Decided on February 17,2005



K.J. Paratwar, Presiding Officer - (1.) HEARD the learned Counsel.
(2.) 7 he Bank has taken out this application for review of the order passed by this Tribunal on 1.2.2005 below Exh. 65. By said order, the Tribunal rejected the Bank's request to lead) secondary evidence in respect of 15 documents filed along with list of documents at Exh. 67. It is stated that pursuant to this Tribunal's order, the Bank made an application before learned Metropolitan Magistrate (M.M.), 47th Court, Esplanade, at Mumbai for return of the original documents. The matter is kept for say of otherwise on 28.2.2005. The production of original documents would, therefore, take time. It is stated that Their Lordships in Jobeda Khatum v. Sheik Monabali, AIR 1930 Kolkatta 479 and Biharilal v. Tamizul Hague, AIR 1988 Gauhati 1, have held that when the original documents are produced in other Courts, the inability of the party is apparent and such a case falls within Section 65(c) of the Evidence Act. As such, the earlier application should have been allowed.
(3.) THE defendants have opposed the application by reply at Exh. 80, inter alia, contending that there is no error apparent on the face of record which means that review application itself is untenable. On merit, it is pointed out that the Tribunal had by order dated 9.5.2003 (Exh. 44) directed the Bank to produce the original documents. Since said direction was not complied the defendants took out application (Exh. 61) for dismissal of the O.A. At the time of hearing arguments on said application, the learned Counsel for the Bank made statement that his clients would make application in the M.M. Court and file the original documents. But, the Bank did not take any step and instead took out application for secondary evidence. THE rejection of application (Exh. 65) seeking permission to lead secondary evidence was in the above said facts was most warranted, say the defendants.;

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