* % + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
9. h November, 2016 CS(COMM) 1472/2016 ELI LILLY AND COMPANY & ANR. ..... Plaintiffs Through: Mr. Chander Lall and Ms. Kripa Pandit, Advs. Versus CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW1 MAIDEN PHARMACEUTICALS LIMITED ..... Defendant Through: Mr. Inderdeep Singh, Adv. The suit is listed in terms of order dated 26th October, 2016 of the learned Joint Registrar.
2. The counsel for the plaintiffs and the counsel for the defendant have been heard.
3. The plaintiffs instituted this suit, for injunction restraining infringement of trademark and passing off and for ancillary reliefs, as far back as in the year 2007 and issues were framed in the suit on 20th January, 2009. Though the plaintiffs earlier filed affidavits by way of examination-in- chief of two witnesses but none of the witnesses have been examined till now and the counsel for the plaintiffs states that the said witnesses are now no longer in the employment of the plaintiffs and are not to be examined. CS(COMM) No.1472/2016 Page 1 of 12 4. The plaintiffs have now on 17th October, 2016 filed affidavit by way of examination-in-chief verified on 17th October, 2016 of Mr. Aditya Singhal constituted attorney of the plaintiffs and the suit was listed before the Joint Registrar on 26th October, 2016 for tendering of said affidavit into evidence. However the counsel for the defendant objected to certain documents having been filed for the first time with the said affidavit. The said documents included an affidavit, also verified on 17th October, 2016, of the same Mr. Aditya Singhal, under Sections 65-A and 65-B of the Evidence Act, 1872. The Joint Registrar, in the order dated 26th October, 2016, has recorded the submission of the defendant that the said affidavit under Sections 65-A and 65-B of Evidence Act cannot be filed at this stage and the same should have been filed alongwith the electronic record. Per contra, the counsel for the plaintiffs drew attention of the learned Joint Register to Order XI Rule 6 CPC as applicable to commercial suits and as the present suit is.
5. The learned Joint Registrar has posted the matter before this Bench today for adjudication of the said aspect.
6. The counsel for the plaintiffs states that the objection of the counsel for the defendant was confined only to the affidavit aforesaid under Sections 65-A and 65-B and not to any other document filed for the first time CS(COMM) No.1472/2016 Page 2 of 12 alongwith the affidavit by way of examination-in-chief.
7. 8. The counsel for the defendant controverts. It is the contention of the counsel for the plaintiffs that the need for filing an affidavit under Sections 65-A and 65-B of the Evidence Act arose only on coming into force of The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Commercial Courts Act) w.e.f. 23rd October, 2015 and thus the question of filing the affidavit earlier did not arise. Attention is also invited to [Sub-Rules (1), (2), (5) and (6)]. of Order XI Rule 6 of the CPC as applicable to commercial disputes and it is argued that the plaintiffs, at the appropriate time, have filed the computer printouts as well as CDs of the electronic record and the affidavit aforesaid under Sections 65-A and 65-B is in support thereof.
9. I have enquired, whether not even Section 65-B of the Evidence Act, which is in force since 17th October, 2000 i.e. since before the institution of this suit requires a litigant desirous of proving the information contained in an electronic record to file a certificate identifying the electronic record containing the statement and describing the manner in which it was produced and other particulars as described therein.
10. The counsel for the plaintiffs states that Section 65-B of the Evidence CS(COMM) No.1472/2016 Page 3 of 12 Act was concerned only with the proof of printouts of the computer record fed by the plaintiffs but Order XI Rule 6 has also made a provision for affidavit to be filed with respect to the proof of electronic record of a computer not fed by the plaintiffs and fed and maintained by third party. It is further stated that the plaintiffs herein, besides filing the printouts of its computerised record, have also filed printouts and CDs of computerized record fed and maintained by third party sites.
11. It is yet further stated that the affidavit aforesaid, besides in compliance of Sections 65-A and 65-B of the Evidence Act, is also in compliance of Order XI Rule 6 of the CPC.
12. I have inquired from the counsel for the plaintiffs whether the plaintiffs at the time of filing electronic record in support of its claim in the suit had filed such a certificate/affidavit under Section 65-B.
13. The counsel for the plaintiffs states that such a certificate/affidavit was not filed at the relevant stage.
14. I have yet further inquired from the counsel for the plaintiffs whether not the Supreme Court has held that such a certificate/affidavit is required to be filed at the time of filing the electronic record before the Court.
15. The counsel for the plaintiffs has handed over a copy of the judgment CS(COMM) No.1472/2016 Page 4 of 12 in Anvar P.V. Vs. P.K. Basheer (2014) 10 SCC473 paras 16, 17 & 22 whereof are as under: “16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. Only if the electronic record is duly produced in 17. terms of Section 65-B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A – opinion of Examiner of Electronic Evidence. The evidence relating to electronic record, as 22. noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia Specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot CS(COMM) No.1472/2016 Page 5 of 12 Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.” (emphasis added) 16. I have inquired from the counsel for the plaintiffs, whether not the aforesaid paragraphs suggest that the certificate under Section 65-B of the Evidence Act had to be filed at the time when the electronic record was filed on record and whether it can be permitted to be filed at the stage of tendering the said electronic record into evidence.
17. The counsel for the plaintiffs has contended that at the time when documents including electronic record are filed, that do not constitute evidence and become evidence only when they are tendered into evidence and thus as per the aforesaid paragraphs also, the affidavit under Section 65- B has to be filed at the time of tendering the electronic record into evidence. He has in this regard also drawn attention to para 23 of the judgment to show that in the case before the Supreme Court, the certificate under Section 65-B had not at all been filed. CS(COMM) No.1472/2016 Page 6 of 12 18. Though the ratio of Anvar P.V. supra, to me, appears to require the certificate/affidavit under Section 65-B of the Evidence Act to accompany the electronic record when produced in the Court, and a learned Single Judge of this Court also in Ankur Chawla vs. Central Bureau of Investigation 2014 SCC OnLine Delhi 6461 opining so acquitted the petitioner/accused therein (though the SLP is pending in the Supreme Court) but a Single Judge of the High Court of Rajasthan in Paras Jain Vs. State of Rajasthan 2015 SCC OnLine Raj. 8331 did not agree with the judgment of this Court in Ankur Chawla supra observing that “when legal position is that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case, how it can be held that the certificate as required under Section 65-B of the Evidence Act cannot be produced subsequently in any circumstances if the same was not procured alongwith the electronic record and not produced in the Court with the charge-sheet. In my opinion it is only an irregularity not going to the root of the matter and is curable”. A Division Bench of this Court in Kundan Singh Vs. State 2015 SCC OnLine Delhi 13647 also, on a reading of Anvar P.V. supra, disagreed with the view taken in Ankur Chawla supra and held that the words “produced in CS(COMM) No.1472/2016 Page 7 of 12 evidence” did not postulate or propound a ratio that the computer output when reproduced as a paper print out or on optical or magnetic media must be simultaneously certified by an authorised person under Section 65-B(4). It was held that all that is necessary is that the person giving the certificate under Section 65-B(4) should be in a position to certify and state that the electronic record meets the stipulations and conditions mentioned in Section 65-B(2), identify the electronic record, describe the manner in which computer output was produced and also give particulars of the device involved in production of the electronic record for the purpose of showing that the electronic record was prepared by the computer. It was further held that emails are downloaded and computer output, in the form of paper prints, are taken every day; these emails may become relevant and important electronic evidence subsequently; it is difficult to conceive and accept that the emails would be inadmissible, if the official who downloaded them and had taken printouts had failed to, on that occasion or simultaneously record a certificate under Section 65-B.
19. The question is thus not res integra and there was no need for the learned Joint Registrar to post the matter before this Court. Perhaps, because the judgments aforesaid are in criminal proceedings, remained to be utilised CS(COMM) No.1472/2016 Page 8 of 12 in a civil suit. However, the ratio thereof would apply to civil proceedings also.
20. It thus but has to be held that the plaintiffs are entitled to file the certificate under Section 65-B of the Evidence Act, even subsequent to the filing of the electronic record in the Court. Order XI Rule 6 of CPC as applicable to commercial suits is also not found to provide to the contrary.
21. I may however add a word of caution. Such certificate/affidavit/s under Section 65-B of the Evidence Act and/or u/O XI Rule 6 of CPC, though can be filed subsequently also, as any other document may be, but only if the party wanting to file the same makes out a case for reception thereof, as for late filing of documents beyond the prescribed time. If the party so producing the said certificate/affidavit is unable to satisfy the Court as to the reasons for which the certificate/affidavit was not filed at the appropriate time, may run the risk of the certificate/affidavit being not permitted to be filed and resultantly the electronic record, even if filed at the appropriate time, remaining to be proved, to be read in evidence. Not only so, even if the delayed filing of the said certificate/affidavit is permitted by the Court, the party producing the same may run the risk of being not able to prove the said electronic record. It cannot be forgotten that the person in a CS(COMM) No.1472/2016 Page 9 of 12 position to identify the electronic record and to give particulars of the device involved in the production of the electronic record and as to other matters prescribed in Section 65-B(2) and in Order XI Rule 6(3) of CPC may not be subsequently available or with frequent changes in technology the device involved in the production of electronic record may not be identifiable and the certificate/affidavit may not withstand the cross-examination by the opposing counsel on the said facts, leading to the electronic record being not read in evidence and the plea taken on the basis thereof remaining to be proved. Thus, merely because it has been held that the certificate/affidavit under Section 65-B and/or Order XI Rule 6 of CPC can be filed at a subsequent stage, does not mean that the parties to a litigation do not file such certificate/affidavit along with electronic record produced before the Court. The proof of the said certificate/affidavit, unlike other documents, will be much more stringent.
22. The plaintiffs have not filed any application setting out reasons for non-production of the documents filed for the first time alongwith the affidavit by way of examination-in-chief aforesaid. However since the parties/counsels proceeded to argue and I have considered the question, it is not deemed appropriate to defer the adjudication any further. The affidavit CS(COMM) No.1472/2016 Page 10 of 12 aforesaid under Sections 65-A and 65-B of the Evidence Act filed alongwith the affidavit by way of examination-in-chief is thus permitted to be taken on record. However, it will be open to the counsel for the defendant to cross- examine the deponent of the said affidavit and the proof of the said affidavit under Sections 65-A and 65-B of the Evidence Act shall be subject to such cross-examination and if it is found that the deponent of the affidavit was not a competent person to issue the certificate/affidavit, needless to state, the electronic record tendered in evidence shall also not be read.
23. To avoid any further delay, I have also inquired what are the other documents which have been filed for the first time alongwith the affidavit by way of examination-in-chief. It is informed that they comprise only of reports of the plaintiffs of the years subsequent to the stage of filing of the documents. The same also in my view would qualify a subsequent event and which the courts under Order VII Rule 7 CPC are entitled to take note of while adjudicating the suits. It cannot be ignored that the suit has been pending for the last 9 years.
24. Accordingly, the said documents are also permitted to be taken on record. CS(COMM) No.1472/2016 Page 11 of 12 25. List before the Joint Registrar for recording of evidence on 12th January, 2017 as already scheduled. RAJIV SAHAI ENDLAW, J.
NOVEMBER09 2016 M/bs CS(COMM) No.1472/2016 Page 12 of 12