Punjab & Sind Bank vs M/S Kunshiv Profiles Co.Pvt.Ltd. ...
2009 Latest Caselaw 1929 Del

*      HIGH COURT OF DELHI : NEW DELHI

    RFA App. No.460/2007 & CM No.11691/2007

     %            Judgment reserved on: 30th April, 2009

                 Judgment delivered on: 8th May, 2009

Punjab & Sind Bank,
a body constituted under the Banking
companies (Acquisition & Transfer
of Undertakings) Act, 1980 having
its Head Office at Bank House, 21,
Rajendra Place, New Delhi and
Inter alia its Asset Recovery Branch
At M-14, Connaught Place,
New Delhi-110001.                        ....Appellant
                      Through: Mr.Pallav Saxena, Adv.

                    Versus

1. M/s. Kunshiv Profiles Co. Pvt. Ltd.
2. Mr.Bimal Kumar Arora
   s/o Mr.S.N.Arora
3. Ms.Madhu Arora, w/o Mr.Bimal Kumar Arora

Respondents 1 to 3 at:
A-46, Malkagnaj, Delhi-110088

4. Mr.Rajiv Arora, S/o S.N.Arora
5. Mr.Ajay Kumar Arora, S/o Mr.S.N.Arora

Respondents 4 & 5 at:
C-2/52-A, Safdarjang Development Area
New Delhi.                       Respondents.

                           Through: Ms.Maldeep Sidhu, Adv.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

RFA No.460/2007 & CM No.11691/2007              Page 1 of 18
 1. Whether the Reporters of local papers may
   be allowed to see the judgment?                      Yes

2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be reported
   in the Digest?                                       Yes

V.B.Gupta, J.

Appellant has filed the present appeal against the

judgment and decree dated 28th July, 2006 passed by

Sh.Rakesh Kumar, Addl.District Judge, vide which the

suit filed by the appellant was dismissed.

2. The brief facts of this case are, the appellant filed

a suit for recovery of Rs.8,29,842.09p. along with

interest thereon @ 18.5% p.m. compounded quarterly

on the allegations that respondent No.1 is a private

limited company of which respondents 2 to 5 are

directors. Credit facilities were initially granted to

respondent No.1 on 21st August, 1990 in the form of

Cash Credit (hypothecation) facility with a limit of

Rs.75,000.00, Cash Credit (pledge) facility with a limit

of Rs.1 lac and Bill Purchase (clean) facility with a limit

of Rs.25,000.00 respectively. Limit of Cash Credit

(hypothecation) facility, was enhanced on 12th

December, 1990 from Rs. 75,000.00 to Rs.2.5 lacs.

The credit facilities were primarily secured by virtue of

loaning and security documents executed by

respondent No.1, inter alia, on 21st September, 1990,

8th October, 1990, 3rd April, 1992, 20th February, 1995

and 13th January, 1998 and collaterally secured by

virtue of personal guarantees of respondents 2 to 5,

equitable mortgage of immoveable property of

respondent No.1, being property No.349/1/1, Village

Bandia, Tehsil Kichha, District Nainital, U.P. and

creation of second charge on the immovable property

of respondent No.1 being Industrial Plot No.G-1-680,

Bhiwadi Industrial Area, Bhiwadi. The respondents

failed to liquidate their respective liabilities

necessitating the filing of suit.

3. Respondents 1 to 3, were duly served but did not

appear. Vide order dated 19th April, 2002, they were

precluded from filing the written statement, while

respondents 4 to 5, were served by publication as well

as affixation, but they also failed to appear and vide

order dated 13th February, 2003, they were proceeded

ex parte.

4. In support of its case, appellant examined

Sh.B.S.Shokhi, Senior Manager of the appellant-bank,

who tendered his evidence by way of affidavit. Though

appellant had also filed the affidavits of Sh.A.S. Jaggi

and Sh. Kamlesh Kumar, Managers Punjab and Sind

Bank, Chawri Bazar, but these witnesses did not

appear in the witness box and as such their affidavits

remained untendered. The appellant did not opt to

examine any other witness, though opportunities were

given.

5. Trial court in its impugned judgment held that,

during the statement of above witnesses only

photocopies of documents were produced and as

regards the original documents, it was claimed that

those were misplaced by the counsel for the appellant,

although the documents were duly handed over to him

and in this respect, the counsel for the appellant

expressed his desire to file additional affidavit in

evidence to prove the loss of original documents.

Appellant was permitted to do so, but instead of

bringing additional and collateral evidence in the form

of secondary evidence, the counsel for the appellant

submitted his own affidavit, inter alia, making

deposition that the original documents were lost by

him.

6. After dismissal of the suit, appellant filed an

application for review of the impugned judgment under

Order 47 Rule 1 CPC, before the trial court. That

application was dismissed by the trial court, vide its

order dated 12th March, 2007.

7. Now in the present appeal, appellant has also

filed an application under Order 41 Rule 27 CPC

seeking permission to lead additional evidence.

8. It is contended by learned counsel that the

appellant had clearly succeeded in discharging the

onus of proving its claim against the respondents by

leading secondary evidence in the form of photocopies

of original loaning and security documents. The

original loaning and security documents were handed

over to the then counsel for the appellant against

receipt vide letter dated 16.2.1999. The application

for leading secondary evidence in the form of

photocopies of loaning and security documents was

duly supported by the affidavit of the then counsel for

the appellant, who deposed to the fact that the original

loaning and security documents had been

lost/misplaced. Since the originals had been misplaced

by the then counsel for the appellant, he was the most

competent person to depose about the same, which he

did by way of his affidavit in support of the application

for leading secondary evidence. Thus, the best

evidence qua loss and misplacement of original

documents had already been filed in the form of

affidavit of the counsel for the appellant.

9. The trial court erroneously concluded that the

appellant was obligated to lead collateral and

corroborating evidence to establish misplacement and

loss of original documents. It is contended that after

the loss of the original documents, neither a police

report was lodged nor any public notice was issued.

In such circumstances, there was no collateral or

corroborative evidence to prove the loss of original

documents. As a matter of fact, there cannot be any

direct evidence of such facts. Therefore, the conditions

precedent to leading secondary evidence stood duly

established and proved. The trial court committed an

error of law by not treating the case of the appellant as

proved by secondary evidence.

10. It is further contended that the Statement of

Account quantifying the dues of the appellant, had

been duly placed on records. As per the settled

proposition of law, every entry contained in a

statement of account, which is a true extract of ledger

maintained by a bank in ordinary and normal course of

its banking business, is presumed to be correct unless

proved to the contrary. In the instant case, each entry

in the Statement of Account remained uncontroverted

and unchallenged. Further, the Statement of Account

duly certified is admissible in evidence by virtue of

Section 4 of Bankers Books Evidence Act, 1891. Thus,

the trial court erroneously observed that the appellant

was obligated to produce books and ledgers, which are

immune from production under the provisions of

Bankers Books Evidence Act, 1891.

11. In support of its contention, learned counsel for

appellant cited, Central Bank of India v. Ravindra

& Ors. (2002) 1 SCC 367 in which Supreme Court

held;

"A statement of account shall be filed in the court showing details and giving particulars of debit entries, and if debit entry relates to interest then setting out also the rate of, and the period for which the interest has been charged. On the court being prima facie satisfied, if a dispute is raised in that regard, of the permissibility of debits, the onus would be on the borrower to show why the amount of debit balance appearing at the foot of the account and claimed as principal sum cannot be so accepted and adjudged. This practice would narrow down the scope of controversy in suits

filed by banking institutions and enable an expeditious disposal of the suits, the issues wherein are by and large capable of being determined by documentary evidence."

12. On the other hand, learned counsel for the

respondents has contended that there is no infirmity

in the judgment passed by the trial court. Since the

appellant, did not produce even the secondary

evidence, the court had no option, but to dismiss the

suit.

13. It is well settled that in every suit the onus is

upon the plaintiff to prove the averments made in his

plaint, unless the same are admitted by the defendant.

The appellant filed the present suit entirely based on

documents but did not file any original documents.

Only photocopies of documents were filed. Due to

non-filing of the original documents, the trial court

dismissed the suit of the appellant.

14. In this regard, it will fruitful to reproduce certain

findings of the trial court which reads as under;

"In support of the case of the plaintiff, Sh.B.S.Shokhi, Sr.Manager appeared in the witness box and tendered his evidence by way of affidavit. Although the plaintiff has also filed the affidavits of Sh.A.S.Jaggi and Sh.Kamlesh Kumar, Managers, Punjab and Sind Bank, Chawri Bazar, but these witnesses did not appear in the witness box and as such their affidavits remained untendered. While tending the affidavit, PW-1, (recorded as PW-2) has brought the following photocopies of documents on record."

15. So, it is clear that only photocopies of the

documents were produced before the trial court. The

court further held;

"The plaintiff did not opt to examine any other witness, though opportunities were given. During the statement of above mentioned witness only photocopies of documents were produced and as regard to original documents it was claimed that those were misplaced by the counsel for the plaintiff, although the documents were duly handed over to him and in this respect the counsel for the plaintiff expressed his desire to file additional affidavit in evidence to prove the loss of the original documents. He was permitted to do so but instead of bringing additional and collateral evidence in the form of secondary

evidence, the counsel for plaintiff submitted his own affidavit inter alia making deposition that the original documents were lost by him.

I have given my anxious thoughts to the submissions of Ld. Counsel for the plaintiff. I have also carefully perused the entire relevant material placed in the file and in my considered opinion the plaintiff has been failed to discharge its onus of proving its case in its favour and against the defendants despite of the fact that the evidence produced by the plaintiff remained un- rebutted and un-controverted. In this case, the original documents have been withheld by the plaintiff on the ground that the same have been lost by Ld. Counsel for plaintiff to whom they were given but it has failed to establish that it has exhausted all the sources & means in search of the same. There is no police report. No public notice was issued regarding loss of documents in the Newspaper etc. It has only produced the photocopies of the documents instead of bringing the additional and collateral evidence in the form of secondary evidence and it has merely placed the affidavit of Ld. Counsel to the effect that the same has been misplaced by him but the same is not sufficient. In order to raise presumption in favour of the plaintiff regarding transactions held between the parties during the ordinary course of business, it should have brought the additional evidence like records of relevant entries in the Books & Ledgers

while advancing money, extracts of registers where documents were registered/recorded at the time of issuance, records of the acknowledge- ments of the loan amount by the defendants, records of issuance of DD/ Pay Order etc., material correspon- dence and exchange of communications etc. and so on. It should have also bring evidence to the effect that the documents were actually given to the counsel by producing acknowledgment receipts etc. and utmost efforts were made for tracing them out.

Sections 61 & 62 read together show that the contents of a document must, primarily be proved by the production of the document itself for the inspection of the court. Original document is the best and primary evidence. Section 63(3) prescribes two alternatives for admissibility of a document as a secondary evidence first it may be a copy made from original and secondary it must be a copy compared with the originals. If either of these two requirements had been satisfied then the documents would be a proper and valid secondary evidence. Secondary evidence of the contents of the documents cannot be admitted without the non production of the original being first accounted for in such manner as to bring it within one or the other cases provided for in Section 65 of Evidence Act. In AIR 1933 Patna 468, it was held that, "Secondary evidence should not be allowed unless the

circumstances are a sufficient justifications under the Evidence Act for reception of secondary in lien of primary evidence." In AIR 1954 SC 506, it was observed that, "A foundation must first be laid for the reception of secondary evidence. Merely stating that a document could not be found is not sufficient to permit the admission of secondary evidence." It was held in AIR 1958 AP 415 "DB" that, "Section 65 permits that leading of secondary evidence only where the original has been lost. It must be established that the party has exhausted all the sources and means in the search of the documents, which were available to him. Where no reason for it or loss thereof proved, secondary evidence cannot be allowed."

16. Primary evidence is the best evidence obtainable,

that is, the statement of an eye witness or an original

document. Section 63 of the Indian Evidence Act,

1872 (in short as „Act‟) defines as to what is secondary

evidence. "Secondary evidence", as the name implies,

assumes the existence of better evidence, viz, the

original. As a rule, secondary evidence is not

admissible until the non-production of primary

evidence is satisfactorily accounted for.

17. The present suit was filed on 23rd February, 1999

and at that time appellant filed only the photocopies of

the documents.

18. On 13th August, 2004, statement of PW-2 was

recorded, who in his statement stated that;

"The original documents have been lost/misplaced by our counsel of the Bank after filing of the suit, so I have exhibited the photocopies of the original documents which are on record and the same are the true copies of the originals."

19. In this statement PW-2 nowhere stated as to on

which date, the original documents were handed over

to their counsel and when the same were lost by their

counsel. In this respect, it may be pertinent to

mention here that counsel for the appellant filed an

application under Section 63 of the Act on 13th August,

2004 in the trial court, along with his affidavit, stating

that during the pendency of the present suit, the

original documents, the basis of the suit have been

lost/misplaced and are not traceable with the plaintiff‟s

counsel.

20. It was nowhere stated in this application that

these documents were lost by the counsel after the

same were handed over to him, nor it was mentioned,

as to on which date and by whom these documents,

were handed over to him and when and where, and in

what manner he had lost/misplaced, these documents.

21. The counsel for the appellant in his affidavit dated

17th November, 2005 has stated that original

documents were with him and during the pendency of

the suit, the same has been lost/misplaced by him.

22. Appellant has also filed an application under

Order 41 Rule 27 CPC for permission to lead additional

evidence. In this application, it is stated that after

dismissal of the suit, appellant made frantic efforts to

locate the proof of handing over of original documents

to its counsel and such primary documentary evidence

as would be sufficient to corroborate its claim against

the respondents. With great difficulty the appellant,

succeeded in locating original receipted copy of letter

dated 16th February, 1999, Form No.182 dated 30th

September, 1995, Form No.182 dated 12th June, 1996,

Balance Confirmation Slip as on 30th September, 1997

and Balance Confirmation Slip as on 30th March, 1998

respectively. These documents were filed along with

review application to substantiate that the appellant

did possess certain additional evidence.

23. Interestingly, in this application it is nowhere

stated as to from where these documents were located

or found. According to the averments made in this

application, it appears that the documents have been

located by the appellant and they were not in

possession of their counsel. The case of the appellant,

right from day one, is that the original documents were

handed over by appellant to its counsel and counsel

has lost/misplaced the documents. If the counsel has

misplaced/lost the documents, then how these

documents have now come into possession of the

appellant.

24. The averments made in the application for

additional evidence are contrary to the pleas taken by

the counsel for the appellant, in his affidavit filed in

this case. It would also be pertinent to note that the

appellant has nowhere stated in this application for

additional evidence as to on which date after

judgment, these documents were located/traced and in

whose custody these documents were found to be

traceable. No name of any official of the appellant‟s

bank has been mentioned. If averments in the

application for additional evidence are assumed to be

correct, then the stand of appellant is entirely

contradictory, in view of the statement of PW-2 and the

affidavit of counsel Raja Harpal Singh, filed in this

case.

25. Thus the judgment cited by learned counsel for

the appellant is not applicable to the facts of the

present case at all.

26. Since the appellant has neither filed nor proved

the original documents on record, I do not find any

infirmity with the judgment of the trial court and I fully

concur with the findings of the trial court.

27. There is no merit in this appeal. Consequently,

the appeal as well as application for additional

evidence, are dismissed.

28. Parties are left to bear their own costs.

May 08, 2009                         V.B.GUPTA, J.
Bisht