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Adidas Ag vs Keshav H Tulsiani & Ors on 25 May, 2022

Author: Jyoti Singh

Bench: Jyoti Singh

                          $~25
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +     CS(COMM) 582/2018
                                ADIDAS AG                                 ..... Plaintiff
                                              Through: Mr. Ranjan Narula, Ms. Shashi Pratap
                                              and Ms. Deeksha Singh, Advocates.
                                              versus
                                KESHAV H TULSIANI & ORS                   ..... Defendants
                                              Through: Mr. L.B. Rai and Mr. Kartik Rai,
                                              Advocates.
                                CORAM:
                                HON'BLE MS. JUSTICE JYOTI SINGH
                                                    ORDER

% 25.05.2022 I.A. 8362/2022 (under Order 18 Rule 4 CPC, by Plaintiff)

1. Present application has been preferred on behalf of the Plaintiff seeking the following reliefs:-

"a) allow the present application and allow the Plaintiff to lead evidence of its witness Ms. Florence Wong through Video Conferencing at Hongkong;

b) pass an order/directions for cross-examination of the Plaintiff's witness keeping in view the "High Court of Delhi Rules for Video Conferencing for Courts 2020"."

2. It is averred in the application that Plaintiff's witness Ms. Florence Wong, who is to be cross-examined, is based in Hong Kong. On account of the current situation created on account of the COVID-19 Pandemic in Hongkong, it is difficult for the witness to travel to India as there are stringent quarantine requirements as well as travel restrictions in Hong Kong.

3. In view of the aforesaid, permission is sought to record the evidence of Plaintiff's witness, through video conferencing.

4. Issue notice.

5. Mr. L.B. Rai, learned counsel accepts notice on behalf of the Defendants and vehemently opposes the application on the ground that no case for cross-examination of the witness, through video conferencing, is made out. He further submits that he will be unable to effectively cross- examine the Plaintiff's witness through video conferencing as demeanour of the witness during cross-examination is important besides the fact that various documents would be required to be put to the witness.

6. Learned counsel appearing on behalf of the Plaintiff, on the other hand, relies on the judgment of a Division Bench of this Court in FAO(OS) 416/2015 in International Planned Parenthood Federation (IPPF) v. Madhu Bala Nath, decided on 07.01.2016, relevant paras of which are as under, to contend that with the development of technology, Courts have to use procedure which facilitates in dispensing speedier justice:-

"4. We are unable to accept the view taken by the learned Single Judge for rejecting the application. The learned Single Judge has erred in not noticing the development of law and technology that has taken place over the years. The Code is a procedural Code and procedures are subservient to justice. With the development of law and technology, the Courts have to use procedure, which facilitates the Courts in dispensing speedier justice. If a facility is available to the Court for the purposes of expediting the trial then every opportunity is to be taken by the Court to make use of such technology so as to further the process of dispensation of justice. The learned Single Judge, in the impugned order, has taken a very narrow view of the matter. Merely because a witness CS(COMM) 582/2018 Page 2 of 4 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:07.06.2022 16:32:12 is travelling over the world and/or may have the financial resources to travel to India does not necessarily imply that the Court must insist upon the witness personally coming to the Court for the purpose of deposing before the Court and/or her cross-examination.

5. There may even be a situation where the witness may be available within the city where the Court is located, however, on account of the nature of work or physical condition of the witness, it may not be possible or viable for the witness to travel to Court. The role of a witness is paramount in the justice system of any country. By deposing in a case, they assist the court in discovering the truth. According to Bentham, "witnesses are the eyes and ears of justice". Witnesses are the real backbone of the proceedings. It is the testimony of the witnesses that enables the Court to arrive at the truth. Witnesses have to be treated with due respect and are not to be put to any inconvenience merely because they agree to testify. It is common knowledge that when a witness travels to Court for the purpose of deposition, a witness has to spend several hours in Court and at times major part of the time spent in Court is in waiting for the case to reach and the proceedings to commence. In these circumstances, to insist on the witness travelling to Court and waiting for hours may not be judicious.

xxx xxx xxx

14. Procedures have been laid down to facilitate dispensation of justice. Dispensation of justice entails speedy justice and justice rendered with least inconvenience to the parties as well as to the witnesses. If a facility is available for recording evidence through video conferencing, which avoids any delay or inconvenience to the parties as well as to the witnesses, such facilities should be resorted to. Merely because a witness is traveling and is in a position to travel does not necessary imply that the witness must be required to come to Court and depose in the physical presence of the court."

7. Learned counsel for the Plaintiff also draws the attention of the Court to para 17 of the judgment wherein the Division Bench also laid down the procedure which was required to be followed for examination through video conferencing.

8. In view of the aforesaid judgment, the application is allowed, permitting cross-examination of Ms. Florence Wong through video conferencing in accordance with "High Court of Delhi Rules for Video Conferencing for Courts, 2020" and keeping in mind the procedure detailed in the above judgment.

9. Registry is directed to take necessary and requisite steps to ensure that the electronic record is transmitted well in time so that the cross-examination is not deferred or delayed, as and when the date is fixed for cross-examination before the learned Local Commissioner.

10. Learned counsels appearing on behalf of the parties submit that they will approach the learned Local Commissioner for fixing the date(s) for cross-examination and thereafter due intimation shall be given to the Registry for compliance of the above directions.

11. Application stands disposed of.

JYOTI SINGH, J MAY 25, 2022/sn CS(COMM) 582/2018 Page 4 of 4 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:07.06.2022 16:32:12