- 1 - NC: 2025:KHC:3292 WP No. 27332 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 27332 OF 2017 (GM-CPC) BETWEEN: M/S. MOTILAL BANARASIDASS PUBLISHERS PVT LTD A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT 1956 AND EXISTING UNDER THE PROVISIONS OF THE COMPANIES ACT 2013, HAVING ITS REGISTERED OFFICE AT A-44, NARAINA INDUSTRIAL AREA PHASE-I, NEW DELHI AND BRANCH OFFICE AT 236, 9TH MAIN III BLOCK, JAYANAGAR, BANGALORE - 560 011 REPRESENTED BY ITS DIRECTOR MR. RAVINDRA PRAKASH JAIN. …PETITIONER (BY SRI. KAMALACHARAN S.R., ADVOCATE) AND: STANDARD CHARTERED BANK (FORMERLY KNOWN AS ANZ GRINDLAYS BANK) HAVING ITS REGIONAL OFFICE AT CONNAUGHT CIRCUS P.O.BOX 317, NEW DELHI - 110 001 ANDA BRANCH OFFICE AT ARYA SAMAJ ROAD KAROL BAGH NEW DELHI - 110 005. …RESPONDENT (VIDE ORDER DATED 2.01.2025) Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3292 WP No. 27332 of 2017 THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN O.S.NO.100/2012 ON THE FILE OF THE XLIV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the order passed on application filed under Section 65 of Indian Evidence Act in O.S.No.100/2012 dated 21.03.2017, by the XLIV Addl. City Civil and Sessions Judge, Bengaluru, the plaintiff is before this Court. 2. The suit is filed to pass a decree for an amount of Rs.20,53,134/- in favour of the plaintiff and to pass decree of permanent and mandatory injunction against the defendant from raising any demand against the plaintiff. It is the specific case of the plaintiff that he had a current account with the erstwhile ANZ Grindlays Bank and the said bank merged with the defendant bank in the year 2000. In the month of September and October, the defendant appointed merchant - 3 - NC: 2025:KHC:3292 WP No. 27332 of 2017 establishments for accepting Visa and Master Credit Cards and the plaintiff is appointed as a member of the Merchant establishment for accepting the Visa and Master Credit Cards and other nominated agencies to its customers and thereafter, a merchant agreement was executed on or about 8th June 2001 and the plaintiff has taken different contentions and how he is entitled for the recovery of money. In the written statement, the defendant has also acknowledged the fact that the plaintiff was one of such merchants of the bank, who was appointed in terms and in accordance with the agreement dated 8th June, 2001 executed between the plaintiff and the bank. The defendant had also stated about the supplement agreement entered on the same date i.e., 8th June 2001. Thereafter, the plaintiff had filed I.A.No.1 under Order 11 Rule 14 of CPC seeking necessary order to the defendant bank to produce the agreement dated 08.06.2001 and supplementary agreement dated 08.06.2001. The Trial Court by order dated 09.06.2016 had allowed the said application directing the bank to adduce the original agreement and the original supplementary agreement both by the next date of hearing. - 4 - NC: 2025:KHC:3292 WP No. 27332 of 2017 3. While passing such an order, the Trial Court observed that the defendant bank is fair enough to admit that the documents sought for are very much in its possession, but the defendant bank has no locus standi to say as to whether this documents sought for are relevant or not at this particular stage. Thereafter, a memo dated 28.10.2016, is filed stating that the documents are not traceable, in future if the documents are traced then they will place the same before the Court. At that juncture, the petitioner has come up with an application under Section 65 of the Evidence Act to mark the photocopies of Mercantile agreement dated 08.06.2001 and supplementary Mercantile Agreement dated 08.06.2001 during the course of trial that came to be dismissed by the Trial Court by way of this impugned order. The Trial Court further observed that the proposed documents are nothing but the photocopies and as such, the same do not fall within the purview of the definition of secondary evidence as defined under Section 63 of Indian Evidence Act and consequently, the proposed documents cannot in the eye of law be treated as secondary evidence. Irrespective of the memo filed by the defendant, the documents being the photocopies, no leave can - 5 - NC: 2025:KHC:3292 WP No. 27332 of 2017 be granted as it do not fall under Section 63 of the Indian Evidence Act and accordingly, the Trial Court had dismissed the application and held that the plaintiff company is at liberty to pose questions upon the undisputed documents of mercantile agreement and supplementary agreement as narrated by it in the application. 4. Learned counsel appearing for the petitioner submits that the documents are undisputed and it is also initially accepted that those documents are in possession of the defendant and they have also sought time to produce the documents and later, they have come up with a stand that they are not traceable and once they are traced it will be placed. It is submitted that those two documents are crucial for the case of the plaintiff. Learned counsel has drawn the attention of the Court to the written statement and the pleadings and the order passed earlier and submits that when there is no dispute about the existence of the documents, when they admit that there is such an agreement, the Trial Court ought to have permitted the plaintiff to mark the documents. Unless and until such documents are on record it is not possible for the plaintiff to put forth any questions to the defendant. He has drawn the - 6 - NC: 2025:KHC:3292 WP No. 27332 of 2017 attention of the Court to Section 63 of the Evidence Act. He submits that secondary evidence means and includes, “2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; 3) Copies made from or compared with the original.” Learned counsel appearing for the petitioner, relying on Section 65(2) and (3) of the Indian Evidence Act, submits that when the defendant, who is legally bound to produce it, even after an application filed by him, even after an order is passed by the Court, has failed to produce the same and when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by its representatives in interest. Even in this case both Section 65(2) and (3) are satisfied and the Trial Court ought to have permitted him to mark the documents as secondary evidence. It is submitted that it falls under both Section 65(2) and (3) of the Indian Evidence Act. In the interest of justice, the Trial court ought to have allowed the application and the order is not a well considered one. - 7 - NC: 2025:KHC:3292 WP No. 27332 of 2017 5. This Court had permitted the petitioner to take out notice by way of substituted service and accordingly, he has taken the notice and this Court by order dated 21.01.2025 had held that the notice to the defendant/respondent is sufficient. 6. Having heard the learned counsels for the petitioner, perused the material on record. The plaintiff/petitioner had filed the suit for recovery of money and he is relying on a agreement dated 08.06.2001 and also a supplementary agreement dated 08.06.2001, the defendant also do not deny the same. Then, an application filed by him under Order 11 Rule 14 of CPC, came to be allowed and in spite of the same, though it was ordered and defendants were directed to place to produce the document, in spite of that they have sought for time and finally, filed a memo stating that it is not traceable. Then the plaintiff had come up with this application under Section 65 of the Evidence Act to lead the secondary evidence. The Trial Court while dismissing the application, had observed that the plaintiff is at liberty to pose questions upon undisputed documents of the mercantile agreement and supplementary mercantile agreement. In the facts and circumstances of the case, where these documents - 8 - NC: 2025:KHC:3292 WP No. 27332 of 2017 are admitted in spite of an order by the Trial Court when the defendant is not able to produce the document, unless the plaintiff is permitted to lead the secondary evidence, it would cause lot of hardship to the plaintiff. In the particular facts and circumstances of this case, where documents are undisputed and even the photocopy of the same is also not disputed by the defendant. Hence, this Court is passing the following: ORDER i. The impugned order passed on application filed under Section 65 of Indian Evidence Act in O.S.No.100/2012 dated 21.03.2017, by the XLIV Addl. City Civil and Sessions Judge, Bengaluru is set aside and the I.A. is allowed by permitting the plaintiff/petitioner to lead the secondary evidence. ii. As this is the suit originally of the year 2005, renumbered in the year 2012, the same shall be disposed off within a period of one year from the date of receipt of copy of the order. - 9 - NC: 2025:KHC:3292 WP No. 27332 of 2017 iii. Accordingly, the writ petition is allowed. iv. All I.As., in the writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE BN List No.: 1 Sl No.: 29