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1988 Supreme(Ori) 104
IN THE HIGH COURT OF ORISSA
S.C. Mohapatra, J.
SIBA PRASAD JENA - APPELLANT
Versus
GANESWAR KHANDA - RESPONDENT
Civil Revision No. 717 of 1986
Decided On : 19-09-1988
P.K. Misra, N.C. Pati and A.K. Nanda, for the Appellant; S. Mishra-2, S. Mantry, R.C. Rath and A.K. Misra, for the Respondent
The court has discretion to order the inspection of a banker's books under Section 6 of the Bankers' Books Evidence Act, 1891, but this discretion must be exercised judicially.
Headnote:
BANKERS' BOOKS EVIDENCE ACT, 1891 - SECTIONS 5 AND 6 - INSPECTION OF BANKERS' BOOKS - DISCRETION OF COURT - RELEVANCY OF ENTRIES - CONDUCT OF PARTY - APPLICATION FOR INSPECTION - REQUIREMENTS.
Fact of the Case:
Defendant filed an application under Section 6 of the Bankers' Books Evidence Act, 1891, seeking to inspect and obtain certified copies of certain entries from the bank accounts of Madanlal Saraf and Ganeswar Khanda. The trial court rejected the application.
Finding of the Court:
The court held that the trial court was correct in rejecting the application because it was not specific and did not contain sufficient details. The court also noted that the Defendant had not filed an affidavit in support of the application, which is required under the Act.
Issues: Whether the trial court erred in rejecting the Defendant's application for inspection of bank records under Section 6 of the Bankers' Books Evidence Act, 1891.
Ratio Decidendi: The court held that the trial court has discretion to order the inspection of a banker's books under Section 6 of the Act, but this discretion must be exercised judicially. The court also held that the application for inspection must be specific and contain sufficient details, and that the applicant must file an affidavit in support of the application.
Final Decision: The court dismissed the Defendant's civil revision petition and upheld the trial court's order rejecting the application for inspection of bank records.
JUDGMENT :
S.C. Mohapatra, J. - Defendant is the Petitioner in this Civil Revision.
2. After the ex parte decree was set aside, parties were given opportunity to file list of witnesses and the suit was posted to 30.9.1986 far hearing, That day Defendant filed an application to direct the Branch Manager, Central Bank of India Balasore Branch, to submit information by producing certified copy of the entries of the Accounts of-
(i) Madanlal, Saraf during September. 1982 to November, 1982 in relation to eight cheques details of which were given to show whether they were issued by Madanlal in name of one Bhagaban Paramanik ;
(ii) Ganeswar Khanda in his own name or in the name of Utkal Cold Storage, Ganeswarpur, as to whether the amounts in cheques detailed in respect of Madanlal bad been deposited in his account; and also to furnish further certificates that no other entries are to be found in the books of accounts of the Bank concerning the account in ;
(iii) indicating that no other cheque issued by Madanlal in name of Bhagaban has been deposited in account of Ganeswar.
Trial Court having rejected such petition, this Civil Revision has been filed.
3. u/s 5 of the Bankers' Books Evidence Act, 1891 (hereinafter referred to as 'the Act') unless there is special cause, no officer of any Bank who is not a party is to be compelled to produce any Bankers' Book, the contents of which can be proved under the Act or to be a witness to prove matters, transactions' and accounts recorded therein. u/s 6 Court may order .inspection of books by a party. It reads as follows:
6. Inspection of books by order of Court or Judge-
(1) On the application of any party to a legal proceeding the Court or a Judge may order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the purpose if such proceeding, or may order the bank to prepare and produce within a time to be specified in the order certified copies of all such entries, accompanied by a further certificate that no other entries are to be found .in the books of the bank relevant to the matters in issue in such proceeding, and such further certificate shall be dated and subscribed in manner hereinbefore directed in reference to Gertified copies.
(2) An aider under this or the preceding section may be made either with or without summoning the bank and shalt be served 01.1 the bank three clear day's (exclusive of bank, holidays) before the same is to be obeyed, unless the Court of Judge shall otherwise direct.
(3) The bank may at any time before the time limited for obedience to any such order as aforesaid either offer to produce their books at the trial or give notice of their intention to show cause against such order, and thereupon the same shall not be enforced without further order.
4. It is submitted that the application is for exercise of discretion u/s 6 of the Act. There is no doubt that Court has discretion to pass an order u/s 6. This direction is to be judicially exercised. For exercise of .judicial discretion it is to be first considered whether the application is self contained. Where the application would not disclose the reason the wide discretion of the Court would 'not be'exercised. Thereafter, it is to be considered whether the entries sought to be inspected by the applicant are relevant for the suit. Relevancy shall be considered as, the basis of pleadings in the suit since Court cannot entertain any evidence for which there is no basis in the pleading. Once it is a discretion conduct of the party is material. Even if the conduct would be deplorable, Court can exercise the discretion in favour of the applicant where the prejudice of adversary can be mitigated by payment 'of cost'. Where the Court feels that such inspection would assist it at arriving at a just conclusion, it tan a) so permit inspection. As has been provided in Section 6, the order is to be passed without hearing the bank. Accordingly, the objection of the bank if any shall be ca
