[Cites 7, Cited by 0]

Karnataka High Court

Mr R B Kamath vs Official Liquidator Of M/S Kamath ... on 20 February, 2026

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

                                            -1-
                                                          NC: 2026:KHC:10730
                                                           CA No. 10 of 2026
                                                      A/W CA No.31 of 2026
                                                       in CA No.863 of 2002
                   HC-KAR                               in COP No.3 of 1994


                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 20TH DAY OF FEBRUARY, 2026

                                         BEFORE
                       THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
                            COMPANY APPLICATION NO. 10 OF 2026
                                           A/W
                            COMPANY APPLICATION NO.31 OF 2026
                                            IN
                            COMPANY APPLICATION NO.863 OF 2002
                                            IN
                              COMPANY PETITION NO.3 OF 1994


                   IN CA NO.10/2026:

                   BETWEEN:

                      MR. R.B. KAMATH
                      S/O LATE B.S. KAMATH,
                      AGED ABOUT 63 YEARS
                      RESIDING AT 1206, PLANET SKS,
Digitally signed
by SHWETHA            KADRI HILLS, MANGALORE-575 008.
RAGHAVENDRA                                                     ...APPLICANT
Location: HIGH
COURT OF
KARNATAKA          (BY SRI. A.S. VISHWAJITH AND
                       SMT. MALAVIKA PRASAD, ADVOCATES)

                   AND:

                      OFFICIAL LIQUIDATOR OF
                      M/S. KAMATH PACKAGING LIMITED
                      (IN LIQUIDATION)
                      ATTACHED TO HIGH COURT OF
                      KARNATAKA
                      CORPORATE BHAWAN,
                      NO.26-27, 12TH FLOOR,
                          -2-
                                       NC: 2026:KHC:10730
                                        CA No. 10 of 2026
                                   A/W CA No.31 of 2026
                                    in CA No.863 of 2002
HC-KAR                               in COP No.3 of 1994


   RAHEJA TOWERS, M.G. ROAD,
   BANGALORE-560 001.
                                           ...RESPONDENT

(BY SRI. SHRISHAIL NAVALGUND, ADVOCATE)

     THIS COMPANY APPLICATION IS FILED BY APPLICANT
UNDER SECTION 65 OF THE INDIAN EVIDENCE ACT, 1872
READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE,
1908 AND RULES 6, 9 OF THE COMPANIES (COURT) RULES,
1959, PRAYING TO PERMIT RESPONDENT NO.1 IN C.A. 863 OF
2002 (THE APPLICANT HEREIN) TO PRODUCE AND MARK
SECONDARY EVIDENCE IN LIEU OF THE ORIGINALS OF THE
ANNEXURES RELIED ON IN THE STATEMENT OF OBJECTIONS,
NAMELY: (1) ORDER DATED 06.11.1993 PASSED IN HRC
10386/1993; (2) MAHAZAR DRAWN BY THE SUPERINTENDENT
OF CENTRAL EXCISE; (3) LETTER DATED 06.01.1995 ISSUED
BY THE COMPANY IN LIQUIDATION TO THE KARNATAKA STATE
INDUSTRIAL     AND    INFRASTRUCTURE     DEVELOPMENT
CORPORATION (KSIIDC) ALONG WITH THE ANNEXURES TO
THAT LETTER INCLUDING THE MAHAZAR PREPARED BY
KSIIDC.

IN CA NO.31/2026:

BETWEEN:

   MR. R.B. KAMATH
   S/O LATE B.S. KAMATH,
   AGED ABOUT 63 YEARS
   RESIDING AT 1206, PLANET SKS,
   KADRI HILLS, MANGALORE-575 008.
                                            ... APPLICANT

(BY SRI. A.S. VISHWAJITH AND
    SMT. MALAVIKA PRASAD, ADVOCATES)

AND:

   OFFICIAL LIQUIDATOR OF
   M/S. KAMATH PACKAGING LIMITED
                                -3-
                                                NC: 2026:KHC:10730
                                               CA No. 10 of 2026
                                          A/W CA No.31 of 2026
                                           in CA No.863 of 2002
HC-KAR                                      in COP No.3 of 1994


     (IN LIQUIDATION)
     ATTACHED TO HIGH COURT OF KARNATAKA
     CORPORATE BHAWAN, NO.26-27,
     12TH FLOOR, RAHEJA TOWERS,
     M.G. ROAD, BANGALORE-560 001.
                                        ...RESPONDENT

(BY SRI. SHRISHAIL NAVALGUND, ADVOCATE)

     THIS COMPANY APPLICATION IS FILED BY APPLICANT
UNDER RULE 9 OF THE COMPANIES (COURT) RULES, 1959,
PRAYING TO DISPENSE WITH TYPED / MORE LEGIBLE COPIES
OF THE ANNEXURES PRODUCED ALONG WITH CA 10/2026.

     THESE APPLICATIONS, COMING ON FOR ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ


                        ORAL ORDER

1. CA No.10/2026 has been filed under Section 65 of

the erstwhile Indian Evidence Act, 1872 (for short

'Act') r/w Section 151 of the Code of Civil Procedure

seeking permission to lead secondary evidence by

production of 3 documents namely, the final

judgment dated 06.11.1993 in HRC No.10386/1993

to try and establish that the Company was no longer

in possession of the property post that date.

Annexure-B being the mahazar drawn by the Central

NC: 2026:KHC:10730

Excise Department before the shifting of the material

from the bonded factory. Annexure-C is a letter

issued by the Company to the Karnataka State

Industrial and Investment Corporation regarding the

takeover of the Company, along with annexures.

Annexure-D is the application.

2. Submission of the learned counsel for the applicant is

that the originals of these documents are not

available with the applicant, and it is for that reason

that the secondary evidence is proposed to be led. If

not for these documents, there are no other

documents that the petitioner could place on record

to try to establish its contentions.

3. Sri Shrishail Navalgund, learned counsel for the

Official Liquidator, strenuously objects to the said

application. Firstly, contending that there was an

earlier application that had been filed in

CA No.244/2025, which had been withdrawn on

NC: 2026:KHC:10730

23.10.2025, the very same application with the very

same contention being filed cannot be sustained.

Secondly, he submits that the said application is now

to be filed in CA No.863/2002 after a long lapse of

time, and as such, at this length of time, an

application for secondary evidence cannot be

allowed. Lastly, he submits that there is no relevance

or foundation established by the applicant to produce

those documents at this stage.

4. Heard Ms. Spoorthi Cotha, learned counsel appearing

for the applicant and Sri Shrishail Navalgund, learned

counsel for the Official Liquidator.

5. Insofar as the first contention, namely that an earlier

application had been filed and withdrawn, a perusal

of the order dated 23.10.2025 clearly indicates that

liberty had been expressly reserved in favour of the

applicant. Once such liberty is granted, it preserves

the right of the applicant to re-agitate the matter in

NC: 2026:KHC:10730

accordance with law. The withdrawal, therefore,

cannot operate as a procedural bar. The filing of the

present application cannot be rejected merely on the

ground that it is a second application, when the

earlier withdrawal was accompanied by an express

reservation of liberty.

6. As regards the contention that the present

application is belated, the same does not merit

acceptance. Though the applicant had earlier entered

appearance in the proceedings, the applicant was

placed ex-parte owing to the non-appearance of the

then counsel. Upon change of counsel, an application

was filed for setting aside the ex-parte order. The ex-

parte order was thereafter set aside by a co-ordinate

Bench on 25.08.2025, thereby restoring the

applicant to the position of a contesting party. Once

such restoration was effected, the applicant was

entitled to prosecute and defend the matter

effectively. The present application, having been filed

NC: 2026:KHC:10730

after the setting aside of the ex-parte order, cannot

be characterised as belated. A litigant cannot be

permanently prejudiced on account of the default of

earlier counsel, particularly when the Court itself has

restored the right of participation.

7. Insofar as the contention that there is no foundation

laid for the relevance of the documents sought to be

produced, the proceedings are under Section 543(2)

of the Indian Companies Act, 1956, which pertain to

misfeasance. In such proceedings, the applicant

must necessarily be afforded an opportunity to

demonstrate that there was no misfeasance on his

part, that the acts complained of were bona fide, or

that the allegations made by the Official Liquidator

are not attributable to him. The documents sought to

be placed on record are for the purpose of showing

that the possession of the property was not with the

Company, that the goods shifted from the bonded

warehouse do not correspond to the goods alleged to

NC: 2026:KHC:10730

have been misappropriated, and that the KSIIDC had

taken over the running unit of the Company. These

assertions bear a direct nexus to the allegations in

the misfeasance proceedings. At this stage, the Court

is concerned only with whether there is ex facie

relevance.

8. The evidentiary value of the documents and the truth

of the assertions must necessarily be tested in cross-

examination. However, for the limited purpose of

determining whether the documents can be received

on record, sufficient foundational relevance is

established. Though the application is filed under

Section 65 of Indian Evidence Act, the same would

have to be considered with reference to Section 60 of

the Bharathiya Sakhsya Adhiniyum, 2023 (BSA),

which is reproduced hereunder for easy reference.

60. Secondary evidence may be given of the existence,

condition, or contents of a document in the following cases,

namely: --

NC: 2026:KHC:10730

(a) when the original is shown or appears to be in the possession or power--

(i) of the person against whom the document is sought to be proved; or

(ii) of any person out of reach of, or not subject to, the process of the Court; or

(iii) of any person legally bound to produce it, and when, after the notice mentioned in section 64 such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Adhiniyam, or by any other law in force in India to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. Explanation.--For the purposes of--

(i) clauses (a), (c) and (d), any secondary evidence of the contents of the document is admissible;

(ii) clause (b), the written admission is admissible;

(iii) clause (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible;

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(iv) clause (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such document.

9. The evidentiary value of the documents and the

veracity of the assertions founded upon them must

necessarily be subjected to the rigours of cross-

examination. At this stage, the Court is not

concerned with conclusively determining their

probative worth. The enquiry is confined to whether

the documents may be received on record and

whether the threshold requirements for permitting

secondary evidence stand satisfied.

10. The statutory scheme under Section 60 delineates

the contingencies in which secondary evidence may

be adduced regarding the existence, condition, or

contents of a document.

11. Under clause (a), secondary evidence is permissible

where the original is shown or appears to be in the

possession or power of the person against whom it is

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sought to be proved, or any person beyond the reach

of, or not subject to, the process of the Court, or a

person legally bound to produce it, and such person

fails to produce the same despite notice under

Section 64.

12. Clause (b) enables reception of secondary evidence

where the existence, condition, or contents of the

original stand admitted in writing by the person

against whom it is proved or by his representative in

interest.

13. Clause (c) contemplates situations where the original

has been destroyed or lost, or cannot be produced

within reasonable time for reasons not attributable to

the default or neglect of the party seeking to rely

upon it.

14. Clause (d) applies where the original is of such a

nature as not to be easily movable.

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NC: 2026:KHC:10730

15. Clause (e) relates to public documents within the

meaning of Section 74.

16. Clause (f) concerns documents of which certified

copies are statutorily permissible in evidence.

17. Clause (g) addresses cases involving voluminous

accounts or documents, where proof of the general

result of the collection is sufficient.

18. The Explanation appended to Section 60 clarifies the

nature of secondary evidence admissible in each

category. In cases falling under clauses (a), (c), and

(d), any form of secondary evidence of the contents

may be admitted. In respect of clause (b), the

written admission itself constitutes admissible

evidence. For clauses (e) and (f), only certified

copies are admissible. In cases under clause (g),

evidence as to the general result may be tendered by

a person who has examined the documents and

possesses the requisite skill to do so.

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19. Therefore, while the ultimate appreciation of the

documents must await trial and cross-examination,

the present consideration is limited to whether the

case falls within any of the statutorily recognised

contingencies for reception of secondary evidence. If

the foundational requirements under Section 60 are

prima facie established, the documents may be

received, leaving their evidentiary weight to be

determined at the appropriate stage.

20. A plain reading of Section 60 of the Bharatiya

Sakshya Adhiniyam makes it clear that secondary

evidence is not a matter of course, but is permissible

only in defined contingencies. Broadly stated,

secondary evidence may be permitted where the

primary evidence is unavailable, has been lost or

destroyed, or cannot be procured within reasonable

time for reasons not attributable to the default or

neglect of the party seeking to rely upon it. The

provision thus embodies the principle that best

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NC: 2026:KHC:10730

evidence must ordinarily be produced, but recognises

practical impossibility as a legitimate exception.

21. It is no doubt true that one of the contingencies

contemplated under Section 60 is where the primary

evidence is in the custody or power of the opposite

party and is not produced despite notice. That limb

of the provision is not attracted in the present case.

However, the matter falls within the other recognised

contingencies.

22. The documents which the applicant proposes to rely

upon are admittedly of considerable antiquity.

Insofar as the decree is concerned, it is submitted

that a certified copy is no longer capable of being

obtained. With respect to the mahazar conducted

several years ago, it is asserted that even recourse

to the Right to Information mechanism would not

yield the document from the concerned Excise

Department at this stage. These circumstances prima

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NC: 2026:KHC:10730

facie indicate that the originals or certified copies

cannot be secured within reasonable time and that

such non-production is not attributable to any

deliberate default on the part of the applicant.

23. The third document is a letter addressed by the

Company to KSIIDC, which is stated to be available

only as an office copy. An office copy, by its very

nature, constitutes secondary evidence of the original

communication. If the original cannot be produced

for reasons falling within the scope of Section 60, the

applicant would be entitled to lay the necessary

foundation and seek permission to adduce secondary

evidence thereof.

24. In these circumstances, though the contingency

relating to custody with the opposite party is not

attracted, the case, at least prima facie, satisfies the

statutory requirements under the other limbs of

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Section 60, warranting consideration of the request

to lead secondary evidence.

25. For all the aforesaid reasons, I proceed to pass the

following:

ORDER

i. CA No.10/2026 is allowed. The applicant is

permitted to lead secondary evidence in respect to

the documents mentioned therein.

ii. CA No.31/2026 does not survive for consideration

and stands dismissed accordingly.

iii. The applicant shall appear before the Central Project

Co-Ordinator on 23.02.2026 and lead the secondary

evidence without seeking any further adjournment.