Andhra Pradesh High Court - Amravati
M/S Sai Resource Pvt. Ltd. vs M/S Aspire Techno Engineers, on 10 December, 2024
1
(RNT,J
C.R.P.No.3004 of 2024)
*HON'BLE SRI JUSTICE RAVI NATH TILHARI
+ CIVIL REVISION PETITION NO: 3004 OF 2024
% 10.12.2024
#1. M/s Sai Resource Pvt. Ltd.
......Petitioner
And:
$ 1. M/s Aspire Techno Engineers.
....Respondent.
!Counsel for the petitioner : Sri S.V.S.S.Siva Ram
^Counsel for the respondent/(s) : ---.
<Gist:
>Head Note:
? Cases referred:
1. (2020) 5 SCC 178
2. 2023 SCC OnLine SC 1585
3. 2004 SCC OnLine AP 410
4. 2013 SCC OnLine 13767
2
(RNT,J
C.R.P.No.3004 of 2024)
HON'BLE SRI JUSTICE RAVI NATH TILHARI
CIVIL REVISION PETITION NO: 3004 OF 2024
1. M/s Sai Resource Pvt. Ltd.
......Petitioner
And:
1. M/s Aspire Techno Engineers..
....Respondent.
DATE OF JUDGMENT PRONOUNCED : 10.12.2024
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
1. Whether Reporters of Local newspapers may be
Allowed to see the judgments? Yes/No
2. Whether the copies of judgment may be marked
to Law Reporters/Journals? Yes/No
3. Whether Your Lordships wish to see the fair
Copy of the Judgment?
Yes/No
____________________
RAVI NATH TILHARI, J
3
(RNT,J
C.R.P.No.3004 of 2024)
APHC010541152024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3299]
(Special Original Jurisdiction)
TUESDAY ,THE TENTH DAY OF DECEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
CIVIL REVISION PETITION NO: 3004/2024
Between:
M/s Sai Resource Pvt. Ltd. ...PETITIONER
AND
M/s Aspire Techno Engineers ...RESPONDENT
Counsel for the Petitioner:
1. CKR ASSOCIATES
Counsel for the Respondent:
1.
The Court made the following:
ORDER :
Heard Sri S.V.S.S.Siva Ram, learned counsel for the petitioner.
2. The petitioner is the defendant in C.O.S.No.5 of 2024 on the file of the Court of Special Judge for Trial and Disposal of Commercial Disputes, Visakhapatnam (in short 'Special Court'). 4
(RNT,J C.R.P.No.3004 of 2024)
3. The respondent/plaintiff filed O.S.No.222 of 2019 on the file of the Court of the learned II Additional District Judge, Visakhapatnam,for recovery of a sum of Rs.1,38,21,843/- together with interest @ 25% per annum from the petitioner/defendant.
4. Later on, on the objection and filing of the written statement, the learned Additional District Judge returned the plaint, for filing before the Commercial Court, Visakhapatnam, the nature of dispute being the commercial dispute. The parties were directed to appear before the Special Judge. The O.S., was renumbered as C.O.S.No.5 of 2024. In the C.O.S., the petitioner/defendant filed I.A.No.326 of 2024 under Sections 63, 65 and 114 of the Indian Evidence Act,1872 (in short 'Act') seeking to permit the Memorandum of Agreement, (MOA) dated 16.09.2019, as secondary evidence and mark the same as exhibit on behalf of D.W.1. The respondent/plaintiff filed counter, and on consideration, the Special Judge rejected I.A.No.326 of 2024, vide order, dated 04.10.2024, on the ground that there was non-compliance with the provisions of Section 66 of the Indian Evidence Act,1872 (in short 'Act') and Order XI rule 5(2) of the Code of Civil Procedure,1908 (in short 'CPC'), as applicable to the Commercial Courts.
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(RNT,J C.R.P.No.3004 of 2024)
5. Challenging the order, dated 04.10.2024 the petitioner has filed the Civil Revision Petition under Article 227 of the Constitution of India.
6. Learned counsel for the petitioner does not dispute that there was non-compliance with Section 66 of the Evidence Act, but he submits that the plaintiff, as P.W.1, in his deposition, denied the execution of the Memorandum of Agreement (MOA), dated 16.09.2019. So, the requirement of sending notice to the plaintiff under Section 66 of the Act to produce MOA, dated 15.09.2016 was an empty formality. He submits that the Court had the discretion to dispense with the requirement of notice. However, he admits that the petitioner's case is not covered under Clauses (1) to (6) of the first Proviso to Section 66 of the Act.
7. I have considered the aforesaid submissions and perused the material on record.
8. The relevant provisions deserve to be reproduced first.
9. Section 65 of the Evidence Act reads as under :
"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 :
(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 6 (RNT,J C.R.P.No.3004 of 2024) 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 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 [India] [[[Cf. the Bankers' Books Evidence Act, 1891 (18 of 1891), Section 4.]], to be given in evidence;
(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."
10. Section 66 of the Act reads as under :
Rules as to notice to produce:-Secondary evidence of the contents of the documents referred to in section 65, clause
(a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it: -
(1) when the document to be proved is itself a notice;7
(RNT,J C.R.P.No.3004 of 2024) (2) when, from the nature of the case, the adverse party must know that he will be required to produce it; (3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.
11. A perusal of Section 65 of the Act, makes it evident that the secondary evidence may be given of the existence, condition or contents of a document in the cases covered by Clauses (a) to (g). As per Clause (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.
12. A bare perusal of Section 66 of the Act, makes it evident that the secondary evidence of the contents of the documents referred to in Section 65, clause (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or tohis attorney 8 (RNT,J C.R.P.No.3004 of 2024) or pleader ] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case. However, in the matters covered by Clauses (1) to (6) of the Proviso, such notice shall not be required to be given and in any other case, i.e., other than Clauses (1) to (6), if the Court considers it reasonable under the circumstances of the case, it has the power to dispense with such notice.
13. In Jagmail Singh and Another V. Karamjit Singh and Others1, the Hon'ble Apex Court has observed and held at paragraph Nos.11 to 14 as under :
"11. A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, 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 notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original evidence has not been furnished.
12. The issue arising out of somewhat similar facts and circumstances has been considered by this Court in Ashok Dulichand v. Madahavlal Dube [Ashok Dulichand v. Madahavlal Dube, (1975) 4 SCC 664 : (1976) 1 SCR 246] , and it was held as under : (SCC pp. 666-67, para 7) "7. ... According to clause (a) of Section 65 of Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in 1 (2020) 5 SCC 178 9 (RNT,J C.R.P.No.3004 of 2024) 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 of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to
(g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given."
13. In the matter of Rakesh Mohindra v. Anita Beri [Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483 : (2018) 1 SCC (Civ) 526] this Court has observed as under : (SCC p. 488, para 15) "15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original document is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted."
14. It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. In H. Siddiqui v. A. Ramalingam [H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 : (2011) 2 SCC (Civ) 209] , this Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence."
10
(RNT,J C.R.P.No.3004 of 2024)
14. In Vijay V. Union of India and Others2, the Hon'ble Apex Court laid down the following principles in Paragraph Nos.32 to 35, which read as under :
"32. Primary and Secondary Evidence stands explained by a Constitutional Bench of this Court in Cement Corpn. of India Ltd. v. Purya,14 (5-Judge Bench) as the former being evidence that the law requires to be given first, the latter being evidence that may be given in the absence of that original evidence when a proper explanation of its absence has been given. The terms "primary and secondary evidence" apply to the kinds of proof that may be given to the contents of a document, irrespective of the purpose for which such contents, when proved, may be received.
33. Section 63 of the Evidence Act gives an exhaustive definition declaring that secondary evidence "means and includes" the five kinds of evidence mentioned therein. Section 65 of the Evidence Act allows secondary evidence to be given of the existence, condition, or contents of documents under the circumstances therein mentioned. It provides for the circumstances in which secondary evidence can be used when the original document is unavailable or inaccessible. It is imperative to adhere to the principles outlined in these sections, including the proper documentation and authentication, to successfully produce secondary evidence in legal proceedings.
34. After perusing various judgments of this Court, we can deduce the following principles relevant for examining the admissibility of secondary evidence:
33.1 Law requires the best evidence to be given first, that is, primary evidence.
33.2 Section 63 of the Evidence Act provides a list of the kinds of documents that can be produced as secondary evidence, which is admissible only in the absence of primary evidence.
33.3 If the original document is available, it has to be produced and proved in the manner prescribed for primary evidence. So long as the best evidence is within the possession or can be 2 2023 SCC OnLine SC 1585 11 (RNT,J C.R.P.No.3004 of 2024) produced or can be reached, no inferior proof could be given.
33.4 A party must endeavor to adduce primary evidence of the contents, and only in exceptional cases will secondary evidence be admissible. The exceptions are designed to provide relief when a party is genuinely unable to produce the original through no fault of that party.
33.5 When the non-availability of a document is sufficiently and properly explained, then the secondary evidence can be allowed.
33.6 Secondary evidence could be given when the party cannot produce the original document for any reason not arising from his default or neglect.
33.7 When the copies are produced in the absence of the original document, they become good secondary evidence. Still, there must be foundational evidence that the alleged copy is a true copy of the original.
33.8 Before producing secondary evidence of the contents of a document, the non-production of the original must be accounted for in a manner that can bring it within one or other of the cases provided for in the section.
33.9 Mere production and marking of a document as an exhibit by the Court cannot be held to be due proof of its contents. It has to be proved in accordance with the law.
35. A reading of Section 65(a) of the Evidence Act displays the following:
a. Secondary evidence can be presented as a substitute when the original document/primary evidence is in the possession of the opposing party or held by a third party;
b. Such a person refuses to produce the document even after due notice, 12 (RNT,J C.R.P.No.3004 of 2024) c. It must be ensured that the alleged copy is a true copy of the original."
15. The Hon'ble Apex Court in Vijaya's case (supra), thus clearly laid down that when the non-availability of a document is sufficiently and properly explained, then the secondary evidence can be allowed. Secondary evidence could be given when the party cannot produce the original document for any reason not arising from his default or neglect. When the copies are produced in the absence of the original document, they become good secondary evidence. Still, there must be foundational evidence that the alleged copy is a true copy of the original.
16. In K.Krishna Appala Naidu V. B.Sohanla and Others 3, this Court, on consideration of the provisions of 65 & 66 of the Act clearly held at Paragraphs No.7, 9 & 11 as under :
"7. A plain reading of the above provision would make it clear that principle that as long as the original exists and is available, it being the best evidence, must be produced, is engrafted in the Section. The secondary evidence is admissible only in the absence of primary evidence. The Section also provides for an alternative method of proving the contents of a document, which for various reasons, cannot be produced in evidence. Where original document is in existence, but not produced, secondary evidence by production of copies is not admissible. The Section has been designed to provide protection to persons who, in spite of their best efforts, are unable to, for the circumstances beyond their control, to place before the Court primary evidence of a document as required by law. Secondary evidence should not be allowed unless the circumstances so justify under 3 2004 SCC OnLine AP 410 13 (RNT,J C.R.P.No.3004 of 2024) the provisions of the Evidence Act. Further, the use of exhibit as secondary evidence is question of procedure. Though the Section does not refer to the case where mere secondary evidence of the document is not tendered, but if the document is to be admitted in secondary evidence, the facts thereof have to be proved. The certified copy of the original also can treated as secondary evidence. But the contents of the documents sought to be marked as secondary evidence cannot be admitted in evidence without production of the original document. Under no circumstances can secondary evidence be admitted as a substitute for inadmissible primary evidence.
9. From a reading of the aforementioned provision, it is clear that secondary evidence of the contents of the documents referred to in Sec. 65(a) of the Evidence Act, shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law.
11. Under what circumstances the secondary evidence relating to document must be proved by primary evidence is an exception to the cases falling under Secs.65 and 66 of the Evidence Act. The person seeking to produce secondary evidence relating to a document can do so only when the document is not in his possession, and this is explained in Sec. 65 of the Evidence Act, particularly in Sec. 65(a) of the Evidence Act, which provides that when the original is shown or appears to be in 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 Sec. 66 of the Evidence Act, such person does not produce it. Though under Sec.66 of the Evidence Act, the petitioners were required to issue notice to the person in whose possession the document is, they have not mentioned in whose possession the document is, nor issued any notice to the person from whom they are seeking to summon the document. To enable a person take recourse to the provisions of Secs. 65 and 66 of the Evidence Act, it is necessary for him to establish that the document sought to be summoned was executed and that the said document is not with him, but is in possession of the person against whom the application is made to be produced for proving against him."14
(RNT,J C.R.P.No.3004 of 2024)
17. In Ram Das Singh V. Duli Chand4, the Allahabad High Court observed and held that the secondary evidence, as a general rule is admissible only in the absence of primary evidence. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence, which law requires to be given first, when a proper explanation of its absence is given. Paragraphs 11 to 13, 16 & 19 of Ram Das Singh (supra) read as under:-
"11. It further observed that secondary evidence, as a general rule is admissible only in me absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The rule which is the most universal, namely that the best evidence the nature of the case will admit, shall be produced, decides this objection that rule only means, that, so long as the higher or superior evidence is within one's possession or may be reached by him, he shall give, no inferior proof in relation to it.
12. Then referring to Section 65, the Court said that it deals with the proof of the contents of the document tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however, permits secondary evidence to be given for the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.4
2013 SCC OnLine 13767 15 (RNT,J C.R.P.No.3004 of 2024)
13. In Ashok Dulichand v. Madahavla Dube, (1975) 4 SCC 664 : AIR 1975 SC 1748, the Court considered Section 65(a) of Act, 1872 and said:
".... Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in 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 of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it."
16. The principle underlying secondary evidence is well known with regard to proof of facts that best evidence must come before the Court. The best evidence, which, of course, is the original document would furnish an opportunity to the Court to examine various surrounding facts attached with the original alone like the voraciousness of the signatures of the parties, the age of the document and other host of factors depending on the facts of each case. It is in absence of the best evidence, the secondary evidence is permitted to be adduced. The objective being judicial investigation by Court to fathom the truth. It is for this reason that the law although insists upon production of the best evidence i.e. the original document yet it permits with proper safeguards production of secondary evidence of the original if certain conditions are satisfied, namely, the existence of the document which might have been lost or destroyed or the party in whose possession the original is shown or appears to be have refused to produce it before the Court despite notice or its existence, condition or contents have been proved to be admitted in writing so on and so forth. The rule regarding secondary evidence is not an open rule allowing any piece of photostat copies or an oral account of the original and the likewise to be tendered as secondary evidence.
19. Under what circumstances the secondary evidence relating to document must be proved by primary evidence is an exception to the cases falling under Sections 65 and 66 of Act, 1872. The person seeking to produce secondary evidence relating to a document can do so only when the document is not in his possession. To enable a person to take recourse to Sections 65 and 66 of Act, 1872, it would be necessary to establish that the document sought to be summoned was executed and that the said document is not with him, but in 16 (RNT,J C.R.P.No.3004 of 2024) possession of the person against whom the application is made to be produced for proving against him."
18. It is thus a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being reasons as to why the original evidence has not been furnished. Where the original documents are not produced without a plausible reason and factual foundation for laying secondary evidence is not established, it is not permissible for the Court to allow a party to adduce secondary evidence.
19. Consequently, the petitioner's application for the secondary evidence could be considered only when the Clause (a) of Section 65 was satisfied, which clearly provides that if the original is shown inter-alia not to be in possession or power of the person against whom the document is sought to be proved, but such person does not produce it after the notice under Section 66 of the Act. Without compliance with Section 65 (a) r/w 66 of the Act, it cannot be said that the statutory requirement for laying the secondary evidence is satisfied.
20. A perusal of the written statement shows that,it is the specific case of the defendant/petitioner that the original copy of the Memorandum of Agreement (MOA) dated 15.09.2016 was in 17 (RNT,J C.R.P.No.3004 of 2024) possession of the plaintiff. The petitioner had also filed a copy of the MOA along with his written statement. The relevant part of paragraph 11 of the written statement reads as under :--
"the original copy of the Memorandum of Agreement (MOA) dated 15.09.2016 is in possession of the plaintiff and the Photostat copy of the same is herewith filed."
21. So, it is the defendant's own case that the original of Memorandum of Agreement is in the possession of the plaintiff/respondent. It cannot therefore be said that giving of the notice, complying with the requirements of Section 66 of the Act. would be a futile exercise or an empty formality. The statement of the plaintiff as P.W.1, at this stage, cannot be taken as final or conclusive. The deposition made in trial is always subject to consideration with the other evidence. So, the Court could rightly not proceed based on the deposition of P.W.1, to consider the application without compliance under Section 66 of the Act. If the Court proceeds based on the deposition of P.W.1, that would mean accepting the case of the plaintiff that there is no Memorandum of Agreement, whereas the case of the petitioner/defendant is of the existence of MOA.
22. Learned counsel for the petitioner submits that based on the deposition of P.W.1, any such argument was also not advanced 18 (RNT,J C.R.P.No.3004 of 2024) before the learned trial Court. So, there was no occasion for the learned trial Court to consider that aspect.
23. Undisputedly, the petitioner's case does not fall under Clauses (1) to (6) of the Proviso to Section 66. The petitioner also did not file any application seeking dispensation of the compliance, under Section 66 of the Act, citing the circumstances invoking the power of the Court to dispense with the requirement of giving previous notice to the plaintiff to produce MOA, dated 15.09.2016.
24. I am of the view that in the absence of compliance made by the petitioner under Section 66 of the Act, there is no illegality in the impugned order.
25. The Civil Revision Petition is devoid of merits, and is dismissed.
26. Learned counsel for the petitioner submits that since the rejection is on the ground that the petitioner did not comply with the provisions of Section 66 of the Act, if the defendant/petitioner files a fresh application, after complying with the provisions of Section 66 of the Act, such application may be considered by the learned trial Court.
27. The prayer is genuine. If any such application is filed with due compliance of the provisions of Section 66 of the Act, the Court shall consider the same in accordance with law. 19
(RNT,J C.R.P.No.3004 of 2024) No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
____________________ RAVI NATH TILHARI, J Date :10.12.2024.
Note :- L.R. Copy to be marked.
B/o RPD.
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(RNT,J C.R.P.No.3004 of 2024) 249 THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI (DISMISSED) CIVIL REVISION PETITION NO: 3004 OF 2024 Date :10.12.2024 Note :- L.R. Copy to be marked.
B/o RPD.