RSA 225/2010 BEFORE THE HON’BLE MR JUSTICE A. C. UPADHYAY I have heard Mr. S. P. Roy, learned counsel appearing for the appellants and Mr. J. C. Gaur, learned counsel representing the respondent. 2. This second appeal is directed against the appellate Court’s jud gment and order dated 20.03.2008 passed by the learned District Judge, Kamrup, G uwahati in Money Appeal No.73 of 2006, whereby the decision of the learned trial Court was affirmed and the appeal preferred by the defendant appellants against the decree of payment of Rs.2,01,650/- with interest @ Rs.18% per annum was di smissed. 3. Facts, leading to filing of this appeal, may be narrated, in bri ef, as follows:- 4. M/s. Subash Trading Company, appellant No.1, is a partnership fi rm and the appellant-defendants No.2, 3 & 4 are the partners of the aforesaid fi rm. The said partnership firm on 09.05.1996 approached the plaintiff-respondent and requested him to provide a loan of Rs.1,00,000/- for smooth running of the b usiness of the firm and also agreed to pay the principal amount together with in terest @ Rs.18% per annum. 5. On being promised by the defendant appellant, the plaintiff resp ondent advanced a sum of Rs.1,00,000/- to the appellant. The loan of Rs.1,00,000 /- was paid by a cheque dated 09.05.1996, bearing No.066002 by the plaintiff/res pondent and the cheque was drawn on SBI, Guwahati Branch, in favour of the appel lant No.1. Immediately on receipt of the cheque, the defendant/appellant acknowl edged the receipt of the aforesaid loan, and also made part payment of loan thro ugh cheque No.399811 dated 31.03.2000. However, thereafter, the defendant/ appel lant in spite of demand on many occasions did not pay back the amount, which com pelled the plaintiff/respondent to institute a suit for realization of the outst anding dues together with interest thereon. 6. The defendant entered appearance in the suit and contested it by filing joint written statement on various grounds. The defendant further conten ded that no loan was ever obtained by the defendant from the plaintiff. The lear ned trial court, framed the following issues, for just decision of the case: (1) Whether there is cause of action for filing the suit? (2) Whether the suit is maintainable in law and facts? (3) Whether the suit is barred by limitation? (4) Whether the defendants had taken loan of Rs.1,00,000/- from the plaintiff vide cheque No.066002 dated 7.5.2000 drawn in f avour of the defendant No.1? (5) Whether the defendant agreed to pay interest @18% p.a. on the principal amount? (6) Whether the plaintiff is entitled to recover Rs.2,01,650/- with interest @18% p.a. till realization of the amount? (7) Whether the plaintiff is entitled to decree as prayed for? 7. After due appraisal of the materials on records, learned trial C ourt decreed the suit , for recovery of a sum of Rs.2,01,650/- with interest @18 % p.a. The defendant/appellant preferred an appeal before the lower appellate Co urt. The lower appellate Court after threadbare discussions of the issues raised in the suit dismissed the appeal. However, modified the rate of interest from 1 8% to 6% per annum from the date of filing of the suit till realization of the d ecreetal dues. This second appeal has been instituted against the judgment and d ecree passed by the learned lower appellate Court of District Judge, Kamrup,Guw ahati on the following substantial question of law : Whether the judgment and decree dated 20.3.2008 passed in Money Appeal No.73 of 2006 is perverse? 8. Mr. SP Roy, learned counsel appearing on behalf of the appellant s raising question regarding the admissibility of the documents filed with the evidence in affidavit of the plaintiff/respondent contended that at the time of adducing the plaintiff’s evidence on affidavit only all the necessary documents were submitted in the Court for the first time, at the time of hearing, without obtaining leave of the trial Court in violation of the provisions of Rule 7 Orde r 14(3) of the Code of Civil Procedure, 1908. Learned counsel for the appellant has pointed out that neither the trial court nor the appellate court considered the issue regarding submission of the documents on the date of recording of cros s-examination of the plaintiff’s witness. 9. Learned counsel for the appellants further contended that issuance of c heque and the receipt of the cheque thereof and the transfer of the cheque amoun t in the account of the appellants was not proved by the plaintiff/respondent. 10. However, learned counsel for the respondent by drawing the atten tion of the Court to the original case records has clarified that all the docume nts except Exbt. 1, were submitted in the Court together at the time of filing o f the suit and definitely before the settlement of the issues the suit ,in ter ms of the provisions of Code of Civil Procedure. 11. Apparently, on perusal of the original case records, it appears that on 06.09.2002, all the original documents relating to the case were submitt ed by the plaintiff to respondent, well before the settlement of the issues in t he Court, except Exbt.1, the confirmation letter, issued to plaintiff/respondent , by the State Bank of India, regarding payment of cheque No.066002 dated 07.05. 1996 for a sum of Rs.1,00,000/- in the account of the appellant, M/S Subhash Tra ding Company. However, this document, Exbt.I, was submitted later on by the plai ntiff at the time of adducing evidence since the document was received after the settlement of the issues. However, for submission of the said letter with the r ecord and exhibiting it as Exhibit 1, no express permission was taken from the C ourt in terms of Order 7 Rule 14(3) of the Code of Civil Procedure. Facts remain s that the defendant admittedly did not ask for production of the documents for his perusal in terms of the provisions of Order 11, Rule 15 of the Code of Civil Procedure. However, except exhibit-1 all other documents were submitted with th e case record well in time. 12. Learned counsel for the appellant by referring to the provisions of Order VII Rule 14 of Code of Civil Procedure, relying on a decision of this Court reported in 1992(1) GLJ 207: Saingura vs. F. Sapa & Ors. submitted that th e document having been placed on record later during the hearing of the suit, are not admissible .The relevant extract of the decisions in Saingura reads as follows: 10. Under sub-rule (1) of Rule 14 of Order VII, of CPC the plaintiff is req uired to file all the documents on which he sues along with the plaint, and he i s also required to file a list of documents which he relies on (whether in his possession or power or not). From the plain reading of this sub rules of Rule 14 indicates that there are two types of documents, i.e. the documents on which th e plaintiff sues; these are required to be filed along with the plaint, and the documents on which the plaintiff relies in support of his claim, he is required to give a list of such documents. The effect of non-compliance of sub-rule (1) a nd (2) of Rule 14 of Order VII is that such documents shall not be received in e vidence without the leave of the Court under Rule 18 of the said Order. Therefor e, Rule 18 is a penal provision for non-compliance of Order VII Rule 14. The obj ect of Rule 18 is to prevent suspicious and fraudulent document or documents whi ch is not genuine or doubtful about the existence at the time of filing, and, th erefore, duty casts on the Court to see whether leave should be granted or not. While granting leave, it is the duty of the Court to see the document sought to be evidenced as requires of Rule 14, is a genuine document or not. If the docum ent appears to be a genuine document, the Court should always be lenient toward granting leave. 11. Under Order 13 Rule 1 (2), the parties should produce documentary eviden ce of any description in their power and possession at and before settlement of issues. If the documents are not filed at that time, the Court shall normally no t receive such documents at a later stage unless good cause is shown. Of any goo d cause is shown, under sub-rule (2) of Rule 1 of Order XIII empowers the Court to accept such document. 13. Learned counsel for the appellants has also referred to the deci sion of the Hon’ble Supreme Court, reported in 2010 AIR SCW 1900 : LIC of India & Anr. Vs. Ram Pal Singh Bisen, to contend that mere marking of a document as an Exhibit would not mean that the document has been proved in accordance with la w, wherein, their Lordships observed as follows: 25. No doubt, it is true that failure to prove the defence does not amount to a n admission, nor does it reverse or discharge the burden of proof of the plainti ff but still the duty cast on the defendants has to be discharged by adducing or al evidence, which the appellants have miserably failed to do. Appellants, even though a defaulting party, committed breach and failed to carry out a legislativ e impastation, then had still to convince this Court as to what was the just cau se for doing the same. Thus looking to the matter from any angle, it is fully es tablished that appellants had miserably failed to prove and establish their defe nce in the case. 26. We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document d oes not dispense with its proof, which is required to be done in accordance with law. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plainti ff had admitted those documents. Even otherwise, his admission of those document s cannot carry the case of the appellants any further and much to the prejudice of the respondent. 14. Learned counsel for the appellants has further referred to the d ecision of the Hon’ble Supreme Court, reported in 2010 AIR SCW 5200 : Shalimar C hemical Works Ltd. Vs. Surendra Oil & Dal Mills(Refineries) & Ors.. The relevant extract of the observations made by the Hon’ble Supreme Court in Shalimar Chemi cal Works Ltd(supra) reads as follows: 7. Mr. P. P. Rao, learned senior advocate, appearing for the appellant assai led both, the procedure adopted by the trial court and the view taken by the div ision bench of the High Court, on the basis of the provisions of Order 41, Rule 27. Mr. Rao submitted that if the trial court was of the view that the Xerox cop ies of the documents in question were not admissible in evidence, it ought to ha ve returned the copies at the time of their submission. In that event, the appel lant would have substituted them by the original registration certificates and t hat would have been the end of the matter. But once the Xerox copies submitted b y the appellant were marked as exhibits, it had no means to know that while pron ouncing the judgment, the court would keep those documents out of consideration, thus, causing great prejudice to the appellant. Mr. Rao submitted that the prov ision of Order 13, Rule 4 of CPC provides for every document admitted in evidenc e in the suit being endorsed by or on behalf of the court, and the endorsement s igned or initialed by the Judge amounts to admission of the document in evidence . An objection to the admissibility of the document can be raised before such en dorsement is made and the court is obliged to form its opinion on the question o f admissibility and express the same on which opinion would depend, the document being endorsed admitted or not admitted in evidence. In support of the submissi on he relied upon a decision of this Court in R.V.E. Venkatachala Gounder v. Aru lmigu Viswesaraswami & V.P.Temple and Another, 2003(8) SCC 752: (2003 AIR SCW 53 16) (paragraph 20) where it was observed as follows: 20 & & & The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sou ght to be proved is itself inadmissible in evidence; and (ii) where the objectio n does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as ’an exhibit’, an o bjection as to its admissibility is not excluded and is available to be raised e ven at a later stage or even in appeal or revision. In the latter case, the obje ction should be taken when the evidence is tendered and once the document has be en admitted in evidence and marked as an exhibit, the objection that it should n ot have been admitted in evidence or that the mode adopted for proving the docum ent is irregular cannot be allowed to be raised at any stage subsequent to the m arking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate poi nt of time, would have enabled the party tendering the evidence to cure the defe ct and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the par ty tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enable s the Court to apply its mind and pronounce its decision on the question of admi ssibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evi dence, the opportunity of seeking indulgence of the Court for permitting a regul ar mode or method of proof and thereby removing the objection raised by the oppo site party, is available to the party leading the evidence. Such practice and pr ocedure is fair to both the parties. Out of the two types of objections, referre d to hereinabove in the latter case, failure to raise a prompt and timely object ion amounts to waiver of the necessity for insisting on formal proof of a docume nt, the document itself which is sought to be proved being admissible in evidenc e. In the first case, acquiescence would be no bar to raising the objection in a superior Court. 12. On a careful consideration of the whole matter, we feel that serious mis takes were committed in the case at all stages. The trial court should not have marked as exhibits the Xerox copies of the certificates of registration of tra de mark in face of the objection raised by the defendants. It should have declin ed to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievanc e in appeal about the way the trial proceeded. The learned single Judge rightly allowed the appellant’s plea for production of the original certificates of reg istration of trade mark as additional evidence because that was simply in the in terest of justice and there was sufficient statutory basis for that under clause (b) of Order 41, Rule 27. But then the single Judge seriously erred in proceedi ng simultaneously to allow the appeal and not giving the defendants/ respondents an opportunity to lead evidence in rebuttal of the documents taken in as additi onal evidence. The division bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible un der Order 41, Rule 27. As shown above the additional documents produced by the a ppellant were liable to be taken on record as provided under Order 41, Rule 27 ( b) in the interest of justice. But it was certainly right in holding that the wa y the learned single Judge disposed of the appeal caused serious prejudice to th e defendants/respondents. In the facts and circumstances of the case, therefore, the proper course for the division bench was to set aside the order of the lear ned single Judge without disturbing it insofar as it took the originals of the c ertificates of registration produced by the appellant on record and to remand th e matter to give opportunity to defendants/respondents to produce evidence in re buttal if they so desired. We, accordingly, proceed to do so. The judgment and o rder dated April 25, 2003 passed by the division bench is set aside and the matt er is remitted to the learned single Judge to proceed in the appeal from the sta ge the origi9nal of the registration certificates were taken on record as additi onal evidence. The learned single Judge may allow the defendants/respondents to lead any rebuttal evidence or make a limited remand as provided under Order 41, Rule 28. 14. Learned counsel for the plaintiff/respondent, fairly admitted th at the aforesaid document Exhibit-1 was exhibited without obtaining leave of the Court. However, learned counsel for the plaintiff/respondent pointed out that e ven if the said document Exhibit-1 is excluded from the evidence on record, the plaintiff could still prove sufficiently with reasonable and cogent evidence tha t the defendant took a loan of Rs.1,00,000/- from the plaintiff and did not make the repayment of the loan amount even in spite of demand. Apparently, the con firmation letter Exhibit-2, issued by the respondent/appellant to the plaintiff/ respondent clearly reflects that the defendant/ appellants received cheque beari ng No.066002 of SBI, Guwahati on 09.05.1996,issued by the plaintiff/respondent , for a sum of Rs.1,00,000/-, and, thereafter, series of documents from Exbt. 3, 4, 5 and 6, sufficiently established that the cheque was received by the defend ant/appellant from the plaintiff/ respondent. However, defendant/appellant did n ot come forward to deny the amount so tendered through the cheque aforesaid wa s not transferred to his account. However, it is not the stand of the defendant/ appellant that no amount of money passed on to their account, even in spite of issuance of cheque by the plaintiff. Therefore, apparently in the circumstances, the exhibited documents 2 to 6 and evidence on record reveal that the defendant /appellant took the loan from the plaintiff/respondent but failed to repay the loan amount. 15. Admittedly, the document Exbt 1, which is not filed before settl ement of issues, cannot be allowed to be admitted in evidence without the leave of the Court. Any material document relied on by the parties, is required to be filed before the settlement of the issues, so that other side is not given a sur prise later on during the hearing of the case. Any such document which is discov ered later on and is found necessary to be placed on record for just decision of the case, either by the plaintiff or by the defendant, such a document may perm itted to be placed on record only with the leave of the Court, in terms of the p rovisions of Order VII Rule 14(3) Code of Civil Procedure. Since Exhibit-1 was a dmittedly not filed by taking leave of the court the said document cannot be sai d to be admissible in evidence. 16. Now the question which arises for consideration is whether Exhib it 1 is the heart and soul of the suit and the entire case of the plaintiff /res pondent hinges on this document alone? The answer is emphatic No’. Fact remai ns that even if the document Exhibit-1, which has been exhibited and proved, is ignored, the remaining set of admissible documents on behalf of the plaintiff/ respondent, sufficiently and clearly established the fact of advancing loan by t he plaintiff to the defendant and consequent non payment of the loan by the d efendant. Both the Courts below clearly analyzed the evidence on record and the n to come to a finding that the defendant appellant did not pay back the loan am ount to the plaintiff/respondent. 17. Judgment of lower Court cannot be interfered unless some irregul arities appeared. In Shri Hafazat Hussain Vs. Abdul Majeed, reported in JT 2001 (6) SC 591, the Apex Court observed that it has been repeatedly pointed out by this Court that concurrent findings recorded by the trial court as well as the f irst appellate court on proper appreciation of the materials on record should no t be disturbed by the High Court while exercising jurisdiction in second appeal . But at the same time, it is not an absolute rule to be applied universally and invariably some exceptions to the same also were often indicated with equal imp ortance by the Apex Court. However, in the instant case this court did not notic e aberration or infirmity in the concurrent finding of fact by the trial Court a s well as the lower appellate Court warranting interference in second appeal. 18. In view of the above, in due consideration of the facts and circ umstances discussed above, I am of the considered view that there is no merit in the appeal and the substantial question of law framed in this second appeal is answered in the negative, against the appellant. Accordingly, the second appeal stands dismissed. Send back the lower Court records. The stay order, if any, stands vacated.