Gujarat High Court
Galatea Ltd vs Diyora And Bhanderi Corporation on 21 November, 2019
Author: A.J.Desai
Bench: A.J.Desai
C/CS/2/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL SUIT NO.02 OF 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO.1 of 2019
In
CIVIL SUITS NO.2 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO.2 of 2019
In
CIVIL SUITS NO.2 of 2017
=========================================
GALATEA LTD & 1 others Versus DIYORA AND BHANDERI CORPORATION & 13 others ========================================= Appearance :
MR S.N.SOPARKAR, SENIOR ADVOCATE WITH MR TARUN KHURANA, ADVOCATE WITH MR RISHABH NIGAM, ADVOCATE WITH MR MANAN A SHAH for the Defendants No.1,10,11,2,3,4,5,6,7,8,9. MR YATIN OZA, SR. ADVOCATE WITH MR NEERAJ MALHOTRA, SR. ADVOCATE WITH MR SANDEEP GROVER, ADVOCATE WITH MR ISHWAR UPNEJA, ADVOCATE WITH MS PANKHURI BHARDWAJ, ADVOCATE WITH MS VARA GAUR, ADVOCATE WITH MR DILIP B RANA for the Plaintiff Nos.1, 2 NOTICE SERVED BY DS for the Defendant Nos.12,13,14 ========================================= CORAM : HONOURABLE MR.JUSTICE A.J.DESAI Date : 21/11/2019 CAV ORDER BELOW APPLICATIONS EXH.167 AND 169
1. The present Civil Suit has been filed under the provisions of the Patent Act, 1970, with various types of decree including permanent injunction against defendants restraining them from infringing the suit patent as well as for damages etc. On finalizing certain proceedings in the present suit, an oral order came to be passed on 19.2.2019 by the coordinate Bench (Hon'ble Mr. Justice C.L. Soni as he then was) by which issues were framed.
2. This Court, simultaneously, referred the matter to the District Judge for recording the deposition of witnesses of plaintiff as well as defendant, relying upon the Gujarat High Court Rules, 1993. Accordingly, papers of the suit were sent to the District Page 1 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020 C/CS/2/2017 CAV ORDER Judge, Vadodara for recording the depositions of witnesses and production of documents.
3. By an order dated 12.3.2019, the learned Judge, Commercial Court, Vadodara passed an order below Exh.74 appointing a retired Principal District Judge as Court Commissioner to record the deposition of witnesses of the parties. Accordingly, the Court Commissioner (retired Principal District Judge) recorded the depositions of witnesses examined by both the parties and permitted to produce documents at the instance of the plaintiff as well as defendant's witnesses. As per the order passed by this Court on 19.2.2019 and recorded in the order of the learned Judge, Commercial Court dated 12.3.2019, the Commissioner accepted the documents and permitted to produce the same, at various stages though the parties have raised objection.
4. On completion of recording of all the witnesses examined by both the parties, the matter was sent back to this Court for adjudication.
5. The defendant submitted an application Exh.167 on 8.7.2019 and requested the Court to decide the objections raised by the parties during the recording of the evidence before proceeding with the arguments. Similarly, on the same day, another application Exh.169 was submitted by the defendant requesting the Court to decide on admissibility and exhibiting of all the documents on record in view of the objections raised before proceeding with the arguments, grant due opportunity to prove a document by calling of witness or otherwise in case a document is prima facie found to be not duly proved.
6. When these applications listed for hearing, the original plaintiff has raised objection of entertaining such applications on Page 2 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020 C/CS/2/2017 CAV ORDER several grounds. The first ground raised by the original plaintiff is with regard to waiver of right by defendant himself about deciding the admissibility of the documents at the final hearing stage and secondly on the ground that the Court can decide the admissibility of the document/s at the time of arguments and deciding the suit as per the law laid down by the Hon'ble Supreme Court and by several other Courts.
7. Mr. Yatin N. Oza, learned Senior Counsel as well as Mr. Neeraj Malhotra, learned Senior Counsel assisted by learned advocates Mr. Sandeep Grover, Ishwar Upneja and Ms. Pankhuri Bhardwaj and Ms. Vara Gaur and Dilip B. Rana appearing for the plaintiffs who has raised objection with regard to maintainability and / or entertaining the application Exh.167 and 169 is concerned, would submit that when the deposition of witnesses were being recorded by either party, the other party had raised objection with regard to admissibility, however, have agreed before the Commissioner that with regard to admissibility and/or genuineness of the documents, shall be decided by this Court during the final hearing of the suit. By taking me through the consent recorded by the Court Commissioner, he would submit that when both the parties have agreed that the genuineness and admissibility of the documents shall be decided in accordance with law, at the time of final hearing, now the defendant has filed the present two applications to delay the proceeding of the suit which is otherwise required to be decided at the earliest in view of the fact that the suit is filed under the provisions of the Patent Act.
8. In support of his submissions, Mr. Oza has relied upon the decision of the Hon'ble Supreme Court in the case of B. L. Sreedhar and Ors. v. K. M. Munireddy (Dead) and Ors., 2003 (2) SCC 355. He has also relied upon the decision of the Hon'ble Supreme Court in the case of Seth Hiralal Patni v. Sri Kali Page 3 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020 C/CS/2/2017 CAV ORDER Nath, AIR 1962 SC 199. By relying upon the unreported decision of the Hon'ble Supreme Court in the case of Vasu P. Shetty v.
M/s. Hotel Vandana Palace and others delivered in Civil Appeal No.4679 of 2014 on 22.4.2014, he would submit that it has been held by the Hon'ble Supreme Court that if the party has waived his right or any provision which is mandatory, subsequently he cannot claim any such right. He has also relied upon the decision of the Hon'ble Supreme Court in the case of GM, Sri Siddeshwara Cooperative Bank Limited and another v. Shri Ikbal and others, delivered in Civil Appeal Nos.6989 to 6990 of 2013. He, therefore, would submit that all the objections which have been raised at the time of recording the deposition of witnesses with regard to admissibility of a document can be adjudicated while the suit is being argued by the learned advocates.
9. As far as the second contention with regard to the procedure adopted in the Civil Suit about giving tentative exhibit numbers to the documents, can be decided at the time of passing the judgment, Mr. Oza has relied upon the decision of the Hon'ble Supreme Court in the case of Bipin Shantilal Panchal v. State of Gujarat and others, 2001 (3) SCC 1. Mr. Oza would further submit that the Bench of three Hon'ble Judges of the Apex Court has categorically held that whenever any objection is raised while recording the deposition of any witness about the admissibility of any material or item, the Trial Court is bound to make a note of such objection and is bound to give tentative exhibit numbers only and can subsequently decide the admissibility of such document or material in accordance with law. By taking me through relevant paragraphs 13, 14, 15 and 16 of the said decision, Mr. Oza would submit that the present applications have been filed with ulterior motive to prolong the proceedings of the suit. He would submit that by relying upon the decision in the case of Bipin Shantilal Page 4 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020 C/CS/2/2017 CAV ORDER Panchal v. State of Gujarat and others (Supra), several judgments have been delivered by the coordinate Bench of this Court. By relying upon a decision dated 6.4.2018 passed by the coordinate Bench of this Court (Coram :- Hon'ble Mr. Justice J.B. Pardiwala) in Special Criminal Application No.2349 of 2018 in the case of State of Gujarat v. Ashokkumar Lavjiram Joshi, he would submit that the Court while delivering the judgment and appreciating the arguments advanced by the learned advocates can deal with the document proved, disproved and not proved as defined under Section 3 of the Indian Evidence Act. At any stage, the Court can reject the admissibility of any irrelevant or inadmissible document and, therefore, there is no need to accept these applications and decide admissibility of each document at this stage.
10. Similarly, Mr. Oza has also relied upon the decision dated 10.12.2018 passed by the coordinate Bench of this Court (Coram :- Hon'ble Ms. Justice Sonia Gokani) in Special Criminal Application No.10500 of 2018 in the case of Sanjay Parbatbhai Chauhan v. Central Bureau of Investigation which was delivered by relying upon the decision in the case of Bipin Shantilal Panchal v. State of Gujarat and others (Supra), he would submit that when the objection was raised with regard to admissibility of the document and the document was not executed, the party could have availed another mode to prove the document as provided under the Evidence Act. When there is completion of recording of deposition of witnesses on both the sides and all the documents are produced on record, the Court while hearing the suit can certainly decide the admissibility of such documents and no separate order is required to be passed. Mr. Oza has also relied upon the decision dated 17.6.2010 passed by the coordinate Bench of this Court (Coram :- Hon'ble Mr. Justice Anant S. Dave) in Special Criminal Application No.392 of 2010 in the Page 5 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020 C/CS/2/2017 CAV ORDER case of Abid Hussen Abdulkarim Shaikh v. State of Gujarat and another. By taking me through paragraph 11 of the said judgment, he would submit that the Court has relied upon the decision in the case of Bipin Shantilal Panchal v. State of Gujarat and others (Supra) and has held that the Court can decide the admissibility of the document. By taking me through paragraph 4 of the said judgment, he would submit that even with regard to admissibility of the document, can be raised at superior Court. Hence, such applications which have been filed to delay the suit proceedings may be rejected.
11. On the other hand, learned Senior Counsel Mr. S.N. Soparkar assisted by learned advocates Mr. Tarun Khurana, Rishabh Nigam and Manan Shah appearing for the original defendants would submit that the objections raised with regard to entertaining the application submitted by the defendants may not be accepted in view of peculiar facts of the case and the decisions relied upon by the coordinate Bench accepting the submission made by a party to decide the admissibility of a piece of document or material before the final argument as well as with regard to so- called contention of the waiver by the defendant while accepting that the admissibility of the document shall be decided at the final hearing stage.
12. Mr. Soparkar would further submit that several documents which were produced by the either parties were tentatively exhibited since it was directed by this Court while referring the matter to Principal District Judge to record the evidence and, therefore, while putting note with regard to objections raised by the defendant, tentative numbers were given. He would further submit that unless the Court examines the documents at this stage and may not exhibit certain documents, the defendant can prove the documents by another mode of leading Page 6 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020 C/CS/2/2017 CAV ORDER evidence. He would further submit that the ratio laid down in the decision of Bipin Shantilal Panchal v. State of Gujarat and others (Supra) would not be applicable in the present case since the same was delivered in the criminal proceedings and the trial was prolonged. He has relied upon the decision of this Court in the case of KSL Realty and Infrastructural Industries Limited v. Surat District Cooperative Spinning Mills Limited, (2009) 3 GLH 501 and would submit that this Court while considering the decision in the case of Bipin Shantilal Panchal has held that the admissibility of the document are not required to be considered at the time of judgment and if such practice is adopted, the party would be deprived of his right to lead evidence on those documents which were not exhibited while delivering the judgment.
13. Mr. Soparkar has also relied upon the decision of this Court in the case of Gujarat Pipavav Port Limited v. Indo Dutch Business Development Centre through Matthew P. H. & 1, 2016 SCC Online Gujarat 4494. He has also relied upon the unreported decision of this Court in the case of Ramniklal Shivlal Bavishi v. Tulsidas Chakubhai Gorvadiya and others, delivered on 6.8.2015 in Special Civil Application No.4465 of 2014 and would submit that the admissibility of the documents are required to be considered before the judgment is delivered.
14. As far as the submission made by learned advocate appearing for the plaintiff with regard to waiver of a right by a party, Mr. Soparkar has relied upon the decisions of the Hon'ble Supreme Court in the case of P. Dasa Muni Reddy v. P. Appa Rao, (1974) 2 SCC 725, Galada Power and Telecommunication Limited v. United India Insurance Company Limited and another, (2016) 14 SCC 161 and would submit that mere failing of a party to raise objection does not lead to inference of a waiver. He, therefore, would submit that the Page 7 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020 C/CS/2/2017 CAV ORDER application be allowed and the Court may be pleased to hear the parties about the admissibility of each document before proceeding with the suit.
15. By an oral order dated 19.2.2019, this Court directed the District Judge to record the evidence. Paragraph 3 of the said order is relevant with regard to the issue involved at this stage which reads as under :-
"1. ... ... ...
2. ... ... ...
3. The Gujarat High Court has made separate rules under the Act, which are incorporated under chapter XXXIX of the Gujarat High Court Rules, 1993 and as per Rule 26 thereof, the High Court, instead of recording evidence by itself in all proceedings under the Act or referred to it under the Act, may transmit the record of the suit after framing the issues to either City Civil Court, Ahmedabad or the District Court as it deems fit and direct such Court to record oral evidence, including the evidence of Scientific Advisor, as provided in Rule 22 thereof and to transmit recording of evidence after certifying the same as evidence in the suit as record of the suit to this Court (High Court). In view of such provision made in Rule 26, the Court deems it appropriate to direct the District Judge, Vadodara either to record evidence by himself or to nominate any other learned Judge for such purpose. Therefore, for the purpose of recording of evidence in the suit, the Registry is directed to immediately transmit the record of the suit to the District Court, Vadodara. The Registry of this Court shall see to it that the record of the suit reaches the District Court, Vadodara within TEN DAYS from Page 8 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020 C/CS/2/2017 CAV ORDER today. On receipt of the record of the suit, learned District Judge shall decide as to whether he would himself record evidence in the suit or would like to nominate any other learned Judge for such purpose. If learned District Judge decides to nominate any other learned Judge for such purpose, he shall make such order within a period of ONE WEEK from the date of receipt of the record of the suit form the Registry of this Court. Thereafter, concerned nominated learned Judge shall record evidence in the suit. For such purpose, the parties or their advocates shall remain present before concerned learned Judge on first date when the suit is placed before him for the purpose of recording of evidence and shall submit the list of their witnesses. Learned Judge shall then fix time frame / dates for recording of evidence and shall see to it that the evidence of the parties and their witnesses is recorded within a period of SIX WEEKS from the date he is nominated by learned District Judge for recording of evidence in the suit. It is made clear that learned Judge shall not entertain any application for any purpose from any of the parties nor shall entertain any objection concerning recording of evidence and if any objection is raised by any of the parties during recording of the evidence, he shall make separate note of such objection but he shall ensure that anyhow recoding of evidence in the suit is completed within the time frame, i.e. within SIX WEEKS from the date he is nominated by learned District Judge."
16. Later part of paragraph 3 of the above referred order makes it clear that this Court had directed the Court Commissioner not to entertain any application for any purpose nor shall entertain Page 9 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020 C/CS/2/2017 CAV ORDER any objection concerning recording of evidence. It is also further made clear that if any objection is raised by the parties during the recording of the evidence, the Commissioner shall make separate note of such objection. It appears from the depositions of the witnesses recorded by the Commissioner that objections were raised by both the parties on several occasions. However, parties have agreed that the genuineness and admissibility of respective documents shall be decided by this Court during the final hearing of the suit. The relevant paragraph recorded during the recording of evidence is reproduced herein above :-
"At this stage the counsel for the parties have mutually agreed that all the documents sought to placed on record along with the evidence of the witnesses may be taken on record subject to the relevant witness proving the genuineness and admissibility of the respective documents in accordance with law which shall be decided by the Hon'ble High Court during the final hearing of the matter."
17. Accordingly, though at several places, the objections were raised, it was left for this Court exercising its original jurisdiction of the present suit to decide the admissibility of the document produced by both the parties. The Commissioner has rightly given tentative numbers of those documents with regard to which the objection was raised by the either parties and more particularly by the defendants.
18. Since this Court is exercising its original jurisdiction and itself would have recorded the deposition of the witnesses of both the parties, it is bound to follow the decision rendered by the Hon'ble Supreme Court and particularly in the case of Bipin Page 10 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020 C/CS/2/2017 CAV ORDER Shantilal Panchal v. State of Gujarat and others (Supra) about the admissibility of a document. In paragraphs 13 to 16 of the said decision, the Hon'ble Supreme Court in an uncertain terms has held that if an objection is raised by a party, the Court instead of deciding the issue, shall give the tentative number and proceed with the case by further recording of the evidence etc. and during the course of argument, can decide the admissibility of a document or a material which is produced on record. Paragraphs 13 to 16 of the said decision read as under :-
"13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re- canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift Page 11 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020 C/CS/2/2017 CAV ORDER progress of trial proceedings, must be recast or re- moulded to give way for better substitutes which would help acceleration of trial proceedings.
14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)
15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of Page 12 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020 C/CS/2/2017 CAV ORDER the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
16. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence."
19. This Court being exercising its original jurisdiction and being a trial Court is bound to follow the decision.
20. Apart from the above facts, if a party is unable to prove the documents in case of objection raised by the other one, may make endeavour to lead different types of evidence to prove the said documents when the trial is on. In such circumstances, the Court while hearing the arguments of the parties and deciding a case can examine the evidence led by a party in support of his document and may either reject or admit the document.
21. In the present case, when this Court had appointed the Court Commissioner to record the evidence by its above referred direction, certain documents of defendant were not admitted/ exhibited pursuant to the objections raised by the plaintiff, could have lead the evidence in different mode which may have strengthen his case compelling the Court to accept the document and give final Exhibit Number, that means that the defendant was successful in establishing the case put forward by him during the Page 13 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020 C/CS/2/2017 CAV ORDER course of trial. When the recording of evidence of witnesses by both the parties are over, documents are taken on record, the only recourse available to the parties to get the documents proved by pointing out the factual aspects of the matter as well as the law laid down under the provisions of the Evidence Act.
22. The decisions relied upon by learned Senior Counsel Mr. Soparkar with regard to the stage of accepting the document are not applicable to the facts of the present case when the defendant was fully aware that this Court who is exercising its original jurisdiction is going to examine the validity and admissibility of a document or material at the time of final hearing. If the applications submitted by the defendants are to be accepted, then the Court has to deal with admissibility of each document, otherwise such exercise is going to be undertaken by the Court while hearing the parties with regard to the issues framed in the present suit.
23. Though the case was argued at length with regard to the waiver of right of a party etc., the same have not been dealt with since the Court has dealt with several judgments of this Court which has relied upon the decision of Bipin Shantilal Panchal v. State of Gujarat and others (Supra). Hence, the objections raised by the plaintiff about the acceptance of applications Exh.167 and 169 is accepted and accordingly, applications Exh.167 and 169 are hereby rejected.
24. The suit is fixed for hearing on 23.12.2019.
Sd/-
[A. J. DESAI, J.] SAVARIYA Page 14 of 14 Downloaded on : Wed Jan 15 22:48:31 IST 2020