M/S ICICI BANK LIMITED v. SURBHI GUPTA

9. As per the statement of accounts, the Defendant paid a total amount of Rs. 65,750/- in 5 instalments. The remaining instalments remain unpaid. The loan recall notice clearly informs the Defendant that in aggregate Rs.5,89,218.30/- was due as on 5th April, 2014 and as on 24th April, 2014, the total liability of the Defendant was Rs.6,24,722/-. The Plaintiff bank, having placed all the original documents on record except the loan recall notice, has proved its case beyond any doubt.

10. The reasoning of the Trial Court that the original recall notice was not filed, and receipt of service of the loan recall notice was not proved, is completely untenable. The Trial Court has applied the provisions of the Evidence Act in a completely incorrect manner. The findings of the Trial Court, which start from internal page 6, do not take any of the other original documents filed by the Plaintiff bank into consideration. Apart from mentioning these documents as part of the Plaintiff bank’s case, the Trial Court does not even care to note that these original documents are filed and that the Plaintiff bank has discharged its onus to show that the loan has actually been disbursed. The fact that several of the instalments were paid by the Defendant, is itself evidence of the loan having been disbursed by the Plaintiff bank and availed of and enjoyed by the Defendant. The trial court record does not show any report by the court appointed receiver. This matter calls for some serious consideration, inasmuch as the Defendant appears to have completely gone off the radar. The vehicle is untraceable and the Defendant could not be traced as well. Such cases call for some severe remedies to be taken in order to ensure that persons who avail of loans do not default in such a negligent manner and also escape the consequences.

11. The filing of original documents is a requirement under law for a particular reason i.e., the originals constitute primary evidence and copies constitute secondary evidence. In most commercial transactions, the documents are not even disputed. The requirement of filing original documents ought to be insisted upon only when the parties actually dispute the documents which are on record. It should not be easy for any party to dispute the documents which actually relate to it and bear proper signatures. Insistence of filing of original documents when documents are not disputed causes enormous delay in adjudication of commercial disputes. The Court ought to bear in mind that original documents are required when allegations as to their genuinity or existence are raised and not in a technical manner in all situations.

12. In most civil disputes, documents exchanged between the parties, documents bearing signatures, correspondence exchanged between the parties, etc. are not disputed. It is the effect and interpretation thereof which is usually a matter of dispute. In such cases, the insistence of production of original documents and going through the entire journey of admission/denial etc., leads to unnecessary waste of judicial time, as also a lag in the dispensation of justice. Apart from these documents, there are other documents, for example publicly available documents etc., which should be accepted, unless and until there is a reason to doubt their authenticity. The insistence of filing original documents can result in injustice as is evident from the present case.

13. In commercial transactions, like the one in the present case i.e., a suit for recovery based on a loan transaction, the journey of procedure has resulted in complete injustice. The final result i.e., dismissal of the suit only on the basis of the original of the loan recall notice not being on record is unsustainable. It ought to be borne in mind that a loan recall notice results in consequences for the person who has availed the loan. The Plaintiff bank could have maintained the suit for recovery even in the absence of the loan recall notice so long as the disbursement of loan and availing of the same is admitted. In this case, all the loan documents in original are placed on record. The loan recall notice is merely a document which takes away the luxury of payments in instalments granted to the Defendant and nothing more. The fact that the Defendant has defaulted in making the payments, does not in any manner depend upon the existence of the loan recall notice. The Defendant, after service of the said notice, cannot avail of the facility of paying through instalments and has to make the entire payment at one go. The Plaintiff bank could have very well filed the suit for recovery when the Defendant defaulted on making the payments. The loan recall notice merely gives closure to the entire transaction and nothing more.

14. Section 34 of the Evidence Act clearly provides that the books of accounts maintained in electronic form are relevant. Under Section 62 of the Evidence Act, original documents constitute primary evidence. In the context of electronic evidence, printouts of electronic documents are as secondary. However, judicial notice needs to be taken of the fact that most accounts today are not maintained in paper form, but electronic form. The primary evidence could be the server on which the statement of accounts is stored. These servers may store the statement of accounts of multiple clients in the hard drive. It would be an impossibility to require the Plaintiff bank to produce the hard drive of the server in every suit for recovery filed by it. Under such circumstances, the Plaintiff bank has no option but to produce the secondary evidence i.e., a printout of statement of accounts, duly certified by a responsible official of the bank along with a certificate under Section 65B of the Evidence Act. Needless to add, the certificate under Section 65B of the Evidence Act has now become a usual practice in almost all of the suits, inasmuch as, in every such suit, parties are bound to place reliance on electronic documents. The mere fact, that the printout is being filed as secondary evidence along with the necessary certificate, does not make it any less valid. The said accounts statement would be rebuttable if any discrepancy is found or pointed out. But in the absence of the same, there is no reason as to why the statement of accounts filed by the Plaintiff bank should be disbelieved. The Supreme Court in Anvar P.V. v. P.K. Basheer AIR 2015 SC 180 (hereinafter, ‘Anvar v. Basheer’), while addressing the issue of admissibility of electronic evidence and Section 65B of the Evidence Act held as under:

15. The above judgement was followed in Harpal Singh v. State of Punjab AIR 2016 SC 5389 and by a Division Bench of this Court in Kundan Singh v. State I (2016) CCR[1] (Del.). A Single Judge of this Court, relying on Anvar v. Basheer (supra), in ELI Lilly v. Maiden Pharmaceuticals 2017 (161) DRJ 65 held as under:

16. There is however some serious re-thinking required on the manner in which electronic documents are to be proved. In each case where electronic documents are involved, it would be impractical to expect the parties to produce the primary evidence which would be the medium on which the document is stored, considering that electronic documents could be stored on hard drives, hard disks, CPUs, micro-processors, cameras, telephones, etc. Certificates under Section 65B accompanying the printouts have simply become standard formats. Cross examination on these certificates can involve debates on model of computer, printer, questions as to who took printouts etc. Courts, therefore, need to take a pragmatic attitude in these cases. Unless there is a serious challenge to the electronic documents i.e., tampering, forgery, hacking, misuse of an email address, change in contents etc., usually printouts of electronic documents ought to be allowed to be read in evidence. The complex procedure laid down for proving of electronic documents can prove to be extremely cumbersome and can have enormous impact especially in commercial transactions, as it has had in the present case.

17. The Code of Civil Procedure, 1908 and the Evidence Act though have undergone several amendments over the years, in the area of production of documents, they continue to insist on primary evidence being the admissible evidence. This can result in enormous injustice, due to delay, in commercial cases. It is for this reason that in several jurisdictions the production of original documents is dispensed with unless there is challenge raised to the authenticity and existence or contents of a document. One such example is the Civil Evidence Act, 1995 in the United Kingdom which reads as under: “1995 Chapter 38

8. Proof of statements contained in documents (1) where a statement contained in a document is admissible as evidence in a civil proceedings, it may be proved – (a) by the production of that document, or (b) whether or not that document is still in existence, by production of a copy authenticated in such manner as the court may approve. (2) It is immaterial for this purpose how many removes there are between a copy and the original.

9. Proof of records of business or public authority. (1) A document is shown to form part of the records of a business of public authority may be received in evidence in civil proceedings without further proof. (2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong. For this purpose – (a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him; and (b) a certificate shall be treated as signed by a person if it purports to bear a facsimile of his signature. …………………..”

18. A perusal of the above provisions shows that copies of documents are acceptable in Courts and are to be authenticated in the manner which the Court may approve. Courts in UK can prescribe the manner in which a document is to be proved, if the copy which is filed is challenged or questioned. If the records relied upon are part of the records of a business or part of the records of a public authority, the same can be filed along with the certificate signed by a responsible officer belonging to the business or the public authority. Thus, discretion has been vested with the court to entertain copies of documents and whether originals need to be insisted upon in each case.

19. The loan recall notice in this case could not have been produced in original by the Plaintiff bank. All the other original documents, namely loan documents etc., have been ignored by the Trial Court. No reason exists to disbelieve the statement of accounts filed by the Plaintiff bank which is duly certified under the Evidence Act, which is as per the provisions of Section 34 of the Evidence Act and Section 4 of the BBE Act. The insertion of Section 2A to the BBE Act deals with printouts of bank statements and the copies that are certified are deemed to be certified copies under the said Act. This provision is similar to Section 65B of the Evidence Act. A Single Judge of this Court in Om Prakash v. Central Bureau of Investigation 2017 VII AD (Del) 649 held as under: “5.18. A conjoint reading of Section 34 of the Indian Evidence Act, Sections 2(8), 2A and 4 of the Banker's Book Evidence Act and the various pronouncements of the Supreme Court lead to the conclusion that firstly, the prosecution is required to lead admissible evidence to prove the entries in the books of accounts and after having led admissible evidence link the same with other evidence on record to prove the guilt of the accused beyond reasonable doubt. Thus, in case the statements of accounts exhibited on record are accompanied by certificate as envisaged under Section 2A of the Bankers' Books Evidence Act, the statements of accounts would be admissible in evidence. An objection as to the person exhibiting the said statements of account i.e. an objection to the mode of proof and not admissibility, has to be taken at the time of exhibition of the documents. Therefore if certified copies of the statements of accounts have been exhibited as per the requirement of Section 2A of the Act, the statement of account would be admissible and in case no objection to the witness proving the same is taken at the time when the document is exhibited, the document would be validly read in evidence. However, if the statements of accounts have been exhibited without the necessary certificate as contemplated under Section 2A of the Act, the same being inadmissible in evidence, even in the absence of an objection taken as to the mode of proof during trial, this Court cannot read the same in evidence even though marked as an exhibit.”

20. The statement of accounts is duly accompanied by a certificate under Section 65B of the Evidence Act. The witness of the Plaintiff bank PW-1 has appeared before the Court and has tendered his evidence. There is no reason to disbelieve his deposition. The documents on record clearly reveal that the Defendant availed of the loan and has failed to repay part of the same. Thus, the judgment of the Trial Court is unsustainable, erroneous and contrary to law. The impugned judgment/order is set aside.

21. The suit is decreed for the sum of Rs.6,24,722/- with pendente lite interest @ 8% per annum from the date of filing of the suit.

22. The appeal is allowed.

PRATHIBA M. SINGH, J. Judge JANUARY 31, 2018