:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SUIT SUIT SUIT NO. 669 OF 1988 NO. 669 OF 1988 NO. 669 OF 1988 M/s. Jyabar Engineering Works. ... Plaintiffs. V/s. M/s. Special Construction Corporation Proprietor of M/s. Foundation Corporation of India Pvt. Ltd. ... Defendants. Mr. T. Bhavsar i/b. Vinod Mistry & Co. for the Plaintiffs. None for the Defendants. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 17TH 17TH 17TH JANUARY 2009. JANUARY 2009. JANUARY 2009. P.C. P.C. P.C. : : : . Mr. Vinod Mistry has filed his personal affidavit stating therein that partner of the Plaintiffs had come to his Office with the original documents some time in January 1988. The documents were handed over to Mr. Mistry and the Plaintiffs’ partner stated that the Plaintiffs desire to institute this Suit. 2. In para 2 of the affidavit which has been signed and affirmed by Mr. Mistry, it is stated that the original documents were kept with him in his office. That time Mr. Mistry had his office at Rajabahadur Mansion. 3. It is stated that a fire took place on 23rd September 1994 in the building Rajabahadur Mansion where :2: the Plaintiffs’ Advocate’s Office is situated and all records, documents and files were destroyed in the fire. 4. It is, in these circumstances, that the original documents cannot be produced is the affidavit of the Advocate. 5. The Plaintiffs have got Writ of Summons duly issued from the the Office and it is served on the Defendants. The Defendants have filed appearance of Mr. G. Vishwanath but he appeared before me and stated that the papers are taken away by the Defendants long time back and he has no instructions. However, no written statement has been filed by the Defendants. 6. In these circumstances and even, otherwise, I have satisfied myself regarding compliance with the stipulations laid down in Section 65 of the Indian Evidence Act. I am satisfied that the original documents have been destroyed and therefore, the case comes within the purview of Section 65(c) of the Indian Evidence Act 1872. Necessarily, therefore, secondary evidence of the contents of the documents is admissible. 7. The Plaintiffs have filed this Suit claiming a decree in the sum of Rs.2,62,318.82 ps. It is stated that the goods were sold and supplied so also the job work was done by the Plaintiffs in Bombay. The amounts due to the :3: Plaintiffs were payable by the Defendants in Bombay. The Defendants carrying on business at Bombay and therefore, this Court has jurisdiction to entertain and try the Suit. It is further stated that part payment has been made on 18th February 1985 by the Defendants and therefore, the Suit to recover the balance sum filed on 17th February 1988 is within time and not barred by limitation. 8. A compilation of documents has been tendered, wherein a copy of the letter dated 28th February 1985 which has been addressed by the Managing Director of the Defendant. This letter shows that the goods have been duly received but a dispute is raised with regard to the rates quoted by the Plaintiffs. However, this letter has been replied on 18th March 1985. Further, the Statement of Accounts of the Defendants as maintained by the Plaintiffs, in the ordinary and regular course of business, was duly forwarded and a demand was raised on 1st April 1985, wherein details of the goods supplied and the job work done have been set out. This letter has been duly replied on 18th April 1985 and once again the Defendants raised the issue of rates being very high. The Plaintiffs refuted the contents of the letter dated 19th August 1985 but the Defendants have reiterated their stand on 30th August 1985. It is, in these circumstances, that Advocate’s Notice was sent and it is stated in the plaint that it is duly received. :4: 9. In the light of the affidavit filed by the Plaintiff’s Advocate, copies of these documents as compiled in a compilation are taken on record and marked ‘X’ for identification. 10. There are no denials of the plaint averments nor have the Defendants proved their case as purportedly set out in the correspondence. They have not come forward to dispute their liability in so far as the amounts claimed under the Books of the Account. On the other hand, the part payment evidences that the transaction between the Plaintiffs and the Defendants is duly proved. 11. In the light of the above, there is no impediment in law to pass a decree as prayed in favour of the Plaintiffs and against the Defendants. Accordingly, there will be a decree as prayed. The Advocates costs to be computed as per rules. Affidavit of the Advocate affirmed on 16th January 2009, is taken on record. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)