Madras High Court
M/S.Borg Warner Morse Tec India ... vs M/S.Om Logistics Ltd on 26 November, 2021
C.R.P(PD)No.1319 & 1273 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P(PD)Nos.1319 & 1273 of 2020
M/s.Borg Warner Morse TEC India Pvt. Ltd.,
No.79, SIDCO Industrial Estate,
Kakkalur, Tiruvallur – 602 003. ..Petitioner
Vs.
M/s.Om Logistics Ltd.,
No.130, Punjab Bag, (T.C), Ring Road,
Delhi – 110 035. ..Respondent
Common Prayer: Civil Revision Petitions filed under Article 227 of the
Constitution of India, against the fair and decreetal orders dated 25.10.2019
in IA.Nos.1 & 2 of 2019 in OS.No.123 of 2014 on the file of the I-
Additional District Court, Tiruvallur.
For Petitioner in both petition : Mr.Bhagavath Krishnan for
Mr.Srinath Sridevan
For Respondent in both petition : Mr.K.S.V.Prasad
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C.R.P(PD)No.1319 & 1273 of 2020
COMMON ORDER
Challenge in these two revisions is to the orders of the learned I-
Additional District Judge, Tiruvallur made in IA.Nos.1 & 2 of 2019,
applications by the plaintiff in the suit seeking to re-open the evidence of the
plaintiff and re-call the plaintiff's witness, in order to enable the plaintiff to
mark certificates under Section 65-B of the Evidence Act.
2.The suit was filed by the plaintiff seeking recovery of money
against the carrier. The suit is being defended by the defendant on various
contentions, including the one that there was no notice as required under
Section 16 of the Carriage of Goods by Road Act and therefore, the suit is
not maintainable. Certain documents, which are copies of the E-mail
communications were produced by the plaintiff. However, certificates under
Section 65-B were not produced along with those documents. The
documents were however, marked, the learned counsel for the defendant had
cross-examind the witness of the plaintiff on the need for the certificates
under Section 65-B also. The plaintiff's witness was examined in chief on
08.01.2019 and cross-examination was done on 29.04.2019. Thereafter, the
evidence was closed and the plaintiff also adressed arguments on
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C.R.P(PD)No.1319 & 1273 of 2020
03.09.2021 and the defendant's side arguments were heard on 19.09.2021.
Then on 23.09.2021, these instant applications seeking permission to
produce certificates under Section 65-B were filed.
3.These applications were opposed on the ground that the
applications were considerably delayed and the intention behind these
applications is only to fill up the lacuna. It was further contended that Order
18 Rule 17 is not a tool for filling up lacuna in the evidence, it is only meant
for the Court to seek clarifications. The main reason adduced for seeking to
re-call and re-open the evidence to mark the certificates under Section 65-B
is that the law was nebulous and there was considerable shifts in the
judgments of the Hon'ble Supreme Court on the question of need for
certificates under Section 65-B. Therefore, till 26.07.2019, when a reference
to a larger bench was made by the Hon'ble Supreme Court in Arjun
Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Others
reported in (2020) 7 SCC, there was considerable uncertainity in the
requirement of production of certificates under Section 65-B. Finally, it was
only on 14.07.2020, a larger Bench of the Hon'ble Supreme Court definitely
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C.R.P(PD)No.1319 & 1273 of 2020
laid down the law on the requirement of the certificates. The learned District
Judge, who heard the applications however, dismissed them on the ground
that after having been specifically questioned in cross-examination, the
plaintiff ought to have produced the certificates earlier in point of time and
the applications filed after arguments were advanced cannot be sustained.
4.Heard Mr.Bhagavath Krishnan, learned counsel appearing for
the petitioner and Mr.K.S.V.Prasad, learned counsel appearing for the
respondent.
5.Mr.Bhagavath Krishnan, learned counsel appearing for the
petitioner would draw my attention to the various judgments and contend
that at the time when the evidence was recorded in the suit, the law relating
to production of certificates under Section 65-B was not too well settled. At
least, till reference to the larger Bench in Arjun Panditrao Khotkar Vs.
Kailash Kushanrao Gorantyal and Others, which was on 26.07.2019,
there was considerable doubt on the requirement of the certificate under
Section 65-B. In Shafi Mohammad Vs. State of Himachal Pradesh
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C.R.P(PD)No.1319 & 1273 of 2020
reported in (2018) 2 SCC 801, the Hon'ble Supreme Court had held that
production of a certificate under Section 65-B cannot be held to be
mandatory and it will depend on the facts and circumstances of the each
case. But, this preposition of law was doubted by the Hon'ble Supreme
Court in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal
and Others and an order of reference was made on 26.07.2019 therefore, at
least till 26.07.2019, the law laid down by the Hon'ble Supreme Court in
Shafi Mohammed Vs. State of Himachal Pradesh was holding field. In
the case on hand, it could be seen that the evidence was recorded in July
2019 and arguments were advanced in September 2019. Soon after, the
reference was made, the petitioner has come up with these applications
seeking leave to produce certificates.
6.Mr.K.S.V.Prasad would however contend that the purport of
Order 18 Rule 17 is not for filling up the lacnuae. He would also refer to the
judgment of the Hon'ble Supreme Court in Vadiraj Naggappa Vernekar
(D) through Lrs. & Others Vs. Sharad Chand Prabhakar Gogate
reported in CDJ 2009 SC 975 wherein, the Hon'ble Supreme Court has held
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C.R.P(PD)No.1319 & 1273 of 2020
that the purport of Order 18 Rule 17 is not to enable a party to fill up the
lacuna. Pointing out, he had put specific quesions to the witness namely,
PW1 regarding the non-production of certificates under Section 65-B.
Mr.K.S.V.Prasad would contend that these applications are nothing but an
attempt to fill up a lacuna, which has been held to be improper by the
Hon'ble Supreme Court in Vadiraj Naggappa Vernekar cited supra.
Mr.K.S.V.Prasad would also draw my attention to the Paragraph 59 of the
judgment of the Hon'ble Supreme Court in Arjun Panditrao Khotkar Vs.
Kailash Kushanrao Gorantyal and Others wherein, the Hon'ble Supreme
Court has held that so long as the Trial is not over, the Judge can at any time
seek production of certificates under Section 65-B. I have considered the
rival submissions.
7.No doubt, Order 18 Ruel 17 has been held to be a tool in the
hands of the Court to seek clarifications. This Court as well as the Hon'ble
Supreme Court have also stated that a party can also seek re-opening of the
evidence, invoking Order 18 Rule 17 and the power is not restricted to the
Court alone. The attempt of the Court when such an application is made
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C.R.P(PD)No.1319 & 1273 of 2020
should be to decide the case on the bonafides of the parties and to see
whether, the parties are attempting to fill up the lacuna or a genuine error is
sought to be rectified. If the ultimate finding is that a genuine error is sought
to be rectified then the application should be allowed. If the ultimate finding
is that it is for filling up the lacuna, as rightly pointed by Mr.K.S.V.Prasad,
the application has to be rejected.
8.In the case on hand, is already adverted, the law relating to
production of certificates under Section 65-B was not very clear at least till
2019 and the first half of 2020. Till such time, the larger bench of the
Hon'ble Supreme Court ruled in Arjun Panditrao Khotkar Vs. Kailash
Kushanrao Gorantyal and Others on 14.07.2020, one can safely conclude
that the law was in nebulous state. In Shafi Mohammad Vs. Stage of
Himachal Pradesh, the Hon'ble Supreme Court has stated that a certificate
is not always mandatory. That view was doubted by the Hon'ble Supreme
Court itself in July 2019 and a reference to a larger Bench was made. This
nebulous or uncertain situation could have led some of the parties to believe
that an application for certificate under Section 65-B is not necessary. No
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C.R.P(PD)No.1319 & 1273 of 2020
doubt, in cross-examination of PW1, in the case on hand, specific questions
have been put on the production of the certificates. But, whether they are
necessary or whether non-production would be fatal are all facts, which
should have examined on the realm of law and the party cannot be expected
to know the consequences of non-production. I am of the considered
opinion, that this is a fit case where, the party must be given an opportunity
and the attempt made now to produce Section 65-B certificate, is in my
opinion, not an attempt to fill up lacuna but to rectify the genuine error that
had crept in .
9.Mr.KSV.Prasad would submit that because of the non-
production of the certificates, the defendnat has not chosen to let in
evidence. It will be open to the defendant to let in evidence, if it chooses to.
I make it clear that no application is required for that purpose.
10.In fine, these civil revision petitions are allowed, the order of
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C.R.P(PD)No.1319 & 1273 of 2020
the Additional District Judge is set aside, IA.Nos.1 & 2 of 2019 will stand
allowed, the evidence of P.W.1 will be re-opened and is re-called only for the
purpose of producing certificates under Section 65-B and he cannot let in
any other evidence. Upon completion of the evidence of PW1, the defendant
shall be given an opportunity to let in evidence, if the defendant wants to.
No costs.
26.11.2021
kkn
Index:Yes
Internet:Yes
Speaking
To:-
1.The I-Additional District Court,
Tiruvallur.
R.SUBRAMANIAN, J.
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.1319 & 1273 of 2020
KKN
C.R.P(PD)Nos.1319 & 1273 of 2020
26.11.2021
https://www.mhc.tn.gov.in/judis
