Delhi High Court - Orders
Q.T Trading Lp vs Swastik Pipes Ltd on 10 December, 2024
Author: Subramonium Prasad
Bench: Subramonium Prasad
$~77
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2962/2012
Q.T TRADING LP .....Plaintiff
Through: Mr. Naveen Nagarjuna, Advocate
versus
SWASTIK PIPES LTD .....Defendant
Through: Ms. Ankita Kedia, Advocate
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 10.12.2024 I.A. 12678/2023
1. This application has been filed by the Plaintiff for appointment of a Local Commissioner to record the statement of Plaintiff witnesses namely, Mr Andrew Pearl and Mr Dana K. Martin, remotely, via video conferencing mechanism.
2. It is stated that both the aforesaid witnesses are senior citizens and are based in Texas, USA.
3. The application is strongly opposed by the learned Counsel for the Defendant. She states that the Plaintiff had filed I.A. No.2624/2016 seeking permission to examine and cross-examine its witnesses through video conferencing. She states that the said application was allowed vide Order dated 18.07.2016, as the Defendant had no objection to the said application. She states that this Court had permitted only the two witnesses of the Plaintiff to be examined and cross-examined through video conferencing, and that too as per the guidelines of this Court for Conducting Court Proceedings between Courts and Remote Sites. She states that the Plaintiff CS(OS) 2962/2012 Page 1 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 21/12/2024 at 04:57:55 failed to finalize the arrangement for recording the statement of its witnesses in terms of the Order dated 18.07.2016. She further states that in the meantime, the Delhi High Court (Original Side) Rules, 2018 came into force on 15.01.2018. She states that upon the implementation of the High Court Rules, 2018, the Plaintiff through its Counsel made a submission before Ld. Joint Registrar of this Court that it would move an application before the Registrar, Computer for conducting the Court Proceedings between Courts and Remote Sites as per new guidelines and accordingly IA No.3267/2018 was filed by the Plaintiff and vide Order dated 17.05.2018, Ms. Rosa Landin, the Notary Public was nominated by the Plaintiff as the Co- ordinator at the remote end for the recording of evidence of the witnesses of the Plaintiff in terms of the High Court Rules, 2018. It is stated by the learned Counsel for the Defendant that the Plaintiff again failed to finalise the arrangement for recording the statement of its two witnesses. However, the High Court rules pertaining to video conferencing stood modified vide the High Court Delhi Rules for Video Conferencing for Courts, 2021 (hereinafter, 'VC Rules') and as per Rule 5.3.1 of the VC Rules a Co- ordinator at the remote point for recording the evidence of a person overseas ought to be an official of the Indian Consulate / the relevant Indian Embassy /the relevant High Commission of India.
4. Heard the Counsels and perused the material on record.
5. A co-ordinate Bench of this Court vide Order dated 15.02.2024 in CS(OS) 2962/2012, titled as Phillips 66 Company v. Raaj Unocal Lubricants Limited, has observed as under:
"4. ........... However, this Court is of the opinion that the absence of a forceful rationale does not undermine the significant benefits and suitability of CS(OS) 2962/2012 Page 2 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 21/12/2024 at 04:57:55 adopting modern technological solutions in our judicial processes. The existing rules and frameworks for video conferencing are specifically designed to accommodate such scenarios, ensuring that justice is administered efficiently without compromising the fairness of the trial. In consideration of these factors and recognizing the technological advancements that now readily enable the recording of testimony from a distance, the Court finds merit in Mr. Rao's request. Moreover, in an era marked by significant technological advancements, the Commercial Court is committed to facilitating expeditious trials that reflect the needs and realities of today's cross border nature of legal matters. The Plaintiff's request for video conferencing, being both feasible and technically sound, aligns with this commitment and warrants support. Allowing video testimony not only spares witnesses from the inconvenience and expense of international travel but also ensures that the trial proceeds without unnecessary delay.
5. The Court has also carefully considered the logistical challenges posed by the time difference between the court point and the remote location from where the witnesses will testify. Mr. Rao has given assurances that the witnesses are prepared to accommodate the inconvenience resulting from this time difference and will make themselves available at hours that might be considered unconventional, thereby facilitating the cross-examination by the Defendant's counsel. Nevertheless, Mr. Rao's plea for scheduling considerations, aimed at minimizing the inconvenience to the witnesses, is reasonable and shall be taken into account when planning the hearing.
6. The Court acknowledges the validity of Mr. Mehta's points, especially regarding the importance of observing a witness's demeanour and the practicalities of document examination. However, the Court must CS(OS) 2962/2012 Page 3 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 21/12/2024 at 04:57:56 weigh in the broader context of judicial efficiency and the imperative to adapt to contemporary challenges without diminishing the fairness or integrity of the trial process. The apprehensions regarding the use of video conferencing for the examination and cross- examination of witnesses, would assume significance where the witnesses are vulnerable, or not tech savvy. However, in the context of the Intellectual Property Division (IPD) bench of this court, where we deliberate on matters of intellectual property rights, both the legal professionals and the parties involved are sophisticated users of technology. This bench deals with counsels who are not only accustomed to, but also proficient in the use of digital platforms for professional and personal communication. The assertion that the use of video conferencing technology might be inherently disadvantageous overlooks this crucial aspect of our proceedings.
7. An effective cross-examination is undeniably central to both civil and criminal trials, serving as a fundamental mechanism for challenging witnesses and scrutinizing evidence. The goal, then, is not to replace the traditional method but to ensure that cross- examination via video conferencing replicates the rigor and thoroughness of in-person proceedings as closely as possible. The courts must foster an environment where the reliability of testimony, whether delivered in person or remotely, remains unimpeachable. To this end, if a party harbours reservations about the efficacy of video conferencing for cross-examination, they must be afforded the opportunity to articulate their concerns and request an in-person examination, provided their reasons are compelling and justifiable. On this aspect, the only points that were time and again reiterated by counsel for Defendant were the concerns over document handling and witness demeanour assessment. Both these issues, in the opinion of the court can be easily handled and are adequately CS(OS) 2962/2012 Page 4 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 21/12/2024 at 04:57:56 provided for in the Rules.
8. As, already stated, in the present matter, both parties applying are represented by counsel who are adept at navigating technological tools and their readiness and capability further mitigates the potential drawbacks associated with remote testimony."
6. In view of the above order, the present application is allowed with the following directions:
a. Examination of PW-1 and PW-2 will be conducted by video-conferencing in terms of VC Rules, 2021. b. Ms. Kamini Lau, Retd. District and Sessions Judge, (Mob No. 9958807771), is hereby appointed as the Commissioner, and shall preside over the proceedings at Court point, for recording of evidence, and for determining the granular details regarding recording PW-1's and PW-2's testimony, in terms of the Rules. PW-1 and PW-2 will be examined on the date and time as may be fixed by the Commissioner in consultation with the Remote Point Co- ordinator.
c. The Embassy of India in Texas, USA is requested to nominate an official of the Embassy as the Remote Point Co- ordinator.
d. The Deputy Registrar (Computers) is appointed as the Co-ordinator at Court Point, with respect to technical aspects of video conferencing for the purpose of conducting evidence. e. The facility available at the Delhi High Court, for video conferencing, shall be treated as the Court Point as defined CS(OS) 2962/2012 Page 5 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 21/12/2024 at 04:57:56 under Rule 2(5) of the Rules.
f. The Co-ordinators shall be physically present at their respective Points during the recording of evidence and render all functions and perform all duties of such Coordinators under the Rules.
g. Counsel for Plaintiffs shall forward a copy of this order to the Court Commissioner and the Co-ordinators. h. The witness will be examined on the date and at the time as may be fixed by the learned Commissioner and the Remote Point Co-ordinator.
i. The encrypted master copy (with hash value) of the recording of the video conference shall be retained with the Commissioner.
j. The remuneration of the learned Commissioner is fixed at Rs.2,50,000/- for the aforesaid purpose. In case the cross examination is not conducted in five hearings, the Local Commissioner should be paid Rs. 50,000/- per each additional hearing.
k. The Embassy may also indicate the costs/charges/remuneration for the services of the Remote Point Coordinator.
l. Plaintiffs shall bear the costs and expenses executing this Commission.
m. The Commissioner is directed to forward a copy of this order to the Embassy of India (Texas, USA) and take steps necessary for the recording of evidence of PW-1 and PW-2 in CS(OS) 2962/2012 Page 6 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 21/12/2024 at 04:57:56 terms of this order. He will also forward a copy of the VC Rules, 2021 to the Embassy and the Remote Point Co-ordinator. n. All relevant provisions of the Rules must be strictly adhered to.
7. List for completing the formalities and fixing of modalities ancillary thereto, before the Joint Registrar on 16.01.2025.
8. Given the critical role that differing time zones will play in this case, the Court hereby grants the Local Commissioner the authority and responsibility to determine the timing of proceedings. This determination shall be made at the Local Commissioner's discretion, following thorough consultation with all involved stakeholders to ensure the most accommodating and efficient schedule for all parties.
9. The application is disposed of.
SUBRAMONIUM PRASAD, J DECEMBER 10, 2024 Rahul CS(OS) 2962/2012 Page 7 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 21/12/2024 at 04:57:56