This Writ Petition challenged orders of the DRT and DRAT allowing a bank to produce secondary evidence because CBI held original documents but failed to produce them despite directions. The High Court upheld the Tribunals.
Writ Petition dismissed; finding of Tribunals affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
16.wp-972-12.doc
jdk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 972 OF 2012
M/s. Ambika Timber Mart
Through Mr. Nitin Somchand Jiwani and Ors.
..Petitioners
Vs.
Bank of Maharashtra and Ors.
..Respondents
Mr. S.K. Jain i/b S.K. Jain & Associates for Petitioners Mr. Umesh Shetty along with Roshan D'Souza i/b Ms. Sharila D'Souza for Respondent No.1.
CORAM : D.D.SINHA AND SMT. V.K.TAHILRAMANI, J J.
DATE : FEBRUARY 06, 2012.
P.C.:
1. Head the learned Counsel for the Petitioners and the learned Counsel for the Respondent-Bank.
2. This Writ Petition is directed against the order dated 9.9.2010 passed by the Debt Recovery Tribunal, Mumbai whereby the application of the Respondent-Bank for adducing secondary evidence came to be allowed and another order dated 16.12.2011 passed by Debt Recovery Appellate Tribunal, Mumbai whereby the appeal preferred by the Petitioner against the order granting permission to lead secondary evidence, came to be dismissed. Perused the provisions of Section 65 of the Evidence Act.
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3. In the instant case, it is not in dispute that after the raid was conducted by C.B.I. on the bank and its employees, the C.B.I. has taken certain original documents in its custody. The Respondent-bank submitted application dated 29.8.2006 before the Debt Recovery Tribunal No.2 Mumbai for issuance of summons for production of original documents. The Debt Recovery Tribunal, Mumbai vide order dated 29.8.2006 directed the C.B.I. to hand over the original documents mentioned in the Annexure-A to the application. However, it appears that inspite of the order passed by the D.R.T. the original documents were not produced by the C.B.I. The Bank thereafter, approached the Special Judge with a request that the direction be given to the C.B.I. to produce the original documents before the D.R.T. No.2 Mumbai. The Special Judge, vide order dated 13.3.2007 passed the following order which reads thus:
“The documents to be returned shall not be tampered with and no further writings on them be effected save and except the necessary orders of impounding and exhibiting them in the Court proceedings.
The documents shall be returned to the C.B.I.
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after the work is over.
C.B.I. is given liberty to seek return of
documents as and when required.
M.A. No. 85 of 2007 stands disposed of.”
4. It appears that in spite of the order passed by the Special Judge, the C.B.I. did not produce the original documents before the Tribunal and therefore, it is in these circumstances, the Respondent-Bank moved application before the D.R.T. No. 2 Mumbai seeking permission to lead secondary evidence of the relevant documents and the Tribunal vide order dated 9.9.2010 allowed the said application. Being aggrieved by the same, the petitioner approached the Debt Recovery Appellate Tribunal, however, the Civil Appeal filed by the Petitioner came to be dismissed and the order passed by the Debt Recovery Tribunal Mumbai dated 9.9.2010 was affirmed. The short question which falls for our consideration is whether the Respondent-Bank has made out a case for adducing secondary evidence as per the provisions of Section 65 of the Evidence Act. As per the scheme of Section 65(a) of the Evidence Act, the secondary evidence in a suit can be permitted to be led if the party seeking such permission, proves one of the following grounds:
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against whom the document is sought to be proved;
5. In the instant case, the Respondent-Bank has proved the third ground as referred to herein above which is evident from the various steps taken by the Bank for production of original documents which are in the custody of the C.B.I. However, the C.B.I. in spite of the directions issued by the Special Court as well as D.R.T. did not produce these original documents. It is, in these circumstances, the D.R.T. as well as D.R.A.T. were justified in holding that the Respondent-Bank made out a case for grant of permission to lead secondary evidence. The finding recorded by both the Tribunals, in our view, are just and proper and needs no interference. Writ Petition is dismissed. The other issues if any raised by the Petitioner before the Tribunal in this regard, are left open.
[ SMT. V.K.TAHILRAMANI,J.] [ D.D.SINHA, J. ]
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1 issue framed by the court
Whether the Respondent-Bank made out a case for adducing secondary evidence under Section 65 of the Evidence Act as original documents in C.B.I. custody were not produced despite court directions.
1 provisions across 1 enactments
M/s. Ambika Timber Mart Through Mr. Nitin Somchand Jiwani and Ors.
Bank of Maharashtra and Ors.
D. D. Sinha
V. K. Tahilramani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
