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2015 DIGILAW 1909 (MAD)

V. Maheswari v. Tamil Nadu Mercantile Bank Ltd.

2015-04-16

K.K.SASIDHARAN

body2015
Judgment :- 1. The petitioners are aggrieved by the orders passed by the learned Principal District Judge, Virudhunagar District at Srivilliputtur, allowing the applications filed by the first respondent to re-open the suit and to mark additional documents. FACTS IN NUTSHELL: 2. The first respondent filed a suit against the petitioners and respondents 2 to 10 in O.S.No.177 of 2004, before the learned Principal District Judge, Virudhunagar District at Srivilliputtur. The suit is one for declaration and recovery of money, besides other reliefs. 3. The second respondent was an employee of the bank. The second respondent appears to have forged the signatures of respondents 5 to 10 and misappropriated the amount. The bank preferred a police complaint. The complaint was registered in Crime No.17 of 2004 and after investigation, the police laid a charge sheet. The criminal case in C.C.No.3 of 2005 is now pending on the file of learned Judicial Magistrate No.II, Virudhunagar. 4. The suit was contested by the petitioners by filing written statement. The Trial Court framed issues and thereafter, evidence was adduced by both the parties. When the suit was pending for judgment, the first respondent filed the applications in I.A.Nos.523 and 524 of 2014 to re- open the matter and to mark certain documents. 5. The first respondent, in the affidavit filed in support of the Interlocutory Applications, submitted that they have obtained certified copies from the Criminal Court in C.C.No.3 of 2005 and as such, permission should be granted to mark those documents. 6. The learned Principal District Judge allowed the applications, subject to payment of costs. Feeling aggrieved, the petitioners are before this Court. SUBMISSIONS: 7(A). The learned counsel for the petitioners contended that the first respondent earlier filed an application in I.A.No.1453 of 2014, to receive additional documents. The said application was dismissed by the Trial Court. Similarly, the application in I.A.No.418 of 2014 was also dismissed by the Trial Court. It was only thereafter I.A.Nos.523 and 524 of 2014 were filed to re-open the case and to mark additional documents. According to the learned counsel, the learned Trial Judge, without reference to the earlier proceedings and the contentions in the counter, allowed the applications. The learned counsel contended that the suit having been posted for judgment, the learned Principal District Judge was not correct in re-opening the matter for the purpose of marking documents. According to the learned counsel, the learned Trial Judge, without reference to the earlier proceedings and the contentions in the counter, allowed the applications. The learned counsel contended that the suit having been posted for judgment, the learned Principal District Judge was not correct in re-opening the matter for the purpose of marking documents. (B) The learned counsel placed reliance on the decision of the Supreme Court in M/s.Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai v. M/s.Gupta Building Material Store [2013 SAR (Civil) 444] and the judgment of the Division Bench in M/s.Pan Resorts Limited v. H.H.Karthika Thirunal Lakshmi Bayi & Others [ 2011(4) LW 544 ], in support of his contention that merely on the basis of equity, it is not open or necessary for the plaintiff to seek re-opening the evidence. The learned counsel placed reliance on the judgment in N.Sadasivam vs. Samiyathal [2014(3) TLNJ 116 (Civil)] and S.Ramasamy v. Perumal and others [2014(3) CTC 518], to substantiate his contention that the learned District Judge erred in allowing the applications. DISCUSSION: 8. The Tamil Nadu Mercantile Bank Limited initiated criminal proceedings against the second respondent alleging misappropriation of a sum of Rs.63,34,000/-. The first petitioner is the wife of the second petitioner. They are residing adjacent to the residence of the second respondent. According to the bank, the second respondent purchased property in the name of the petitioners with the money misappropriated from the bank. The bank, therefore, impleaded the petitioners also as parties to the civil suit in O.S.No.177 of 2004. The bank adduced evidence before the Trial Court. The learned Trial Judge completed the trial and posted the matter for judgment. The bank filed an application in I.A.No.418 of 2014, to re-open the case for marking additional documents. Since the bank failed to obtain certified copies of the documents and taking into account the objection made by the petitioners, the application in I.A.No.418 of 2014 was dismissed with liberty to file a fresh petition. The bank, thereafter, obtained certified copies of the documents from the Criminal Court and produced before the Court. The bank wanted the documents to be marked on its side. 9. The learned Trial Judge was of the view that technicality should not stand in the way of rendering justice. The bank, thereafter, obtained certified copies of the documents from the Criminal Court and produced before the Court. The bank wanted the documents to be marked on its side. 9. The learned Trial Judge was of the view that technicality should not stand in the way of rendering justice. Since the matter involves public money and taking into account the fact that the bank obtained certified copies from the Criminal Court, the learned Trial Judge allowed the applications. 10. The Supreme Court in M/s.Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai v. M/s.Gupta Building Material Store [2013 SAR (Civil) 444] very clearly observed that power under Section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of Court. The Supreme Court held that Court can exercise its discretion to permit re-opening of evidence or recalling of witnesses for further examination/cross-examination, after the conclusion of evidence. The Supreme Court set aside the order passed by the High Court in the said case only on account of the failure on the part of the plaintiff to give acceptable reason for non-production of documents earlier. 11. In M/s. Pan Resorts Limited v. H.H.Karthika Thirunal Lakshmi Bayi & Others [ 2011(4) LW 544 ], the Division Bench found that documents were in the custody of the plaintiff. According to the Division Bench, the plaintiff has not pleaded in the application for re-opening the evidence as to why the documents, which were in his custody, could not be produced earlier for marking at the earliest point of time. 12. The facts of the present case is entirely different. The first respondent obtained certifies copies of documents from the Criminal Court only after posting the matter for judgment. The bank received the document on 01.09.2014. By the time, the matter was posted for judgment. The bank has clearly explained the delay in producing documents. It is not as if the bank was in possession of the documents and it was not marked through its witness. The vital documents were seized by the police and produced before the Criminal Court. It was only from the Criminal Court, the bank obtained certified copies. The bank, in its affidavit filed in support of the Interlocutory Applications, very clearly explained the background facts. The vital documents were seized by the police and produced before the Criminal Court. It was only from the Criminal Court, the bank obtained certified copies. The bank, in its affidavit filed in support of the Interlocutory Applications, very clearly explained the background facts. Such being the factual position, the learned Trial Judge was, therefore, absolutely correct in allowing the applications, in the interest of justice. 13. The petitioners have taken up a contention that the intention of the bank is to drag on the proceedings. By delaying the proceedings, no benefit would accrue to the bank. In fact, the bank also wanted an early disposal of the matter. In case of denial of opportunity to mark the documents, in spite of obtaining certified copies from the Criminal Court, substantial prejudice would be caused to the bank. In any case, by re-opening the matter and allowing the bank to mark the documents, the learned Trial Judge rendered substantial justice. I, therefore, do not find any reason to take a different view in the matter. 14. In the upshot, I dismiss the Civil Revision Petitions. No costs. Consequently, the connected miscellaneous petition is also dismissed.