M/s Devyani Food Industries Pvt. Ltd. vs M/s Neelkanth Agencies

Sr. No.,Annexures,Kind,Date

1.,DD,"Cooling Equipment

Placement Agreement",23.01.2009

2.,DE,"Cooling Equipment

Placement Agreement",01.03.2004

3.,DF,"Invoice No.300 Rs.2,50,932",19.03.2010

4.,DG,"Invoice No.301 Rs.1,22,299",23.03.2010

[8] Learned counsel for the respondent/plaintiff further contended that it was necessary for the petitioner/defendant to have proved existence of,,,

documents as the very existence of the same was disputed by the respondent/plaintiff. He further contended that on 20.10.2012 an application was,,,

filed by the respondent/plaintiff under Order 11 Rule 14 CPC in which it was mentioned that the petitioner/defendant had referred to certain,,,

documents which were in possession of petitioner/defendant/counter-claimant but the said documents had not been supplied to the respondent/plaintiff,,,

and that the petitioner/defendant had also relied upon the agreement dated 18.05.2007 but to the knowledge of the respondent/plaintiff, no such",,,

document existed. Prayer was made that direction be issued to the petitioner/defendant to produce original documents.,,,

[9] Reply to the aforementioned application was filed on 20.05.2013 pleading that all documents had been supplied to the respondent/plaintiff whereas,,,

agreement dated 18.05.2007 was not traceable by the petitioner/defendant, that in the aforementioned manner, it was clear that the documents in",,,

question were not traceable in the year 2013 itself, as original documents were never produced by the petitioner/defendant in the Court, that it had",,,

been claimed earlier that the documents had been supplied to the respondent/plaintiff but thereafter it was being pleaded that documents had been lost,,,

and that in the circumstances, when existence of concerned documents itself was not being proved, no permission could be granted to the",,,

petitioner/defendant to file secondary evidence of concerned documents placed on record.,,,

[10] Learned trial Court dismissed the application qua invoice Nos.300 and 301 as also agreement dated 18.05.2007 on the ground that the existence,,,

and loss of original documents had not been satisfactorily proved and secondary evidence was not admissible until production of preliminary evidence,,,

was satisfactorily proved. Regarding remaining documents, since no objection had been raised by counsel for the respondent/plaintiff, the same were",,,

allowed to be tendered in secondary evidence subject to passing of test of admissibility in evidence at the stage of final arguments.,,,

[11] I have considered the submissions of learned counsel for the parties.,,,

[12] As per paragraph Nos.9, 12 and 16 of the petition, documents DD to DG do not refer to agreement dated 18.05.2007 and are only with regard to",,,

documents dated 23.01.2009, 01.03.2004, 19.03.2010 and 23.03.2010. Thus, the dispute is only with regard to rejection of the application for leading",,,

secondary evidence qua invoice Nos.300 and 301 dated 19.03.2010 and 23.03.2010. A reference to the said documents finds mention in legal notice,",,,

Annexure P-4 dated 31.07.2010 served by the petitioner-Company upon the respondent/plaintiff prior to the filing of the suit which was filed on,,,

16.02.2011 vide Annexure P-3.,,,

[13] Secondly, in the plaint, the existence of bills dated 19.03.2010 and 23.03.2010 has not been disputed on the ground of the same having been",,,

forged. The case as has been set up therein is that the material against the said bills was never supplied. Besides, the ground for leading secondary",,,

evidence qua the agreements which had been allowed and for the bills in question which had not been allowed was one and the same i.e. that all said,,,

four documents were lost in transit and DDR Entry got recorded for the same.,,,

[14] Another relevant aspect of the matter is that the value of the bills which is sought to be produced had been duly included and reflected in Vat,,,

Form LS 9 of R1 in quarterly return for the quarter ending dated 31st March 2010 by the petitioner-Company. Whether the petitioner/defendant,,,

ultimately succeeds in proving that the material was supplied against the said invoices is a question of fact and depends upon evidence. Mere grant of,,,

permission to lead secondary evidence does not imply that the bills in question have been admitted in evidence. Reference in this connection can be,,,

made to the decision of this Court in Ashok Kumar Sachdeva v. Harish Malik, 2007 (4) RCR (Civil) 311. Relevant extract of the same is reproduced",,,

as under:-,,,

“5. After hearing learned counsel for the parties, I am of the view that to prove a document by way of primary or secondary evidence is a rule of",,,

evidence. Whether the party seeking leave of the Court to lead secondary evidence ultimately succeeds in proving the document or not is a question of,,,

fact and depends upon evidence. Petitioner has pleaded in the application the loss of original document. Under what circumstances, documents was",,,

lost is a question of fact and evidence. It is settled rule of pleadings that a party must disclose material facts and need not plead evidence. In the,,,

instant case, material fact is loss of document and circumstances leading to loss is a question of evidence. This question can only be decided after",,,

providing opportunity to the party concerned to lead secondary evidence. To grant leave to lead secondary evidence does not mean the document is,,,

admitted in evidence nor it is a finding of the existence of any of the conditions indicated in Section 65 of the Evidence Act. It only amounts to holding,,,

an enquiry regarding existence of document and its loss under some circumstances. Failure or success to prove the existence of document or its loss,,,

cannot be pre-determined that too without providing opportunity. Whether it is proved or not, is to be seen after the leave is granted and the",,,

material/evidence produced, is evaluated. The question raised by learned counsel appearing for the respondent is premature at this stage.â€​",,,

[15] A perusal of the decision in Ashok Kumar’s case (Supra) reveals that proving documents by way of primary or secondary evidence is a rule,,,

of evidence and the question whether the party seeking leave of the Court to lead secondary evidence ultimately succeeds in proving the document or,,,

not is a question of fact and dependent upon evidence. Thus, the question in what circumstances the documents were lost is a question of fact and",,,

evidence and as per law it is well-settled that a party is only required to disclose material facts and not plead evidence. Material fact in the,,,

circumstances being loss of documents and circumstances leading to loss of documents a question of evidence and aforesaid question can only be,,,

decided after providing opportunity to the party concerned to lead secondary evidence. Mere grant of leave to lead secondary evidence does not mean,,,

that the document is admitted in evidence nor is it a finding of the existence of any of the conditions indicated in Section 65 of the Evidence Act. It,,,

only amounts to holding an enquiry regarding existence of document and its loss under some circumstances. Therefore, failure or success to prove the",,,

existence of documents or its loss cannot be pre-determined that too without providing opportunity. Whether the document is proved or not is to be,,,

seen after leave is granted and the material/evidence produced is evaluated and it is only after providing an opportunity to lead secondary evidence,,,

that the trial Court can form its opinion regarding existence of documents and circumstances enumerated in Section 65 of the Evidence Act for leading,,,

secondary evidence. It is only thereafter that the Court has to decide whether the document is proved in evidence or not. To similar effect is the,,,

decision in Dr. SP Arora v. Satbir Singh, 2010 (5) RCR (Civil) 350. The aforementioned decision was followed by a Co-ordinate Bench of this Court",,,

in Jatinder Singh v. Jaswant Singh and another, 2019 (1) PLR 680.",,,

Relevant extract of the same is reproduced as under:-,,,

“8. Whether existence and loss is proved or not will be determined on the basis of evidence to be led by the parties after grant of leave and the,,,

material/evidence is evaluated by the Court. The offer of secondary evidence can be best impeached in cross-examination. It is for the Court to,,,

examine and decide whether it is appropriate to rely on such evidence produced by the party in terms of Section 65 of the Evidence Act. In case,,,

execution of documents is not proved and the Court finds the secondary evidence legally not reliable, the Court would be at liberty to eschew the",,,

same. However, the attempt of a party for production and to exhibit documents cannot be thrown out at the threshold of the technicalities. Reference",,,

can be made to Ashok Kumar Sachdeva v. Harish Malik, 2007 (4) RCR (Civil) 311 and Dr. SP Arora v. Satbir Singh, 2010 (5) RCR (Civil) 350.â€​",,,

[16] Thus, existence and loss of invoices dated 19.03.2010 and 23.03.2010 would have to be proved by the petitioner/defendant by leading evidence",,,

and the genuineness and admissibility of the said documents can be determined by the learned trial Court at the appropriate stage. The petitioner has,,,

categorically pleaded that the documents in question were lost by its employees while in transit enroute to meet their Advocate at Faridabad. Grant of,,,

permission to lead secondary evidence does not amount to holding that the document is admitted in evidence nor does the same amount to a finding,,,

with regard to the existence or loss of the document in question nor does it tantamount to holding a finding of existence of any of the conditions,,,

enumerated in Section 65 of the Indian Evidence Act. Grant of leave to lead secondary evidence only amounts to holding an enquiry regarding,,,

existence of documents and its loss under some circumstance. Failure or success to prove the existence of a document cannot be pre-determined and,,,

that too without providing opportunity.,,,

[17] In the circumstances, impugned order dated 08.11.2016 (Annexure P-1) passed by the learned Civil Judge (Sr. Div.), Faridabad dismissing the",,,

application for leading secondary evidence qua invoice Nos.300 and 301 is set aside. Permission is granted to the,,,

petitioner/defendant to lead secondary evidence qua documents (i.e. bills/invoice Nos.300 and 301) dated 19.03.2010 and 23.03.2010. Learned trial,,,

Court to proceed in accordance with law in the light of the position as noted above and the decision of this Court in Ashok Kumar Sachdeva’s,,,

case (Supra).,,,

[18] Revision petition allowed in the aforementioned terms.,,,