At, Debt Recovery Appellate Tribunal At Mumbai
By, S. S. PARKAR (CHAIRPERSON)
The Judgment was delivered by : HON'BLE JUSTICE S. S. PARKAR (CHAIRPERSON)
1. This appeal has been filed impugning order dated 12th September, 2006 passed by the Presiding Officer of D.R.T.-I, Mumbai rejecting application filed by the appellant company to lead secondary evidence on the basis of notarized copies of the original documents tendered alongwith appellant company's affidavit of evidence in support of its claim.
2. Case of the appellant is that the documents mentioned in the application dated 24th January, 2006 which were kept in the appellant's factory were destroyed due to flood which took place in Mumbai on 26th July, 2005 because of heavy rainfall. Therefore, the appellant company was unable to produce original documents relied on by the company and so in order to prove its case it sought to file notarized copies of all the original documents relied on by the appellant company. That application was rejected by the Presiding Officer on the ground that the notary had not mentioned whether the notarized copies were attested and prepared on the basis of originals or from true copies of the originals. In my opinion that observation was not unwarranted because according to the appellant company the original documents were destroyed on 26th July, 2005 and the copies were certified and attested by the notary on 24th January, 2006 i.e. much subsequent to the alleged destruction of the original documents and also because the notary has not mentioned whether he had attested those copies on the basis of the originals or the true copies of the original documents.
3. On behalf of the appellant company reliance is placed on the judgment of the single Judge of the Punjab and Haryana High Court in the case of Punjab National Bank v. Parmesh Knitting Works, reported in A.I.R. 1986 P&H. 214, in which it is observed that there is no prescribed or established form of nature and manner of authentication by a Notary Public. Reliance is also placed on the provisions of The Notaries Rules, 1956 and in particular Rule 11 (8) thereof which inter alia states that the notary may draw, attest or certify documents under his official seal including conveyance of properties and, therefore, it is argued that the Presiding Officer has erred in observing that the notary had not mentioned whether the copies were attested or prepared on the basis of the originals or the true copies of the originals. I do not think that the judgment of the Punjab and Haryana High Court cited by the advocate for the appellant company will come to rescue of the appellant company. The prayer in the application is that the appellant company wanted to lead secondary evidence on the basis of notarized true copies of the original documents tendered alongwith the affidavit of evidence of the defendant. In other words it is the case of the appellant company that it wanted to produce by way of secondary evidence notarized true copies of the original documents. The copies were notarized as "true copies" by the notary on 24th January, 2006 i.e. much after the alleged destruction of the original documents and, therefore, the notary could not have certified the copies as true copies of the original documents. The averments and the prayer made in the application are patently and on the face of it, wrong. To grant the application as prayed would amount to admitting the certified copies in evidence, authenticity of which is in doubt. The learned Presiding Officer, therefore, rightly wanted to ascertain and find out whether the copies were certified as true copies by the notary on the basis of the originals or the true copies because the original documents were destroyed as per the case of the appellant.
4. In order to cover up this lacuna in the application, the learned advocate for the appellant company all the time was pressing and arguing that what the appellant company wanted was a permission to produce the true copies and thereafter those would be proved at the time of leading evidence. This is not correct. The copies of the documents were tendered as evidence as is clear from the prayer Cl. (a) of the application. The appellant company was producing those documents by way of secondary evidence. The appellant has to lead secondary evidence as per Sec. 63 of the . Clause 3 of Sec. 63 provides that secondary evidence means and includes inter alia, "copies made from and compared with the original". Can it be said that the notarized copies sought to be produced by the appellant company were made from and compared with the originals on the basis of the notary certificate who could not have compared the copies certified by him as true copies from the originals as the originals were lost in July, 2005 and the certificate was issued by the notary on 24th January, 2006 i.e. about six months after the alleged destruction of the original documents. The Presiding Officer has not disbelieved the case of the appellant company that it's original documents were destroyed in the flood though before me the learned advocate appearing for the respondent bank has advanced a pertinent argument that the original documents are normally kept in the registered office and not in the factory premises which was flooded. However, the appellant company may have some explanation as to why the documents at the relevant time were kept at the factory premises.
5. In my view the application as made and the notarized true copies as tenderd by way of evidence were rightly rejected by the Presiding Officer. Since the documents were allegedly destroyed before the notary certificate was issued, the Presiding Officer was right in rejecting the application because the notary certificate does not say on the basis of which documents the copies were attested. A certificate cannot be issued by a notary that "notarized copies are true copies" unless the copies are compared with the original documents by the notary. The notary seems to have issued the certificate for asking without comparing the documents before attesting or notarizing them as true copies. The appellant company instead of correcting its mistake and putting its house in order is pursuing the matter in appeal.
In the circumstances, the appeal is dismissed with costs of Rs. 2, 000/-payable to the respondents.