M/S Mitsun Steels Private Limited Vs M/S a W Industries Private Limited

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NC: 2025:KHC:25026 W.P. No.1159/2020

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF JULY, 2025 BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.1159/2020 (GM-CPC)

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BETWEEN:

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Digitally signed by RUPA V Location: High Court of karnataka

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M/S. MITSUN STEELS PRIVATE LIMITED A PRIVATE LIMITED COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956, HAVING ITS REGISTERED OFFICE AT NO.462, II FLOOR SRI. KRISHNA TEMPLE ROAD INDIRANAGAR I STAGE BENGALURU-560 038. AND HAVING AN INCOME TAX PERMANENT ACCOUNT NO.AABCM1699P REPRESENTED BY ITS MANAGING DIRECTOR MR. SUNIL DAMANI DULY REPRESENTED BY ITS POWER OF ATTORNEY HOLDER MR. ANANDA S/O MR. CHIKKA ANJANAPPA AGED ABOUT 39 YEARS RESIDING AT NO.443 18TH MAIN ROAD IPD SALAPPA LAYOUT JAGAJEEVAN RAM NAGAR BENGALURU-560 023. …PETITIONER (BY SRI. VIVEKANAND ANTHONY BRITTO, ADV.,)

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AND:

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M/S. A.W. INDUSTRIES PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 HAVING ITS REGISTERED OFFICE AT NO.47/1, MOTHINAGAR, G.S. STREET BENGALURU-560 002

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HC-KAR

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AND INTER-ALIA HAVING ITS FACOTRY AT BOMMASANDRA INDUSTRIAL AREA HOSUR ROAD, BENGALURU-560 099 REP. BY IT'S MANAGING DIRECTOR MR. SYED MASOOD AHMED.

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…RESPONDENT

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(RESPONDENT SERVED AND UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER DTD.25.9.2019 IN O.S.NO.3565/2018 PASSED BY THE LEARNED III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-25) AT BENGALURU VIDE ANNEXURE-Z. ISSUE A WRIT IN THE NATURE OF MANDAMUS DIRECTING THE COURT BELOW TO PERMIT THE PETITIONER TO LEAD SECONDARY EVIDENCE IN SO FAR MARKING OF THE COPIES OF THE TAX INVOICES TO PROVE SUPPLY AND RECEIPT OF THE SAME BY THE RESPONDENT AND DEMAND FOR PAYMENT MADE UNDER THE SAID TAX INVOICES TOWARDS OF THE MATERIALS SUPPLIED BY THE PETITIONER HEREIN & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2025:KHC:25026 W.P. No.1159/2020

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed seeking the following reliefs:

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"i. Issue a writ in the nature of certiorari to quash the impugned order dated 25.09.2019 in O.S.No.3565/2018 passed by the learned III Additional City Civil and Sessions Judge (CCH-25) at Bengaluru vide Annexure-Z;

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ii. Issue a writ in the nature of mandamus directing the court below to permit the petitioner to lead secondary evidence in so far marking of the copies of the tax invoices to prove supply and receipt of the same by the respondent and demand for payment made under the said tax invoices towards cost of the materials supplied by the petitioner herein;

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iii. Alternatively, set aside the order passed on 25.09.2019 by the learned III Additional City Civil and Sessions Judge at Bengaluru vide Annexure-Z and for fresh consideration by providing reasonable opportunity in permitting the Petitioner herein to lead secondary evidence."

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Sri.Vivek Anand Anthony Britto, learned counsel appearing for the petitioner submits that the petitioner-plaintiff has filed a suit for recovery of a sum of Rs.37,44,737/- along with the interest against the respondent-defendant. In the said suit, the respondent is placed exparte. The petitioner adduced the evidence by way of an affidavit. In the affidavit, at paragraph No.6, the petitioner has explained with regard to the

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NC: 2025:KHC:25026 W.P. No.1159/2020

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transaction between the petitioner and the respondent. It is specifically pleaded that the suit is based on 04 invoices as the petitioner supplied iron and steel to the respondent company and the invoices have been lost when the petitioner was shifting its office from Millers Road to Indiranagar. It is further submitted that the petitioner has lodged police complaint for lost articles as is evident from Annexures-W & X. It is also submitted that after examining PW-1, the petitioner also got marked the legal notice, acknowledgment, 04 postal receipts, police complaint and the police acknowledgment as exhibits during the trial. The petitioner has made a request to the trial Court to produce subject 04 tax invoices referred in the affidavit and requested to accept the same as secondary evidence. However, the trial Court, without appreciating the law on the subject, proceeded to reject the request of the petitioner by cryptic order on 25.09.2019.

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It is contended that Section 65 of the Evidence Act, 1872, (for short, ' the Act ') speaks about the secondary evidence; it also provides under what contingencies the secondary evidence relating to the document may be given.

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HC-KAR

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The petitioner's case falls under clauses (b) & (c) of Section 65 of the Act as the petitioner has laid foundation for nonproduction of the original invoices and under what circumstances the originals are not available. It is further contended that the invoices produced before the Court are having the acknowledgment of the respondent and also seal on the said invoices as is evident from Annexures-E to H produced along with the writ petition. It is also contented that pursuant to the ongoing transactions, the respondent has made part payment towards the invoices, which also amounts to an admission that the petitioner has had a transaction with the respondent and the payment is towards the invoices in question.

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It is contended that during the pendency of this petition, the petitioner has produced the Income Tax Returns acknowledgment for the Assessment Year 2022-23 and the statement annexed to the Income Tax Returns. The said Income Tax Returns and the statement annexed thereto indicate Sundry Debts of the petitioner company and one of the entry is dues from the respondent. It is further contended that

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the petitioner company has also maintained the ledger accounts for the period from 01.04.2015 to 16.08.2023 and as per the said ledger accounts, the petitioner company has shown the dues of the respondent. It is also contented that the petitioner has filed a memo on 28.06.2025 and along with the said memo it has filed an affidavit of its Chartered Accountant, who files the Income Tax Returns of the petitioner company. The affidavit of the Chartered Accountant also indicates that the respondent company is in due; along with the affidavit, the petitioner company has produced the bank statement for the year 2016 which also indicates the receipt of part payment amount from the respondent. It is also submitted that the material placed before the Court are sufficient to come to the conclusion that the petitioner has laid foundation for nonproduction of the original documents before the Court and for production of the secondary evidence in the form of documents. In support of his contention, he placed reliance on the following decision:

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i. Shir Prem Chandra Jain (Deceased), Represented by LRs Shri Bharat Bhushan Jain, Advocate and others v. Shri Sri Ram (deceased) represented by LRs Shri Sunil Kumar Arora & others in CM(M) 1764-66/2005

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disposed of on 12.10.2009 by the High Court of Delhi.

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ii. H.Siddiqui (dead) by LRs v. A.Ramalingam¹ .

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iii. Pravin v. Ghanshyam and others in M.P.No.1144/2017 disposed of on 23.03.2018 by the High Court of Madhya Pradesh.

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iv. Satyam Kumar Sah and Ors. v. Narcotic Control Bureau (NCB) in Crl.Rev.P.271/2016 & Crl.M.A.5484/2016 disposed of on 06.05.2019 by the High Court of Delhi.

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v. Jagmail Singh & Anr. v. Karamjit Singh and Ors. in Civil Appeal No.1889/2020 disposed of on 13.05.2020 by the Hon'ble Supreme Court.

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Hence, he seeks to allow the writ petition.

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Though the notice is served on the respondent, the

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respondent remained absent.

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I have heard the arguments of the learned counsel

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for the petitioner, meticulously perused material available on record and the list of citations placed by the learned counsel for the petitioner. I have given my anxious considerations to the submissions advanced.

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1 (2011) 4 SCC 240

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The petitioner-plaintiff has filed a suit in O.S.No.3565/2018 for recovery of a sum of Rs.37,44,737/along with interest. The said suit is based on the invoices dated 09.07.2015, 24.07.2015, 24.07.2015 and 27.08.2015. The details of the invoice numbers and the amount raised in the invoice are found at paragraph No.6 of the plaint. The records indicate that the respondent remained absent before the trial Court, hence, the respondent was placed ex-parte. The trial Court framed the issues. The petitioner examined its employee as PW-1. The affidavit filed on behalf of the petitioner before the trial Court indicates that the original tax invoice bearing Nos.TR/0245 dated 09.07.2015, TR/0288 dated 24.07.2015, TR/0289 dated 24.07.2015 and TR/0414 dated 27.08.2015 are missing/lost not traceable till date and a police complaint in that regard has been filed at Indiranagar Police Station. The petitioner has laid primary foundation with regard to nonproduction of the 04 invoices before the trial Court by way of evidence. During the course of evidence, PW-1 got marked legal notice dated 18.04.2017 as Ex.P-2, four postal receipts as Ex.P-3, four acknowledgment cards as Ex.P-4 to P-7, a copy of

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the complaint given to the Indiranagar Police as Ex.P-8 and the acknowledgment from the police for the complaint as Ex.P-9.

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The evidence of PW1 and the aforesaid marked

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documents from Ex.P-2 to Ex.P-9 indicate that the petitioner has laid a basic foundation by way of pleading and evidence that the subject 4 invoices are lost when the petitioner was shifting its office from Millers Road, Bengaluru to Indiranagar, Bengaluru. With the aforesaid foundation, the petitioner has made a oral request to the trial Court to consider its request for production of photocopies of the invoices as secondary evidence, which came to be rejected by the trial Court on the ground that the police complaint about the loss of tax invoices cannot be a ground for allowing the secondary evidence. In my considered view, the trial Court has committed grave error. Section 65 of the Act provides for cases in which secondary evidence relating document may be given. Section 65 reads as under:

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"65. Cases in which secondary evidence relating to document may be given.- Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-

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(a) When the original is shown or appears to be in the possession or power of the person against whom

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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;

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(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;

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(c) 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 neglect, produce it in reasonable time;

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(d) when the original is of such a nature as not to be easily movable;

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(e) when the original is a public document within the meaning of section 74;

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(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 India to be given in evidence;

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(g) when the originals consist 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.

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In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.

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In case (b), the written admission is admissible. In case (e) or (f), a certified copy of document, but no other kind of secondary evidence, is admissible.

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In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."

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HC-KAR

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Clause (b) of the aforesaid Section makes it very clear that 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.

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In the case on hand, the four invoices in question have been signed by the respondent and their company's seal is also affixed on the said invoices. These factors clearly demonstrate that the opposite party has admitted the invoices. In addition to that, the respondent has made a part payment towards the said four invoices raised by the petitioner, as is evident from the bank statement produced by the petitioner along with the affidavit of the Chartered Accountant. Further, the petitioner has issued legal notice to the respondent, which has been duly acknowledged by the respondent, and in the said notice the petitioner has made a specific reference with regard to the four invoices and made a demand. The respondent acknowledges the said notice and not replied to the same, which is a deemed admission of the contents of the notice as referred in Section 65 of the Act. In addition, the petitioner, to

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satisfy the Court with regard to the loss of invoices, has filed affidavit of Sri.S.Prakash Chand, a Chartered Accountant practicing at Bengalur; his affidavit clearly indicates that he is the Chartered Accountant of the petitioner company from last 25 years and he has filed income tax returns of the company for the year 2022-23 and as per the said income tax returns, the respondent company is in due of Rs.37,44,737/-. The contents of the said affidavit also can be compared with the document placed by the petitioner along with the memo dated 28.08.2023. The said memo contains the income tax returns acknowledgment for the assessment year 2022-23. The said income tax returns contains balance sheet and other documents including list of sundry debts as on 31.03.2022 of the petitioner company. In the said list, the petitioner has shown the debtor's and the respondent's name is found in the said list and the due is shown as Rs.37,44,737/-. In addition to that the petitioner has also produced the ledger book extract which also indicates that the respondent is in due of the aforesaid amount. The aforesaid material on record clearly indicates that the petitioner has laid proper foundation for nonproduction of the original documents before the trial Court and

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intend to produce secondary evidence, which has been clearly admitted by the other side as per Section 65 of the Act.

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The Hon'ble Supreme Court in the case of

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H.Siddiqui referred supra at paragraph No.12 held as under:

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"12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. 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 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. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907] .)”

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The High Court of Delhi in the case of Shir Prem

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Chandra Jain (Deceased), Represented by LRs Shri

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Bharat Bhushan Jain referred supra at paragraph Nos.2 & 3

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observed that there is no requirement to make an application seeking to produce secondary evidence.

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The High Court of Madhya Pradesh in the case of Pravin referred supra following the decision of the Hon'ble Supreme Court in the case of Rakesh Mohindra vs. Anita Beri² has held that the prerequisites of Section 65 of the Act, if are met, the Court can consider the secondary evidence.

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Keeping in mind the aforesaid enunciation of law laid down by the Hon'ble Supreme Court and other High Courts on the issue and also considering the scope and ambit of Section 65 of the Evidence Act, I am of the considered view that the petitioner has laid proper foundation for production of secondary evidence before the trial Court by filing the affidavit of the Chartered Accountant, bank statement of the relevant year, the income tax returns of the petitioner company, balance sheet, etc. When things stood thus, I am of the considered view that it is a fit case to allow the petitioner to produce the secondary evidence before the trial Court to prove its case.

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2 (2016) 16 SCC 483

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HC-KAR

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For the aforementioned reasons, I proceed to pass the following:

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ORDER

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i. The writ petition is allowed .

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ii. The impugned order dated 25.09.2019 passed in O.S.No.3565/2018 by the III Additional City Civil and Sessions Judge, Bengaluru, is hereby set aside.

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iii. The trial Court is directed to permit the petitioner to lead secondary evidence insofar as marking of the copies of four copies of invoices in question.

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No order as to cost.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BSR List No.: 1 Sl No.: 32

M/S Mitsun Steels Private Limited v. M/S a W Industries Private Limited

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M/S Mitsun Steels Private Limited v. M/S a W Industries Private Limited

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