Whether the partnership firm's of commission agents would be covered under bankers books evidence ac
Rajesh
(Querist) 18 March 2013
This query is : Resolved
Background:
In a suit for specific performance of an agreement, as per issues framed by the trial Court , the Burden of Proof is on the Petitioner to prove that he was “ready & willing” on the date fixed ( 31.8.2011) for execution of sale deed as per agreement to sell.
In order to prove this, during his Examination-in chief, the Petitioner has stated in his written affidavit that “on 31.8.2011 deponent/plaintiff came to the office of Sub-Registrar, Dehradoon along with balance amount of Rs.29.00 lakh including the registration of sale deed and expenses of the sale deed and the deponent/plaintiff kept waiting till closing hours of the office of Sub-Registrar, Dehradoon but the defendants did not turn up, so the deponent/plaintiff got his presence marked by way of an affidavit duly attested by the Sub-Registrar-cum-Executive Magistrate, Dehradoon bearing No. 012372 dated 31.8.2011 at Sr.No.69..”
In his above affidavit , the Plaintiff didn’t mention anywhere that on that day he was accompanied with a witness , Mr B his commission agent in the Tehsil complex on 31.8.2011.
In his affidavit submitted during his Examination- in chief , petitioner’s witness Mr B , a commission agent stated that “on 31.8.2011 the deponent came along with the plaintiff in Tehsil complex, Dehradoon for getting the sale deed registered in favour of the plaintiff and the deponent had checked and calculated the amount of Rs.29 lacs lying with the plaintiff.” In this affidavit Mr B didn’t mention anywhere that he had given Rs 29 lakh in cash to the petitioner.
But Mr B , a witness of the Plaintiff submitted an Exhibit a handwritten statement of accounts of his commission agent firm M/s Ram Avataar & Behari Lal on the letterhead of his firm ,prepared in his own hand writing & signed by himself by Mr B as partner of firm mentioning the cash entries showing Rs 29 lakh given in cash in 3 trenches on different dates and similarly received in Cash from the plaintiff in 3 trenches on different dates. Dummy Copy of handwritten Exhibit is enclosed for reference.
Mr B stated that Exhibit shows entries in the page of his Firm account book related to his account with the Plaintiff.
The admissibility of above Exhibit was objected the Hon’ble Judge had kept the objection pending.
Additional Facts relevant to handwritten Exhibit of Mr B:
(a) This Exhibit is not part of examination in Chief Affidavit of witness Mr B.
(b) Doesn’t mention the “date” of issuance .
(c) Handwritten Exhibit prepared & signed by Mr B himself as a partner of Firm and has been submitted as a witness in the court in favour of Plaintiff.
(d) Exhibit was submitted without placing ORIGINAL books of accounts of Firm before the Court. Mr B didn’t submit of his own his form books of accounts.
(e) Exhibit was NOT accompanied with any Certificate from Chartered Accountant of the Firm.
I solicit your expert advice on the following questions/issues:
(a) Since , the Firm of a witness Mr B is into business of lending & borrowing money just like Banks., Whether Firm of Mr B (Commission Agent) , which is in business of lending money to its client , will also be governed by the provisions of Bankers Books Evidence Act or of Evidence Act. While giving copies of statement of accounts of its customers/clients ?
(b) Whether this handwritten Exhibit can be treated /considered as a valid admissible piece of evidence under provisions of the Bankers Books Evidence Act or Evidence Act Which prescribes that entries in passbook or bank entries should be accompanied with a separate Certificate/s from the Bank Manager to the effect of conditions mentioned therein .?
****************
R.K Nanda
(Expert) 18 March 2013
contact local lawyer.
prabhakar singh
(Expert) 18 March 2013
Unless that Firm has a banking licence issued by the Reserve Bank of India,it can not claim any privilege or benefit of the Bankers Books Evidence Act .
In addition the document is also not admissible as an extract of any a/c book kept in regular course of business under section 34 of the Indian Evidence Act as it was required to be certified by Court's Munsrim (registry) after comparing the same with the original account books where in entries are originally entered into just on the date of it's presentation in the court.
Rajesh
(Querist) 18 March 2013
Read the Sec 34 of Evidence Act. It says such entries are admissible but cannot create any liability. What dies it implies.?
prabhakar singh
(Expert) 18 March 2013
You seems to be a gone case .
section 34 Evidence Act lays entries in books of a/c maintained in regular course of a business are relevant evidence BUT NOT SUFFICIENT TO FASTEN LIABILITY UNLESS SOME CORROBORATIVE EVIDENCE IS FOUND.
OKAY? IF NOT ? DO SOME MORE HOME WORK.
Raj Kumar Makkad
(Expert) 20 March 2013
If B is having Money Lenders License then his evidence as told by you is purely relevant in this case but if he neither having any license nor he shown the source or his money or the consideration of the money to A without any documentary evidence then such evidence shall be discarded and shall not be taken into consideration.
Bankers Book Evidence Act has no bearing in the given case as the same is not applicable in the case of B.
