1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO.11447 OF 2021 (GM-CPC) BETWEEN: M/S. CICO TECHNOLOGIES LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS BRANCH OFFICE AT NO.22/1, 7TH CROSS, AZAD NAGAR, NEAR T.R. MILL, CHAMARAJPET, BANGALORE-560 018. NOW AT ITS REGIONAL OFFICE A 12-B, DIRAVIUM NAGAR, ARCOT ROAD, PORUR, CHENNAI-600 116. REPRESENTED BY ITS ASSISTANT GENERAL MANAGER(SOUTH) MR. S.R.NANDA KUMAR ...PETITIONER (BY SRI. M.C.THIMMAIAH FOR SRI JASHNA HUDSON SAMUEL, ADV.) AND: M/S. STR AGENCIES A PROPRIETARY CONCERN, NO.31, 2ND MAIN ROAD, 4TH CROSS, CHAMARAJPET, BANGALORE-560 018 REPRESENTED BY ITS PROPRIETOR MR. SENBAGA RAJAN. …RESPONDENT (SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, 1908, PRAYING TO ISSUE A WRIT/ORDER OR DIRECTION IN THE NATURE OF CERTIORARI TO SET ASIDE THE 2 ORDERS DATED 14.01.2020, VIDE ANNEXURE-E, PASSED BY THE LEARNED XIV ADDITIONAL CITY CIVIL JUDGE AT BANGALORE IN O.S.NO.3434 OF 2014 AND CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER SECTION 63 AND 65 OF THE INDIAN EVIDENCE ACT, 1872 AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 20.08.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER 1. This writ petition has been filed seeking to set aside the order dated 14.01.2020 passed in O.S.No.3434 of 2014 on the file of the XIV Additional City Civil Judge, Bangaluru. 2. The petitioner herein is the plaintiff and the respondent herein is the defendant before the Trial Court. 3. Brief facts of the case are as under: The petitioner is a company engaged in the business of manufacturing the construction chemicals, including rehabilitation and repair compounds and such other business as mentioned in the main object of its Memorandum of Association. The respondent is the dealer/distributor in the products of the petitioner company. 3 4. The petitioner had supplied goods to the respondent under invoices. The respondent, despite receipt of the goods and invoices, had failed to make payment of various invoices totalling to a sum of Rs.8,84,301/-. Thus, the petitioner filed a suit for recovery of the invoice amount along with interest, in O.S.No.3434/2014, before the City Civil Judge, Bangaluru. 5. The petitioner had led evidence and had marked several documents as the petitioner’s witness. The copies of invoices were not exhibited, as these exhibits were admitted in the written statement. The petitioner’s witness in his cross examination was asked whether he could produce the invoices for which he answered that he has no objection to produce the same which led to the petitioner filing of an application under Sections 63 and 65 of the Indian Evidence Act, in order to produce copies of the said invoices through secondary evidence. Infact, the original invoices were sent to the respondents and same are in possession of the respondent as admitted in the written statement. The Office copies of the said invoices duly acknowledged by the respondent were available at the petitioner’s branch office in Bengaluru. The original office copies were kept in a separate file at its depot/branch office at Bengaluru. However, in 2018 September, 4 the petitioner had closed its branch office/depot in Bengaluru and continued its operations from its Regional Office at Chennai. In the course of shifting, invoices, office files were misplaced and till now, they are not traceable. The petitioner searched for the file before filing of the application under Sections 63 and 65 of the Indian Evidence Act, but the same could not be found. 6. The respondents filed objections to the said application contending that since the petitioner’s witness had admitted in his cross examination that he has no objection to produce the invoices and it could be presumed that the originals of the said documents are in the custody of the petitioner. 7. Having heard both the sides, the Trial Court rejected the petitioner’s application under Sections 63 and 65 of the Indian Evidence Act. Aggrieved by the same, the petitioner has approached this Court. 8. Heard learned counsel for the petitioner. The respondent remained absent despite service of notice. 9. Learned counsel for the petitioner would contend that on the face of the record, the impugned order lacks application of judicial mind and the Trial Court has proceeded on the presumption that 5 origin of the documents is unknown and therefore, there ought to have been a foundation to lead secondary evidence on these documents which infact is wrong as the foundation of the origin and availability of the documents is not questioned by the respondent and was admitted in the written statement and therefore, the impugned order deserves to be set aside. 10. It was also contended that the Trial Court has proceeded on the premise that admission of the witness in his cross- examination that he has no objection to produce the invoices, would mean that the witness had no objection to produce the original invoices. Infact, petitioner has stated that office copies that were with the petitioner have been lost on oath and therefore, the Trial Court would have allowed the application. 11. It was further contended that the finding of the Trial Court that the petitioner had not filed the carbon copy is irrational, in the present era of computers and printers. It is further contended that the Trial Court, despite relying on the dictum of the Hon’ble Apex Court that the Courts have to take a lenient view and permission ought to be given to lead the secondary evidence, bypassed the principle and rejected the application. 6 12. It was also contended that the Trial Court did not apply the underlining test of burden of proof and discharge of proof. The respondent was the one in possession of original documents and he could have disproved it. 13. By relying upon the judgment in Rakesh Mohindra vs Anita Beri and Others reported in (2016) 16 SCC 483, it was contended that in the absence of primary evidence, documents can be proved by secondary evidence as contemplated under Section 63 of the Indian Evidence Act. 14. It was further contended that the Trial Court has misapplied the judgments reported in (2000) 10 SCC 523 and AIR 2007 SC 1721 and thereby, misapplied the law and ultimately leading to miscarriage of justice and therefore, the impugned order is liable to be set aside. 15. On hearing the submissions of the petitioner’s counsel and, on perusal of the material on record and on the impugned order dated 14.01.2020 it is observed that, learned counsel for the petitioner would contend that the original invoices were sent to the defendant along with the products supplied to him and they are in the custody of the defendant. So, at this stage, it is highly 7 impossible to produce original invoice before the Court. Therefore sought for leading secondary evidence taking into consideration of facts and circumstances the Court has to take a lenient view while considering the application and relied on the decisions of Hon’ble Apex Court reported in (2016) 16 SCC 483. 16. Learned counsel for the defendant would contend that for leading the secondary evidence one has to lay foundation in the pleadings and seek permission in the present case, neither the petitioner / plaintiff laid his evidence foundation for leading the secondary evidence in his pleading nor he has stated anything about missing of primary evidence. So without making the grounds abruptly has filed the present application, which is not maintainable. Moreover, the petitioner / plaintiff has not produced the carbon copies of primary evidence, on the contrary, he has sought permission to lead the secondary evidence on the alleged photocopies stated to be obtained from office copies of the invoices. The reason assigned for non production of copies of invoices that they are misplaced in shifting the branch office. If really such thing would have been occurred it ought to have been stated in the pleadings or evidence of P.W.1. On the other hand the evidence of P.W.1 is contrary to the fact. Therefore, 8 permission cannot be accorded for leading secondary evidence mechanically. As per the principles laid down by the Hon’ble High Court of Karnataka, the photocopies are not the secondary evidence. On this ground also application of the petitioner / plaintiff is not maintainable. Further, in the course of cross examination, P.W.1 has deposed that he is having invoices and has no impediment to produce those invoices. Under such circumstances, the contention of the plaintiff that in view of the principles laid down in the above referred matter, his application is required to be considered does not hold good. The applicant has failed to prove the grounds to consider the prayer sought in the application. 17. In view of the above discussions, I do not find any merit to interfere with the impugned order dated 14.01.2020. Hence, the writ petition is liable to be dismissed. 18. With the above reasons, this Court proceed to pass the following; ORDER (a) The writ petition is dismissed. 9 (b) The order of the Trial Court dated 14.01.2020 passed in O.S.No.3434/2014 is hereby confirmed. (c) The Trial Court is directed to dispose of the main suit within a period of one year from the date of receipt of a certified copy of this order. Sd/- (DR. K.MANMADHA RAO) JUDGE GH Ct-adp