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Girdhardas Coorji Vs. Kerawala Karsandas and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 2374 of 1923
Judge
Reported in(1926)28BOMLR232
AppellantGirdhardas Coorji
RespondentKerawala Karsandas and Co.
Excerpt:
.....record falling under section 35 nor a document of the nature mentioned in section 82 of the indian evidence act, it cannot also be admitted under section 32 (2) of the act. - - 63 as to the exception extending only to statements made during the course not of any particular transaction of an exceptional kind, such as the execution of a deed of mortgage, but of business or professional employment in which thedeclerant is ordinarily or habitually engaged. 3. another objection is that it is not a case like that in illustration (d) where the letter or other document is written by some one who is dead. one of the main questions in dispute is whether the defendants should have been satis8ed by the production of a certificate like the one of january 16, 1922, or whether, as the defendants..........other document is written by some one who is dead. the usual course in cases of this kind, where facts alleged to exist or to have existed in england are in question, is for a commission to issue to enable the party relying upon them to give evidence of those facts; and in a suit of this kind i do not think that the attendance (within the meaning of the first part of section 32) of the necessary witnesses cannot be procured without an unreasonable amount of delay and expense, for provisions of law enable them to attend before a commissioner appointed for the purpose of taking their evidence in england. therefore i do not consider that these two documents are admissible under section 32, clause (2), but of course, in saying that, i am dealing with the question whether those documents.....
Judgment:

Fawcett, J.

1. The question is whether the two certificate of the Manchester Chamber of Commerce, dated January16, 1922, and June 15, 1923, which have been produced by the plaintiffs, should be admitted in evidence, They are not public records falling under Section 35 of the Indian Evidence Act, nor are they documents of the nature mentioned in Section 82. There is no section in the Act that I am aware of which can be said to cover such certificates, except that the statements as to a national strike of coal-miners might possibly be a matter of public history, so that the Court could take judicial notice of them and resort for its aid to proper books of reference under Sections 57 and 87. Nor, so far as I am aware, are such certificates admissible in evidence in England under any statutory authority or otherwise. I am asked to admit them under Clause (2) of Section 32.

2. I think there are two clear objections to treating them as admissible under that provision. The first is that these certificates cannot be said to be statements made 'in the ordinary course of business.' I adopt the view taken by Fulton J. in Ningawa v.Bharmappa I.L.R. (1897) 23 Bom. 63 as to the exception extending only to statements made during the course not of any particular transaction of an exceptional kind, such as the execution of a deed of mortgage, but of business or professional employment in which thedeclerant is ordinarily or habitually engaged. In the present case the declaration whether it be that of the Chief Clerk of the Manchester Chamber of Commerce who has signed the certificates, or that of the firm of suppliers whose statement is referred to in the certificates, cannot be said to be made ' in the ordinary course of business ' in this sense, but really are made for the special purpose of meeting a possible or existent dispute. One of the objects of Section 82 is to favour statements which are made before a dispute arises about the matter to which they relate; and though a statement made post litem motam may fall under Clause (2), it contemplates a statement not specially made in connection with the dispute but made in the routine of business, such as in trade accounts and correspondence. No doubt illustration (d) to the sub-section shows that a letter comes under the clause, but I take it that the letter would have to be written by a member of the firm in the ordinary course of its business and not especially for the purpose of dealing with the dispute about dates that subsequently arose. So I do not think that that clause covers the present documents.

3. Another objection is that it is not a case like that in illustration (d) where the letter or other document is written by some one who is dead. The usual course in cases of this kind, where facts alleged to exist or to have existed in England are in question, is for a commission to issue to enable the party relying upon them to give evidence of those facts; and in a suit of this kind I do not think that the attendance (within the meaning of the first part of Section 32) of the necessary witnesses cannot be procured without an unreasonable amount of delay and expense, for provisions of law enable them to attend before a Commissioner appointed for the purpose of taking their evidence in England. Therefore I do not consider that these two documents are admissible under Section 32, Clause (2), But of course, in saying that, I am dealing with the question whether those documents are admissible as evidence of the statements contained in them, that is to say, whether these documents can be admitted to show that there was the alleged strike of coal-miners, and the alleged consequent shortage of coal supplies, and the alleged difficulty of manufacture in the mills by which the goods in suit were supplied, If it is necessary for the plaintiffs to prove any of those facts, then so far as this Court is concerned, that proof must be given in the proper way, either by evidence of witnesses in this Court or by evidence of witnesses taken on commission.At the same time this is one of those eases where documents, which by practice of merchants are accepted as evidence very much on the same principle on which account sales of a foreign agent are taken as prima facie correct, cannot, unfortunately, be similarly used in a Court of law. I may refer on this point to the remarks of Macleod J, in Bekhor v. Haji Sultanalli : AIR1915Bom76 , 257 on the futility of issuing commissions to prove facts which are provable amongst merchants by the production of well-recognised publications such as Lloyd's Weakly Index, referred to in that case, To meet this difficulty parties sometimes come to an arrangement by which this kind of document is admitted in a Court of law, to avoid unneccessary delay and expense. All I can say on this particular point at present is that, if the learned Counsel for the defendants questions the correctness of the statements as to the strike and consequent difficulties in manufacture, which are alleged to have been made by the firm of suppliers, and if the plaintiffs consider that it is necessary for their case to prove those facts, then I am prepared to consider an application for the issue of commission for that purpose. It is possible that, if the commission resulted in substantiating those facts, the defendants would be ordered to bear the costs of the commission, as was for instance done, in regard to the party which had adopted an unreasonably contentious attitude, in Dadabhai Hormusji Dububsh v.C.J. Khambatta I.L. R(1897) , 22 Bom. 189 ; and the defendants might also be ordered, if the plaintiffs ultimately succeeded, to pay interest under Section 34, Civil Procedure Code, in regard to any delay due to the issue of the commission. On the other hand, it is possible that it will not be necessary for the plaintiffs to establish the facts alleged in these certificates. One of the main questions in dispute is whether the defendants should have been satis8ed by the production of a certificate like the one of January 16, 1922, or whether, as the defendants contend, in any case the certificates were produced too late. Those questions are raised by issues 5 and 6, and it is necessary to discuss these two documents with reference to those issues. Obviously this cannot be properly done, unless those documents are actually on the record of the Court; and accordingly without admitting them as evidence of any statements contained therein but merely treating them as documents which were procured by Messrs. Greaves, Cotton & Co. for the purpose of verifying their allegation that the delay in shipment was due to a strike, I direct that the two certificates should be put on the record. The first one, dated January 16, 1922, is proved to have been obtained by Messrs. Greaves, Cotton & Company, through their home firm, as shown by the correspondence Exts. J to M. There can be no reasonable doubt as to the genuineness of the document which bears a seal purporting to be that of the Manchester Chamber of Commerce and contains printed matter indicating the same origin. The later certificate of June 15, 1925, is not quite on such a good footing, for the correspondence underlying it has not been produced and no very satisfactory reasons have been given for its non-production. Also it is of course open to the criticism that it was obtained after the suit had been actually filed. But in effect it merely supplements some of the statements in the previous certificate. It similarly bears a seal purporting to be that of the Chamber of Commerce, and a signature of the Chief Clerk corresponding to the signature on the other certificate. There is no doubt about its authenticity, and therefore the two documents can be marked Exts T (1) and T (2).


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