1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.317 OF 2009 IN SUIT NO.775 OF 1997 Jai Corp Ltd. & Anr. .. Plaintiffs Versus Bombay Port Trust .. Defendants Mr.A.Vagyani for plaintiffs Mr.U.J.Makhija with Mr.P.Khandar i/b. Mulla & Mulla for defendants. CORAM : S.C.DHARMADHIKARI, J. DATE : 19th March 2009. P.C. . This is a motion by plaintiffs praying that this Court should allow tendering of documents which are more particularly referred to in Annexures A and C of the affidavit in support of the present notice of motion. 2 2. In other words, the relief claimed is that the plaintiffs be permitted to lead secondary evidence. In the affidavit in support filed in this motion, on 14th January 2009, it is stated that 321 original wharfage paid Receipts issued by the defendants are misplaced and not traceable as the same are lost at the time of amalgamation of companies and their photocopies are sought to be relied upon. 3. Today, an additional affidavit is filed and in para 2 of the said affidavit this is what is stated:- "2. I say that I am filing the present affidavit in view of the order dated 24th February 2009 passed by this Court in the above Notice of Motion. I say that the plaintiff No.1 had acquired the liabilities and assets of Sipta Steel Ltd. and Comet Steels Ltd. as per the 3 Order dated 1st September 1995, passed by this Court in Company Petition NO.344 and 345 of 1995. I say that after the amalgamations of these two companies, in the year 1995, the plaintiff No.1 had taken photocopies of all the relevant documents and receipts issued by the defendant in respect of the present suit. All the documents were kept at the registered office of the plaintiff No.1, at Nanded. I say that in the month of October 2008, the plaintiff No.2 took the search of all the relevant documents pertaining to the present suit at the Head Office at Nanded and at that time it was noticed that Original 321 wharfage receipts marked as Annexure A to the Notice of Motion, which were issued by the Defendant were misplaced and only photocopies of those receipts were available with the plaintiff. After 4 taking search the originals could not be found and therefore the plaintiff on 12th November 2008 took out photocopies of 321 photocopy receipts available with them." 4. Upon this affidavit being filed, I asked Mr.Vagyani appearing in support as to whether the plaintiffs wish to rely upon the contents of the earlier affidavit or para 2 which is reproduced above. He states that para 2 is taken from the latest affidavit dated 18th March 2009 and, therefore, that is the affidavit which is being relied upon. 5. Having perused this affidavit in the light of section 63 of the Evidence Act, 1872, it is apparent that what the plaintiffs are seeking to introduce on record are the alleged photocopies of the originals. About originals being lost, the affidavit and the version therein is not raising any doubt. However, earlier it 5 was stated that photocopies of the originals are being relied upon. Now, it is apparent that the plaintiff seek to rely upon photocopies of the photocopies of the originals and they do not seem to fit in section 63 of the Evidence Act and more particularly in sub-clause (2) and (3) of the said provision. In such circumstances, I do not think that any relief can be granted on the notice of motion. The same is, therefore, dismissed. 6. However, this does not prevent plaintiffs from leading evidence and proving receipts in accordance with law. This also does not prohibit the plaintiffs from demonstrating that the defendant has not disputed the transaction and, therefore, copies can be exhibited in evidence. All pleas in that behalf are kept open. Motion dismissed subject to the same. No costs. 6 (S.C.Dharmadhikari, J)