KURIAN BABU Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(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.

(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.