1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3806 OF 2008 Shamsundar L. Baheti .....Petitioner Versus The ICICI Bank Ltd and anr. ...........Respondent Mr.P.G.Sarda, Advocate for petitioner. None for the respondents. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED : 03RD JULY, 2008. P.C. : 1. The petitioner is the original plaintiff in Special Civil Suit No.1554 of 2000 pending in the court of Civil Judge Senior Division, Solapur. Respondent no.1 and 2 are defendant nos.1 and 2 respectively in the suit. By the said suit, the petitioner seeks to recover an amount of Rs.63,494/- from respondent no.1 bank claiming that he had invested an amount with the Bank under Small Saving Scheme and the bank has refused to return the amount to him. Respondent no.1 bank in its written 2 statement contends that the petitioner had withdrawn the amount in the year 1990 and seeks to rely upon the withdrawal slip dated 12th December, 1990, confirmation letter, Account Opening Form alongwith the specimen signatures and the copy of the ledger to support its contentions. 2. The documents sought to be relied upon the Bank were seized by the police in the year 1990 in connection with a case of fraud. Since then all the documents of the bank have been in the custody of the police. When respondent no.1 called upon the police to produce the documents before the court, report came to be submitted by the Senior Inspector of Police that the concerned documents cannot be traced in the police station. Thereafter, respondent no.1 filed an application under Section 65 Clause (c) of the Evidence Act seeking permission to adduce secondary evidence. This application came to be allowed by the order dated 11th June, 2007, which order is under challenge in the instant petition. 3. Mr.Sarda, learned counsel for the petitioner, submits that, the petitioner disputes his signature on the withdrawal slip and therefore respondent 3 no.1 cannot be allowed to produce the secondary evidence before the court. According to him, if that evidence is allowed to be produced before the court, the entire case of the petitioner in the suit would be prejudiced. Merely because the petitioner is disputing his signature on the withdrawal slip, respondent no.1 cannot be denied the opportunity of producing the secondary evidence of withdrawal slip before the court, since the conditions for production of secondary evidence as required under Section 65 of the Evidence Act, have been fulfilled. Mr.Sarda, then refers to section 65(c) of the Evidence Act and submits that the application could not have been allowed under the provision as respondent no.1 has committed defaults and has been negligent. When Mr.Sarda, was asked to point out the instances of the negligence or default on the part of respondent no.1, he has referred to the delay on the part of respondent no.1 in cross-examining the petitioner, the delay in issuance of witness summons and delay in payment of Bhatta charges for the handwriting expert. The delay or default contemplated under Section 65(c) of the Evidence Act, relates to the inability on the part of the party in producing the original within reasonable time and not negligence or default in conducting the proceedings. For this purpose, it is sufficient to reproduce here Section 65(c) of the Evidence Act. 4 “65(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. “ 4. In the circumstances, respondent no.1 cannot be shut out from producing secondary evidence before the court. I have perused the impugned order. It correctly appreciates the legal position. No interference with it is called for. Hence, the Writ Petition is dismissed in limine. (JUDGE)