Decided on February 10,2004



Pratibha Upasani, J. - (1.) THIS misc. appeal is filed by the appellants/original defendant Nos. 3 and 4 being aggrieved by the order dated 16.6.2003 passed by the learned Presiding Officer of Debts Recovery Tribunal, Pune on Exhibit No. 43 in Original Application No. 38/P/2001. By the impugned order, the learned Presiding Officer allowed the application made by the Bank to lead secondary evidence as the original documents could not be traced though extensive search was made by the concerned officers of the applicant Bank to find out the same. The defendants felt aggrieved and hence have filed the present appeal before this Appellate Tribunal.
(2.) I have heard Mr. Kurian Babu, the appellant in person (original defendant No. 3) and Mr. Thakore appearing for the respondent No. 1 Bank. I have gone through the proceedings including the impugned order and in my view, the learned Presiding Officer has not acted fairly in allowing the application made by the Bank when in fact no case was made out by the Bank to take recourse to Section 65 of the Indian Evidence Act for permitting them to lead secondary evidence. Though the learned Presiding Officer thought that "it would be just and proper to allow the applicant Bank to lead secondary evidence" and allowed the said application, in my view, that was not proper. No doubt, Section 65 of the Indian Evidence Act permits tendering of secondary evidence under certain circumstances and strictly under those conditions, which are mentioned in Section 65 of the Indian Evidence Act. They can be summed up as follows : "Section 65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence; condition or contents of a document in the following cases: (a) When the original is in possession or power (i) of the opposite party; or (ii) of the person who is out of the reach of, or not subject to, the process of the Court, or (iii) of any person legally bound to produce it, and when such person does not produce it after demand i.e., notice under Section 66; (b) When the existence or condition or contents of the original are admitted in writing by the person against whom it is proved; (c) When the original is lost or destroyed; (d) When its production is physically impossible or highly inconvenient; (e) When the original is a public document; (f) When the original is a document of which a certified copy is permitted by this Act; (g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court. If the original document is lost, destroyed, detained by the opponent or third person who does not produce it after notice or is physically irremovable, secondary evidence is admissible." Now, on this background, let us go through the application Exhibit 43 made by the applicant Bank dated 21.4.2003, on which the impugned order came to be passed by the learned Presiding Officer. Since contents of the said application form foundation on which prayer to permit the Bank to tender secondary evidence is made, it is necessary to go through the averments made in the said application. If one goes through it, it will be immediately revealed that the application is of extremely casual nature, devoid of any particulars and devoid of essential ingredients, which should weigh with the Court to permit a party to take recourse to Section 65 of the Indian Evidence Act. It is pertinent to note that in the said application it is nowhere stated categorically and positively that the original documents are lost or misplaced. Since this very fact is not stated in clear words, there is no question of describing circumstances under which those documents have been lost or destroyed or are not traceable. Needless to say that they are conspicuous by their absence. The sentence that the original documents are destroyed or lost or are not traceable, is simply missing in the entire application. Para 4 of the said application contains following averments : "The concerned officers of applicant Bank made extensive search to find out said original document. However the said original documents could not be traced." The said para 4 also states that the applicant Bank relied upon the said documents to prove the claim of applicant Bank. Para 5 of the said application contains following averments: "The applicant has already produced xerox copies of said original documents in this proceeding. The applicant is seeking permission from this Honourable Tribunal to lead secondary evidence regarding the said documents." These are the only averments made by the Bank and on that foundation they are praying for permission to lead secondary evidence of the documents stating that xerox copies of the said documents are already produced on record in the proceedings. Thus, it will be seen that the said application nowhere mentions the basic fact that the original documents are lost or destroyed or are not traceable. The said application does not state or describe the circumstances, under which those original documents came to be destroyed or lost or became untraceable. The said application does not specify as to what attempts were made by the Bank to find out the said original documents. The only averment that, extensive search to find out those original documents was made by the certain officers of the Bank, is not sufficient. It is not stated as to what was done by the Bank to carry out the alleged extensive search nor names of the concerned officers who were involved in this extensive search are mentioned. It appears that affidavits of two Bank officers are filed by the Bank. Names of those two Bank officers are (1) Mr. Mahadev Venkatesh Bedgiri and (2) Mr. Raghunath Sonba Laskare. These affidavits are filed alongwith the claim affidavit. Out of these two Bank officers, Mr. Mahadeo Bedgiri was working as Branch Manager from the year 1980 to April, 1984, while Mr. Raghunath Lashkare was working as Branch Manager from the year, 1984 to 1986 in the applicant Bank. Contents of these two affidavits are mechanically identical. Both these officers have stated that contents of the affidavits are true and correct to the best of their knowledge, information and belief as gathered by them from the record and documents. None of them has stated that the appellants signed the guarantee deed in their presence or that they had seen the documents and, therefore, could vouch that the xerox copies which the Bank was seeking to tender now in lieu of the original documents, are xerox copies of the original documents signed by the appellants. At the same time, these Bank officers also do not make a statement that they have not seen the original documents for many years though the documents were supposed to be in their possession. Thus, the Bank cannot be permitted to claim benefit of Section 65 of the Indian Evidence Act because the Bank has failed to come out with credible evidence about loss of the original documents. There is also no sufficient proof about the search made by the Bank. There is no averment made by the Bank that they have exhausted all the sources and means for search of the documents which were available to the Bank. Firstly, along with filing of the original application the applicant Bank has annexed only xerox copies of the documents. They are supposed to file original documents at the time of filing claim affidavit, But at that lime also they are coming out with xerox copies of the documents seeking permission to tender them in lieu of the originals and arc not coming out with any credible, story to permit them to take recourse to the principles laid down in Section 65 of the Indian Evidence Act. There is no evidence of a single officer of the Bank who comes out in the open and says that the "documents are executed in my presence, that I identify signatures of the appellants because they signed before me or that I have seen the original guarantee deed and I can say and vouch that the signatures appearing on the xerox copies which the Bank is seeking to tender arc the signatures of the appellants only." From this point of view, evidence of both the Bank officers namely Mr. Mohan Bedgiri and Mr. Raghunath Laskare is of no use at all. It is also to be highlighted at this stage that both these officers were not in the service of the applicant Bank at the relevant branch when the transaction took place or when the suit was filed by the Bank, as the suit in question i.e., Suit No. 493/89 was filed on 27.4.1989. As per affidavits of Mr. Bedgiri and Mr. Laskare they have worked as Branch Manager in the respective branches for the period from 1980 to 1984 and 1984 to 1986 respectively. Therefore, these affidavits are of those persons who have deposed only from the record and they do not have first hand knowledge about the transaction in question.
(3.) APART from lack of credibility for making out a case to take recourse to Section 65 of the Indian Evidence Act, another harsh fact, which is revealed this the casual, cursory and irresponsible attitude of the Bank. There is always a rhetoric made by the Banks about involving of 'public funds', etc. However, this rhetoric cuts at both ends, because when there is involvement of public funds, the Banks must behave in a more responsible manner. These public funds involve tax payers' money and, therefore, the public funds have to be handled with greatest sense of concern, responsibility and accountability, which is very much lacking in the present case. No doubt, at the appellate stage, Mr. Thakore, the learned Advocate appearing for the Bank has come out with reply explaining few things. However, that has to be taken with a pinch of salt. This is purely an afterthought and is like an attempt to renovate a dilapidated building. Averments for whatever their worth, made at the appellate stage, ought to have been made in the application Exhibit No. 43 on which the impugned order was passed. Not that averments made at the appellate stage are convincing, but whatever attempts are now frantically sought to be made at the appellate stage, ought to have been made at the trial stage. The learned Presiding Officer's observation that "when the original documents are not traceable, it would be unjust not to allow applicant Bank to lead secondary evidence", are correct. However, he has failed to take note of the fact that no case at all has been made out by the applicant Bank in its basic application Exhibit 43, wherein the Bank has sought permission to tender xerox copies of the documents in lieu of original documents. That there is certain enabling provision in the Act in the form of Section 65 is a different thing and whether a party has fulfilled the preconditions lo avail to that provision is a different thing. In the present case, no such case is made out. Simply speaking that if such permission is given, the defendants can challenge the same subsequently, is not sufficient. Why permit the applicant Bank first of all to take recourse to Section 65 of the Indian Evidence Act, when that provision is made for protection of a litigant who honestly comes and states before the Court that his documents have been destroyed or lost under certain circumstances described by him, that he has taken all possible steps to take extensive search of the documents but he has failed in his endeavour and describes the steps taken by him and then prays for this remedy; then of course, the prayer has to be granted. In my view, this remedy should be available to a party only under genuine circumstances and not a party who handles the entire situation in an absolute cavalier manner with no heed to public accountability. In view of the aforesaid discussion, the impugned order dated 16.6,2003 has to be set aside and this appeal will have to be allowed, Hence, following order is passed: ORDER Misc. Appeal No. 319 of 2003 is hereby allowed and the impugned order dated 16.6.2003 passed by the learned Presiding Officer of Debts Recovery Tribunal, Pune on Exhibit No. 43 in Original Application No. 38-P/2001 is hereby set aside.;

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