Partly allowed

Tvs Motor Company Limited v. Kongovi Private Limited

Karnataka HC9 Nov 2022WP/1415/2022

Case brief

AI extract

What is this about?

This High Court allowed the writ petition partly, quashing the commercial court order that permitted secondary evidence. The bench held that foundational facts regarding the original documents were not adequately established. The respondent application was restored for reconsideration with leave to file an affidavit detailing the source and authenticity of the photocopies.

What did the court decide?

The impugned order is quashed. The respondent's application is restored for reconsideration. The respondent is directed to file an affidavit within 15 days furnishing details to establish foundational

Tvs Motor Company Limited Vs Kongovi… — Civil Procedure and Limitation | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 09^TH DAY OF NOVEMBER 2022

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.1415/2022 (GM-CPC)

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BETWEEN :

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TVS MOTOR COMPANY LIMITED A COMPANY UNDER THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT NO.12 KHADER NAWAZ KHAN ROAD, NUNGAMBAKKAM CHENNAI-600 006.

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... PETITIONER

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(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR SRI. GEORGE JOSEPH, AND SRI. GAURAV MANDAPPA, ADVOCATES)

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AND :

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KONGOVI PRIVATE LIMITED A COMPANY UNDER THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT NO.377, 10^TH CROSS 4^TH PHASE PEENYA INDUSTRIAL AREA BENGALURU-560058.

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... RESPONDENT

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(BY DR. ADITYA SONDHI, SENIOR ADVOCATE FOR SMT. MANEESHA KONGOVI, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 10.01.2022 (ANNEXURE-A) PASSED

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ON IA.NO.7/2021 IN COMM.O.S.NO.2451/2010 ON THE FILE OF THE COURT OF THE LXXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (COURT HALL NO.89) AND PASS AN ORDER DISMISSING I.A.NO.7/2021 AS PRAYED FOR BY THE RESPONDENT.

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THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This petition is by the defendant in Com O.S.No.2451/2010 on the file of the LXXXVIII Additional

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City Civil and Sessions Judge, and an exclusive Commercial Court, Bengaluru City, (for short, ' the commercial Court '). The petitioner has impugned the commercial Court's order dated 10.01.2022, and the commercial Court by this order has allowed the respondent's application (I.A.No.VII) filed under Sections 65 and 66 of the Indian Evidence Act, 1872 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ' CPC' ) permitting the respondent to produce certain documents as secondary evidence.

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The respondent's suit is for recovery of

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money and is based on certain documents, some of which are already produced and marked as exhibits. The respondent has issued notice as contemplated under Order XII Rule 8 of CPC calling upon the petitioner to produce three categories of documents viz ., [a] finalized Working Sheet, [b] Minutes of Meeting and [c] correspondences. The petitioner has responded to such notice contending that it does not have the custody of the documents referred to by the respondent in the said notice, but the petitioner would accept the execution to Indemnity Bond dated 13.05.2008, one of the documents relied upon by the respondent.

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After this exchange, the petitioner has filed

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present application for leave to produce photocopies of the aforesaid three category of documents as secondary evidence, and some of the documents mentioned in the application are already on record. The commercial

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Court has allowed the application observing that certain Working Sheets and Minutes of Meeting are already marked as exhibits and this constitutes necessary foundational facts as required under Section 65(a) of the Indian Evidence Act, 1872 and therefore, the respondent must be permitted to produce the other photocopies. The commercial Court has also observed that leave to mark photocopies as secondary evidence would not dispense with the proof, and it would be open to the petitioner to dispute the same on the ground of genuineness and other grounds.

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Sri. Udaya Holla and Dr. Aditya Sondhi, the learned Senior counsels, are heard respectively for the petitioner and the respondent. Neither dispute the proposition that the foundational facts¹ must be brought

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1 The settled proposition is – In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of

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out when original documents are not produced and there is prayer for leave to produce photocopies as secondary evidence. The civil Court's finding that the respondent has established the foundational facts for leave to produce photocopies as secondary evidence is examined in the light of this undisputed proposition.

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It is seen that the respondent is permitted to produce the facsimiles of not only the correspondences and the Working Sheets but also of Minutes of Meeting. The respondent relies upon the statements in paragraphs 6 and 7 of the affidavit, which is filed in support of the application, to substantiate that the foundational facts are established. The respondent generally contends that the facsimiles are from the

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a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original”. This position is expounded H. Siddiqui v. A. Ramalingam reported in (2011) 4 SCC 240 and reiterated in U Sree v. U. Srinivas reported in (2013) 2 SCC 114

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petitioner's office in Chennai, and this is also seen from the details as found in the bottom of each of the documents. However, it cannot be gainsaid that the respondent, to successfully contend that the foundational facts are established [a condition precedent to enable leave under Section 66 of the Indian Evidence Act, 1872] must indicate those circumstances, as against general statements, from which necessary foundational facts can be readily inferred, subject to proof, relevance, and probative value.

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In the peculiarities of case, the respondent must place on records details such as the petitioner’s facsimile number, the persons who have participated in the meetings that have resulted in the subject Minutes of Meeting being drawn up, the details of the different documents which are received on facsimile in the immediate proximity of the date on which the present documents are received and other details that would show the present documents are sequential to

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the documents already marked. These details will authenticate that the documents produced are the true copies of the documents. In the absence of these details, the civil Court had to collate and justify its conclusion that the foundational facts are established for leave to produce photocopies of the secondary evidence.

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Neither the respondent has set forth the details as aforesaid nor has the Court collated the details from the other Courts. The impugned order does not even indicate whether the earlier documents which are marked could be part of a chain with the documents now permitted to be produced as secondary evidence. On a careful consideration of these circumstances, this Court is of the considered view that the application must be restored for reconsideration with leave to the respondent to file an affidavit in support of the application furnishing all the details from which it could

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be readily deduced that the foundational facts are established. For the foregoing, the following:

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ORDER

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The petition is allowed in part, and the civil Court’s impugned order is quashed restoring the respondent's application for consideration with leave to the respondent to file an additional affidavit in support of the application in the light of this Court's observation. The respondent shall file such additional affidavit within 15 [fifteen] days from today with appropriate leave to the petitioner to file a rejoinder affidavit, if there is any, within the next 10 [ten] days. The civil Court, subject to its board, is called upon to decide on the application afresh on or before 16.12.2022.

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Sd/JUDGE

Tvs Motor Company Limited v. Kongovi Private Limited

Case brief

What is this about?

What did the court decide?

Tvs Motor Company Limited v. Kongovi Private Limited

Case brief

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