Karnataka High Court
Smt.R.Nirmala vs M/S. S 6 Infra on 1 October, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 21326 OF 2021 (GM-CPC)
BETWEEN:
1. SMT. R.NIRMALA,
AGED ABOUT 44 YEARS,
W/O SRI. RAVISEKHAR REDDY,
2. SRI. S.S. SANTOSH,
AGED ABOUT 43 YEARS,
S/O SRI. S.J. SUBRAMANYAM,
BOTH ARE RESIDENTS OF MADAKASIRA,
ANANTAPURA DISTRICT,
ANDHRA PRADESH-515 301.
...PETITIONERS
(BY SRI. SREEDHAR N.G., ADVOCATE)
AND:
1. M/S. S 6 INFRA,
(A PARTNERSHIP FIRM)
HAVING ITS OFFICE AT NO.202,
Digitally signed
by MEGHA PRADHAM REGENCY, ANAND NAGAR,
MOHAN (BEHIND HEA POLYTECHNIC),
Location: HIGH MARATHAHALLI, BENGALURU-560 034,
COURT OF REPRESENTED BY ITS PARTNERS, NAMELY
KARNATAKA RESPONDENTS NOS.2 AND 3 HERE UNDER:
2. MRS. T. ANURADHA, PARTNER,
M/S. S 6 INFRA, MAJOR IN AGE,
W/O SRI. PRASAD,
3. MR. N. RAMESH BABU,
PARTNER, M/S. S 6 INFRA,
MAJOR IN AGE,
FATHER'S NAME NOT KNOWN
TO THE PETITIONERS,
BOTH R2 AND R3 ADDRESSED AT: NO.202,
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PRADHAM REGENCY, ANAND NAGAR,
(BEHIND HEA POLYTECHNIC),
MARATHAHALLI, BENGALURU-560 034.
...RESPONDENTS
(BY SRI. PRAMOD N. KATAVI, SENIOR COUNSEL A/W
SMT. RACHANA BHARADWAJ R., ADVOCATE FOR R1-R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
GRANT A WRIT OR ORDER OR DIRECTION IN THE NATURE OF
CERTIORARI QUASHING THE ORDER DATED 18.10.2021
[ANNEXURE-H], PASSED BY THE LEARNED IV ADDITIONAL
SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, ON I.A.NO.VI FILED BY THE RESPONDENTS,
UNDER THE PROVISIONS OF SECTION 65 OF THE INDIAN
EVIDENCE ACT, 1872 R/W SECTION 151 OF THE CODE OF
CIVIL PROCEDURE, 1908, IN O.S.NO.546/2011, AS ILLEGAL,
UNJUST AND UNCONSTITUTIONAL, AND CONSEQUENTLY
FURTHER BE PLEASED TO DISMISS THE SAID I.A. NO.VI FILED
BY THE RESPONDENTS UNDER THE PROVISIONS OF SECTION
65 OF THE INDIAN EVIDENCE ACT, 1972 R/W SECTION 151 OF
THE CODE OF CIVIL PROCEDURE, 1908 IN O.S.NO.546/2011
ON THE FILE OF THE LEARNED IV ADDITIONAL SENIOR CIVIL
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 01/07/2024, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
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CAV ORDER
The present writ petition is filed aggrieved by the order
passed in I.A.No.VI in O.S.No.546/2011 dated 18.10.2011 by
the IV Additional Senior Civil Judge, Bengaluru Rural District,
Bengaluru, whereby the Court below had allowed an application
filed by the defendant/respondent herein under Section 65 of
the Evidence Act seeking permission of the Court to give
secondary evidence in respect of memorandum of
understanding dated 25.09.2010 and the agreement of sale
dated 20.10.2010. The petitioners before this Court are the
plaintiffs in the suit.
2. The plaintiffs had filed the suit seeking Specific
Performance of the Agreement of Sale dated 20.10.2010. It is
the case of the plaintiff that defendant Nos.1 to 3 are vendors,
who have entered into an agreement of Sale dated 20.10.2010
with the plaintiffs in respect of a commercial building being the
Northern half side of the commercial condominium constructed
on the Plot bearing No.33, Old Nos.17/1 and 17/2B, presently
bearing BBMP Khata Nos.354/352/17/1-17/2B-33, situated at
Whitefield, Bangalore Road, K.R. Puram Hobli, Bangalore East
Taluk, Bangalore. The building constructed on the Northern half
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side comprehends the building right from basement upto
second floor and entire terrace. The defendant Nos.1 to 3
represented that they have valid and clear and marketable title
and being satisfied with the same, the plaintiffs have paid a
sum of Rs.10,00,000/- in favour of the defendant Nos.1 to 3 as
advance as on the date of agreement itself, against the agreed
purchase consideration of Rs.1,60,00,000/- (Rupees One Crore
Sixty Lakhs Only), agreeing to pay the balance on the date if
execution and registration of Sale Deed, within a period of three
months from the date of the agreement for sale. The defendant
No.4 is the owner of the land which oriented into Schedule-B
property by virtue of lawful deliberations for its development as
such, under joint development agreement dated 01.10.2009
and General Power of Attorney dated 01.10.2009 which were
inter alia entered into between the defendant Nos.1 to 3 and
the defendant No.4. The said joint development agreement and
the general power of attorney have been registered before the
concerned sub-registrar, and under the same the defendant
Nos.1 to 3 derive valid, right, share and title to convey the
Schedule-B property.
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3. As per the agreed terms and conditions of the
agreement, the property has to be registered in favour of the
plaintiffs within a period of three months and the defendants
were supposed to complete the construction in all respects and
hand over the possession and also secure the presence of
defendant No.4 for execution and registration of the sale deed
before the Sub-Registrar. The plaintiffs had initially moved SBI,
Madaksira Branch and later their Banker namely HDFC Bank for
loan and kept ready the margin money required for expediting
the sanction of the same. Although the period of the agreement
was fast approaching the defendant Nos.1 to 3 were not so
diligent in completing the construction work in spite of several
requests and notices issued showing their readiness and
willingness they were unable to complete the construction and
the plaintiffs could not obtain the sale deed in respect of the
Schedule- B property by paying the balance amount of
Rs.1,50,00,000/- (Rupees One Crore Fifty Lakhs).
4. It is stated that the plaintiffs are always ready and
willing to perform their part of the contract. In the mean time,
the plaintiffs having visited the Schedule-B property to ensure
the completion of the construction of the building in all
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respects. For the first time, the defendants acted quite
strangely, which caused the plaintiffs to suspect some
misunderstanding between the defendant Nos.1 to 3 and the
defendant No.4. When they have approached defendant No.4,
they ascertained that the defendant Nos.1 to 3 are due to pay
him some amount of money and it is only thereafter that the
defendant No.4 would accord his consent witness to the sale
deed as intended under the sale agreement. The plaintiffs
carried this demand of defendant No.4 to the defendant Nos.1
to 3 and requested these defendants to resolve this issue at the
earliest. But to the shock and dismay of the plaintiffs, the
defendant Nos.1 to 3 have entered into Deed of Lease with
defendant Nos.5 to 8, who have been inducted as tenants, in
respect of the portions in Schedule-B property from Ground
Floor upto entire terrace respectively, during the month of April
and have registered the same before the concerned Sub-
Registrar. The defendants have collected deposits from these
tenants and also have been collecting monthly rents from them.
Whereas on the contrary the plaintiffs are entitled for monthly
rents.
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5. The plaintiffs have received reply from the defendant
Nos.1 to 3 to the plaintiffs' legal notice which was sent on
18.01.2011. This reply speaks about ill intentions of defendant
Nos.1 to 3 to escape and resile from their obligations under the
agreement of sale, without any justifications whatsoever, but
with dishonest intentions. Whatever has been alleged and
averred by defendant Nos.1 to 3 in their said reply dated
18.05.2011 is contrary to what has been pleaded by the
plaintiff in this plaint are denied as false, concocted, fabricated,
speculative and have been made with dishonest intentions. It is
stated that the defendant Nos.1 to 4 have committed breach of
contract the redressal for which is regulated under the
agreement of sale dated 20.10.2010, the plaintiff to exercise
the right to sue them for specific performance of contract and
other incidental reliefs. It is stated that the cause of action has
arose on 20.10.2010 when the plaintiffs and the defendant
Nos.1 to 3 have entered into agreement of sale on 18.01.2011
when the plaintiffs issued legal notice to defendant Nos. 1 to 4
and on 18.05.2011 when the defendant Nos. 1 to 3 have issued
a reply denying to execute and register the sale deed without
any justification.
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6. After service of notice, the defendants have appeared
and a written statement is filed on behalf of defendant Nos.1 to
3, wherein it is stated that one Shashikanth Reddy brought one
Mr.Raghavendra to the defendant Nos.1 to 3 and informed that
the clients of the said Mr.Raghavendra were looking for
investment in a property more preferably a commercial complex
in Bangalore and that they have been shown the suit schedule-
B property by him and that they being impressed by the same
were interested in negotiating with the defendants Nos.1 to 3
herein for purchase of the same. He also informed that if the
defendant Nos.1 to 3 herein were interested in the deal, he
would request his clients to come over to Bangalore for a
negotiation with the defendant Nos. 1 to 3. The defendant
Nos.2 and 3, after deliberations, informed Mr.Raghavendra that
they were inclined to offer the commercial complex, Schedule-B
property for sale to his clients provided that they get the price
desired by them. Thereafter, during the third week of
September 2010, Mr.Raghavendra came over to Bangalore with
his clients the plaintiffs herein, who after detailed negotiations
with the defendants Nos.2 and 3 agreed to purchase the suit
schedule-B property for a consideration of Rs.2,90,00,000/-
(Rupees Two Crores and Ninety Lakhs only).
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7. After finalization of sale price, the plaintiffs/petitioners
herein entered into a Memorandum of Understanding dated
25.09.2010, where it was agreed that the defendant Nos.1 to 3
herein shall deliver copies of all title deeds and documents
pertaining to the Schedule-A property to the plaintiffs herein to
enable them to ascertain clear, valid and marketable title of
defendant No.4 in the present suit as also the authority of
defendant No.1 to convey the Schedule-B property by absolute
sale. In the said Memorandum of Understanding it was agreed
that sale price of the Schedule-B property shall be
Rs.2,90,00,000/- (Rupees Two Crore Ninety Lakhs) and the
same shall not be increased for any reasons whatsoever in the
event of materialization of agreement for sale as intended in
the Memorandum of Understanding. It was agreed that, in the
event of execution of agreement of sale as intended in the
Memorandum of Understanding, the plaintiffs shall pay the sum
to an extent of 25% of sale price as advance and shall pay the
balance at the time of registration of sale deed within three
months from the date of such agreement for sale. On the said
date, the plaintiffs also paid a sum of Rs.5,00,000/- to the
defendants as advance.
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8. It is stated that the plaintiffs represented to the
defendants herein that they have approached their banker
State Bank Of India, Madaksira, Ananatapur District of Andhra
Pradesh for certain financial assistance to the tune of
Rs.1,60,00,000/- (Rupees One Crore Sixty Lakhs only) and that
they required another agreement to be executed with the
defendants, wherein the sale consideration indicated should be
for an amount of Rs.1,60,00,000/- (Rupees One Crore Sixty
Lakhs only). Though the defendants were reluctant to accede to
the requirement of the plaintiffs for such an agreement, on
persuasion by the plaintiffs that without such an agreement
their banker would not provide or extend financial assistance to
purchase the property in question, the defendants agreed for
execution of another such agreement.
9. The plaintiffs undertook and agreed to have both the
agreements drafted and settled by their advocates and
informed the defendant Nos.2 and 3 that the same will be
sent/communicated to them. Accordingly, the plaintiffs caused
an Electronic Mail(e-mail) with an attachment thereto on
19.10.2010 from an e-mail id [email protected], to be
sent to the e-mail id of defendant No.3 viz.
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[email protected] and also that of defendant No.1 viz.
[email protected] for their consideration and approval. The
said attachment contained drafts of the two agreements i.e.,
the one where the sale consideration agreed was
Rs.2,90,00,000/- (Rupees Two Crore Ninety Lakhs) and the
other where the sale consideration shown as Rs.1,60,00,000/-
(Rupees One Crore Sixty Lakhs Only). The drafts of two
agreements communicated were edited by the defendant Nos.1
to 3 and after approval thereof, the same were sent back as an
attachment on 20.10.2010 to the e-mail id
[email protected]. The said attachment also contained
two agreements, one where the sale consideration agreed was
Rs.2,90,00,000/- (Rupees Two Crore Ninety Lakhs) and the
other where the sale consideration shown as Rs.1,60,00,000/-
(Rupees One Crore Sixty Lakhs Only) and along with the written
statement, document Nos.4, 5, 6, 7, 8 and 9 are also
mentioned. The plaintiffs have approached defendant Nos.2 and
3 on the same date i.e., 20.10.2010 and informed the
defendants that they were ready to enter into and execute the
agreements agreed under the Memorandum of Understanding.
As desired and insisted upon by the plaintiff and in good faith
and belief that such an agreement was required by them to
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obtain loan from the bankers, defendant Nos.2 and 3 executed
two agreements on 20.10.2010. The plaintiffs also paid on the
said date a sum of Rs.70,00,000/- (Rupees Seventy Lakhs only)
as advance, which constitutes 25% of the sale consideration in
terms of the Memorandum of Understanding.
10. As per the said agreement, the time being the
essence of contract, the sale in respect of the suit schedule-B
property was to be completed within three months from the
date of the agreement after paying the remaining sale
consideration of Rs.2,15,00,000/- (Rupees Two Crores Fifteen
lakhs only). The Originals of these two agreements and that of
the Memorandum of Understanding are all in the possession
and custody of the plaintiffs. While they have chosen to produce
the agreement where the sale consideration is shown as
Rs.1,60,00,000/- (Rupees One Crore Sixty Lakhs), they have
deliberately withheld the other two documents i.e., the
agreement dated 20.10.2010 and the Memorandum of
Understanding. It is stated that one Mr.Shashikanth Reddy, who
brought the plaintiffs through Mr.Raghavendra to defendant
Nos.2 and 3 has charged and collected a sum of Rs.2,00,000/-
(Rupees Two Lakhs only) towards his remuneration by way of
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commission for facilitating the meeting of the parties and
execution of agreement No.1 by the plaintiffs and has also
issued an acknowledgement for having received the said sum.
He has even agreed to refund or return the said amount in the
event they are not able to strike the deal.
11. It is the case of the defendant that by suppressing the
agreement No.1 and filing a suit in respect of agreement
No.2, is nothing but fraud, misrepresentation and
misstatement. They have denied that the agreement No.2 is
operative and binding on the defendants. It is stated that it was
never intended upon to be acted by the parties and it was
entered only for the limited purpose of the plaintiff with which
the defendants had nothing to do. It is stated that the plaintiffs
have suppressed the material facts and they are not entitled for
a relief of specific performance and it is a classic case of
supressio veri and suggestio falsi and they are not entitled for a
relief of injunction which is a discretionary relief. It is stated
that the agreement is insufficiently stamped under the
provisions of the Karnataka Stamp Act and the said document is
liable to be impounded under Section 33 of the Karnataka
Stamp Act, 1957 for want of payment of sufficient stamp duty
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and the same is unenforceable. It is stated that the plaintiff
even before the expiry of the period of three months had issued
notice on 18.01.2011 to the defendant Nos.1 to 3 by making
baseless allegations. Later they were informed that it was a
mere formality and issued with a view to avoid future
complications with their banker with whom their application for
grant of loan was pending consideration. However, when the
plaintiffs did not do anything to show that they would perform
their part of the agreement No. 1, the defendants realized the
game plan of the plaintiffs and caused a notice dated
18.05.2011, which is self explanatory. By that notice, the
defendants terminated and rescinded the agreement No. 1 and
forfeited a sum of Rs.15,00,000/- ( Rupees Fifteen Lakhs only)
in terms of the agreement No. 1. This notice has been received
by the plaintiffs and they have not disputed the contents
thereof. It is the case of the defendants that the plaintiffs were
never ready and willing to perform their part of the contract.
12. It is stated that the plaintiffs, on receipt of the notice
dated 18.05.2011 and having realized that their game plan was
unsuccessful and was not materializing to their advantage,
chose to institute a private complaint in PCR No.134 of 2011
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before the Chief Judicial Magistrate, at Bangalore making
baseless, frivolous, unfounded, mischievous allegations against
the defendants. The Jurisdictional Court referred the said
complaint to the jurisdictional police for investigation under
Section 156 of the Code of Criminal Procedure. Upon such
reference, the jurisdictional police called defendants Nos.2 and
3 and the plaintiffs for an investigation. The defendants Nos.2
and 3 submitted a written reply to the unsustainable charges.
Later, the Police having found the allegations to be false and
unfounded have submitted a 'B' Final report to the Jurisdictional
Magistrate. It is stated that what is enforceable between the
plaintiffs and defendant Nos.1 to 3 is the agreement dated
20.10.2010 which is for a consideration of an amount of
Rs.2,90,00,000/-.
13. The plaintiff after the written statement wanted to file
a rejoinder under Order VIII Rule 9, for that they filed I.A.No.5
where the Court had allowed the IA and permitted the plaintiffs
to file a rejoinder. Against that, a writ petition is filed by the
defendants in WP.No.46392/2012 and this Court by order dated
16.04.2013 had allowed the writ petition observing that the
Trial Court had passed the impugned order in excess of
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jurisdiction. There being no counter claim filed by the
defendants, it is impermissible to allow the plaintiff to file a
rejoinder. What they wanted to file is whereby they have denied
the memorandum of understanding dated 25.09.2011 and also
they have denied the fact that they have not executed any
document called as MOU to purchase the suit schedule property
for Rs.2,90,00,000/- where Rs.5,00,000/- was alleged to be
paid as advance and they have denied everything. It is stated
that on 20.09.2010 itself, the defendant Nos.1 to 3 have
received Rs.5,00,000/- in cash as token advance and has
issued a receipt to that effect. Later, as the construction was in
progress, on 20.12.2010, the suit sale agreement was entered
into and defendant Nos.1 to 3 collected back the receipt as the
same was no more necessary since the receipt of the said
amount was acknowledged in the sale agreement perse.
14. The plaintiffs to comprehend entire agreed purchase
consideration and incidental expenses thereto, by loan had
requested the defendant Nos.1 to 3 to agree for an agreement
for purchase consideration of Rs.2.90 Crores, as the SBI
Madaksira branch had intended to finance only to an extent of
60% of agreed purchase consideration whichever is less. So if
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purchase consideration were to be shown as 1.60 Crore then
plaintiff would have been eligible for only about 1.00 Crore
only, despite the plaintiffs are otherwise able to raise higher
amount of loan, and hence so as to cover up entire purchase
consideration and the incidental expenses as aforesaid in the
agreement, the plaintiffs had requested for another agreement
for a higher value that is 2.90 Crores. But however it did not
materialize as the defendants Nos.1 to 3 later informed on
20.12.2010 that their auditors had serious objections for it and
also the plaintiffs did not pursue for the same as the plaintiffs
had clash of misunderstanding with Manager of said State Bank
of India, Madaksira Branch as he failed to consider other
resources of the plaintiffs to so as to advance a higher amount.
The Plaintiffs told that they have certain problem with SBI
Madakasira Branch, and hence the agreement for 2.90 Crores
was no more necessary and also the defendant Nos.1 to 3, on
20.10.2010, the day fixed for execution of sale agreement, did
not agree to execute agreement for 2.90 Crores as their
auditors objected for the same, as it would be prejudicial to the
defendants' interest and they would unnecessarily suffer
incidence of income tax. Thus one and only sale agreement
dated 20.12.2010 for Rs.1.60 Crores, which is the suit sale
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agreement, came to be executed. It is also stated that for all
practical purposes, the suit sale agreement is the only genuine
and the only agreement executed between the parties. The
purchase consideration of Rs.2.90 crores was never ever
executed between the plaintiffs and the defendant Nos. 1 to 3.
15. The defendants No.1 to 3 have filed an application
under order XVI Rule 6 and Order XI Rule 14 r/w section 151 of
CPC seeking a direction to the plaintiff to produce the original
agreement of sale dated 20.10.2010 and also Memorandum of
Understanding dated 25.9.2010 executed between themselves
and plaintiffs. It is the case of the defendants that as there is a
Memorandum of understanding under agreement dated
20.10.2010 for an amount of Rs.2,90,00,000/- and the original
documents were not produced. The plaintiffs had filed
objections stating that there no sale agreement or
memorandum of understanding for an amount of
Rs.2,90,00,000/- is executed. Then the Trial Court, by order
dated 21.07.2016 had dismissed the application. After the
evidence of the plaintiffs commenced, the present application
came to be filed by the defendants by way of I.A.No.6 under
Section 65 of the Indian Evidence Act seeking permission of the
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Court to give secondary evidence. In respect of memorandum
of understanding dated 25.09.2010 and the agreement of sale
dated 20.10.2010, wherein it is stated that the plaintiffs in
rejoinder dated 13.12.2011 they have categorically admitted
the existence of the documents. The said rejoinder was allowed
by the Trial Court and dismissed by the High Court. As the
original documents are not produced, now it has become
necessary to come up with this application. The same was
resisted by the plaintiff by filing his objections stating that they
have the Xerox copies which are not permissible under Sections
61 to 66 of the Indian Evidence Act. It is the clear cut tactics of
the defendants as they want to take advantage of the exchange
of drafts of sale agreement to e-mail and accordingly, they
sought for rejection of the same.
16. Then the Court had discussed Section 65 of the
Evidence Act and also the rejoinder which was filed by the
plaintiffs and also the contentions in the written statement
about Rs.2,90,00,000/- agreement and the Court held that at
this stage, it is necessary to admit the documents to get
marked subject to payment of duty and penalty since these
documents are unregistered and also defendant Nos.1 to 3
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clearly mentioned the documents in the body of the written
statement and even to some extent, the plaintiff admits about
the execution of MOU dated 25.09.2010 and agreement of sale
dated 20.10.2010, but his stand is that it was not acted upon.
Whether it was acted upon or not, the Court has to decide on
merits. At this stage, if the defendants are not permitted to
produce and get mark the same, certainly it leads to their
defense is taken away and the defendants will be put to
hardship and at the same time, no hardship will be caused to
the plaintiff, because the burden is on the defendants to prove
the same.
17. The Court had considered the judgments relied on by
the counsel for the plaintiff and observed that with due respect
to the citations, the ratio laid down in the citations do not apply
to the facts of the case as the defendants put proper foundation
in respect of execution of MOU and agreement and also
produced the E-mail correspondence images. The Court came to
the conclusion that if a party makes foundation, what happen
to either original or certified copy, he may be permitted to
adduce secondary evidence as per Section 65 of the Evidence
Act. In this case, the proposed documents are not registered
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documents, so question of directing the defendants to produce
certified copy does not arise. So far as original is concerned, it
can be gathered that original was prepared otherwise, Xerox
copy of the said MOU and sale agreement would not have been
produced by defendants. Because both the documents contain
the signatures of both the parties and also witnesses such being
the case, it can be presumed that there was original documents
and from that documents, the photo copies were developed,
otherwise these documents would not have been existed. The
authenticity of these two Xerox copies can be decided on
merits. But at this stage, it is the view of the Court that the
defendants are to be permitted to get marked these documents
subject to payment of duty and penalty. Leave is granted.
Accordingly, the Trial Court had allowed I.A.No.6. Aggrieved
thereby, the plaintiffs are before this Court.
18. Learned counsel Sri.Sridhar.N.G., appearing for the
petitioners submits that the Trial Court had made an
observation that for existence of original, the Xerox copies
would not have come into existence, which the Court failed to
consider that the earlier order dated 21.07.2016, where it is
stated that the original documents do not exist. It is submitted
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that the Court below failed to understand the possibility of
probable manipulations that are likely to have in generating the
photocopies. This order of the Court is erroneous and would
cause lot of hardship to the plaintiffs. It is stated that the Xerox
copies of the documents which are sought to be produced, do
not have any probative value to achieve the purpose of
comparing the signatures and to prove the contends of the
documents and neither to establish the execution of it nor the
very existence of the original in the light of the finding that the
originals of such documents do not exist. It is stated that in the
order, the Trial Court had observed that the plaintiffs had
accepted about the agreement of sale and the MOU which is
factually incorrect and the said observation of the Trial Court is
without any basis. It is submitted that the Court had directed
the Photostat copies of the agreement of sale and the MOU to
be impounded. It is submitted that it is settled that the Xerox
copies cannot be impounded and the Court has failed to
consider the same.
19. He had relied on several judgments of the Hon'ble
Apex Court and this Court. He has relied on the judgment of the
Hon'ble Apex Court in the case of H.Siddiqui (dead) by LRs
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Vs. A.Ramalingam1, wherein the Court had observed that the
provisions of Section 65 of the 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. It
is also observed that the trial court could not have proceeded in
such an unwarranted manner for the reason that the
respondent had merely admitted his signature on the photocopy
1
(2011) 4 SCC 240
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of the power of attorney and did not admit the contents thereof.
More so, the court should have borne in mind that admissibility
of a document or contents thereof may not necessarily lead to
drawing any inference unless the contents thereof have some
probative value.
20. Learned counsel had relied on another judgment of
the Division Bench of this Court in the case of
K.P.Krishnakumar Vs. Smt.Radhalakshmi Amma2 and he
submits that to admit the secondary evidence, it is not
sufficient to show merely that the original document is lost, the
secondary evidence itself must be of the nature described in
Section 63 A "true copy" of a document will not be admissible
under Section 63 unless it is shown that it has been made from
or compared with the original. Further, there must be a
sufficient proof of the such and the original to render the
secondary evidence admissible. It must be established that the
party has exhausted all resources and means in such of the
document which was available to him, since this aspect falls
within the domain listed in the Trial Court.
2
ILR 2004 KAR 4838
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21. He had relied on another judgment of this Court in
the case of B.N.Sampath Kumar Vs. Rahimunissa Begum3
and basing on this judgment, learned counsel submits that the
Court had observed that as no material particulars as to what
endeavours are made by the petitioner to search the original
are furnished, as the petitioner has not said in whose
possession the original affidavit is lying, as no notice under
Section 66 of the Indian Evidence Act, 1872 is issued, as the
legal representatives of the deceased are also not put on notice,
as there is no averment in the plaint that the xerox copy is
taken from the original or is compared with the original and as
there is no possibility of the xerox copy being compared with
the original, the Trial Court's order dismissing the I.A. was
upheld. The Court had held that a xerox copy of the affidavit in
question cannot be permitted to be marked in evidence at all.
Then he had relied on the judgment of the Orissa High Court in
the case of Purna Chandra Patnaik Vs. Kalidas Sen and
Others4 on the similar point.
22. Then he had relied on the judgment of the Hon'ble
Apex Court in the case of Neeraj Dutta Vs. State (Govt. of
3
2010 (4) KCCR 2757
4
AIR 1973 Orissa 65
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N.C.T. of Delhi)5, wherein the Court considered the scope of
Sections 62 and 64 of the Evidence Act and observed that
Section 64 of the Evidence Act states that documents must be
proved by primary evidence except in certain cases mentioned
in Section 62 of the Evidence Act. Once a document is admitted,
the contents of that document are also admitted in evidence,
though those contents may not be conclusive evidence.
Moreover, once certain evidence is conclusive, it shuts out any
other evidence which would detract from the conclusiveness of
that evidence. There is prohibition for any other evidence to be
led which may detract from the conclusiveness of that evidence
and the court has no option to hold the existence of the fact
otherwise when such evidence is made conclusive and also it is
observed that the cases in which secondary evidence relating to
documents may be given are stated in Section 65 of the
Evidence Act read with Section 66, Section 67(2), Section 78.
Proof of documents, whether public or private, including
execution of such documents etc.
5
arising out of CRL.A.No.1669/2009
dated 15.12.2022
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23. He had relied on the judgment of this Court in the
case of Bhuvaneshwari Vs. Prashanth Kumar6, where the
Coordinate Bench of this Court had considered the judgments of
the Hon'ble Apex Court in the case of H.Siddiqui (Dead) by
Lrs. referred supra and the judgment of Bipin Shantilal
Panchal Vs. State of Gujarat and Another7 and Dhanpat
Vs. Sheo Ram (Deceased) through Lrs. and others8 and
also the judgment of the Hon'ble Apex Court in the case of
Vijay Vs. Union of India and Others9, wherein the Hon'ble
Apex Court had laid down a few points for consideration and
refused to take the document as a secondary evidence. In this
case, the Hon'ble Apex Court had observed as under:
"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
6
arising out of WP.No.18433/2023
dated 15.03.2024
7
AIR 2001 SC 1158
8
(2020) 0 AIR (SC) 2666
9
2023 SCC OnLine SC 1585
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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 produced or can
be reached, no inferior proof could be given.
33.4 A party must endeavour 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
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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,
c. It must be ensured that the alleged copy is a
true copy of the original."
24. Then he has relied on the judgment of the Hon'ble
Apex Court in the case of Hariom Agarwal Vs. Prakash
Chand Malviya10, and basing on this judgment, he submits
that a Photostat copy which was produced as secondary
evidence did not show that on the original agreement proper
stamp duty was paid and a document which is not properly
stamped cannot be admissible in evidence. Learned counsel
submits that as it is a Xerox copy, it cannot be impounded. He
submits that when an application is filed by him for production
of the said document, it was dismissed on 21.07.2016, he was
keeping quiet till then and has come up with an application that
10
AIR 2008 SC 166
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is impugned in this writ petition in the year 2021. Even on that
ground also, it has to be dismissed.
25. Learned Senior counsel appearing for the respondent
submits that in the written statement itself, they have taken a
stand with regard to the agreement dated 20.10.2010 for a
consideration of an amount of Rs.2,90,00,000/- and according
to the petitioner, an amount of Rs.10,00,000/- is paid and they
have stated in the written statement that while issuing the
notice, it is specifically stated that they have forfeited an
amount of Rs.500,000/- and as per the MOU and as per the
agreement of sale, the plaintiffs have paid an amount of
Rs.75,00,000/-, as such, they have forfeited Rs.50,00,000/-
and also by issuing a notice, they have asked the plaintiff to
take the remaining amount. After building all these facts to the
notice of the Court about executing two agreement of sale and
also exchange of these documents between the advocate, a
rejoinder is filed. He submits that the said rejoinder came to be
allowed and later in the writ petition, that order came to be set
aside. Learned senior counsel submits that the discretionary
relief of specific performance cannot be granted to a party who
has come before this Court with suppression of facts. When all
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these issues are in the knowledge of the plaintiffs, why they
have not stated in the plaint and why the plaint is silent about
it, speaks volumes about the conduct as well as the transaction
that are taken place. It is submitted that the defendants have
made a factual foundation for their case in the written
statement. Thereafter, by filing an I.A. under Order 14 Rule 6
and under Order 11 Rule 14 read with Section 151 of C.P.C.,
they wanted the plaintiffs to produce original agreement of sale
dated 20.10.2010 and also Memorandum of Understanding
dated 25.09.2019. When the said application was dismissed and
during the course of the trial, even when the plaintiff was
denying the exchange of this agreement, at that stage, he was
made to come before the Court. The contention of the
defendant that the plaintiff has kept quiet from the year 2016 is
not correct. As there was no occasion for him to come up with
secondary evidence unless and until such an application is
made and even the plaintiff started denying the exchange of E-
mails between the parties. Then learned senior counsel has
drawn the attention of the Court to Section 63, 65 and Section
66 of the Evidecne Act and it is submitted that the case of the
defendant will surely fall under Section 63(2), 65(a) and
Seciton 66 of the Evidence Act and the Court below had rightly
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considered and passed an order. Thereafter, for impounding the
document also, they have paid the necessary amount. He
submits that it is a fit case where secondary evidence has to be
let in and if it is not permitted, it would cause lot of hardship to
the defendants.
26. He had relied on the judgments of the Madras High
Court in the case of L.S.Sadapopan and Another Vs.
K.S.Sabrinathan11, Bibi Aisha and Others Vs. The Bihar
Subai Sunni Majis Avaqaf and Others12. He had relied on
the judgment of the Hon'ble Apex Court in the case of Marwari
Kumhar and Others Vs. Bhagawanpuri Guru Ganeshpuri
and Another13, wherein the Court had observed that:
"10. Thus it is to be seen that under sub-clause (c)
of Section 65, where the original has been lost or
destroyed, then secondary evidence of the contents
of the document is admissible. Sub-clause (c) is
independent of sub-clause (f). Secondary evidence
can be led, even if a public document, if the
conditions as laid down under sub-clause (c) are
fulfilled. Thus if the original of the public document
has been lost or destroyed then the secondary
evidence can be given even of a public document.
This is the law as has been laid down by this Court
in Mst. Bibi Aisha v. Bihar Subai Sunni Majlis Avagaf,
11
AIR 2002 MADRAS 278
12
AIR 1969 SC 253
13
AIR 2000 SC 2629
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reported in AIR 1969 SC 253. In this case a suit had
been filed for setting aside a registered mokarrari
lease deed and for restoration of possession of
properties. The suit had been filed on behalf of a
Waqf. The Original Waqf Deed was lost and an
ordinary copy of the Waqf Deed was produced in
evidence. The question was whether an ordinary
copy was admissible in evidence and whether or not
secondary evidence could be led of a public
document. The Court held that under Section 65
clauses (a) and (c) secondary evidence was
admissible. It is held that a case may fall both under
clauses (a) or (c) and (f) in which case secondary
evidence would be admissible. It was held that
clauses (a) and (c) were independent of clause (f)
and even an ordinary copy would, therefore, be
admissible. As stated above the case that the
original was no longer available in Court records and
the certified copy was lost has not been disbelieved.
Thus the ordinary copy of the earlier judgment was
admissible in evidence and had been correctly
marked as an exhibit by the trial Court."
27. He had relied on the judgment of the Kerala High
Court in the case of Chitaranjan Vs. Jayarajan14 and the
judgment of the Hon'ble Apex Court in the case of J.Yashoda
Vs. K.Shobha Rani15, wherein the Apex Court had observed
that:
14
2003 SCC OnLine Ker 21
15
(2007) 5 SCC 730
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"7. Secondary evidence, as a general rule is
admissible only in the 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.
8. 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
definition in Section 63 is exhaustive as the section
declares that secondary evidence "means and
includes" and then follow the five kinds of
secondary evidence.
9. 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 your possession or may
be reached by you, you shall give no inferior proof
in relation to it. Section 65 deals with the proof of
the contents of the documents 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 (sic proved) by primary evidence. Section
65, however permits secondary evidence to be
given of 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
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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."
28. Learned Senior counsel had relied on the judgment
of the Hon'ble Apex Court in the case of Anil Balasaheb
Murde Vs. Adinath Trimbak Bodkhe16, and in the case of
Kaliya Vs. State of Madhya Pradesh17, wherein the Apex
Court had observed that:
"13. Section 65(c) of the 1872 Act provides that
secondary evidence can be adduced relating to a
document 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. The court is obliged to examine
the probative value of documents produced in the
court or their contents and decide the question of
admissibility of a document in secondary evidence.
(Vide H. Siddiqui v. A.Ramalingam and Rasiklal
Manikchand Dhariwal v. M.S.S.Food Products.)
However, the secondary evidence of an ordinary
document is admissible only and only when the
party desirous of admitting it has proved before
the court that it was not in his possession or
control of it and further, that he has done what
could be done to procure the production of it. Thus,
the party has to account for the non-production in
16
2006 SCC OnLine Bom 1193
17
(2013) 10 SCC 758
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one of the ways indicated in the section. The party
further has to lay down the factual foundation to
establish the right to give secondary evidence
where the original document cannot be produced.
When the party gives in evidence a certified
copy/secondary evidence without proving the
circumstances entitling him to give secondary
evidence, the opposite party must raise an
objection at the time of admission. In case, an
objection is not raised at that point of time, it is
precluded from being raised at a belated stage.
Further, mere admission of a document in evidence
does not amount to its proof. Nor mere marking of
exhibit on a document does not dispense with its
proof, which is otherwise required to be done in
accordance with law. (Vide Roman Catholic Mission
v. State of Madras, Marwari Kumhar v.
Bhagwanpuri Guru Ganeshpuri, R.V.E.
Venkatachala Gounder v. Arulmigu
Viswesaraswami and V.P. Temple, Dayamathi Bai
v. K.M. Shaffil and LIC v. Ram Pal Singh Bisen.)
14. In M. Chandra v. M. Thangamuthu, this Court
considered this aspect in detail and held as under:
(SCC pp. 735-36, para 47)
"47. We do not agree with the reasoning of the
High Court. It is true d that a party who wishes to
rely upon the contents of a document must adduce
primary evidence of the contents, and only in the
exceptional cases will secondary evidence be
admissible. However, if secondary evidence is
admissible, it may be adduced in any form in which
it may be available, whether by production of a
copy, duplicate copy of a copy, by oral evidence of
the contents or in another form. The secondary
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evidence must be authenticated by foundational
evidence that the alleged copy is in fact a true copy
of the original. It should be emphasised that the
exceptions to the rule requiring primary evidence
are designed to provide relief in a case where a
party is genuinely unable to produce the original
through no fault of that party."
A similar view has been reiterated in J. Yashoda v.
K. Shobha Rani
15. Dr Nirmal Kumar Gupta (PW 18), deposed that
100% burnt patient can also be in a fit mental and
physical condition to give a statement. Dr V.K.
Deewan (PW 14), who performed the post-mortem
of the deceased Guddi, deposed that she was
completely burnt and the burn injuries were ante-
mortem. She had died due to asphyxia, due to burn
injuries, her death was homicidal. In view thereof,
both the courts below were of the considered
opinion that the appellant was responsible for
causing the death of Guddi, the deceased.
16. The defence taken by the appellant that she
had gone out of her house to provide water to the
buffalo has been disbelieved by the court. As the
incident occurred in the house of the appellant,
and she was present therein at the relevant time,
she could have furnished the explanation as to how
and under what circumstances Guddi died. The
matter was within her special knowledge."
29. He had relied on the judgment of the Punjab and
Haryana High Court in the case of Jeet alias Ajeet Mehta Vs.
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Ms.Meena alias Sukhwinder18, wherein the Court had
observed that:
"12. Mr. Akshay Bhan, learned counsel for the
petitioner vehemently argued that no secondary
evidence of the document could be allowed as the
photo copy produced was in fact a forged and
fabricated document. The contention of the learned
counsel for the petitioner was that there was a
material difference between the agreement of sale
produced by the plaintiff-respondent along with
the plaint from that of one produced in the
Criminal Court in the proceedings under Section
138 of the Negotiable Instruments Act.
13. However, this argument also cannot be of any
help to the petitioner in view of the law laid down
by the Hon'ble Supreme Court in Nawab Singh v.
Inderjit Kaur, 1999 (2) RCR (Civil) 678: 1999 (1)
RCR (Rent) 540 : (1999) 4 SCC 413 : AIR 1999 SC
1668 wherein it was held as under:
"3. Having heard the learned counsel for the
parties, we are of the opinion that the trial Court
was not justified in rejecting the prayer seeking
leave of the Court for producing of secondary
evidence. The prayer has been rejected mainly on
the ground that the copy of the rent note sought to
be produced by the appellant was of doubtful
veracity. The trial Court was not justified in
forming that opinion without affording the
appellant an opportunity of adducing secondary
evidence. The appellant has alleged the original
rent note to be in possession of the respondent.
18
2006 SCC OnLine P&H 1126
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The case was covered by Clause (a) of Section 65
of the Indian Evidence Act, 1872."
14. In view of what has been stated above, I find
no merit in the present revision petition and the
same is accordingly dismissed."
30. Having heard the learned counsel appearing for the
petitioners and the learned Senior counsel appearing for the
respondents, perused the entire material on record. The main
contention of the learned counsel for the petitioner is that the
documents that are permitted to be marked are the Xerox
copies and the trial Court had permitted them to mark the
same i.e., Memorandum Of Understanding dated 25.09.2010
and another Xerox copy of the agreement of sale dated
20.10.2010, subject to payment of deficit stamp duty. On
agreement of sale dated 20.10.2010 with 10 times penalty by
01.12.2021. It is the argument of the learned counsel that a
Xerox copy cannot be impounded. The another contention of
the learned counsel for the petitioners is that the contention of
the defendants in the light of their allegations that one more
sale agreement between the same parties, at the same time
and in respect of same property but for an alleged higher
purchase consideration, needs to be discharged only by
adducing direct or primary evidence and not by adducing
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secondary evidence, that too, when the defendants have
nowhere in the pleadings nor in the evidence adduced,
admitted the execution of such an alleged one more sale
agreement in respect of same immovable property but for an
alleged higher purchase consideration. It is also the contention
that a document should have a probative value to be adduced
as the secondary evidence and the foundation with regard to
the said documents should be before the Court and the
foundation should be a valid one. It is also his case that the
primary evidence is a public document and when the document
is an unregistered private document, there should be an
emphatic admission in clear and unequivocal terms in the
pleadings or in the evidence by the opponent that the primary
evidence exists. According to the plaintiff, such pleadings are
missing in the case of the defendants. To appreciate these
submissions, it is appropriate to look at the case of the parties.
31. The petitioners herein who are the plaintiffs had filed
the suit seeking relief of specific performance of the Agreement
for Sale dated 20.10.2010 and to direct the defendants to
execute the registered Sale Deed. In the plaint, it is stated that
defendant Nos.1 to 3 have entered into the Agreement for Sale
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dated 20.10.2010 with the plaintiffs for sale consideration of an
amount of Rs.1,60,00,000/-. As the defendants failed to
execute the Sale Deed, it made the plaintiffs to come before
the Court. Then, the defendants had filed their written
statement and in the written statement, they have taken a plea
that as per the Memorandum of Understanding dated
25.09.2010, it was agreed that the sale price would be
Rs.2,90,00,000/- and the plaintiffs shall pay a sum to an extent
of 25% of sale price as advance and shall pay the balance at
the time of registration of sale deed within 3 months from the
date of such agreement for sale. On the said date, the plaintiffs
have paid sum of Rs.5,00,000/- to the defendants. Thereafter,
it is stated the plaintiffs represented to the defendants that that
they have approached their banker State Bank of India,
Madaksira, Anantapur District of Andhra Pradesh for certain
financial assistance to the tune of Rs.1,60,00,000/- and they
required another agreement to be executed with the
defendants wherein the sale consideration to be indicated. It is
stated that though the defendants were reluctant to accede to
the requirement of the plaintiffs for such an agreement, on
persuasion by the plaintiffs, they have agreed for execution of
another such agreement. The plaintiffs have sent an e-mail on
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19.10.2010 and the attachment contained drafts of two
agreements viz. the one where the sale consideration is agreed
was a sum of Rs.1,60,00,000/- and the other where the sale
consideration is shown as Rs.2,90,00,000/-. The drafts of two
agreements were edited by defendant Nos.1 to 3 and the same
were sent back as an attachment on 20.10.2010 by e-mail.
According to them, the plaintiffs managed to obtain and secure
two agreements from defendant Nos.2 and 3.
32. The plaintiff had filed the rejoinder and the plaintiffs
requested the defendant Nos.1 to 3 to agree for an agreement
for purchase consideration of Rs.2,90,00,000/- as the SBI
Madaksira branch had intended to finance only to an extent of
60% of the agreed purchased consideration whichever is less.
So if the purchase consideration were to be shown as
Rs.1,60,00,000/- then plaintiff would have been eligible for
only about Rs.1,00,00,000/- only, despite plaintiff was
otherwise able to raise higher amount of loan and hence so as
to cover up entire purchase consideration and the incidental
expenses, the plaintiffs have requested for another agreement
for a higher value i.e., Rs.2.90 Crores. But, however, it did not
materialize as the defendant Nos.1 to 3 on 20.10.2010
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informed that their auditors had serious objections for it and
also the plaintiffs did not pursue for the same as the plaintiff
had clash of misunderstanding with the Manager of the State
Bank of India. It is stated that hence, the agreement for
Rs.2.90 Crores was no more necessary and on 20.10.2010 the
day fixed for execution of sale agreement, did not agree to
execute the agreement for Rs.2.90 Crores as it would be
prejudicial to the defendants and according to them, it is only
Rs.1.60 crores for which the suit sale agreement came to be
executed. These particular facts were not stated in the original
plaint but this was stated in the rejoinder. It is the contention
of the learned counsel that there is no factual foundation for
filing an application under Section 65 of Indian Evidence Act.
The written statement and the rejoinder clearly shows the
foundation for such a plea and there is no whisper on how all
these facts were not stated in the plaint.
33. The trial court had rightly observed that if a party
makes foundation what happens to either original or certified
copy, he may be permitted to adduce secondary evidence as
per Section 65 of the Indian Evidence Act. The documents are
not certified or registered documents. So question of directing
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the defendants to produce the certified copy does not arise and
as far as original is concerned, it can be gathered that the
original was prepared otherwise, Xerox copy of the said MOU
and the sale agreement would not have been produced by the
defendants. Because both the documents contain the
signatures of both the parties and also witnesses such being
the case, it can be presumed that there was original documents
and from that documents, the photo copies were developed,
otherwise these documents would not have been existed. The
trial Court also observed that the authenticity of these two
Xerox copies can be decided on merits and accordingly,
permitted to the documents marked subject to payment of duty
and penalty. In the considered opinion of this Court, the trial
Court had rightly considered in the light of the factual
foundation in the written statement and acceptance of the
same in the rejoinder. The contention of the learned counsel
that the Xerox copies cannot be impounded has no legs to
stand. At this point of time, it is appropriate to look at the
Karnataka Stamp Act No.24 of 1999, as per the explanation
incorporated to Section 3 of the Act 1957 which reads as
follow:
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"Explanation:- Where no proper duty has been paid
on the original of an instrument which is
chargeable with an amount indicated in the
Schedule as proper duty therefor, then a copy of
such instrument whether certified or not and
whether a facsimile image or otherwise of the
original shall be chargeable with duty of an amount
which is indicated in Schedule as proper duty for
the original of such instrument, and all the
provisions of this chapter and chapters IV, VI, VII
and VIII of this Act shall mutatis mutandis be
applicable to such copy of the original".
34. The explanation to Section 3 of the Karnataka Stamp
Act makes it very clear that where a copy of an instrument
whether certified or not, whether facsimile or otherwise of the
original shall be chargeable with duty of an amount which is
indicated in schedule as proper duty for the original of such
instrument and all the provisions of the chapter shall mutatis
mutandis be applicable to such copy of the original. In the light
of the said explanation to Section 3 of the Karnataka Stamp
Act, the contention of the learned counsel that a Xerox copy
cannot be impounded has no legs to stand.
35. In the light of the above discussion, this court is of
the considered opinion that the trial Court had rightly allowed
the application and rightly permitted the defendants to pay the
- 46 -
NC: 2024:KHC:48205
WP No. 21326 of 2021
deficit stamp duty and penalty on Agreement of Sale dated
20.10.2010. Accordingly, this Court is passing the following:
ORDER
i. Accordingly, the writ petition is dismissed.
ii. All I.As. in this petition shall stand closed.
SD/-
(LALITHA KANNEGANTI) JUDGE MEG CT:BCK LIST NO.: 2 SL NO.: 7