High Court · 2025

A.No.86 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON28.02.2025PRONOUNCED ON 01.04.2025CORAMTHE HONOURABLE MR JUSTICE K.KUMARESH BABUA.No.86 of 2025inC.S.No.125 of 20231.R.Paneerselvam Managing Trustees and Chairman, M/s.Arulmigu Uruman Kulam, Panirupadi Ayyan Medical and Educational Charitable Trust, No.43, Sarangapani Street, T.Nagar, Chennai – 600 017.2.M/s.Arulmigu Uruman Kulam Panirupadi Ayyan Medical and Educational Charitable Trust, Represented by its Managing Trustee and Chairman R.Paneerselvam, No.43, Sarangapani Street, T.Nagar, Chennai – 600 017.Applicant(s) Vs1.K.Manthiram2.E.Narayanan3.S.Mariyapan4.E.Esakki5.M.Durai6.M.Manikandabhoopathy. Respondent(s) For Applicant(s) : Mr.T.M.Hariharan for Mr.S.Bala Ganesh1/8 https://www.mhc.tn.gov.in/judis A.No.86 of 2025For Respondent(s): Mr.V.BalasubramaniORDER The present application has been filed to eschew the unstamped xerox copy of the alleged letter of undertaking dated 12.08.2022 produced as Ex.P14 (marked subject to admissibility, proof and relevancy) in C.S.No.125 of 2023 and to reject the same.2. Heard Mr.T.M.Hariharan, learned counsel for Mr.S.Bala Ganesh, learned counsel for the applicants and Mr.V.Balasubramani, learned counsel appearing on behalf of the respondents.3. Mr.T.M.Hariharan, learned counsel for the applicants would submit that the present suit is wholly time barred. He would submit that the respondents/ plaintiffs are attempting to rely upon a forged letter of undertaking which is of the year 2022 to bring the suit within the period of limitation, as the said undertaking is in the nature of bond and that it is not duly stamped. He would further submit that the said undertaking had been produced as a xerox copy and the same was objected to by the learned counsel for the applicants. However, the learned Master had permitted the applicant to mark the same subject to proof and relevancy. He would submit 2/8 https://www.mhc.tn.gov.in/judis A.No.86 of 2025that the said documents cannot be taken on record and would have to be eschewed as the said document is not stamped properly. According to him, the said alleged undertaking is in the nature of a bond as defined under Section 2(5) of the Indian Stamp Act which attracts stamp duty under Article 15 to the schedule to the Stamp Act.4. That apart, he would submit that the said document is only a xerox copy of an insufficiently stamped document. Since, it is a xerox copy, it can only be marked as a secondary evidence for which no leave has been taken by the plaintiffs from this Court. When that being so, the learned Master ought not to have received the said xerox copy as Ex.P14. Therefore, he seeks permission of this Court to eschew Ex.P14.5. Countering his arguments, Mr.V.Balasubramani, learned counsel appearing on behalf of the respondents would submit that the first applicant had also given a cheque along with the undertaking which was presented for realisation and the same had been returned. Hence, he had preferred a complaint under Section 138 of the Negotiable Instruments Act. In the said proceedings, the said undertaking, cheque, return memo and the notice have all been marked and relied upon by the respondents/ plaintiffs. In such an 3/8 https://www.mhc.tn.gov.in/judis A.No.86 of 2025event, the xerox copy of the said document came to be relied upon by the applicants. Hence, he would submit that the said document can be received as secondary evidence and therefore, prays this Court to dismiss the present application.6. I have considered the submissions made by the learned counsel appearing on either side and had perused the materials available on record. 7. Secondary evidence had been defined under the Indian Evidence Act as follows:-Section 63. Secondary evidence:- Secondary evidence means and includes-(1)certified copies given under the provisions hereinafter contained(2) copies made from the original by mechanicall processes whicih in themselves ensure the accuracy of the copy, and copies compared with such copies;copies made from or compared with the original;(3)counterparts of documents as against the parties who did not execute them;(4)oral accounts of the contents of a document given by some person who has himself seen itIllustrations4/8 https://www.mhc.tn.gov.in/judis A.No.86 of 2025(a)A photograph of an original is a secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.(b)A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.(c)A copy transcribed from a copy, but afterward compared with the original is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.(d)Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.”8. The document which has been marked as Ex.P14 is a photocopy of a letter of undertaking allegedly given by the first defendant. The said document would fall within the Sub-section 2 of Section 63. Even to accept a copy made from the original by a mechanical process, the said copies which in themselves ensure accuracy of the copy and copies should be compared with such copies.5/8 https://www.mhc.tn.gov.in/judis A.No.86 of 20259. Illustration (b) would indicate that when a copy is made by a copying machine that is a mechanical process then the same should have been compared with the copy of the original. It must be shown that the copy made by the copying machine was made from the original. In the present case, the alleged undertaking is said to have been taken from the original but no documents or affidavits has been filed or had been pleaded that such copies of Ex.P14 was made through mechanical process, made from the original. That apart, even according to them, the original is available with them but had been marked in a criminal Court. It is always open to the respondents/ plaintiffs to substitute such original with a certified copy of the same and also produce such original before this Court by following the procedure prescribed for the same.10. Since, what was marked as Ex.P14 is a photocopy of an alleged original without producing the original or any attempt made by the respondents to produce the original before this court, this Court is of the view that the Ex.P14 would have to be eschewed. Such eschewment would not preclude the respondents/ plaintiffs from producing the original of Ex.P14 or marking the same as secondary evidence by complying with the provisions of the Indian Evidence Act.6/8 https://www.mhc.tn.gov.in/judis A.No.86 of 202511. With the aforesaid reasons and liberty, this Court is of the considered view that the application can be ordered as prayed for and Ex.P14 stands eschewed for the present. 01.04.2025GbaIndex:Yes/NoInternet:Yes/No7/8 https://www.mhc.tn.gov.in/judis A.No.86 of 2025 K.KUMARESH BABU., J GbaPre-Delivery Order inA.No.86 of 2025inC.S.No.125 of 202301.04.20258/8