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39. P.W.8 has further stated that he has brought the said documents to Bengaluru on the oral request made by plaintiff that he would repay the amount of loan. However, as the plaintiff agreed to close the loan at a later date, he left Chennai along with documents on 30.07.2002 and during the transit he lost his baggage wherein the said documents were also kept and in that respect he has lodged a complaint with the Railway Police, Crime Branch, Madras Central on 30.07.2002, who registered a Criminal case in Crime No.70/M/2/2002. He has further stated that he has issued a letter dated 15.12.2004 to the plaintiff informing him that he has lost the document in the above incident and assured him that he would come and depose before the Court, if required, to substantiate the claim of the plaintiff. Sri Haranahalli, further stressed that though the said witness was cross-examined nothing worthwhile has been extracted to discredit the witness. The statement made in the plaint at paragraph No.6 coupled with the evidence of the banker, the earlier filing of application though dismissed made out a case for secondary evidence. As the trial Court has failed to consider the same, the appellant has filed an application under Order 41 Rule 27 of CPC seeking to produce copy of the agreement to sale dated 05.05.1994. To substantiate his claim, the plaintiff has produced Ex.P.45 an intimation letter dated 10.12.2004 wherein the banker has stated that he might have misplaced or lost the document in the train in which he was traveling from Bengaluru to Chennai and also forwarded a copy of the police complaint for the reference of the plaintiff. The copy of the FIR was produced at Ex.P.53, wherein the police have registered a Criminal Case in Crime No.74/M/2/2002, wherein, there is a clear mention of missing of one brown colour suit case containing the documents stated therein. All this clearly amounts to foundational facts for the purpose of leading secondary evidence when the primary evidence is absent. The trial Court has failed to take note of the same and proceeded to hold that the appellant has failed to prove the agreement as the document is not produced and declined to accept the photocopy for short of foundational facts for leading secondary evidence as contemplated under Section 65 of the Indian Evidence Act, 1872 (for short, 'the Evidence Act'). Sri Haranahalli further stated that in order to substantiate the claim plaintiff has examined in all eight witnesses. P.W.2 has stated regarding execution of the agreement to sale and has also deposed that the document was deposited with P.W.8.

55. The learned counsel has taken us through page Nos.134, 136, 137 and 139 i.e., examination-in- chief and cross-examination portion of P.W.8, in paper book at Volume-II regarding loss of document. In the examination-in-chief, the witness has stated that he has lost the document during the transit and the same has been intimated to the plaintiff under letter dated 15.12.2004. However, in the cross-examination the said witness has admitted that his son as well as his friend have lent money to the plaintiff and they have maintained the account in connection with money lent to the plaintiff. However, the said document is not produced to substantiate that the plaintiff obtained loan from P.W.8 and deposited the said alleged agreement to sell as security towards the loan and he has also pleaded his ignorance that how much amount has been lent by his son as well as his friend to the plaintiff and also pleads that he do not remember what are the documents given by the plaintiff at the time of taking loan as security. He further admits that he has not furnished the details of contents of the suit case in respect of the documents on which he has come before the Court to depose. He has further admitted that he has not produced any document to show that he has come to Bengaluru on 29.07.2002 and he was returning back to Chennai from Bengaluru on 30.07.2002. He has stated that he do not remember whether the plaintiff has paid back the loan amount and further admitted that when there is no balance, it may be treated that the documents have been returned to the party and categorically has deposed that he knew the fact that the documents have been returned to the plaintiff.

56. The learned counsel referring to the evidence of P.W.8, has stated that the evidence, has not placed anything on record to show that he had come to Bengaluru from Chennai on 29.07.2002 and returned to Chennai on 30.07.2002 expect the copy of the receipt for having lodged complaint on 30.07.2002 at Ex.P.53. Though he has stated that on the oral request of the plaintiff he has brought the document, however, Ex.P.53, the complaint falsifies his statement wherein he has given minutely regarding the contents of the brief case. There is nothing stated even remotely that he has lost the document which have been deposited with him by his clients while obtaining loan. This is clearly shows and falsifies the story of plaintiff as well as P.W.8 and suggests that the same is created subsequently to suit their contentions and to overcome for non-production of original agreement to sell as the same is not in existence in view of denial by the defendant No.1. The trial Court has clearly held that the plaintiff has not led any foundational facts to produce secondary evidence and the one stated in the application as well as in the plaint will not come to his rescue as being foundational facts, envisaged under Sections 63 and 65 of the Evidence Act.

84. As per the plaintiff in paragraph No.5, the original agreement to sell dated 05.05.1994 was deposited with his banker. However, his banker lost it during transit on 30.07.2002. On 15.12.2004, the banker said to have written a letter to the plaintiff regarding the fact that he had lost the original agreement to sell deposited with him by the plaintiff. As per the application IA no.15, the plaintiff has contended that the document stated supra deposited with the banker / PW8 was lost during transit when the briefcase containing the other documents including the original agreement of sale dated 05.05.1994 was stolen. However, in application IA No.18 filed seeking a direction to defendant No.1 to produce the document, altogether a different version has been stated by the plaintiff. This time plaintiff has contended that the agreement of sale dated 05.05.1994 was prepared in two sets one is given to the plaintiff which was deposited with the banker and another was retained with the defendant No.1. There is nothing in the pleadings to suggest, except the contention in the affidavit in support of the application, regarding preparing of the said document in two sets. If in reality there are two sets prepared, the appellant/plaintiff ought to have stated regarding the same in the plaint as he has clearly stated regarding the depositing of agreement to sell with his banker. It cannot be lost sight that the plaintiff has given a reply to the public notice issued by the defendant No.1 through his counsel in respect of sale of the property to the prospective buyers, whereby calling objections from the public at large who have any interest in the property. To the reply notice, the counsel for the defendant No.1 issued a reply seeking for documents stated in the reply notice by the plaintiff. Subsequently, the plaintiff has issued a legal notice demanding the defendant No.1 to execute the sale deed and defendant Nos.2 and 3 for cooperating for execution of sale deed. However, nothing has been stated in respect of preparing of two sets of agreement of sale, as has been contended in application i.e. IA No.18 before the trial Court seeking a direction to the defendant No.1 to produce the document. The reply by the defendant No.1 to the notice of the plaintiff and the legal notice are prior to institution of the suit. If really there were two sets of agreement to sell dated 05.05.1994, prepared as contended there is no reason for the plaintiff to suppress the said fact in the plaint rather to state the same either in the legal notice or in the plaint. There is one more reason added, that is in the earlier application i.e. IA No.15, the plaintiff has stated in the affidavit in support of the application that subsequent to filing of the suit, the plaintiff requested his banker to return the agreement of sale, to produce before the Court. To which the banker said to have written a letter dated 15.12.2004 informing him, that he has lost the document. If that be so, the plaintiff immediately, ought to have, at that point of time, filed application seeking the defendant No.1 to produce the documents stating that there were two sets of agreement prepared. Rather the plaintiff has filed application under Order 18 Rule 4(1) R/w Section 151 of CPC and Section 63 and 65(c) of Indian Evidence Act, 1872, seeking permission to mark photocopy of the agreement to sell dated 05.05.1994.