Disposed

Union Bank of India v. O L Shree Laxmi Traders Ltd.

DRT28 May 2024TA/89/2023

Case brief

AI extract

What is this about?

Application for admitting secondary evidence of lost notice documents and Statement of Accounts. Court allowed uncertified accounts but refused notice copies as bank failed to prove loss of originals via due search or question notice absence in pleadings.

What did the court decide?

Application for secondary evidence of notices dismissed; Statement of Accounts certified copies admitted on record.

Union Bank of India versus O L Shree Laxmi Traders… — Civil Procedure and Limitation | DRT (2024)

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28/05/2024	Ex. No.	Before Presiding Officer Dr. Rekha G. Dhakar, DRT-1, Mumbai. *Order in IA No.171/2016* in *TA No.89 of 2023* *Union Bank of India & Ors. Vs. The Official* *Liquidator of Shree Laxmi Traders & Ors.*	I Next date
		RT1 MUMBA Advocate Priti Shukl i/b Nainesh Amin appeared for Applicant. Advocate Roshan D. i/b Prakash M. appeared for the Defendant No. 2 IA No.171/2016 1. By way of the present IA, the Applicants are praying for leading Secondary Evidence in respect of Documents at Annexure Nos.Y1, Y2 and Annexure No.Y3 and producing and relying upon the Statement of Account of Defendant No.1 in evidence. 2. It is stated that the Applicants have filed the Claim Affidavit of Mr. Rajendra V. Mane, the Director of the Applicants and also filed Completion of Applicant’s Documents in the present OA. The Applicants have filed the office copies of the notices issued by the Applicant’s Advocate to the Defendant at Annexure Nos.Y1, Y2 and Y3 to the completion of documents. After

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verification of the documents by the Registry, the objections have been raised as to the proof of dispatch or delivery of the said notices issued by the Applicant’s Advocate to the Defendants. At the time of filing of the Suit in 1986, all the relevant papers, correspondences exchanged between the parties and the security documents relating to the credit facilities availed by the Defendant No.1 were handed over to their Solicitors M/s Gagrat & Co for drafting the Plaint and other Interim Applications and taking further steps as may be necessary in the matter. The said matter was handled by the said Solicitors up to the stage when it was pending in the Hon’ble High Court of Mumbai. Subsequently upon the matter being transferred to this Tribunal, the Applicants officers approached their Solicitors for obtaining “NOC” for appointing a new Advocate as also for taking back the original documents. It was then learnt that the solicitors firm of M/s Gagrat & Co. has been wound up and their office at Flora Fountain was closed down. At the said time whatsoever papers available were handed over to the Applicants Officers. 3. It is further submitted that on going through the papers, it was noticed that though the office copies of the notices issued by the Applicant’s Advocate to the Defendants which are produced at Annexure Nos. Y1, Y2 and Y3 to the completion of

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documents are handed over to the Applicant, the acknowledgment or proof of dispatch or delivery of the said notices are not available with the Applicants and the same is either lost or misplaced and not traceable after due diligent search at the Branch. The Applicants have made several enquiries with their Solicitors, however, no further papers could be traceable at their end. The Applicants have also searched with their branch however, the aforesaid documents are not traceable in the record of the Applicants Branch. In the aforesaid circumstances, the same cannot be produced in original in evidence. 4. It is also stated that the Defendants have not denied the existence of the said notices in their Written Statement and therefore, the receipt thereof is deemed to be admitted by the Defendants. 5. It is also stated that the applicants have filed the Particulars of Claim showing balance due at the foot of the account however, inadvertently the Statement of Account remained to be produced at the Completion. It is submitted that the statement of account shows the same amount which is the amount of the Balance Confirmation Letters executed by the defendants. Thus, the Applicants are seeking leave of this Tribunal to produce the said certified true copies of statement of account in

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respect of the Term Loan (Account No.1) and Term Loan (Account No.2) as and by way of evidence and pray that the Applicants be permitted to produce the said true copies which are filed at Annexure A and B respectively to the additional compilation filed alongwith the present Application and the same may be taken on record. 6. On the other hand, Ld. Counsel for the Defendant No.2 objected to the Application for Leading Secondary Evidence and Producing Certified True Copy of the Statement of Accounts. She submitted that there are no pleadings/averments either in the OA or in the Claim Affidavit regarding the statement of Accounts in respect of term loan 1 and term loan account no.2 of which the Applicant Bank wants to produce certified copies. Also the statement of account is not annexed to the OA or the Completion of Documents and has been relied upon for the first time in the present IA, therefore, the Applicant cannot be permitted to produce the certified copy and lead secondary evidence on the same in the absence of any pleadings.

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She further submitted that there are no pleadings either in the Plaint/OA or in the claim affidavit regarding proof of service of the documents at serial 53, 54 and 55 (Y-1 to Y-3) on the Defendants.

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DRT1 MUMBAI
8.
She also submitted that the Defendant No.2
has specifically pleaded that the Applicant Bank
has not annexed the statement of account to the
Plaint and in para 25 of its written statement has
specifically pleaded that it has not received any
demand notice dated 10.10.1986 in view of these
pleadings the Applicant cannot lead the secondary
evidence on (Y-1 to Y-3).
9.
She further submitted that the reason given
by the Applicant Bank for not producing the
acknowledgment of service of demand notice, is
unbelievable,
frivolous
and
unacceptable.
No
affidavit is filed by any partner, advice or clerk
from
Gagrat
&
Co
testifying
the
veracity of
statement made by the Applicant Bank regarding
the
acknowledgment
being
lost/misplaced,
its
mere statement of a person who is not authorized
to file any application and therefore, cannot be
accepted, also the said Ramkrishna does not have
personal knowledge of the fact which he has
deposed.
10.
I have heard the arguments advanced by both
the sides and perused the record.
11.
According to the Applicants, the documents
i.e. Annexure Nos. Y1, Y2 and Y3 to the completion
of documents, the acknowledgment or proof of
dispatch or delivery of the said notices are not

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DRT1 MUMBAI
available with the Applicants and the same is either
lost or misplaced and not traceable after due
diligent search at the Branch. Therefore, the true
copies of the same may be taken on record.
12.
It is trite law that the party must adduce
primary evidence to prove the documents and only
in eventualities elucidated in Section 65 (a) to (g)
of the Evidence Act 1872, secondary evidence can
be adduced to prove the extension, contents of the
documents.
13.
Section 65 of the Indian Evidence Act, 1872 is
extracted herein below:
“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 shown or
appears to be in the possession or
power— of the person against whom
the document is sought to be proved,
or of any person out of reach of, or not
subject to, the process of the Court, or
of
any
person
legally
bound
to
produce it, and when, after the notice
mentioned in section 66, such person
does not produce it;
(b)when the existence, condition or
contents of the original have been
proved to be admitted in writing by
the person against whom it is proved
or by his representative in interest;
(c) when
the
original
has
been
destroyed or lost, or when the party
offering
evidence
of
its
contents
cannot,
for
any other reason not

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DRT1 MUMBAI
arising
from
his
own
default
or
neglect, produce it in reasonable time;
(d) when the original is of such a
nature as not to be easily movable;
(e)when
the
original
is
a
public
document
within
the
meaning
of
section 74;
(f)when the original is a document of
which a certified copy is permitted by
this Act, or by any other law in force
in to be given in evidence; to be given
in evidence;"
(g) when
the
originals
consists
of
numerous
accounts
or
other
documents which cannot conveniently
be examined in Court, and the fact to
be proved is the general result of the
whole collection.”
(emphasis provided)
14.
Thus, in sub–Section (c) of Section 65 of the
Evidence Act, 2022, the eventuality of destroyed or
lost original documents has been mentioned.
15.
Further, Section 63 of the Evidence Act,
1872, provides the types of secondary evidence
which is reproduce herein below:
“Secondary
evidence.
—Secondary
evidence means and includes—
(1) Certified copies given under the
provisions hereinafter contained;
(2)Copies made from the original by
mechanical
processes
which
in
themselves insure the accuracy of the
copy, and copies compared with such
copies;
(3)Copies made from or compared
with the original;

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RT1 MUMBAI
(4)Counterparts
of
documents
as
against the parties who did not execute
them;
(5) Oral accounts of the contents of a
document given by some person who
has himself seen it.”
(emphasis provided)
16.
Thus,
the
Indian
Evidence
Act,
1872,
provides
the
condition
and
scheme
for
the
secondary evidence of the photo state copy.
17.
Hon’ble Supreme Court in Benga Behera &
Onr Vs. Braja Kishor Nanda (2007) 9, SSC 728
while, dealing a matter of the lost will, in para 29 of
the said judgement recorded_inter alia_that:
“................................
No information
was lodged about the missing of the
documents before any authority. Even
the approximate point of time the will
was lost, was not stated……..”
(emphasis provided)
18.
Further in para 31 of the said Judgement
inter alia_it is held that:
“The loss of the original, therefore,_
was
required to be proved.”
(emphasis provided)
19.
Admittedly,
in
the
present
matter
no
information was lodged regarding the missing of
the
documents
with
any
authority
by
the
Applicants.
20.
Further, this is the case of the Applicant that
the documents were handed over to their Solicitors

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M/s Gagrat & Co for drafting the Plaint and other Interim Applications when the Applicants approached their Solicitors for taking back the original documents, it was learnt that solicitors firm of M/s Gagrat & Co. has been wound up and their office at Flora Fountain was closed down and at the said time whatsoever papers available were handed over to the Applicants Officers. The office copies of the notices issued by the Applicant’s Advocate to the Defendants which are produced at Annexure Nos. Y1, Y2 and Y3 to the completion of documents are handed over to the Applicant, the acknowledgment or proof of dispatch or delivery of the said notices are not available with the Applicants and the same is either lost or misplaced and not traceable. 21. However, when these documents were lost and what step has been taken by the Applicant, nothing has been provided on record. Moreover, how the bank got the Xerox copy of the original documents was also not proved. 22. Insofar as Statement of Account is concerned, since the Applicant has already produced the Particulars of Claim showing balance due at the footing of the account therefore, the statement of account is only a complete detail of the said claim and hence, same is taken on record.

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23. In view of the above the present IA is hereby disposed off.
DRT1 MUMBAI PO DRT-I

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Union Bank of India v. O L Shree Laxmi Traders Ltd.

Case brief

What is this about?

What did the court decide?

Union Bank of India v. O L Shree Laxmi Traders Ltd.

Case brief

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