Vrushali V. Joshi JUDGMENT
Vrushali V. Joshi, J.
1. Rule. Rule made returnable forthwith. Heard finally with consent of the learned Counsel for the parties.
2. A short question of law arises in this petition is whether procedure prescribed under the provisions of the Bankers' Books Evidence Act, 1891 is required to be followed while proving the documents or it requires certificate under Section 65-B of the Evidence Act, 1872.
3. The petitioner has filed the suit for specific performance. To prove that he has paid the amount by withdrawing the amount from bank accounts, he has produced Bank Statement and examined two witnesses from Bank. At the time of proving the Statement, Certificate under Section 65-B of the Evidence Act, 1872 was not produced and therefore, said documents were not exhibited. He has filed application for recalling said witnesses to prove said documents, which was rejected. Thereafter, the petitioner has filed the application to exhibit the documents stating that the Bank Officers were examined as P.W.-2 and P.W.-3. The said Officers brought with themselves the original documents about the extract of bank accounts and the entries in the bank accounts. They verified the documents and specifically and categorically in their examination-in-chief deposed that the plaintiff is having bank accounts in their Bank and he has withdrawn the amount from said account. However, the said extract of accounts could not be exhibited and it has been objected to give exhibit by the opposite party on the ground that the requirement of certificate under Section 65-B is not fulfilled by the plaintiff.
4. The learned Counsel for the petitioner has stated that the law is well settled in this regard that a party who is not in possession of a device from which a document is produced, not required to produce certificate. As such, it is least expected from the plaintiff to produce certificate under Section 65-B of the Evidence Act, 1872 in order to exhibit the said extract of accounts. P.W.-2 and P.W.-3 are the proper custodian of the record and they are authentic witnesses on the said extract of account who are categorically deposed before this Court that the plaintiff is having extract of accounts in their banks respectively and as such there is no any hindrance to give exhibits to the said extract of accounts as it is produced by authentic witnesses before this Court, which is not at all required any certificate under Section 65-B of the Indian Evidence Act. It is necessary to give exhibits to the certified bank accounts which is produced by the plaintiff on record.
5. The learned Counsel for the respondent Nos. 1, 2 and 7 opposed the petition stating that the learned Trial Court has considered the provisions of Banker's Books Evidence Act, 1891 and rejected the application. When special enactment is there, the provisions of the Evidence Act, 1872 will not be applicable. Hence, prays for dismissal of the petition
6. Heard both the learned Counsel and perused record.
7. This is a case where the petitioner has challenged the order passed by the Trial Court rejecting the application to exhibit the bank statement produced on record.
8. The documents which the plaintiff/petitioner wants to exhibit are print out of the Bank Statement of Buldana Urban Co-Operative Society Limited and State Bank of India and are governed by the provisions of special enactment i.e. the Bankers' Books Evidence Act, 1891.
9 Extract of statement of bank comes under the definition of . Section