For a period of three years, the trial in the present suit could not commence as the present adjudication remained on the Board of the Court. The delay in adjudication of the present application may not be attributable to either of the parties and some of the delay could be attributed to the functioning of the Court being affected on account of the COVID outbreak. However, the fact remains that the said application was listed on several dates before the Court and has remained on the Board for almost three years, as a result of which the trial could not progress. If the Court were to venture into deciding all the objections taken in the application and analyse all the averments made in the affidavit, it would result in holding a mini trial in the suit. This would unnecessarily delay the adjudication of the suit. {Para 12}
13. There is nothing in the application or the submissions made on behalf of the defendant to suggest that any prejudice would be caused to the defendant if the entire affidavit as filed by the plaintiff's witness remains on the record of the case. As noted above, counsel for the defendant would have the liberty to get his objections noted and cross-examinee the witness accordingly and the said objections would be decided at the time of final adjudication of the case.
In the High Court of Delhi at New Delhi
(Before Amit Bansal, J.)
Levitate Mobile Technologies Pvt. Ltd. Vs Standard Chartered Bank and Another
CS(COMM) 169/2018
Decided on September 1, 2022
The Judgment of the Court was delivered by
Amit Bansal, J. (Oral):—
I.A. 13101/2019 (of the defendant u/O-XIX R-4 to 6 of CPC)
1. The present suit has been filed on behalf of Levitate Mobile Technologies Pvt. Ltd., the plaintiff, seeking recovery of Rs. 4,46,50,000/- with interest.
2. Summons in the suit were issued on 30th May, 2015. The issues in the suit were framed vide order dated 16th November, 2016. The affidavit of evidence of plaintiff's witnesses were filed on 30th November, 2018 and 23rd January, 2019.
3. On 5th September, 2019, the present application has been filed on behalf of the defendant under Order XIX Rule 4 to 6 read with Order XVA Rule 6 of the Civil Procedure Code, 1908 (CPC) as applicable to commercial suits. By way of this application, the defendant has taken objection to the evidence by way of affidavit filed on behalf of the plaintiff's witness, Mr. Sunil Jasuja on the ground that the said affidavit contains material which is irrelevant, inadmissible and argumentative. For the convenience of this Court, the defendant has highlighted the averments made in the affidavit in the following manner:
(i) Averments which are irrelevant (beyond the pleadings) as per the defendant have been highlighted in red colour.
(ii) Averments which are not admissible as per the defendant have been highlighted in green colour.
(iii) Averments which are argumentative (in the nature of legal submissions) as per the defendant have been highlighted in blue colour.
4. To a query from the Court as to what is meant by ‘irrelevant’, counsel for the defendant submits that ‘irrelevant’ means that the plaintiff is seeking to prove the contents of the documents, which are part of the record of case, which is impermissible in terms of Sections 91 and 92 of the Evidence Act.
5. Counsel for the defendant has drawn attention of this Court to provisions of Order XIX Rules, 4, 5 and 6 as well as Order XVA Rule 6 of the CPC as applicable to commercial suits, within the meaning of Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.
6. Order XV A Rule 6 (m) and (n) of the CPC is set out below:
“6. Powers of the Court in a Case Management Hearing.- (1) In any Case Management Hearing held under this Order, the Court shall have the power to-
…
(m) reject any affidavit of evidence filed by the parties for containing irrelevant, inadmissible or argumentative material;
(n) strike off any parts of the affidavit of evidence filed by the parties containing irrelevant, inadmissible or argumentative material;”
7. Order XIX Rules 4, 5 and 6(a) and (b) are set out below:
“4. Court may control evidence. - (1) The Court may, by directions, regulate the evidence as to issues on which it requires evidence and the manner in which such evidence may be placed before the Court.
(2) The Court may, in its discretion and for reasons to be recorded in writing, exclude evidence that would otherwise be produced by the parties.
5. Redacting or rejecting evidence. - A Court may, in its discretion, for reasons to be recorded in writing-
(i) redact or order the redaction of such portions of the affidavit of examination-in-chief as do not, in its view, constitute evidence.
(ii) return or reject an affidavit of examination-in-chief as not constituting admissible evidence.
6. Format and guidelines of affidavit of evidence. - An affidavit must comply with the form and requirements set forth below:
(a) such affidavit should be confined to, and should follow the chronological sequence of, the dates and events that are relevant for proving any fact or any other matter dealt with;
(b) where the Court is of the view that an affidavit is a mere reproduction of the pleadings, or contains the legal grounds of any party's case, the Court may, by order, strike out the affidavit or such parts of the affidavit, as it deems fit and proper”
8. Counsel appearing on behalf of the plaintiff vehemently opposes the said application and submits that there is no merit in the objections raised by the defendant with regard to admissibility and relevancy of the averments made in the affidavit.
9. Counsel appearing on behalf of the plaintiff places reliance on the judgment of a Coordinate Bench of this Court in Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd., 2017 SCC OnLine Del 11928. In the said case, similar objections were raised on behalf of the defendant with regard to affidavit of evidence filed on behalf of the plaintiff in a commercial suit. After analysing provisions of Order XV A, Rules 5 and 6 of the CPC, this Court held as under:
“7. A combined reading of Rules 5 and 6 of Order XVA of the CPC shows the same to have been devised with the objective of speedy disposal of the suit. Thus, while exercising powers vested in the Court under Rule 6 of Order XVA of the CPC, the said objective cannot be lost sight of.
8. If it is to be found that the objection, on the ground of affidavit by way of examination-in-chief containing irrelevant, inadmissible or argumentative material, taken is not such which prejudices the cross-examining party and which objection is more properly dealt with at the time of final hearing of the suit, the Court ought not to stall the trial and hold a mini trial, going into the respective contentions of the parties as to the relevancy and admissibility of the portions of the affidavit. Any such adjudication at an interim stage on the said aspects may lead to appeals thereagainst and which would ultimately result in delaying the disposal of suit and not expediting the hearing of the suit which as aforesaid is the objective of Rule 5 of Order XVA of the CPC.
xxx xxx xxx
“12. While first of the aforesaid judgments is running into as many as 18 pages, the second is running into as many as 37 pages. The Courts today do not have the luxury of, at the interim stage, enter into such lengthy adjudication and which orders are bound to be challenged in higher Courts by the party interested in delaying the suit. In fact, that is what has precisely happened in the present case. Owing to this application having been filed, no cross-examination of the witnesses has happened for the last over three years.
13. The Courts in the name of complying with provisions of statutes, cannot forget the objective behind the said provision in the statute and the very reason for the statute having been enacted. The same would amount to acting mechanically. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 was enacted with the objective of speedy disposal of high value commercial disputes, the disposal whereof was felt by the legislature to require a special treatment. In the name of complying with the provisions of the newly added Order XVA of the CPC, the disposal of the suits cannot be made lengthier than that of a ordinary suit.
14. The judgments cited cannot be read as the Court always being required to decide such applications on merits. The provisions cited of Order XVA only empower the Court and which power is to be exercised in aid of and not to defeat speedy disposal of commercial suits. If the contents of affidavit by way of examination-in-chief are such, allowing which to remain causes irreversible prejudice to the cross-examining party, the power will certainly be exercised. But not in a routine manner. Any decision at this stage, even of granting liberty to the applicant/defendant to not cross-examine the witness of the plaintiff with respect to any portions of the affidavit, is likely to cause more delay. It is therefore deemed appropriate to leave it open to the applicant/defendant to take a call on the said aspect and to have her objections noted before commencing the cross-examination and if of the view that the applicant/defendant is ultimately likely to succeed on the said objections, choose not to cross-examine the witness on the said aspect.”
10. I am in full agreement with the dicta of the aforesaid judgment as extracted above. All the aforesaid objections with respect to relevancy or admissibility or argumentativeness of the averments in the affidavit can be taken by the counsel for the defendant before commencement of the cross-examination and noted by the Joint Registrar, to be decided at the time of final adjudication of the suit. Counsel for the defendant would have to take a call whether to cross-examine the witness on the aforesaid portions of the affidavit objected to by the counsel for the defendant. However, the court cannot stall the trial in the suit and hold a mini trial so as to go into the respective contentions of the parties and analyse in detail the various portions of the affidavit to determine which portions of the said affidavit are inadmissible or irrelevant or argumentative. The objective of the Commercial Courts Act, 2015 is to ensure a speedy trial in commercial suits and venturing into such adjudication at an interim stage, would result in unnecessary delays in the trial.
11. The ratio of the aforesaid judgment is fully applicable to the facts of the present case. As noted above, the present suit was filed in May, 2015 and issues were framed on 16th November, 2016. Vide order dated 30th January, 2018 passed by the Joint Registrar, the suit was re-numbered as a commercial suit. The affidavit of evidence of plaintiff's witness was filed on 30th November, 2018 and the present application was filed on 5th September, 2019.
12. For a period of three years, the trial in the present suit could not commence as the present adjudication remained on the Board of the Court. The delay in adjudication of the present application may not be attributable to either of the parties and some of the delay could be attributed to the functioning of the Court being affected on account of the COVID outbreak. However, the fact remains that the said application was listed on several dates before the Court and has remained on the Board for almost three years, as a result of which the trial could not progress. If the Court were to venture into deciding all the objections taken in the application and analyse all the averments made in the affidavit, it would result in holding a mini trial in the suit. This would unnecessarily delay the adjudication of the suit.
13. There is nothing in the application or the submissions made on behalf of the defendant to suggest that any prejudice would be caused to the defendant if the entire affidavit as filed by the plaintiff's witness remains on the record of the case. As noted above, counsel for the defendant would have the liberty to get his objections noted and cross-examinee the witness accordingly and the said objections would be decided at the time of final adjudication of the case.
14. Counsel for the defendant points out that the aforesaid judgment did not take into account the provisions of Order XIX Rules 4, 5 and 6 of the CPC. In my view, no difference to the dicta in Reckitt Benckiser (supra) would be made even if the aforesaid provisions are to be taken into account. The objective of Order XIX Rules 4, 5 and 6 of the CPC, is also the speedy disposal of the suit.
15. Accordingly, in view of the dicta in Reckitt Benckiser (supra), the present application is dismissed.
16. Counsel for the plaintiff submits that without prejudice to his rights and contentions, he is willing to file a fresh affidavit withdrawing paragraphs 51 to 53 of the present affidavit dealing with argumentative/legal submissions. Let the same be done within one week from today.
17. List the matter before the Joint Registrar on 12th October, 2022 for fixing dates of trial.
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