-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION First Appeal No.3026 of 2006 Mr.K. Sridharan Thampi .. .. Appellant (Orig.Plaintiff) v/s. The Indian Institute of Bankers. .. Respondents (Orig. Defendants) Mr.R.B. Parab for Appellant. Mrs.Surti i/by M/s.Gandhi & Associates for Respondents. ------ CORAM CORAM CORAM : SMT.ROSHAN DALVI, J. SMT.ROSHAN DALVI, J. SMT.ROSHAN DALVI, J. DATED : 17th April, 2007 DATED : 17th April, 2007 DATED : 17th April, 2007 P.C. : P.C. : P.C. : 1. The Appellant (original Plaintiff) has challenged 1. The Appellant (original Plaintiff) has challenged 1. The Appellant (original Plaintiff) has challenged the judgment of the Bombay City Civil Court dated 15.6.2005, the judgment of the Bombay City Civil Court dated 15.6.2005, the judgment of the Bombay City Civil Court dated 15.6.2005, dismissing his Suit for reliefs in respect of an examination dismissing his Suit for reliefs in respect of an examination dismissing his Suit for reliefs in respect of an examination of banking undertaken by the Appellant. of banking undertaken by the Appellant. of banking undertaken by the Appellant. 2. The Appellant has been found involved in mass 2. The Appellant has been found involved in mass 2. The Appellant has been found involved in mass copying in the examination that was conducted in December copying in the examination that was conducted in December copying in the examination that was conducted in December 1990 in Paper No.2 amongst the various papers that the 1990 in Paper No.2 amongst the various papers that the 1990 in Paper No.2 amongst the various papers that the Appellant appeared for and passed between February 1990 and Appellant appeared for and passed between February 1990 and Appellant appeared for and passed between February 1990 and July 1994. July 1994. July 1994. 3. The Appellant’s answer papers were sent, amongst 3. The Appellant’s answer papers were sent, amongst 3. The Appellant’s answer papers were sent, amongst others to the examiner, who was the Assistant General others to the examiner, who was the Assistant General others to the examiner, who was the Assistant General Manager of Bank of Rajasthan Ltd. He was, therefore, an Manager of Bank of Rajasthan Ltd. He was, therefore, an Manager of Bank of Rajasthan Ltd. He was, therefore, an -2- expert examiner for banking examinations. He assessed the expert examiner for banking examinations. He assessed the expert examiner for banking examinations. He assessed the written examination papers of the Appellant together with written examination papers of the Appellant together with written examination papers of the Appellant together with various other candidates. He found mass copying. He, various other candidates. He found mass copying. He, various other candidates. He found mass copying. He, therefore, by his letter dated 25.1.1991 addressed to the therefore, by his letter dated 25.1.1991 addressed to the therefore, by his letter dated 25.1.1991 addressed to the Respondents informed them how and when he came to the Respondents informed them how and when he came to the Respondents informed them how and when he came to the conclusion that there was mass copying by unfair means conclusion that there was mass copying by unfair means conclusion that there was mass copying by unfair means adopted by several candidates amongst whom was the adopted by several candidates amongst whom was the adopted by several candidates amongst whom was the Appellant. Appellant. Appellant. 4. The inquiry came to be held. The letter of the 4. The inquiry came to be held. The letter of the 4. The inquiry came to be held. The letter of the Inquiry Officer at Exhibit-21 in evidence shows how 125 Inquiry Officer at Exhibit-21 in evidence shows how 125 Inquiry Officer at Exhibit-21 in evidence shows how 125 answer papers were assessed and how the conclusion about answer papers were assessed and how the conclusion about answer papers were assessed and how the conclusion about mass copying by unfair means came to be reached. mass copying by unfair means came to be reached. mass copying by unfair means came to be reached. 5. The Appellant’s answer paper has itself been 5. The Appellant’s answer paper has itself been 5. The Appellant’s answer paper has itself been produced at Exhibit-22 in evidence. produced at Exhibit-22 in evidence. produced at Exhibit-22 in evidence. 6. The expert examiner has observed how from some 6. The expert examiner has observed how from some 6. The expert examiner has observed how from some standard answer-sheets / guides supplied in the examination standard answer-sheets / guides supplied in the examination standard answer-sheets / guides supplied in the examination hall, numerous candidates have given verbatim the same hall, numerous candidates have given verbatim the same hall, numerous candidates have given verbatim the same answers. Most of the candidates have attempted the same answers. Most of the candidates have attempted the same answers. Most of the candidates have attempted the same questions also. The learned Judge has considered the questions also. The learned Judge has considered the questions also. The learned Judge has considered the contents of the letter of the examiner, detailing how the contents of the letter of the examiner, detailing how the contents of the letter of the examiner, detailing how the unfair means were adopted in mass copying. unfair means were adopted in mass copying. unfair means were adopted in mass copying. 7. The learned Judge has held that the expert, who is 7. The learned Judge has held that the expert, who is 7. The learned Judge has held that the expert, who is a Bank Manager examining the papers of banking practices and a Bank Manager examining the papers of banking practices and a Bank Manager examining the papers of banking practices and -3- concluding about the mass copying, is an aspect of fact concluding about the mass copying, is an aspect of fact concluding about the mass copying, is an aspect of fact which must be accepted by the Court unless contrary is which must be accepted by the Court unless contrary is which must be accepted by the Court unless contrary is proved. That is the correct enunciation of the position on proved. That is the correct enunciation of the position on proved. That is the correct enunciation of the position on facts and law. The Appellant has challenged the decision facts and law. The Appellant has challenged the decision facts and law. The Appellant has challenged the decision relating to mass copying. It is for the Appellant to prove relating to mass copying. It is for the Appellant to prove relating to mass copying. It is for the Appellant to prove that he was not a part of any mass copying. The Appellant that he was not a part of any mass copying. The Appellant that he was not a part of any mass copying. The Appellant has not produced any such material. The Appellant has not has not produced any such material. The Appellant has not has not produced any such material. The Appellant has not even shown any malice or victimization against him. An even shown any malice or victimization against him. An even shown any malice or victimization against him. An inquiry has been held. It is mentioned to Court that even a inquiry has been held. It is mentioned to Court that even a inquiry has been held. It is mentioned to Court that even a Writ Petition was filed earlier which came to be dismissed. Writ Petition was filed earlier which came to be dismissed. Writ Petition was filed earlier which came to be dismissed. For the inquiry which was held in 1991, a Suit came to be For the inquiry which was held in 1991, a Suit came to be For the inquiry which was held in 1991, a Suit came to be filed in 2003. filed in 2003. filed in 2003. 8. It is the contention of the Appellant that in view 8. It is the contention of the Appellant that in view 8. It is the contention of the Appellant that in view of the issue relating to limitation being raised, the of the issue relating to limitation being raised, the of the issue relating to limitation being raised, the learned Judge should have specifically considered the issue learned Judge should have specifically considered the issue learned Judge should have specifically considered the issue of limitation. The Advocate on behalf of the Appellant of limitation. The Advocate on behalf of the Appellant of limitation. The Advocate on behalf of the Appellant contends that the entire judgment does not show that issue contends that the entire judgment does not show that issue contends that the entire judgment does not show that issue being considered though in the findings about reasons given being considered though in the findings about reasons given being considered though in the findings about reasons given in the judgment that issue is shown to be proved, though in the judgment that issue is shown to be proved, though in the judgment that issue is shown to be proved, though that is not separately considered. However, the issue of that is not separately considered. However, the issue of that is not separately considered. However, the issue of limitation is not answered against the Appellant. Merits of limitation is not answered against the Appellant. Merits of limitation is not answered against the Appellant. Merits of the case are seen. Hence, the Appellant has suffered no the case are seen. Hence, the Appellant has suffered no the case are seen. Hence, the Appellant has suffered no prejudice. The merits having been considered and the onus prejudice. The merits having been considered and the onus prejudice. The merits having been considered and the onus which was upon the Appellant (original Plaintiff) not having which was upon the Appellant (original Plaintiff) not having which was upon the Appellant (original Plaintiff) not having been proved, the Suit is rightly dismissed. There is no been proved, the Suit is rightly dismissed. There is no been proved, the Suit is rightly dismissed. There is no error in the conclusion. Appeal is dismissed under the error in the conclusion. Appeal is dismissed under the error in the conclusion. Appeal is dismissed under the -4- provisions of Order 41 Rule 11 of the Code of Civil provisions of Order 41 Rule 11 of the Code of Civil provisions of Order 41 Rule 11 of the Code of Civil Procedure. Procedure. Procedure. (SMT. ROSHAN DALVI, J.) (SMT. ROSHAN DALVI, J.) (SMT. ROSHAN DALVI, J.)