JUDGMENT R.S. Garg, C.J. 1. Heard Mr. A.K. Bhowmik, learned senior counsel for the Appellant and Mr. S.M. Chakraborty, learned senior counsel with Mr. P. Chakraborty, learned Counsel for the Respondents. 2. This judgment shall dispose of Regular First Appeal No. 20 of 2003 and Cross-Objection filed by the Defendants under Order 41, Rule 22 of the Code of Civil Procedure challenging the award of Rs. 1,00,000 as damages to the Appellant-Plaintiff. 3. The short facts, necessary for decision of the present appeal and cross-objection, are: The Plaintiff came to the court with a submission that he was a registered contractor with the Food Corporation India ('FCI'), he submitted a tender to the FCI for transportation of certain food grains from one station to other station, work order was issued in his favour by the Senior Regional Manager, FCI. The Plaintiff, to carry out the work, was in need of numbers of Trucks. So, he entered into negotiation with the General Secretary and Joint Secretary of two Truck Syndicates (different names). On 4.12.1994 an agreement was entered into between the parties and the terms were reduced to writing. However, the original agreement was with the Defendants and a photocopy of the same was handed over to the Plaintiff. According to the Plaintiff, as per the agreement the Defendants agreed to continuously supply Trucks to the Plaintiff on everyday basis for purposes of transportation of the food grains from Dharmanagar Churaibari to FCI Godown Complex, Agartala. It was agreed that the agreement shall remain in force for a period of two years, in accordance with the agreement the work started, but however, for no reason the Defendants suddenly and abruptly had stopped supply of Trucks. The allegation of the Plaintiff is that the Defendants tried to pressurise the Plaintiff to increase the rate of hire charge which according to the Plaintiff was unreasonable. The Plaintiff accordingly refused to raise the hire charge, as a result of which, the Defendants, who were duty bound and obliged to supply the Trucks, discontinued to supply the Trucks and as a result, the Plaintiff suffered a loss of Rs. 61,09,755. 4. The Defendants appeared and filed their written statement while denying the claim of the Plaintiff they also denied execution of concluded or an executable contract. It was contended by them that they never entered into an agreement with the Plaintiff. 61,09,755. 4. The Defendants appeared and filed their written statement while denying the claim of the Plaintiff they also denied execution of concluded or an executable contract. It was contended by them that they never entered into an agreement with the Plaintiff. According to them, some informal memorandum was signed between them and one Shri Jagadish Chandra Saha (the father of the Plaintiff). It was also averred that the terms of payment of freight charges remained vague as no specific terms were embodied in the memorandum, but were left to be decided in future. There was no concluded contract between the parties. It was also submitted that the memorandum was absolutely uncertain, probably raising a plea of Section 29 of the Indian Contract Act, and also raised the question of enforceability of the said memorandum. While denying the agreement the Defendants filed a counter claim, which was registered as Money Suit No. 68 of 1998. 5. The learned trial court on basis of the pleadings of the parties cast as many as six issues in Money Suit No. 18 of 1998 and nine issues in Money Suit No. 68 of 1998. The Plaintiff in support of his case entered into the witness box as PW1 and at the same time also examined Shri Jagadish Chandra Saha as PW2. The Defendants examined Shri Parimal Chandra Deb as DW1 and Shri Rupuk Barman as DW2. 6. After recording evidence and hearing the parties, the learned trial court observed that the Plaintiff failed in proving the extent of losses suffered by him, the court observed that on one side the Plaintiff was submitting that the Trucks were not supplied to him despite that he was claiming the freight charges, that the Plaintiff also failed in proving the extent of losses suffered by him. However, the learned trial court while dismissing the counter claim observed that the Plaintiff would be definitely entitled to get compensation of Rs. 1,00,000 as security deposit from the Defendants as he could not complete the work because of the breaches on the part of the Defendants. The court while granting the decree of Rs. 1,00,000 also awarded cost in favour of the Plaintiff. The Plaintiff in appeal is before us. 7. 1,00,000 as security deposit from the Defendants as he could not complete the work because of the breaches on the part of the Defendants. The court while granting the decree of Rs. 1,00,000 also awarded cost in favour of the Plaintiff. The Plaintiff in appeal is before us. 7. Against the rejection of the counter claim, the Defendants did not choose to prefer any appeal or any counter claim, but however, they have filed Cross Objection under Order 41, Rule 22 of the Code of Civil Procedure challenging the award of Rs. 1,00,000. 8. Learned Counsel for the Appellant after taking to the statement of PW1, Shri Pranab Kumar Saha and PW2, Shri Jagadish Chandra Saha submitted that the Plaintiff was successful in proving the document in question and he was also successful in proving the terms of the contract. His submission was that if the Plaintiff was alleging that the contract document was in possession of the Defendants then the burden was upon the Defendants to show that they were not possessed of the original. It was also submitted that the present is a case which was not properly contested between the parties, therefore, the matter has to be remanded back to the learned trial court either for a fresh trial or for providing appropriate opportunity to the parties to lead further and proper evidence. 9. Learned Counsel for the Respondents, on the other hand, submitted that in a case like present where according to the Plaintiff all the terms of the contract were reduced to writing then the Plaintiff was required to prove the terms entered into between the parties by producing documents. It was contended that if the Plaintiff was not in possession of the original and he was alleging that the original was possessed by the Defendants then he should have issued a notice to the Defendants to produce the original document and in case of Defendants' failure he could have made an application under Section 65 of the Indian Evidence Act seeking permission to lead secondary evidence. It was also contended that any oral evidence to prove the contents of the documents, cannot be brought on record as would be hit by Section 91 of the Indian Evidence Act and may not be admissible. It was also contended that any oral evidence to prove the contents of the documents, cannot be brought on record as would be hit by Section 91 of the Indian Evidence Act and may not be admissible. It was lastly submitted that the parties knew about their case very well and if contested the same before the learned trial court then there is no good reason to remand the matter back to the learned trial court. 10. We have heard the parties at length and have also perused the records. 11. Undisputedly the Plaintiff is relying upon an agreement dated 4.12.1994 and is also alleging that the original agreement was in possession of the Defendants. It is clear from the record that photocopy/xerox copy of the agreement was produced before the learned trial court, but unfortunately at no point of time the Plaintiff ever issued a notice to the Defendants to produce the original document in the court. Had the Plaintiff issued a notice to the Defendants to produce the original document in the court and the Defendants had refused to produce the original document in the court either on the ground that they were not in possession of the same or no such document ever existed, then the Plaintiff could make an application under Section 65 of the Indian Evidence Act to lead secondary evidence. 12. Section 65 of the Indian Evidence Act clearly provides that in particular type of cases secondary evidence may be given of the existence, condition, or contents of a document. Section 65 provides that when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or is in power of any person out of reach of, or not subject to, the process of the court or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it, then any secondary evidence of the contents of the documents would be admissible. Undisputedly, in the present matter, notice under Section 66 was never served upon the Defendants. If the very foundation for producing secondary evidence in the court is not founded by the Plaintiff then Section 65 would not come into application. 13. Undisputedly, in the present matter, notice under Section 66 was never served upon the Defendants. If the very foundation for producing secondary evidence in the court is not founded by the Plaintiff then Section 65 would not come into application. 13. In the present matter, the Plaintiff, Shri Pranab Kumar Saha, in paragraph 1 of his examination in chief simply submitted before the court that he has produced a photocopy of the document in dispute. Had the Plaintiff moved an application under Section 65 of the Indian Evidence Act after complying with the provision contained in Section 66 of the Indian Evidence Act and should the court reject such application, the Plaintiff could certainly ask us to remand the case on the ground that the evidence which was required to be received by the learned trial court was illegally rejected. In such a case, the Plaintiff even could move an application under Rule 27 of order 41 for taking such additional evidence on record. However, despite pendency of the appeal for more than seven years, the Plaintiff has not considered desirable to make an application under Order 41,Rule 27 of the Code of Civil Procedure or under any other provisions of law. 14. At this stage it would also be necessary to refer to the other objection of the Defendants/Respondents relating to Section 91 of the Indian Evidence Act. Section 91 of the Indian Evidence Act reads as under: - 91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents. - When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. Exception 1. - When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2. Exception 1. - When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2. - Wills admitted to probate in India may be proved by the probate. Explanation 1. - This section applies equally to cases in which the contracts grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one. Explanation 2. - Where there are more originals than one, one original only need be proved. Explanation 3. - The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission or oral evidence as to the same fact. 15. According to Section 91, when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions contained in the Indian Evidence Act. Once it is admitted by the Plaintiff or as the pleadings raised before the trial court show that the terms of settlement between the parties were reduced to writing and the contract was executed then the Plaintiff would be required to produce the document in original in the court. In case the original document was in possession of a party, against whose interest it was required to be used, then after issuing a notice to such party the Plaintiff could make an application under Section 65 of the Indian Evidence Act to bring secondary evidence on record. Section 91 of the Indian Evidence Act would also sub serve the requirement of law in a case where the secondary evidence can be brought on record. Unfortunately, each and every time the Plaintiff failed in exercising his legal authority and rights. If the terms of the contract which reduced to writing are not proved by the Plaintiff then the contract itself stands unproved. 16. Unfortunately, each and every time the Plaintiff failed in exercising his legal authority and rights. If the terms of the contract which reduced to writing are not proved by the Plaintiff then the contract itself stands unproved. 16. Once it is held that the Plaintiff failed in proving the terms of the contract then award of sum of Rs. 1,00,000 by the learned court below to the Plaintiff as compensation or security cost would also become bad. In our considered opinion, the learned court below was justified in dismissing the suit of the Plaintiff so far the damages are concerned, but was unjustified in awarding a sum of Rs. 1,00,000 to the Plaintiff. 17. The cross-objection filed by the Defendants-Respondents deserve to and are accordingly allowed. The appeal filed by the Plaintiff is dismissed. The decree granted by the learned court below is hereby set aside and the suit of the Plaintiff is dismissed in toto. There shall be no order as to costs. Let a decree be framed. The Office is hereby directed to send back the lower court records. Appeal dismissed