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2011 DIGILAW 4334 (MAD)

K. v. Venkataraman VS N. Venkatakrishnan

2011-10-21

R.BANUMATHI, R.MALA

body2011
JUDGMENT R.MALA, J. ( 1. ) THIS appeal has been arising out of the judgment and decree passed in C.S. No. 676 of 1999 on 7.1.2009 dismissing the suit filed by the plaintiff. ( 2. ) THE gist and essence of the averments contained in the plaint is as follows: (i) THE appellant as plaintiff filed a suit on the basis of the undertaking given by the defendant on 12.5.1998 agreeing to repay the amount of Rs. 4,00,000/-, within 30 days from 12.5.1998, stating that the defendant borrowed a sum of. Rs. 4,00,000/- on 1.4.1991 and he could not repay the said amount due to inadvertant circumstances. Since the defendant did not keep up his promise, the plaintiff caused a lawyer's notice on 2.10.1998 demanding repayment and on 10.10.1998, he received a reply from the defendant denying the repayment of the same. Hence the plaintiff is constrained to file the suit for recovery of due on the deed of undertaking given by the plaintiff on 12.5.1998. ( 3. ) THE defendant resisted the suit stating that; (i) he never borrowed any amount from the plaintiff agreeing to repay the same with 24% per annum. He never executed any letter of undertaking. THE document is a fabricated one. He further submitted that both the appellant/plaintiff and the respondent/defendant are the partners in the partnership business under the name and style of Abirami Apartment and that has been dissolved on 31.7.1995. THEy are also the partners in another partnership firm by name Abirami Acchu Koodam and the same was also dissolved. THE plaintiff has not paid any money to this defendant on 1.4.1991 and no letter of undertaking was executed by him on 12.5.1998, therefore no amount is due and payable by the defendant to the plaintiff. In the ratification of dissolution of Partnership Deed dated 31.7.1995 executed on 12.5.1998 referred to in Memorandum of Understanding of even date, it is specifically admitted by the plaintiff that he has no dues to be received from the defendant nor he will have any claim from the erstwhile Abirami Apartments and also from the defendant personally. So he pleaded that the plaintiff is estopped from pleading anything contrary to the admissions made by him in writing in the ratification deed dated 12.5.1998. So he pleaded that the plaintiff is estopped from pleading anything contrary to the admissions made by him in writing in the ratification deed dated 12.5.1998. (ii) He further submitted that the suit document was a fabricated one and the same is not admissible evidence, since it is only a xerox copy/photostat copy of the document. Hence he prayed for dismissal of the suit. ( 4. ) THE learned single Judge after considering the averments and the arguments of both sides, framed 8 issues and on considering the oral and documentary evidence of P.W.I and D.W.I and Exhibit P-l to P-14 and Exhibits D-1 to D-10, dismissed the suit stating that Exhibit P-l Deed of undertaking is inadmissible evidence and also not true and genuine document. Against which, the present appeal has been preferred by the plaintiff as appellant. ( 5. ) AFTER considering the rival submissions on both sides, the following points are framed for consideration. "1. Whether the learned single Judge is right in holding that Exhibit P-1 is not admissible evidence and not true and genuine document? 2. Whether the decree and judgment of the learned single judgment is sustainable? 3. To what relief, the appellant/plaintiff is entitled to?" Point Nos. 1 to 3: ( 6. ) CHALLENGING the judgment of the learned single Judge, the learned senior counsel Mr. G. Rajagopalan appearing for the appellant/plaintiff would submit that the document Exhibit P-l is true and genuine document and the attestors of Exhibit P-l Deed of undertaking and Exhibit D-4-Ratification of dissolution of Partnership Deed are one and the same and since the respondent herein is admitting Exhibit D-4-Ratification of dissolution of Partnership Deed and D5-Memorandum of understanding, which proved that Exhibit P-l is true and genuine document. He further submitted that it is true that the appellant/plaintiff has not filed the original of Exhibit P-l - Deed of undertaking, since the original of which was with the respondent/defendant. He further contended that the copy of Exhibit D-4-Ratification of dissolution of partnership deed dated 12.5.1998 alone has been received by this appellant/plaintiff and likewise, this appellant herein has received only the copy of Exhibit P-1 Deed of undertaking, so, he was not in a position to file the same before this Court. He further contended that the copy of Exhibit D-4-Ratification of dissolution of partnership deed dated 12.5.1998 alone has been received by this appellant/plaintiff and likewise, this appellant herein has received only the copy of Exhibit P-1 Deed of undertaking, so, he was not in a position to file the same before this Court. It is his further contention that as per Section 65(a) of Indian Evidence Act, the appellant/plaintiff is entitled to let in secondary evidence and for letting secondary evidence, it is the duty of the person to issue notice to produce the document to the party/person who possess the original document i.e., Exhibit P-1. It is his further submission that here, the respondent has taken the plea of forgery and even if the notice to produce the document was issued, no purpose will be served, hence he prayed that Exhibit P-l deed of undertaking executed by the defendant/respondent is an admissible evidence and it is true and genuine document. He further submitted that it is true that the respondent herein has issued a notice to appellant to produce the documents under Exhibits D.8 to D.10 and the appellant did not give reply to them. ( 7. ) HE further contended that the learned single Judge is erred in holding that Exhibit P-1 -Deed of undertaking is not admissible and the combined reading of Exhibit P-l and Exhibit D-4 and Exhibit D-5 would go to show that Exhibit P-l is executed by this respondent/defendant, hence he prayed for setting aside the decree and judgment passed by the learned single Judge. ( 8. ) REFUTING the same, the learned counsel Mr.Nageswaran submitted that Exhibit P-l deed of undertaking is not a true and genuine document and in the legal notice Exhibit P-2 dated 2.10.1998, in para 1, the appellant/plaintiff has stated that the respondent herein has borrowed Rs. 5,00,000/-, on 1.4.1991 agreeing to repay the same with interest at the rate of 24% per annum, but in para 2, it was stated that after mutual discussion between both the parties , in the month of May 1998, the respondent has agreed to pay Rs. 4,00,000/- with interest at the rate of 24% from the date of borrowal and also made a fresh promise to pay the said amount by executing a Deed of Undertaking on 12.5.1998, but there is no such pleading in the plaint. 4,00,000/- with interest at the rate of 24% from the date of borrowal and also made a fresh promise to pay the said amount by executing a Deed of Undertaking on 12.5.1998, but there is no such pleading in the plaint. He further submitted that Exhibit P-l-deed of undertaking is not an admissible evidence. He further submitted that the learned single Judge after considering this aspect in a proper perspective, came to the correct conclusion and dismissed the suit. ( 9. ) HE further submitted that the secondary evidence is admissible, provided, the appellant/plaintiff must satisfy the conditions under Section 65(a) of Indian Evidence Act, but the appellant/plaintiff neither mentioned the same in legal notice Exhibit P-2, nor in the pleading that the original of Exhibit P-l Deed of undertaking is with the defendant/respondent and only a copy of the same was given to him. Further, he contended that after receipt of Exhibit P-2 legal notice, the respondent/defendant herein has issued Exhibit P-3 reply notice and in that, his categorical case is that he has not executed any deed of undertaking and further in paragraph 3 of the reply notice, he called upon the appellant/plaintiff to furnish the documentary evidence to substantiate his claim, but neither rejoinder for Exhibit P-3 reply notice has been sent, nor it was pleaded in the plaint that the copy of Exhibit P-l memorandum of undertaking alone was given to him and the original of which was with the defendant/respondent. ( 10. ) HE further submitted that the respondent/defendant has issued Exhibit D-8 and D-9 notices to produce the original of Exhibit P-l deed of undertaking. But, neither the appellant/plaintiff sent any reply, nor he produced the original of Exhibit P-l. HE further submitted that the learned single Judgeconsidering all the aspects in a proper perspective and came to the correct conclusion that Exhibit P-1 is not true and genuine document and dismissed the suit. Therefore, he prayed for dismissal of the appeal. ( 11. But, neither the appellant/plaintiff sent any reply, nor he produced the original of Exhibit P-l. HE further submitted that the learned single Judgeconsidering all the aspects in a proper perspective and came to the correct conclusion that Exhibit P-1 is not true and genuine document and dismissed the suit. Therefore, he prayed for dismissal of the appeal. ( 11. ) TO substantiate the same, he relied upon the following decisions of the Apex Court and in (i) Smt. J. Yashoda v. Smt. K. Shobha Rani AIR 2007 SC 1721 : (2007) 4 MLJ 958 (ii) Ashok Dulichand v. Madhavlal Dube and Another AIR 1975 SC 1748 : (1975) 4 SCC 664 and (iii) H. Siddiqui (dead) by Lrs v. A. Ramalingam 2011-4-L.W.805 : LNIND 2011 SC 261 : (2011) 4 MLJ 887 in respect of secondary evidence is not admissible evidence, since the appellant/plaintiff has not complied with the condition under Section 65(a) of Indian Evidence Act and prayed for dismissal of the appeal. ( 12. ) CONSIDERED the rival submissions made by both sides and materials available on record. ( 13. ) THE learned single Judge has held that Exhibit P-l memorandum of undertaking is not an admissible evidence. Now this Court has to consider whether Exhibit P-1 is admissible evidence? THE case of the appellant/plaintiff is that the defendant herein has borrowed a sum of Rs. 4,00,000/- on 1.4.1991, agreeing to repay the same with interest at 24% per annum. On 12.5.1998, the respondent/defendant executed a deed of undertaking admitting the borrowal of Rs.4,00,000/- and agreeing to repay the same within one month from 12.5.1998 and executed Exhibit P-l. Since he has not paid the same, the appellant/plaintiff, after issuance of notice under Exhibit P-2 and receipt of Exhibit P-3 reply notice, he filed a suit for recovery of amount due under Exhibit P-l memorandum of undertaking. So the document Exhibit P-l is the base and foundation for the suit claim. ( 14. ) ADMITTEDLY, the original of Exhibit P-1 was not filed before the Court. Only photostat/xerox copy of Exhibit P-l alone has been filed by the appellant/plaintiff. So it is appropriate for us to consider the rival submissions made on both sides for the admissibility of Exhibit P-l-memorandum of undertaking. ADMITTEDLY before filing the suit, notice has been issued under Exhibit P-2. After receipt of Exhibit P-2, respondent/defendant has issued reply Exhibit P-3. Only photostat/xerox copy of Exhibit P-l alone has been filed by the appellant/plaintiff. So it is appropriate for us to consider the rival submissions made on both sides for the admissibility of Exhibit P-l-memorandum of undertaking. ADMITTEDLY before filing the suit, notice has been issued under Exhibit P-2. After receipt of Exhibit P-2, respondent/defendant has issued reply Exhibit P-3. In Exhibit P-3, reply notice, the respondent/defendant has denied the alleged execution of deed of undertaking dated 12.5.1998. In that reply notice Exhibit P-3, it-self, the respondent/defendant is claiming a copy of the document for his perusal but instead of sending a copy of the document, the appellant/plaintiff filed a suit for recovery of money and at the time of filing the suit, the appellant/plaintiff filed the suit along with Exhibit P-1 which is only a photostat copy of the alleged document. He has not explained any reason as to why the original of the Exhibit P-1 has not been filed. Before filing the written statement, the respondent/defendant issued Exhibit D-10 notice on 30.10.1999 to furnish copies of plaint document No. 1- Deed of undertaking dated 12.5.1998 as well as the affidavit and Judge's Summons in Application No. 2607 of 1999. Since the appellant/plaintiff herein has not gave any reply, the respondent/defendant obtained a certified copy of Exhibit P-l and filed his written statement. During the commencement of the trial, he issued Exhibit D-8 and D-9 notices on 15.3.2008 and 7.2.2008 respectively calling upon the appellant/plaintiff to produce original of Exhibit P-l document for inspection, but the appellant/plaintiff has not replied for the same. ( 15. ) LEARNED senior counsel appearing for the appellant submitted that only at the time of adducing his evidence in wittiness box, P.W. 1 has deposed that the original was with the respondent/defendant and since the original of Exhibit P-1 is with this respondent/defendant, the appellant/plaintiff is entitled to let in secondary evidence. ( 16. ) AT this juncture, it is appropriate to consider Section 65(a) of Indian Evidence Act, which is as follows: "65. Cases in which secondary evidence relating to documents may be given.............. ( 16. ) AT this juncture, it is appropriate to consider Section 65(a) of Indian Evidence Act, which is as follows: "65. Cases in which secondary evidence relating to documents may be given.............. (a) when the original is shown or appears to be in the possession of power- of the person against whom the document is sought to be proved, or 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;" ( 17. ) THE learned counsel for the respondent has relied upon the following decisions of the Apex Court in (i) Smt. J. Yashoda v. Smt. K. ShobhaRani (supra), wherein, in para 9 it is held as follows: "Under Section 64, documents are to be provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. THE conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. ..............According to Clause (a) of Section 65 of Evidence Act, secondary evidence may be given of the existence, condition or contents of a document 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 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. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given." In para 10 of the decision cited supra, it is further held as follows: "70. THE admitted facts in the present case are that the original was with one P. Srinibas Rao. Only when conditions of Section prescribed in Section 65 are satisfied, documents can be admitted as secondary evidence. THE admitted facts in the present case are that the original was with one P. Srinibas Rao. Only when conditions of Section prescribed in Section 65 are satisfied, documents can be admitted as secondary evidence. In the instant case Clause (a) of Section 65 has not been satisfied." (ii) In AshokDulichandv. MadhavlalDube and Another (supra), in para 7, it is reported as follows; "THE appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent 1 in his affidavit denied being in possession of or having anything to do with such a document. THE photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court." (iii) In H. Siddiqui (dead) by Lrs v. A. Ramalingam (supra), it is reported as follows; "In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the Section. THE secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. THErefore, the documentary evidence is required to be proved in accordance with law. THE Court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon." ( 18. Mere admission of a document in evidence does not amount to its proof. THErefore, the documentary evidence is required to be proved in accordance with law. THE Court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon." ( 18. ) APPLYING the ratio of the above decisions to facts of the case, it is the duty cast upon the plaintiff/appellant to satisfy the condition under Section 65(a) of Indian Evidence Act before letting secondary evidence, but neither in Exhibit P-2-pre suit notice and nor in the plaint, he pleaded that the original of Exhibit P-l is with the respondent/defendant and only a copy of the same has been furnished to him. Though notice to produce original of Exhibit P-l document was issued by the respondent/defendant to the appellant/plaintiff under Exhibit D-8 and D-9, he has not chosen to give any reply stating that the original document of Exhibit P-l was with the respondent/defendant, but only at the time of letting oral evidence, P.W.I has deposed that the original of Exhibit P-l is with the defendant/respondent. Except the ipse-dixit of P.W.I, no other evidence is available to show that the original of Exhibit P-l is with the respondent/defendant. Hence we are of the view, the appellant/plaintiff has not satisfied with the condition under Section 65(a) of Indian Evidence Act to let in secondary evidence. ( 19. ) AT this juncture, it is appropriate to consider the document Exhibit D-4-ratification of dissolution of partnership deed and Exhibit D-5-Memorandum of Understanding. The execution of D-4 and D-5 has been admitted by both the parties. Admittedly, the execution of Exhibit D-4 and D-5 has not been mentioned neither in Ex.P2 notice, nor in pleading. Here it is relevant to consider the following facts. This respondent and appellant constituted a partnership firm under the name and style of Abirami Apartments on 4.4.199land also they were partners in Abirami Acchu Koodam. The partnership of Abirami Apartments has been dissolved as per document Exhibit D-2 on 31.7.1995. The appellant/plaintiff also executed Exhibit D-3 -no claim certificate stating that he is not having any claim on 2.8.1995. On 12.5.1998, he executed the ratification of dissolution of Partnership Deed Exhibit D-4 and also Exhibit D-5 memorandum of understanding. The execution of the documents has not been disputed by the appellant/plaintiff. The appellant/plaintiff also executed Exhibit D-3 -no claim certificate stating that he is not having any claim on 2.8.1995. On 12.5.1998, he executed the ratification of dissolution of Partnership Deed Exhibit D-4 and also Exhibit D-5 memorandum of understanding. The execution of the documents has not been disputed by the appellant/plaintiff. So, as per the argument of the learned counsel for the appellant that Exhibit D-4, D-5 and Exhibit P-1 came into existence on the same day, i.e., on 12.5.1998 and only a copy of Exhibit D-4 has been handed over to the appellant herein and similarly a copy of Exhibit P-1 was given to him, but the above argument does not hold good, because while perusing Exhibit D-4, it was specifically mentioned that the appellant herein has made a specific endorsement "received, copy of the document". So we are of the view if really, he has received only a copy of the document, could have very well mention the same at the earliest point of time in Exhibit P-2 notice and pleaded in his plaint. Since the plaintiff/appellant is a worldly wise person, the original document ought to have been with the appellant/plaintiff. Hence, the arguments advanced by the learned senior counsel G. Rajagopalan thatthe original of Exhibit P-l document was with the respondent/defendant does not merit acceptance. ( 20. ) IT is a well settled principle of law that the appellant/plaintiff must prove his case. He cannot take loop holes or lacunas in the case of the defendant/respondent and seek for a remedy. The learned senior counsel for the appellant/plaintiff would submit that since the respondent herein has denied the execution of Exhibit P-l-deed of undertaking, no purpose will be served to him for issuing notice to produce the original of Exhibit P-l. As per Section 65(a) of Indian Evidence Act, when the original is shown or appears to be in possession or power of the person, against whom the document is sought to be proved, so, the appellant/plaintiff ought to have issued notice to the respondent/defendant to produce the original of Exhibit P-l and if the respondent/defendant has not produced the same, then only the appellant/plaintiff is entitled to produce the secondary evidence. The appellant/plaintiff has not satisfied the condition under Section 65(a) of Indian Evidence Act. Hence, he is not entitled to let in secondary evidence. The appellant/plaintiff has not satisfied the condition under Section 65(a) of Indian Evidence Act. Hence, he is not entitled to let in secondary evidence. So, we are of the considered view that Exhibit P-l memorandum of undertaking is not admissible in evidence. ( 21. ) HENCE, we are of the view that the learned single Judge, in para 33 considering this aspect in a proper perspective and in issue No. 5 of his judgment holds that Exhibit P-l is not admissible evidence and it does not warrant any interference. ( 22. ) AS already stated, it is the duty of the plaintiff to. prove Exhibit P-1 is true and genuine document. It is true that the attestors of Exhibit P-l and D-4 are one and the same. But once, the respondent/defendant has disputed the execution and signature in the document Exhibit P-l, it is the duty of the appellant/plaintiff to prove the case by way of examining attestors to the document,i.e., Exhibit P-1. The reason assigned by the learned senior counsel that the attestors in Exhibit D-4 and P-l are one and the same. The contention that they are the close associates of this respondent/defendant, hence he is not able to examine them does not merit acceptance. No oral evidence has been let in by this plaintiff on this aspect. He has not taken summons to examine the witnesses to prove the same. Therefore, we are of the view the appellant/plaintiff has not proved Exhibit P-l is true and genuine document. The learned single Judge, considering this aspect in a proper perspective, dismissed the suit. ( 23. ) ONE more adding circumstance is that under document Exhibit D-l, the appellant and respondent has entered partnership deed on 4.4.1991 and the same was dissolved under Exhibit D-2 on 31.7.1995 and Exhibit D-3 the appellant/plaintiff gave no claim certificate. But, he want to peruse the records and accounts and after verifying of the accounts, he executed Exhibit D-4 - ratification of dissolution of partnership Deed and Exhibit D-5-memorandum of understanding. In Exhibit D-3-No claim certificate, the appellant/plaintiff has stated as follows; "Further to the Dissolution Deed dated 31.7.1995, in regard to relinquishing my Partnership in the Business of Messrs. But, he want to peruse the records and accounts and after verifying of the accounts, he executed Exhibit D-4 - ratification of dissolution of partnership Deed and Exhibit D-5-memorandum of understanding. In Exhibit D-3-No claim certificate, the appellant/plaintiff has stated as follows; "Further to the Dissolution Deed dated 31.7.1995, in regard to relinquishing my Partnership in the Business of Messrs. "ABIRAAMI APARTMENTS', 37 Lake View Road, (Off: Parthasarathy Nagar II Street) Adambakkam, Madras 600 088, I Declare that I have no dues whatever from - Shri N. Venghatakrishnan - the other Partner of the Business and I am executing this "No CLAIM CERTIFICATE" to convey that full and final settlement of my erstwhile Partnership has been to my entire satisfaction." and in Exhibit D-4-Ratification of dissolution of partnership deed, it was stated as follows; "After complete verification of all the records, Sri. K.V. Venkataraman was completely satisfied and confirmed the earlier dissolution deed and agreed that he has no dues to be received/nor he will have any claim from erstwhile Abhirami Apartments and also from Sri. N. Venghatakrishnan personally." So the documents Exhibits D-3 and D-4 have clearly proved that on 12.5.1998 there is no due and the appellant/plaintiff has no claim from erst while Abhirami Apartments and also from the respondent/defendant- N. Venghatakrishnan personally. Perusal of these Exhibits D-3 to D-5 would clearly probablise the version of this respondent/defendant that he has not executed Exhibit P-1 -memorandum of undertaking. ( 24. ) CONSIDERING the following reasons , that; (i) non production of original of Exhibit P-1 memorandum of undertaking, since Exhibit P-1 is only xerox copy and the same is not an admissible evidence; (ii) borrowal under Exhibit P-1 deed of undertaking was not proved by the plaintiff/appellant by way of examining attestors. (iii) the respondent/defendant has probablised the defence taken by him by filing Exhibit D-3 to D-5 (iv) the admission of appellant/plaintiff in Exhibit D-4 that there was no due either by Abirami Apartments Partnership firm or by personally; we are of the considered view that Exhibit P-1 memorandum of undertaking is not admissible evidence and it was not executed by the respondent/defendant and the same is not a true and genuine document. The learned single Judge, considering all these aspects in a proper perspective came to the correct conclusion and hence, we concur with the findings of the learned single Judge. Point Nos. The learned single Judge, considering all these aspects in a proper perspective came to the correct conclusion and hence, we concur with the findings of the learned single Judge. Point Nos. 1 to 3 are answered accordingly. ( 25. ) IN view of the answer given to Point Nos. 1 to 3, the findings of the judgment and decree of the learned single Judge do not warrant any interference. Hence, it is liable to be confirmed. The appellant/plaintiff is not entitled to any relief in this appeal. So the appeal deserves to be dismissed. ( 26. ) IN the result, confirming the judgment and decree passed in C.S. No. 676 of 1999 made on 7.1.2009, the Original Side Appeal is hereby dismissed with costs.