been produced. The respondent has taken the plea that the same was not traceable. If the document is lost and primary evidence is not available, then there is a provision in law to lead secondary evidence. Section 65 of the Evidence Act deals with the circumstances under which secondary evidence can be given on the existence, contention or contents of a document then the original has been destroyed or lost. However, in order to admit the secondary evidence, it is not sufficient to show merely that the original document is lost or destroyed. The secondary evidence itself must be of the nature described in Section 63.

4. Section 65(c) contemplates that the secondary evidence can be led when the party offering evidence of its contents cannot produce it on account of acts not arising from his own default or neglect. Merely stating that the document is not traceable will not absolve the defendant nor will show that the document has been lost and destroyed and may not entitle him to lead secondary evidence under Section 65(c) of the evidence Act

5. Though, the question regarding secondary evidence will not ordinarily be interfered by the Appellate Court, however, it would certainly interfere, if it finds that the Trial Court has accepted the loss as a fact without taking into consideration the pre-requisite condition that are required by the Evidence Act. In the present case it is not the case of the respondent that the documents is lost or destroyed as the plea raised by the respondent is that it is not traceable.

6. Even otherwise, from the document exhibited as Pw 1/8 it cannot be inferred that personal guarantee was also executed by appellant. For leading secondary evidence it must be established that the party has exhausted sources and means in search of the document which was available to him. The plea of the respondent that the alleged personal guarantee alleged to have been executed by defendant no.3, appellant herein being not traceable will not lead to inference that it had been destroyed or lost in the present facts and circumstances. From the perusal of Ex.PW2/1 and PW2/2, letters emanating from the respondent to the Navaratan Trading Co. Pvt. Ltd also such an inference is not probable in the facts and circumstances. Ex. PW2/1 is a letter addressed to the Managing Director of the said company and Ex.PW2/2 is a letter to one Mr. S S Dutt. By letter dated 6th October, 1978 Exhibit P-8 the defendant no.2 intended to withdraw his personal guarantee. By no stretch of imagination, these letters which are addressed to different persons, would constitute an agreement of guarantee between the appellant and the respondent. No material was placed before the Trial court that copies of these letters were received by the appellant. Even otherwise, it cannot be inferred from any of these two letters that an agreement of guarantee or a contract of guarantee came into existence between the appellant and the respondent. We set aside the judgment and decree passed by the Trial Court qua the appellant. The appeal is allowed. No order as to costs.