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2005 DIGILAW 868 (MAD)

Jayesh Kumar S. Vakil & Others v. Canara Bank

2005-06-16

R.BANUMATHI

body2005
Judgment :- This revision is directed against the order dated 10.02.2003 passed in E.A.No.3240/2002 in E.A.No.5223/2001 in E.P.No.1475/1998 in O.S.No.271/1986 by the IX Assistant Judge, City Civil Court, Madras. 2. The second Respondent - Judgment Debtor is the Revision Petitioner. Respondent is Canara Bank, Thiruvotiyur Branch, hereinafter referred as Plaintiff Bank. 3. For better appreciation of the points urged in the revision, it is necessary to trace the filing of the Suit O.S.No.271/1986 and E.P.No.1475/1998 and other applications. The deceased first Defendant M.S.Vakil is the Proprietrix of M/s.Suresh Electronics. She has availed OCC Facility by way of working capital to M/s.Suresh Electronics. Her son Suresh S.Vakil, who is the second Judgment Debtor stood as Guarantor for the due repayment of the said loan. The creditors committed default in repayment of the loans. Hence the Plaintiff Bank has filed O.S.No.271/1986 to recover a sum of Rs.47,786.56/- with further interest at 16.5% p.a. The suit was decreed against the deceased M.S.Vakil as well as her son Suresh S.Vakil on 18.2.1987. To recover a sum of Rs.1,57,703.50/-, E.P.No. 1475/1998 was filed by the Plaintiff/Bank for attachment of movables belonging to the Judgment Debtors. 4. E.A.No.5222/2001 and E.A.No.5223/2001 :- The second Judgment Debtor/Guarantor Suresh S.Vakil and his sons and daughters have filed these applications under Section 47 CPC to enquire, decide and determine the correctness of the decree in O.S.No.271/1986 and to declare that the decree is absolutely null and void and not executable. 5. E.A.No.3240/2002 in E.A.No.5223/2001 This application was filed trying to mark the certified copy of the Adjudication Order in I.P.No.27/1986 dated 11.4.1986, as one of the Exhibit on the side of the Respondents. According to the Respondents, the second Judgment Debtor - Suresh S.Vakil has been declared insolvent by the High Court. According to the Respondents, the order in I.P.No.27/1986 is a Public Document within the meaning of Section 74 of the Evidence Act and the document is to be admitted as a public document. Further according to the Petitioners, under section 65(c) when the document is a public document certified copy has to be accepted as a secondary evidence and it is not necessary to produce the original or examine the author of the document. 6. Resisting the application, the Plaintiff/Bank has filed the Counter Statement contending that the application has been filed with a view to prolong the execution proceedings. 6. Resisting the application, the Plaintiff/Bank has filed the Counter Statement contending that the application has been filed with a view to prolong the execution proceedings. It is alleged that while the Revision Petitioner has deposed evidence as PW-1, an attempt was made to mark the order passed in I.P.No.27/1986 which was seriously objected by the Respondent counsel. On such objection, the Judgment Debtors were not permitted to file the document on the ground that the Revision Petitioner is not a party to the suit proceeding. It was only thereafter, the Revision Petitioner has taken out an application praying the Court to mark the certified copy of the order of adjudication in I.P.No.27/ 1986. The application is not maintainable either in law or on facts. Further, it is alleged that the Respondents have been directed to furnish copy of the adjudication order to enable them to file an elaborate counter, which was also not complied with. 7. Upon consideration of contentions of both parties, the learned Assistant Judge has dismissed the application finding that in I.P.No.27/1986, the Respondents were not parties. The learned Judge found that such an order of adjudication has been obtained against the second Judgment Debtor Suresh S.Vakil and that the same cannot be admitted in evidence in E.A.No.5223/2001 wherein the Judgment Debtors 3 to 5 are the Petitioners in the application under section 47 CPC. 8. Aggrieved over the dismissal of the petition declining to admit the adjudication order in I.P.No.27/1986, the Revision Petitioners have preferred this revision. 9. Assailing the impugned order, the learned counsel for the Revision Petitioners has submitted that under section 74(b) I.E. Act, the order of insolvency in I.P.No.27/1986 being an judicial order, is a public document and the same could be proved by marking the certified copy. Pointing out section 65 of the Evidence Act, the learned counsel has submitted that the secondary evidence – Certified copy of the order, could well be produced and the same ought to have been received as secondary evidence. It is further submitted that the trial Court has erred in placing reliance upon 2001 (3) SCC 659. Pointing out section 65 of the Evidence Act, the learned counsel has submitted that the secondary evidence – Certified copy of the order, could well be produced and the same ought to have been received as secondary evidence. It is further submitted that the trial Court has erred in placing reliance upon 2001 (3) SCC 659. Drawing the attention of the Court to the decision reported in 2001 (3) SCC 1 , the learned counsel has submitted that the lower Court ought not to have passed an elaborate order on the admissibility of the document and ought to have received the document and relegated the matter as to the admissibility or relevancy of the document to the final stage. 10. Upon consideration of the submissions of the Petitioners, impugned order and other materials on record, the following points arise for consideration in this revision :- (1) Whether the order of adjudication declaring second Respondent as insolvent is a relevant document in E.A.No.5223/2001, who is not inter parties ? (2) Whether the impugned order declining to admit Order in I.P.No.27/1986, suffers from any jurisdictional error or material irregularity warranting interference ? 11. In I.P.No.27/1986 the second Judgment Debtor – Suresh S.Vakil is said to have been declared as insolvent on 11.4.1986. The date of decree in O.S.No.271/1986 is 18.2.1987. Thus the order of adjudication in the insolvency proceedings is said to be prior to the date of decree and hence the Respondents/Judgment Debtors place much reliance on the order of adjudication in the insolvency proceedings declaring the second Respondent as insolvent. Before we proceed to consider the points urged, it is necessary to refer to certain previous proceedings to appreciate the conduct of the Respondents. As noted earlier, after the Execution Petition was filed, the Judgment Debtors have filed E.A.No.1746/2001 and E.A.No.1747/2001 seeking to set aside the exparte order of Judgment dated 8.3.2001 and also to stay the execution proceedings. 12. E.A.No.1746/2001 and E.A.No.1747/2001 :- During the pendency of the execution proceedings, the Judgment Debtors have filed these applications to set aside the exparte order of Judgment dated 8.3.2001 as well as to stay the Execution proceedings. Upon hearing the arguments of the Decree Holder and the Respondents in E.A.No.1746/ 2001, the Court has passed the conditional order directing the Judgment Debtors to pay a sum of Rs.25,000/- on or before 10.10.2001. Upon hearing the arguments of the Decree Holder and the Respondents in E.A.No.1746/ 2001, the Court has passed the conditional order directing the Judgment Debtors to pay a sum of Rs.25,000/- on or before 10.10.2001. But the Respondents have not complied with the condition by paying the amount ordered. In view of the non-compliance of the order, E.A.No.1746/2001 was dismissed. Consequently, E.A.No.1747/2001 was also dismissed. 13. Having not complied with the conditional order passed in E.A.No.1746/2001, the second Judgment Debtor has filed E.A.No.5222/2001. The Respondents 3, 4 and 5 have filed E.A.No.5223/2001 under Section 47 CPC. Along with the application in E.A.No.5223/2001, E.A.No.5224/2001 was filed to obtain stay of further proceedings in the execution proceedings. Repeated filing of the applications in one way or other only shows the single minded intention of the Respondents to delay the execution proceeds. 14. Yet another aspect is also relevant to be noted. In E.A.No.5223/2001, in the initial stage, the third Respondent/Jayesh S.Vakil was examined as PW-1. While he was in the box, an attempt was made to mark the order passed in I.P.No.27/1986 which was strongly objected to by the Plaintiff Bank. On such objection, and on finding that the third Respondent is not a party to the said proceedings in I.P.No.27/1986 the objection was sustained and the document was not allowed to be marked. Thereafter, the Respondents have filed the application praying to admit the document. Filing of the objection is clearly an afterthought. The petition has been filed, perhaps to invite an order and thereby to move the higher forum and further delay the proceedings. 15. Be that as it may, let us consider the points urged. Section 74 of the Indian Evidence Act deals with public documents. Under section 74 (1) (iii), the documents of public officers, legislative, judicial and executive [of any part of India or of the Commonwealth], or of a foreign country, are public documents. Section 77 of the Indian Evidence Act deals with proof of documents by production of certified copies. Under section 77 of the Indian Evidence Act, "Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies." 16. The certified copies of public documents may be admitted in proof of the contents of the public documents. Under section 77 of the Indian Evidence Act, "Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies." 16. The certified copies of public documents may be admitted in proof of the contents of the public documents. There could hardly be any dispute as to the nature of the documents – order of adjudication in I.P.No.27/1986, that it is a public document and that the same could be proved by production of the certified copy. 17. The point involved is in the mode of proving of the order of adjudication in I.P.No.27/1986; but whether such document is relevant for the enquiry in E.A.No.5223/2001 and whether the same is to be admitted through the third Respondent, who is not a party to the insolvency proceedings. Though the document is a public document, the question arises whether the document is relevant. 18. 'Relevancy' and 'admissibility' are not the same thing. The general relevancy of a document to a proceeding is determined by logic and judicial human experience. To appreciate the distinction between the 'proof' and 'relevancy', we may usefully refer to the passages in Sarkar's Evidence Act pages 74 and 75, which read :: "Admissibility of facts is no doubt mainly determined by their logical relevancy to the matters in issue, or that relation between the two which renders the latter probable from the existence or the non-existence of the former. But everything that is logically probative is not legally admissible in evidence. The distinction between 'proof' and 'relevancy' should here be borne in mind. In a trial the first question that presents itself is – what facts will a party be allowed to lay before the Court. This is a matter of relevancy and is determined by the pleadings or the facts in issue. The next question is – How will the Court allow the party to prove those admissible facts ? This is a matter of proof. Part I of the Act containing Ss.6-55 deals with the relevancy of facts and Part II deals with their proof." (Sarkar's Law of Evidence 14th Edition, Pages 74 and 75) Thus admissibility is founded in law and not on logic. But once the document is admitted it pre-supposes relevancy. 19. This is a matter of proof. Part I of the Act containing Ss.6-55 deals with the relevancy of facts and Part II deals with their proof." (Sarkar's Law of Evidence 14th Edition, Pages 74 and 75) Thus admissibility is founded in law and not on logic. But once the document is admitted it pre-supposes relevancy. 19. In the facts and circumstances of the case, it is to be seen that whether the order of adjudication is relevant for enquiry in E.A.No.5223/2001 which is not between inter parties. Section 41 of Indian Evidence Act deals with relevancy of certain Judgments in probate etc. jurisdiction. Ordinarily, a Judgment binds only the parties to it. Those Judgments are Judgment in personam. The Judgment for which provision is made under section 41 I.E. Act, those Judgments are usually called "Judgment in Rem", a phrase which denotes certain Judgments which are conclusive not only against the parties to them, but also against all the world. We may usefully refer to section 41 which reads :: 41. Relevancy of certain judgments in probate, etc., jurisdiction. A final Judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. 20. The main point is whether the final order of a insolvency Court would have the effect of Judgments between "not inter parties". An order adjudicating a person insolvent is a 'Judgment in rem' and is conclusive as regards status only. It is a 'Judgment in rem' only in respect of matters arising before the insolvency Court. Although an order adjudicating a person insolvent is a Judgment in rem; it is only limited to the matters arising before the insolvency Court. It is conclusive only as regards the status but not as regards the grounds on which the order is passed. The finding on which it is passed is not binding on the third parties in subsequent proceedings. It is conclusive only as regards the status but not as regards the grounds on which the order is passed. The finding on which it is passed is not binding on the third parties in subsequent proceedings. Though this aspect was not elaborated in the impugned order, the learned Judge has rightly found that the order of adjudication in I.P.No.27/ 1986 cannot be admitted in evidence. Though it is a Judgment in Rem, the document cannot be marked through a person who is not a party to the insolvency petition. In other words, the third Respondent cannot seek to establish the status of the second Respondent in E.A.No.5223/2001. 21. The order of adjudication in I.P.No.27/1986 might be a relevant document if marked through the second Respondent, who has been declared as insolvent. It is said that no evidence has been recorded in E.A.No.5222 and 5223 of 2001. It is further said that the second Respondent is aged seventy years and is unable to come to the Court and hence the order of adjudication is to be marked through the third Respondent who has been examined as a witness onbehalf of the Respondents. It is to be noted that the third Respondent is not a party in I.P.No.27/1986. He cannot seek to mark the document to establish the status of the second Respondent who is guarantor. Let us visualise the situation of admitting the document. It is certain that if the order of adjudication is admitted through the third Respondent, the Plaintiff Bank would not have the benefit of attacking the order of adjudicating by proper cross-examination of the third Respondent. 23. The learned counsel for the Revision Petitioner has contended that the lower Court erred in passing an elaborate order and declining to admit the public document. It is further submitted that the lower Court ought to have received the order of adjudication and considered the relevancy or value of the same at the conclusion of the enquiry. In support of his contention, the learned counsel has relied upon the decision of the Supreme Court reported in 2001 (3) SCC 1 wherein the Supreme Court has held: 14. In support of his contention, the learned counsel has relied upon the decision of the Supreme Court reported in 2001 (3) SCC 1 wherein the Supreme Court has held: 14. When so recast, the practice which can be a better substitute is this : Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final Judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed). 24. No doubt the Supreme Court has expressed its disapproval on the practice of passing such elaborate orders on the question of admissibility of the documents. But the case in hand stands entirely on different factual footing. As noted earlier, during the course of enquiry, when PW-1 was in the box, the order was sought to be marked. On objection raised by the Bank, the Court has declined to admit the document. It was thereafter this application in E.A.No.3240/2002 was filed to admit the document. The Plaintiff Bank has filed elaborate counter. In that situation, enquiring into the matter and passing an elaborate order has become inevitable. In that view of the matter, the impugned order does not in any way suffer from any irregularity. 25. The trial Court has rightly found that the order of adjudication in I.P.No.27/1986 cannot be admitted through the third Respondent. The order does not suffer from any infirmity warranting interference. This revision has no merits and is bound to fail. 26. On the above finding, when the Court was about to dismiss the revision, the learned counsel for the Revision Petitioner has submitted that opportunity may be given to the second Respondent to mark the order of adjudication in I.P.No.27/1986. The order does not suffer from any infirmity warranting interference. This revision has no merits and is bound to fail. 26. On the above finding, when the Court was about to dismiss the revision, the learned counsel for the Revision Petitioner has submitted that opportunity may be given to the second Respondent to mark the order of adjudication in I.P.No.27/1986. The Court below is directed to afford such sufficient opportunity if necessitated. 27. For the reasons stated above, the order dated 10.02.2003, passed in E.A.No.3240/2002 in E.A.No.5223/2001 in E.P.No.1475/1998 in O.S.No.271/1986 by the IX Assistant Judge, City Civil Court, Madras, is confirmed and this revision petition is dismissed. In such circumstances of the case, there is no order as to costs. 28. The IX Assistant Judge, City Civil Court, Chennai is directed to expedite the enquiry in the applications under section 47 CPC (E.A.No.5222/2001 and E.A.No.5223/2001) and dispose of the same expeditiously.