IN THE CITY CIVIL COURT AT BOMBAY

COMMERCIAL SUIT NO. 205 OF 2022

Tambawala Metal Mart …. Plaintiff

V/s

RHJ Tubes PVt Ltd … Defendant

OBJECTIONS OF THE DEFENDANT TO

EXHIBIT DOCUMENTS/COPIES OF
DOCUMENTS PRODUCED BY
P.W.NO.1

On behalf of the Defendant above named, it is most respectfully

submitted as follows:

1) The Plaintiff has filed this suit against me for payment of

sum of Rs.24,55,785/- together with interest on Rs.
12,54,003/- @ 24% per annum till payment of
realization.

2) It is submitted that one Mr. Murtuz Shabbir Tambawala claiming

to be one of the partner of the Plaintiff filed his affidavit as and
by way of his examination in chief in the form of sworn
affidavit. It is submitted that along with his aforesaid affidavit,
the said Murtuz Shabbir Tambawala had also filed documents
/Photocopies of the documents as described in a separate list of
documents annexed to the compilation of the said documents/
copies of documents. The said documents / copies of
documents are in nature of Partnership Deed, Certificate of
Registration, Receipt, Invoices, Lorry Recveipt, Demand Notice
etc. in the above case.
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3) It is submitted that the said witness in his Affidavit of Evidence
has failed to prove the contents, execution, and correctness of
the documents / Copies of documents which the plaintiff has
filed with along with the affidavit.

4) Admittedly, the plaintiff did not place before this Hon’ble Court
any grounds on which the said documents / copies of
documents could be either exhibited or admitted into evidence.
The plaintiff merely filed a list of documents in tabular form in
self style manner.

5) At the outset, it is submitted that apart from the production of

documents/ copies of documents, simpliciter, the witness has
not adduced any evidence in his affidavit for proving the
execution, contents or correctness of any of the documents/
copies of documents. The plaintiff has failed to lay any
foundation for becoming entitled to adduce secondary evidence
in lieu of the primary evidence. The evidence given by the
plaintiff is grossly in adequate for proving the contents,
correctness and execution of the said documents/ copies of
documents. Defendant has strong objection for exhibiting and
admitting into evidence the said documents/ copies of
documents for the reasons stated hereinafter.

6) It is submitted that the alleged documents are inadmissible in

evidence. The Defendant strongly denies the contents,
correctness and authenticity of the said documents.

7) The Defendant strongly denies the contents, correctness and

authenticity of the said documents. The Defendant has
therefore strong objection from exhibiting and admitting into
evidence following documents.

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Sr Other Objections of the Defendant to the documents
No produced by the Plaintiff;
1 Document Not Admitted
1) Document not annexed to the plaint while institution of
Suit.
2) Document Not relied upon in the list of the documents and
production of the Document is in contravention of order 11
Rule 1(2) of the order civil procedure, 1908.
3) No permission sought to produce the document and cannot
be admitted in Evidence
4) Document is also not proved as per the provisions of the
Indian evidence act;
5) Production of the Document in evidence by the plaintiff is in
contravention of the statement of Truth as per order VI
Rule 15-A and Order Xi Rule 3 and an abuse of process of
Law
6) The document cannot be taken on record due to the
embargo as per provisions of order 11 Rule 1(5) of the
order of civil procedure, 1908 as amended by the Section
16 of the commercial Courts act, 2015
2 Document Not Admitted
1) Falsely described in the Plaint as copy of Registration
issued by the Registrar of the Firm of Plaintiffs
2) Original document not produced. No evidence led for
secondary evidence and no case made out for leading
secondary evidence.
3) Deponent is not the author of the document
4) Document is also not proved as per the provisions of the
Indian evidence act
3 Document Not Annexed to the Plaint
1) Document not annexed to the plaint.
2) Not relied upon in the list of the documents and production
is in contravention of order 11 Rule 1(2) of the order civil
procedure, 1908.

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 3) No permission sought to produce the document as per the
provisions of the order of civil procedure, 1908 as amended
by the Section 16 of the commercial Courts act,
2015.Document is also not proved as per the provisions of
the Indian Evidence Act.
4) Production of the Document in evidence by the plaintiff is in
contravention of the statement of Truth as per order VI
Rule 15-A and Order Xi Rule 3 and an abuse of process of
Law.
5) The document cannot be taken on record due to the
embargo as per provisions of order 11 Rule 1(5) of the
order of civil procedure, 1908 as amended by the Section
16 of the commercial Courts act, 2015.
6) Document Not proved as per the Provisions of Indian
Evidence Act.
4 Document Not Admitted
1) Contents are denied
2) Deponent is not the author of the document
3) No sufficient proof produced by the Deponent
4) Document is also not proved as per the provisions of the
Indian Evidence Act
5 Document Not Admitted.
1) Original Not Produced.
2) Deponent is not the author of the Document.
3) Document is also not proved as per the provisions of the
Indian Evidence Act.
4) There is no Rubber stamp of the Defendant. The alleged
acknowledgement is neither of the Defendant or any
authorized person of the Defendant or its employee. The
signature is forged and fabricated by the Plaintiff.
5) Document is also not proved as per the provisions of the
Indian evidence act.
6) Document is an electronic record and is not admissible for

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 want of Certificate U//s. 65 B of Indian Evidence Act.
6 Document Not Admitted.
1) Document being Xerox is inadmissible in evidence.
2) Contents are not proved by the witness.
7 Document Not Admitted.
1) Contents are denied.
2) Document is also not proved as per the provisions of the
Indian Evidence Act.
8 Document can be exhibited subject to proof

8) It is further submitted that the plaintiff, in his affidavit evidence

has not proved the contents, execution and correctness of the
aforesaid documents.

9) The Defendant states that the plaintiff has made vague

statement in the affidavit evidence, without adducing any
evidence for the purpose of proving the execution, contents and
correctness of any documents.

10) The Defendant submits that since the plaintiff has not led any
evidence to prove the execution, contents and correctness of
any documents this Hon’ble Court may not be pleased either to
take on record or admit into evidence any of the documents and
the same documents may not be exhibited.

11) It is well settled law that documents do no prove themselves.

Before a document can be treated as constituting, “ Evidence”
the party proposing to tender such document proves all of the
following requirements enjoined by the law of evidence:-
1) that the document is coming from proper custody;
2) That its execution is proved i.e. signature and/or the
writing appearing on the document is proved to be the
signature and or handwriting of the person or persons

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 by whom, it is claimed, is signed and or written. This
is to be proved in any of the following modes:

a. if the signature and or handwriting is made in the

presence of the witness;
b. When the witness gives his opinion as to the
person by whom the document was signed or
written as enjoined by section 47 of the Indian
evidence act 1872. The person giving such an
opinion is required to have been acquainted with
the signature and or handwriting in any of the
three modes prescribed by the explanation to
section 47 which are as under:
i) a person is said to be acquainted with the
handwriting of another person when he has
seen that person write or
ii) when he has received documents purporting
to have been written by that person in answer
to documents written by himself or under his
authority and addressed to that person ; or
iii) When in the ordinary course of business,
documents purporting to be written by that
person have been habitually submitted by
him.
c. Expert evidence as provided by section 45 of
Indian evidence act.

12) It is submitted that as provided by section 67, if documents

are alleged to be signed, or to have been written, wholly or in
part by any person, the signature or the handwriting of so
much of the documents as is alleged to be in that persons
handwriting must be proved to be in his handwriting. It is
further submitted that the proof of the truth and correctness

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 of the contents has been the subject matter of considered
decisions of our parent high court as also of the apex court.
The distilled quintessence of all these decisions is that the
truth and correctness of a document, if required to be proved
in a case, can only be proved by the evidence of the author of
that document.

13) It is submitted that the Hon’ble high court in Peacock

Industries Ltd. & ors. V/s. Budhrani Finance Ltd. & ors.
reported in 2006(2) Bom. C. R. (Cri.) 368 has held in para 45
(p) that “The complainant should file his affidavit in lieu
of examination-in-chief with all the documents to be
exhibited in the Court. The affidavit should be in the
form, as if he is giving oral evidence in the Court,
proving all the documents objected to by the accused
and it should not be, in any case, in the form of written
argument and avoid reproduction of the complaint as it
is. The Court on the very date shall see that a copy of
the affidavit with all the proposed exhibits is served on
the accused and then grant a short adjournment, if
prayed for, to enable the accused to read it and raise an
objection, if any, regarding admissibility of the
document/s or any item of evidence. On the adjourned
date of hearing the accused should place his written
objection, if any, on record which the Magistrate should
make note of and mark the objected document/s,
(other than the documents which have presumptive
value in law) tentatively as exhibits, as observed in)
The Court must call upon the accused or his pleader, as
provided for under section 294 of the Code, to admit or
deny the genuineness of the documents, other then the
documents which have presumptive value in law. That
would help the Complainant to know which of the

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 documents he would have to prove by adopting such
mode, as may be advised, during his own or his
witnesses' examinations-in-chief on affidavit. The
procedure under sections 294 should be followed
before the complainant files his affidavit under section
145(1) of the Act.”

14) It is submitted that in case of Hemendra Rasiklal Ghia and

ors vs. Subodh mody and ors 2008(6) BOM. C.R 519 it
has been held that a document can only be exhibited if it is
admissible in evidence and not otherwise. It should be
decided as and when it is raised and not to be kept till
judgment in the case is given.

15) It is submitted that in the case of Ashish Chandrakant

Shah vs. Seth developers Pvt. ltd. In CRI W.P No. 1822
and 1823 of 2010 by Hon’ble high court Coram: V.M.
Kanade, it has been held that “it is a well settled position
in law that before any document is exhibited by the
court, the party who produces the said document has to
prove the documents in accordance with the provisions,
laid down under the Evidence act. Thereafter the court
has to consider whether the said documents are
admissible or relevant for the purpose of taking it on
record.” It is also held that,” the ld magistrate in my view
ought to have taken into consideration the objection
raised by the counsel for the accused in respect of each
document and after considering the affidavit in lieu of
examination and the submissions of ht counsel for the
complainant, should have given a decision on a
question-whether said objection is sustained or
overruled and accordingly should have either exhibited
the document or should have marked it for the purpose
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 of identification or should have held that the said
document is not exhibited on the ground that it is not
admissible in law. He should have followed the ratio of
the judgments in the case of i) Geeta Marine Services
Pvt Ltd (supra) ii) Mandvi co operative housing society
ltd(supra) and should have first decided the objection
regarding the exhibition of the documents.

Under the circumstances, the Defendant most respectfully submits

that the documents submitted by the Plaintiff may not be exhibited
and admitted into evidence as the same are not proved in law on
the ground of want of evidence.

Dated this 10th Day of August, 2023

Advocate for the Defendant