Bombay High Court
Kittens Shoes And Allied Products Pvt. ... vs Mattel Toys (India) Pvt. Ltd. And Ors on 21 June, 2021
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
Megha 3_wp_6594_2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6594 OF 2018
Kittens Shoes and allied Products
Pvt. Ltd. ...Petitioner
Versus
Mattel Toys (India) Pvt. Ltd. and ors. ...Respondents
....
Mr. Bhushan Walimbe i/b. Mr. Rupesh K. Bobade for the Petitioner.
Mr. Piyush M. Shah for Respondent Nos.1 and 2.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED: 21st JUNE, 2021.
P.C.:-
The Petitioner herein has challenged the order dated 22/02/2018 whereby the learned Judge, City Civil Court, Greater Bombay, has allowed Notice of Motion No.467 of 2017 in Summary Suit No.306 of 2010 and thereby allowed Respondent No.1 to lead secondary evidence.
2. Learned counsel for the Petitioner states that in the affidavitninnevidence Respondent has averred that originals were available with him. He contends that Respondent No.1 had not made out any case to produce secondary evidence and hence learned Judge was not justifed in allowing Respondent No.1 to lead secondary evidence.
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Megha 3_wp_6594_2018.doc
3. The records reveal that in the affidavitninnevidence fled on Februaryn2015, Respondent No.1 had stated that "original tax invoice dated 22/7/2008, 22/07/2008,01/01/2008, 01/10/2008 and 01/05/2008 be taken on record". Subsequently, he fled an application in the month of Novembern2016 stating that the original tax invoices were misplaced in the course of renovating the office. He therefore, sought leave to produce secondary evidence. Clause (c) of Section 65 of the of the Indian Evidence Act permits the party to tender secondary evidence 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.
4. In the instant case, Respondent No.1 has made a categorical statement that the documents were lost in the course of renovating the office. There is no reason to disbelieve the said statement. Hence, in my considered view the learned Judge has not committed any apparent error in allowing Respondent No.1 to produce secondary evidence.
5. Under the circumstances, the Petition has no merits and is accordingly dismissed.
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