Madras High Court
D. Komala vs S.D.Ramalingam
Author: P.T. Asha
Bench: P.T. Asha
A.S.No.830 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 21.09.2021
PRONOUNCED ON: 05.10.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.S.No.830 of 2019
and
C.M.P.No.25914 of 2019
D. Komala ...Appellant/Defendant
Vs.
S.D.Ramalingam ...Respondent/Plaintiff
PRAYER: Appeal Suit filed under Section 96 read with Order 41
Rule (1) of the Code of Civil Procedure against the Judgment and
Decree dated 31.07.2019 in O.S.No.1703 of 2015 on the file of the
learned XVIII Additional Judge, City Civil Court, Chennai,
decreeing the suit directing the appellant to pay a sum of
Rs.10,00,000/- with interest @9% from the due date i.e., 25.03.2013
till the date of filing of the suit i.e., 23.03.2015 and at the rate of 6%
from the date of Plaint till the date of realization with cost.
For Appellant : Dr.G. Krishnamurthy
For Respondent : Mr.G.Thiyagarajan
https://www.mhc.tn.gov.in/judis/
1/36
A.S.No.830 of 2019
JUDGMENT
The defendant in a suit for recovery of money is the appellant before this Court.
2.The appellant has filed this appeal challenging the Judgment and Decree passed by the learned XVIII Additional Judge, City Civil Court, Chennai, in O.S.No.1703 of 2015. PLAINTIFF'S CASE:
3.The case of the respondent/plaintiff was that he and the appellant are siblings and she had approached him with a request to extend financial assistance for purchasing a property and to settle her debts. Considering the relationship, the respondent had lent a total sum of Rs.10,00,000/- on different dates as detailed in the Plaint. These amounts had been given by the plaintiff by withdrawing cash from his Bank, namely, State Bank of India, CIT Nagar Branch, Chennai and paying cash to the appellant. https://www.mhc.tn.gov.in/judis/ 2/36 A.S.No.830 of 2019
4.The case of the respondent is that at the time of the borrowal, the appellant had executed a Loan Confirmation Bond dated 25.03.2012 on a Rs.20 Non-Judicial Stamp Paper favouring the respondent in which she had stated that she would repay the said amount within one year from the date of Bond. This promise was observed in a breach. Despite repeated requests, the defendant had not come forward to clear the said outstanding constraining the respondent to issue a Notice dated 23.06.2014 calling upon the appellant to repay a sum of Rs.16,00,000/- together with interest. By a reply dated 04.07.2014, the appellant had repudiated the respondent's claim. Therefore, the respondent filed the suit for recovery of a sum of Rs.16,00,000/- together with interest @24% on the principal sum of Rs.10,00,000/- from the date of Plaint till the date of realisation. The suit has been filed as a Summary suit, however, the records would indicate that the suit has proceeded only as a regular suit and not a Summary one.
https://www.mhc.tn.gov.in/judis/ 3/36 A.S.No.830 of 2019 DEFENCE OF THE APPELLANT:
5.The appellant had filed a Written Statement inter alia denying the very borrowal. She had contended that during the purchase of a property on 03.10.2011, the respondent had assisted her in registering the documents. The appellant would submit that due to her illiteracy, she had not noticed an error in mentioning the Survey Number and Block Number of the property. Therefore, in the year 2012, she had got assistance of the respondent to register a Rectification Deed dated 26.03.2012. The appellant would submit that she did not require to borrow money to purchase the property as she had won a Lottery and got a gift of Rs.4,50,000/-. Therefore, the allegation of the respondent that he had lent a sum of Rs.10,00,000/- on different dates is absolutely incorrect. The fact that the respondent had not taken acknowledgments on the date on which the money is alleged to have been extended would clearly show that the claim of the respondent is false. https://www.mhc.tn.gov.in/judis/ 4/36 A.S.No.830 of 2019
6.It is the case of the appellant that the respondent had made use of a blank stamp paper signed by the plaintiff at the time of getting the Rectification Deed registered. That document has been put into use for creating the Bond. Further, the claim of the respondent that the amounts have been paid in cash is unbelievable since each of these amounts were huge sums of money which could not be paid in cash as per the regulations. The appellant had denied the liability in her reply dated 04.07.2014, despite which, the above suit has been filed. She has also taken out a defence that the document, namely, the loan bond is insufficiently stamped and it could not be acceptable in evidence.
TRIAL COURT:
7.The learned XVIII Additional Judge, City Civil Court, Chennai, had framed the following issues:
"(1)Whether the plaintiff is entitled for a decree directing the defendant to pay the plaintiff a sum of Rs.16,00,000/- together with interest at 25% on the https://www.mhc.tn.gov.in/judis/ 5/36 A.S.No.830 of 2019 principal amount of Rs.10,00,000/- from the date of Plaint till realization?
(2)To what relief the plaintiff is entitled for?"
8.The parties have gone to trial on the basis of the above issue. From the records, it is seen that the Chief examination of the plaintiff as PW1 was done on a proof affidavit on 16.02.2016. The proof affidavit was filed and recorded on the said date and the matter was adjourned to 22.02.2016 for “marking the documents”. On 22.02.2016, the documents have been marked without the witness getting into the witness box and marking the documents in the presence of the learned Judge. By reason of the above procedure, the loan document Ex.A.1 has been marked without any objection. The plaintiff apart from examining herself had also examined PW2 and PW3 and marked Ex.A.1 to Ex.A.11. On the side of the appellant, the appellant herself as DW1 and marked Ex.B.1 to Ex.B.3.
https://www.mhc.tn.gov.in/judis/ 6/36 A.S.No.830 of 2019
9.The learned XVIII Additional Judge, City Civil Court, by his Judgment and Decree dated 31.07.2019 was pleased to decree the suit as prayed for and challenging this Judgment and Decree, the appellant is before this Court.
10.POINT FOR CONSIDERATION:
(1)Whether Ex.A.1 being a loan document had been stamped adequately and whether the same can be questioned in the appeal stage, especially, when the said document has been marked without any objection on the side of the appellant/defendant?
(2)Whether the appellant had borrowed the said some of money and executed Ex.A.1?
(3)Whether the marking of the documents without recording the evidence of PW1 is in compliance with the procedure contemplated under Order XVIII Rules 4 and 5 of the Code of Civil Procedure?” https://www.mhc.tn.gov.in/judis/ 7/36 A.S.No.830 of 2019 SUBMISSION:
11.Dr.G.Krishnamurthy, learned counsel appearing on behalf of the appellant would rise the issue of Ex.A.1 - Bond being insufficiently stamped and would submit that the document cannot be considered. He would submit that once Ex.A.1 - Bond is rejected the respondent/plaintiff would not have proved his case. He would further submit that the respondent has not produced any proof with reference to the amounts paid by him on various dates and that Ex.A.1 - Bond has been drafted as an acknowledgment of all the earlier loans. He would submit that this fact has been admitted during the cross examination. He would also draw the attention of this Court to the evidence of PW3 who has categorically stated that he is not aware as to the amounts of money the plaintiff has extended as a loan. He is not able to depose as to who had prepared Ex.A.1 - Bond. He would also contend that the respondent/plaintiff has produced Ex.A.2 to prove his wherewithal, however, a perusal of the same would indicate that on the relevant date, the respondent was not in possession of the funds required for making such a huge payment.
https://www.mhc.tn.gov.in/judis/ 8/36 A.S.No.830 of 2019
12.The learned counsel for the appellant would therefore challenge the Judgment on the grounds (a)that the Ex.A.1 - Bond is insufficiently stamped and the Court below is bound to impound the document, (b) that the plaintiff had taken advantage of the illiteracy of the appellant has created the document and (c) that the huge amounts were said to have been paid in cash and the respondent/plaintiff has not been able to establish his wherewithal. He would therefore submit that the suit deserved to be dismissed.
13.The learned counsel for the respondent/plaintiff would submit that the document has been valued correctly as it is only a Pro-note and therefore, the stamp paper of Rs.20/- was sufficient. He would further contend that the respondent has proved the payment of the amounts and the execution of Ex.A.1. He would further submit that the plaintiff cannot question the marking of Ex.A.1 since there was no objection to the marking of the said document. Further, the appellant as DW1 has admitted that the signatures found in Ex.B.2 and Ex.A.1 were her signatures. He https://www.mhc.tn.gov.in/judis/ 9/36 A.S.No.830 of 2019 would further contend that the execution of Ex.A.1 and passing of consideration has been clearly proved by examining PW2 and PW3. PW2 in his cross examination has reiterated that the respondent herein had paid money to the appellant in four installments and Ex.A.1 had been got executed by the respondent from the appellant. He had clearly deposed that the document had been signed by the appellant herein only after reading the contents of the said document. This has also been confirmed by PW3.
14.That apart, the learned counsel would submit that the respondent has proved his wherewithal to extend the loan of Rs.10 lakhs by marking Ex.B.2 - Bank Statement of the respondent which would clearly show the withdrawal of money by the respondent from the Bank on the dates the loan had been extended to the appellant. He would therefore submit that the Judgment and Decree of the trial Court is a well considered one based on evidence and the same cannot be set aside in appeal.
https://www.mhc.tn.gov.in/judis/ 10/36 A.S.No.830 of 2019 DISCUSSION:
15.Ex.A.1 is the document upon which the respondent basis his claim. The document is styled as a “Loan Confirmation Document” (fld; cWjpbkhHp gj;jpuk;) hereinafter called the Bond. The contents of this document briefly stated sets out the following:
i. to settle the amounts borrowed by the appellant for purchasing property and constructing the house thereon for which she has borrowed a sum of Rs.10 lakhs from the respondent on four different dates; Rs.5 lakhs on 18.08.2011, Rs.3 lakhs on 24.08.2011, Rs.1,20,000/- on 07.10.2011 and Rs.80,000 on 10.10.2011.
ii. that this amount would be paid within a period of one year iii. In case of a default the respondents can recover the same against the appellant or her property iv. that after repaying the above sum, she will cancel this document.
https://www.mhc.tn.gov.in/judis/ 11/36 A.S.No.830 of 2019
16.The counsel for the appellant has contended that this document is a Bond and had to therefore be stamped as per Article 15 or as a Bottomry Bond under Article 16 of Schedule I to the Stamp Act.
17.However, Ex.A.1 has been executed on a Rs.20 stamp paper. Therefore, the said document is insufficiently stamped and the learned Judge has erroneously allowed the document to be marked in evidence without impounding the same as contemplated under Section 33 of the Stamp Act. This argument advanced on behalf of the appellant has not been answered by the Court below, in fact the learned Judge has not even framed an issue in this regard.
18.An argument was advanced by the respondent before this Court that the marking of the document has not been objected to and therefore, the appellant cannot at this stage question the marking of Ex.A.1. This gives rise to the question as the whether the document had been marked as contemplated under the provisions of Order XVIII Rules 4 and 5 of the Code of Civil Procedure. https://www.mhc.tn.gov.in/judis/ 12/36 A.S.No.830 of 2019
19.The examination of a witness involves two aspects; i. on examination to elicit the facts; and ii. the examination regarding documents.
20.The procedure for the examination of a witness commences with his Chief examination by the party who has called upon him to adduce evidence, his cross examination by his opponent and his re- examination if required. Section 137 of the Evidence Act provides for the above.
21.Order XVIII of the Code of Civil Procedure provides for the hearing of the suit and the examination of witnesses. We are concerned with Rules 4 and 5 of the said Order in the instant case.
22.Rule 4 as it stood before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999 and Code of Civil Procedure (Amendment) Act, 2002 had read as follows:
“Rule 4. Witnesses to be examined in open Court:- The evidence of witness in attendance shall https://www.mhc.tn.gov.in/judis/ 13/36 A.S.No.830 of 2019 be taken orally in Open Court in the presence and under the personal direction and superintendence of the Judge”
23.The Amendment Act, 1999 and 2002 has now broken down Rule 4 into 8 Sub Rules. Sub Rule (1) and (2) is relevant to consider the issue on hand. Sub Rule (1) and its proviso reads as follows:
"4. Recording of evidence.-(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence.
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.” https://www.mhc.tn.gov.in/judis/ 14/36 A.S.No.830 of 2019
24.Likewise, Sub Rule (2) and its proviso reads as follows:
“(2) The evidence (cross-examination and re- examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it :
Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit;”
25.These provisions have to be read in tandem with the provision of Rule 5 which reads as follows:
“Rule 5 Order XVIII of Code of Civil Procedure 1908 "How evidence shall be taken in appealable cases:- In cases in which an appeal is allowed, the evidence of each witness shall be,-
(a) taken down in the language of the Court,-
(i) in writing by, or in the presence and https://www.mhc.tn.gov.in/judis/ 15/36 A.S.No.830 of 2019 under the personal direction and superintendence of, the Judge, or
(ii) from the dictation of the Judge directly on a typewriter; or
(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge.”
26.It is necessary to bear in mind that the provisions of Rule 5 has not been amended by the Amendment Act, 1999 or the Amendment Act, 2002.
27.An analysis of these provisions would give rise to the following circumstances:
(i)The Chief examination of a witness shall be on affidavit with copies being given to the opposite side.
What is an affidavit and what matters can be proved by an affidavit is provided under Order XIX of https://www.mhc.tn.gov.in/judis/ 16/36 A.S.No.830 of 2019 the Code of Civil Procedure and a reading of this order and its Rules would indicate that it is facts that are proved by an affidavit.
28.Therefore, applying the provisions of Order XIX the Chief examination by an affidavit can only be restricted to facts that are within the knowledge of the deponent. However, when the witness seeks to prove a fact by a document then the proviso to Rule 4 (1) would come into operation. The proviso would clearly provide that where documents are filed and parties rely upon the documents the proof and admissibility of such documents which are filed along with the affidavit shall be subject to orders of Court. This would only imply that the marking of the documents can be done only by examining the witness before the Court. The proviso should also be read in conjunction with the provisions of Order XIII Rule 4 of the Code of Civil Procedure which prescribes the procedure for marking https://www.mhc.tn.gov.in/judis/ 17/36 A.S.No.830 of 2019 endorsement on the documents admitted in evidence. Given below is the said provision:
"4.Endorsements on documents admitted in evidence:
(1)Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which as been admitted in evidence in the suit the following particulars, namely-
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted, and the endorsement shall be signed or initialled by the Judge.
(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the https://www.mhc.tn.gov.in/judis/ 18/36 A.S.No.830 of 2019 copy and the endorsement thereon shall be signed or initialled by the Judge."
29.This assumes significance as Rule 5 provides for the procedure to be followed for recording evidence of witnesses in appealable cases which provides that the evidence should be taken down in the language of the Court in writing or under the personal direction and superintendence of the Judge or on his dictation directly on the typewriter. It could also be recorded mechanically in the language of the Court in the presence of the Judge.
30.Rule 8 places an obligation upon the Judge to make a memorandum of the substance of what each witness deposes in writing signed by him if evidence is not taken in the manner provided under Rule 5.
31.The issue regarding the recording of evidence in Chief by way of an affidavit came up for consideration before the Hon'ble Supreme Court in the Judgment reported in 2004 (1) SCC 702 as https://www.mhc.tn.gov.in/judis/ 19/36 A.S.No.830 of 2019 Ameer Trading Corporation Limited v. Shapoorji Data Processing Limited. The 3 Judge Bench was considering the Interpretation of Order XVIII Rules 4 and 5 of the Code of Civil Procedure post the amendment Acts 1999 and 2002. The learned Judges were considering the divergent views taken by the Rajasthan High Court in the Judgment reported in AIR 2003 RAJ 74 [Laxman Dass v. Deoji Mal and others] and the Bombay High Court in FDC Limited v. Federation of Medical Representatives Association of India and others in AIR 2003 BOM 371.
32.The learned Judges agreed with the following observation of the Bombay High Court:
"The harmonious reading of Rules 4 and 5 of Order 18 would reveal that while in each and every case of recording of evidence, the examination-in- chief is to be permitted in the form of affidavit and while such evidence in the form of affidavit being taken on record, the procedure described under Rule 5 is to be followed in the appealable cases. In non- https://www.mhc.tn.gov.in/judis/ 20/36 A.S.No.830 of 2019 appealable cases, the affidavit can be taken on record by taking resort to the provisions of law contained in Rule 13 of Order 18. In other words, mere production of the affidavit by the witness will empower the court to take such affidavit on record as forming part of the evidence by recording the memorandum in respect of production of such affidavit taking resort to Rule 13 of Order 18 in all cases except in the appealable cases wherein it will be necessary for the Court to record evidence of production of the affidavit in respect of examination- in- chief by asking the deponent to produce such affidavit in accordance with Rule 5 of Order 18. Undoubtedly, in both the cases, for the purpose of cross-examination, the Court has to follow the procedure prescribed under sub-rule (2) of Rule 4 read with Rule 13 in case of non-appealable cases and the procedure prescribed under sub- rule (2) of Rule 4 read with Rule 5 in appealable cases. https://www.mhc.tn.gov.in/judis/ 21/36 A.S.No.830 of 2019 In other words, in the appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be ordered to form part of the evidence unless the deponent thereof enters the witness-box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature and this statement being made on oath to be recorded by following the procedure prescribed under Rule 5. In non-appealable cases, however, the affidavit in relation to examination-in-chief of a witness can be taken on record as forming part of the evidence by recording memorandum of production of such affidavit by taking resort to Rule 13 of Order 18. The cross-examination of such deponent in case of appealable cases, will have to be recorded by complying the provisions of Rule 5, where as in case of non-appealable cases the Court would be empowered to exercise its power under Rule 13"
https://www.mhc.tn.gov.in/judis/ 22/36 A.S.No.830 of 2019
33.The learned Judges also examined the issue from the perspective that the examination of a party in Chief may not be imperative since the statement made in the affidavit if it is beyond the statement pleaded in the pleadings can always be addressed in writing to the Court or by cross examining the witnesses on the same. Therefore, the defendant would not be prejudiced by an examination in Chief being taken.
34.However, the learned Judges ultimately held as follows:
“34.Applying the aforementioned principles of interpretation of statute, we have no doubt in our mind that Order 18 Rules 4 and 5 are required to be harmoniously construed. Both the provisions are required to be given effect to and as Order 18 Rule 5 cannot be read as an exception to Order 18 Rule 4.” [Emphasis supplied by me].
https://www.mhc.tn.gov.in/judis/ 23/36 A.S.No.830 of 2019
35.This Judgment was considered by a 2 Judge Bench in Rasiklal Manikchand Dhariwal and anothers v. M/s.M.S.S.Food Products in 2012 (2) SCC 196, the learned Judges went on to hold as follows:
“74 It is pertinent to notice that in Ameer Trading Corpn. Ltd., a decision of the Rajasthan High Court in Laxman Das v. Deoji Mal & Ors. was cited wherein the view was taken that in the appealable cases, Order 18 Rule 4 of the Code has no application and the court must examine all the witnesses in court. The contrary view taken by the Bombay High Court in F.D.C. Limited was also cited. This Court considered the decision of the Rajasthan High Court in Laxman Das and the decision of Bombay High Court in F.D.C. Limited and noticed the conflict in the two decisions.
75.When this Court stated in Ameer Trading Corpn. Ltd. case, SCCC p.711, para 32, "we agree https://www.mhc.tn.gov.in/judis/ 24/36 A.S.No.830 of 2019 with the view of the Bombay High Court", the Court agreed with the view of the Bombay High Court that irrespective of whether the case is appealable or non-appealable the examination-in-chief has to be permitted in the form of affidavit. Para 32 of the Report cannot be read to mean that paras 7 and 8 of the decision of the Bombay High Court in F.D.C. Limited were approved by this Court in entirety. This is for more than one reason. In the first place, this Court after quoting the view of Rajasthan High Court in Laxman Das in para 30 and the view of Bombay High Court in F.D.C. Limited in para 31 said, "We agree with the view of the Bombay High Court". This expression, thus, means that this Court has preferred the view of Bombay High Court concerning the interpretation of Order 18 Rule 4 of the Code over the view of the Rajasthan High Court.
Second and equally important, after quoting paras 7 and 8 of the decision of the Bombay High Court in https://www.mhc.tn.gov.in/judis/ 25/36 A.S.No.830 of 2019 F.D.C. Limited, the Court has not said that they agree with the above view of the Bombay High Court. Third, the subsequent para 33 makes the legal position further clear. This Court said, (Ameer Trading Corpn. Ltd., case, SCC P 711, para 33).
"33.....presence of a party during examination- in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can always be taken before the court in writing and in any event, the attention of the witness can always be drawn while cross-examining him".
76.The prejudice principle was accordingly applied and the Court said that: (Ameer Trading Corpn. Ltd., case, SCC P 711, para 33).
"33....the defendant would not be prejudiced in any manner whatsoever if the examination-in-chief is taken on an affidavit and in the event the defendant https://www.mhc.tn.gov.in/judis/ 26/36 A.S.No.830 of 2019 desires to cross-examine the said witness he would be permitted to do so in the open court."
77.For all this, it cannot be said that in Ameer Trading Corpn. Ltd., it has been laid down as an absolute rule that in the appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be treated as part of the evidence unless the deponent enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature. Where the examination-in-chief of a witness is produced in the form of an affidavit, such affidavit is always sworn before the Oath Commissioner or the Notary or Judicial Officer or any other person competent to administer oath. The examination-in-chief is, thus, on oath already.
78.In our view, there is no requirement in Order 18 Rule 5 that in appealable cases, the witness https://www.mhc.tn.gov.in/judis/ 27/36 A.S.No.830 of 2019 must enter the witness box for production of his affidavit and formally prove the affidavit. As it is such witness is required to enter the witness box in his cross-examination and, if necessary, re- examination. Since a witness who has given his examination-in-chief in the form of affidavit has to make himself available for cross-examination in the witness box, unless defendant's right to cross examine him has been closed, such evidence (examination-in-chief) does not cease to be legal evidence.”
36.With due respects to the learned Judges, the 3 Judge Bench in Ameer Trading Corporation supra, had ultimately observed that Rules 4 and 5 have to be harmoniously construed and both should be given effect to as Order XVIII Rule 5 cannot be read as an exception to Order XVIII Rule 4.
https://www.mhc.tn.gov.in/judis/ 28/36 A.S.No.830 of 2019
37.Both the above Judgments have not explicated the proviso to Rule 4(1) regarding the marking of documents. There is no quarrel on the proposition that facts can be proved by an affidavit as provided under Order XIX, however, the marking of documents can only be done in the manner provided in the proviso to Rule 4(1) in the presence of the Court. The proviso has been inserted by the Amendment Act and if meaning is not imputed to the same the proviso would become otiose. A purposive interpretation has to be given to the proviso in order to give effect to the same.
38.Therefore, on consideration of the above provisions and the Judgments cited supra, the following propositions emerge:
“(a)Under Order XVIII Rule 4 (1), the examination in Chief shall be on affidavit and advance copies shall be served on the opposite side.
(b)However, where documents are sought to be filed and relied upon the proof and admissibility of these documents shall be subject to orders of Court https://www.mhc.tn.gov.in/judis/ 29/36 A.S.No.830 of 2019 which clearly indicates that the documents can be filed and marked only upon the witness getting into the witness box before the Court.
(c)Rule 5 details how an evidence should be taken in cases which are appealable.
(d)Rule 13 (4) details how documents admitted in evidence have to be endorsed.
(e)Rule 8 talks about the memorandum to be written and signed by the Judge in case evidence is not taken down in writing/on his dictation/recorded mechanically by the Judge in appealable cases.
(f)Rule 13 talks about the memorandum in the case of non-appealable cases.”
39.In the instant case, the records would reveal that on 16.02.2016, the affidavit was filed and recorded and the matter adjourned to 22.02.2016 specifically to mark the documents. On 22.02.2016, the documents have been marked without PW1 being put into the witness box. Therefore, the appellant has lost the https://www.mhc.tn.gov.in/judis/ 30/36 A.S.No.830 of 2019 opportunity of objecting to the marking of Ex.A.1. Therefore, the marking of the documents have not been done as per the procedure contemplated under Order XVIII Rules 4 and 5 of the Code of Civil Procedure. The appellant had raised a defense that the Loan Confirmation Document is insufficiently stamped and therefore cannot be received in evidence and the learned Judge has not considered the same.
40.In the Judgment reported in AIR 1978 SC 1393 [Ram Rattan (dead) by legal representatives v. Bajrang Lal and others], the learned Judges had held that when an objection is raised that the document is inadmissible in evidence it is obligatory on the part of the Trial Judge to apply his mind to the objection raised and decide the objection. The learned Judges had held as follows:
“6.When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as https://www.mhc.tn.gov.in/judis/ 31/36 A.S.No.830 of 2019 it was not duly stamped and for want of registration, it was obligatory upon the learned trial judge to apply his mind to the objection raised and decide the objection in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. This, however, would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none- the-less be obligatory upon the court to decide the objection. If after applying mind to the rival contentions the trial court admits a document in https://www.mhc.tn.gov.in/judis/ 32/36 A.S.No.830 of 2019 evidence, s. 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The Court, and of necessity it would be trial Court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the Court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting s.36 (see Javar Chand v. Pukhraj Surana AIR 1961 SC 1655). The, endorsement made by the https://www.mhc.tn.gov.in/judis/ 33/36 A.S.No.830 of 2019 learned trial judge that "objected, allowed subject to objections clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation s. 36 would not be attracted.”
41.In the case on hand, the appellant was denied the opportunity of objecting to the marking of the document though they had raised this defense in their Written Statement as the witness had not got into the box to mark the documents. Therefore, the 1st and 3rd Point For Consideration is answered in favour of the appellant.
42.The suit is therefore remanded back to file of the learned XVIII Additional Judge, City Civil Court, Chennai. The learned Judge shall on receiving the suit on remand frame an issue regarding the admissibility of the Loan Confirmation Document dated 25.03.2012 and to mark the documents as per the procedure contemplated under the proviso to Order XVIII Rule 4 (1) read with https://www.mhc.tn.gov.in/judis/ 34/36 A.S.No.830 of 2019 Rule 5 of the Code of Civil Procedure and if the Loan Document is found to be insufficiently stamped to follow the procedure under Section 33 of the Stamp Act.
43.Since I am remitting the suit back to the trial Court I am giving a finding on the 2nd Point For Consideration.
In fine, the Appeal Suit is allowed and remanded back to the learned XVIII Additional Judge, City Civil Court, Chennai for complying with the direction given in the Para 42 supra. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.
05.10.2021
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
mps
To
The XVIII Additional Judge,
City Civil Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
35/36
A.S.No.830 of 2019
P.T. ASHA, J,
mps
Pre-Delivery Judgment in
A.S.No.830 of 2019
and C.M.P.No.25914 of 2019
05.10.2021
https://www.mhc.tn.gov.in/judis/
36/36