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Himachal Pradesh High Court · body

2016 DIGILAW 447 (HP)

Himachal Pradesh State Co-operative Bank Limited v. National Insurance Company Limited

2016-04-08

P.S.RANA

body2016
ORDER : 1. Application filed under Order XVIII Rule 3-A read with Section 151 CPC by plaintiff to appear as his own witness at the later stage after examination of other witnesses in Civil Suit No. 4086 of 2013 title H.P. State Co-operative Bank Ltd. vs. National Insurance Company Ltd. It is pleaded that suit is entirely based on record and record would be proved in accordance with law through witnesses mentioned at Sr. No. 1 to 6. It is pleaded that examination of witnesses mentioned at Sr. No. 1 to 6 prior to plaintiff is essential in present case. Prayer for acceptance of application filed under Order XVIII Rule 3-A CPC sought. 2. Per contra response filed on behalf of non-applicants pleaded therein that as per Order XVIII Rule 3-A CPC plaintiff is supposed to appear before other witnesses in civil suit. It is pleaded that examination of a party before other witnesses is a rule and examination of party after witnesses is an exception. It is pleaded that plaintiff intends to fill up the lacuna in present case and same is not permissible under law. It is pleaded that applicant did not disclose any cogent reason for examination of plaintiff at the later stage. Prayer for dismissal of application sought. 3. Applicant also filed rejoinder and re-asserted the allegations mentioned in application. 4. Court heard learned Advocate appearing on behalf of the applicant and learned Advocate appearing on behalf of the non-applicants and also perused the entire record carefully. 5. Following points arise for determination in present bail application:- 1. Whether application filed under Order XVIII Rule 3-A read with Section 151 CPC is liable to be accepted as mentioned in memorandum of grounds of application? 2. Final Order. Findings on Point No. 1 with reasons 6. Submission of learned Advocate appearing on behalf of applicant that applicant/plaintiff be permitted to appear as a witness at the later stage after examination of other witnesses is rejected being devoid of any force for the reasons hereinafter mentioned. Plaintiff H.P. State Co-operative Bank Ltd. filed civil suit for recovery of Rs. 25438311/- (Rupees two crores fifty four lacs thirity eight thousand three hundred eleven only) against Insurance Company with future interest at the rate of 18% per annum from the date of filing of suit till recovery of entire amount on the basis of insurance policies. Plaintiff H.P. State Co-operative Bank Ltd. filed civil suit for recovery of Rs. 25438311/- (Rupees two crores fifty four lacs thirity eight thousand three hundred eleven only) against Insurance Company with future interest at the rate of 18% per annum from the date of filing of suit till recovery of entire amount on the basis of insurance policies. It is prima facie proved on record that plaintiff purchased Banker’s Indemnity Policy No. 2003/421101/46/03/7700001 dated 1.4.2003 w.e.f. 1.4.2003 to 31.3.2004 and also purchased Banker’s Indemnity policy No. 2006/421101/46/06/7700000001 dated 3.4.2006 for the period of 3.4.2006 to 2.4.2007 and also purchased Banker’s Indemnity policy 2007/421101/46/07/7700000001 dated 30.3.2007 for the period of 1.4.2007 to 31.3.2008. It is pleaded that embezzlements/frauds/misappropriations/falsfications were reported by internal auditors. It is pleaded that FIR was also lodged against Shri Visheshar Lal Sanartu the then Incharge of Branch office as delinquent officer vide FIRs Nos. 81 and 82 dated 14.6.2008 at police station Rampur under Sections 420, 418, 408, 409, 463, 464, 378 IPC read with Section 120-B IPC. It is pleaded that despite legal notice National Insurance Company did not indemnify the plaintiff bank. 7. Non applicants assert that plaintiff is estopped by his own act conduct and acquiescance from filing present suit. It is pleaded that on similar cause of action plaintiff has initiated proceedings under Section 69 of H.P. Co-operative Societies Act against delinquent officer and present suit is pre-mature. It is pleaded that suit of plaintiff is barred by limitation. It is pleaded that plaintiff did not adhere to terms and conditions of Banker’s Indemnity Policy and further pleaded that plaintiff bank failed to get branch audited annually by bank authorities or by statutory auditors. It is pleaded that plaintiff has no enforceable cause of action. It is pleaded that plaintiff did not approach Court with clean hands and suppressed material facts from Court. Prayer for dismissal of application sought. 8. Twelve issues framed on 4.11.2014. Court is of the opinion that plaintiff can be permitted to examine at the later stage after examination of other witnesses only on following grounds. (1) Medical grounds. (2) Out of station ground due to compelling reasons. (3) Absence of plaintiff due to death of relative. (4) Absence of plaintiff due to marriage ceremony of daughter or son. Court is of the opinion that plaintiff can be permitted to examine at the later stage after examination of other witnesses only on following grounds. (1) Medical grounds. (2) Out of station ground due to compelling reasons. (3) Absence of plaintiff due to death of relative. (4) Absence of plaintiff due to marriage ceremony of daughter or son. It is well settled law that examination of plaintiff in civil suit prior to other witnesses is a rule and deviation is exception. Reasons mentioned in application by applicant that documents placed on record would be proved and till the documents placed on record would not be proved plaintiff be exempted to appear as witness before other witnesses is not judicial reasonable ground because as per Indian Evidence Act documents should be proved as per primary evidence or secondary evidence as per Chapter V Sections 61, 62 and 63 of Indian Evidence Act 1872. It is well settled law that contents of documents are proved through marginal witnesses who are signatories to documents. It is held that there are no sufficient reasons mentioned in application which permit the plaintiff to record his statement at the later stage. It is well settled law that as per law plaintiff is permitted to appear in witness box twice in civil suit i.e. (1) In affirmative evidence. (2) In rebuttal evidence. In view of the fact that order XVIII Rule 3-A CPC is a rule and deviation is exception it is held that plaintiff intends to fill up lacuna in civil suit by way of examining himself as witness at the later stage. It is well settled law that plaintiff cannot be permitted to fill up lacuna in civil suit by way of appearing at later stage subsequent to other witnesses. Present suit is filed by H.P. State Co-operative Bank Ltd. having its Head Office at The Mall Shimla through its Managing Director Shri Amit Kashyap and it is prima facie proved on record that Shri Amit Kashyap is working at The Mall Shimla which is nearby the premises of H.P. High Court and Shri Amit Kashyap can appear in witness box easily. It is held that there are no reasonable judicial grounds to allow application. Ayyasami Gounder and Others vs. T.S. Palanisami Grounder, AIR 1980 Madras 237and N.C. Kaladharan vs. Kamaleshwaran and Others, (2002) 10 SCC 184 . It is held that there are no reasonable judicial grounds to allow application. Ayyasami Gounder and Others vs. T.S. Palanisami Grounder, AIR 1980 Madras 237and N.C. Kaladharan vs. Kamaleshwaran and Others, (2002) 10 SCC 184 . In view of above stated facts point No. 1 is answered in negative. Point No. 2 (Final order) 9. In view of my findings on point No. 1 application filed under Order XVIII Rule 3-A CPC is rejected. Observations will not effect the merits of case in any manner and will strictly confine for the disposal of OMP No. 380 of 2015. OMP No. 380 of 2015 stands disposed of.