Decided on March 27,2006



S.S.Parkar, - (1.) MR. Nagori for the appellants and MR. Gopalkrishna Swami for the respondent No. 1 are present.
(2.) All these three miscellaneous appeals are filed by the different defendants in the same original application against the order passed by the D.R.T.-II, Mumbai on 25th May, 2005 allowing the application made on behalf of the respondent No. 1 Bank/original applicant Bank to lead secondary evidence of the security documents through typed copies filed along with the original application. The respondent Bank had filed an application dated 9th February, 2005 before the D.R.T. to allow them to lead secondary evidence in respect of documents, a list of which was given in Exhibit 'C' annexed to the said application. Those documents were 19 in number and all of them were dated 19th September, 1984. Copies of those documents had been annexed as Exhibits 'A' to 'S' to the original application, which consisted of documents like demand promissory note, deed of hypothecation, declarations, promissory notes, letters of continuity and guarantee, etc. stated to have been executed by the defendants. The said application was opposed by the defendants/present appellants in the above three appeals. However, the D.R.T. by its impugned order dated 25th May, 2005 allowed the said application relying on the affidavit of one Mr. P.J. Heredia, who was an officer of the respondent No. 1 Bank. The said order is under challenge in these three appeals.
(3.) THE application was made under the provisions of Sections 63 and 65 of the Indian Evidence Act, under which the secondary evidence is permitted to be led by the parties in certain contingencies if the originals are not available for production in the Court. THE secondary evidence is defined under Section 63 of the Indian Evidence Act, which includes certified copies of the original documents, copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies, copies made from or compared with the original counter parts of documents as against the parties who did not execute them and oral accounts of the contents of the documents given by some person who has himself seen it. In this case probably the respondent No. 1 Bank is relying on the oral accounts of the contents of the documents given by their officer Mr. P.J. Heredia, who claims to have himself seen the original documents. Section 65 of the Indian Evidence Act mentions the cases in which secondary evidence related to documents may be given, as regards existence, condition or contents of a document in the cases enumerated therein. In the present case, the respondent Bank is relying on Clause (c) or the Section 65 of the Indian Evidence Act, which is applicable in a case 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 produce it in reasonable time.;

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