Full Text
HIGH COURT OF DELHI
CS(COMM) 124/2021 & I.A. 6911/2023
JUMEIRAH BEACH RESORT LLC ..... Plaintiff
Through: Mr. Anirudh Bakhru, Mr.Raghav Vig, Ms. Sejal Tayal, Ms.T.Chandrashekhar and Mr.Umang
Tyagi, Advs.
Through: Ms. Shwetasrere Majumder, Ms. Diva Arora Menon, Ms. Lalita Sowmya
Priya and Mr. Rohan Krishna Seth, Advs.
ORDER (ORAL)
11.05.2023
JUDGMENT
1. This is an application filed by the plaintiff under Order XI Rule 1(5) of the Code of Civil Procedure, 1908 (CPC) as amended by the Commercial Courts Act, 2015, to take on record a pen drive, containing the video clip of an interview (“the subject video”, hereinafter) of Mr. J.K. Jain (Chairman and Managing Director of the defendant group of Companies), stated to have been uploaded on YouTube on 4th October 2019 by a third party.
2. The application has been seriously opposed by Ms. Shwetasree Majumder, learned Counsel for the defendants, who has also filed a formal reply to the application.
3. I have heard Mr. Anirudh Bakhru, learned Counsel for the plaintiff and Ms. Shwetasree Majumder, learned Counsel for the defendants at length on the present application.
4. In order to adjudicate on this application, it would be advantageous to proceed chronologically.
5. The present suit CS(Comm) 124/2021 was filed by the plaintiff before this Court on 15th March 2021 and objections were removed on 18th March 2021. It is the submission of Mr. Bakhru that the subject video was seen by his client only on 18th March 2021, as a result of which it could not be placed on record with the documents filed with the plaint.
6. According to the list of dates filed in the present application, on 19th March 2021, when the present suit came up for preliminary hearing before this Court, the plaintiff had alluded to the subject video, but the defendants objected to the reference to the video unless they were provided a copy thereof. On this aspect, learned Counsel are ad idem.
7. A replication came to be filed, by the plaintiff, to the written statement filed by the defendants on 26th April 2021, along with a list of documents. S. Nos. 4 and 5 of the list of documents filed by the plaintiff alongwith the replication were as under:
5. Video interview given by Mr.J.K. Jain alongwith the transcript Plaintiff Printout Affidavit under Section 65B of the Indian Evidence Act, 1872 Plaintiff 28-30
8. Mr. Bakhru points out that the extracts from the YouTube interview of Mr. J.K. Jain, figuring at S. No. 4 of the aforesaid list of documents, was filed in the form of a screenshot from the YouTube and the Facebook webpages of the defendants. Apropos serial no. 5 of the list of documents, which was stated to be the video interview given by Mr. Jain alongwith the transcript thereof, Mr. Bakhru points out that, as, at that time, the second wave of the COVID-19 pandemic was at its peak, and physical filing of documents was not being permitted, the plaintiff could only place on record a YouTube link as well as an MP[4] link separately created by the plaintiff. Both these links, according to the plaintiff, resolved to the aforesaid interview of Mr. J. K. Jain. The relevant page, reflecting the manner in which this was filed, as filed with the list of documents on 26th April 2021, may be reproduced thus:
9. At this point, one may deal with two submissions which were advanced by Ms. Majumder, apropos the aforenoted links provided by the plaintiff.
10. Ms Majumder’s first submission is that the manner in which the video interview was filed with the list of documents could not be treated as a proper filing of electronic evidence, which was required to be in accordance with Rule 24 in Chapter XI of the Delhi High Court (Original Side) Rules, 2018 (hereinafter the “Original Side Rules”), which reads thus:
11. I am unable to accept the submission. This Court cannot be oblivious of the fact that, during the COVID-19 pandemic, the formal rules and regulations relating to filing of documents was dispensed with by the Court. Ms. Majumder does not dispute Mr. Bakhru’s contention that, as on 26th April 2021, it was not possible for the plaintiff to file the video clip of the subject interview strictly in accordance with Rule 24 in Chapter XI of the Original Side Rules or that the clip of the interview, in the manner in which it was filed, was the only manner in which the clip could be placed on record as on that date. In these circumstances, I am not inclined to hold that the manner of filing of the video interview, by the plaintiff, on 26th April 2021, with its list of documents, was not in accordance with law or the procedure applicable in that regard.
12. A second submission advanced by Ms. Majumder is that neither the YouTube link nor the MP[4] link, provided with the list of documents and filed on 26th April 2021 was accessible. She claims to have raised this objection during the proceedings which took place in the present case before this Court. However, she confesses that she is unable to remember the exact date when this objection was raised. I have perused the order sheets passed by this Court and there is no reflection, at any point of time, that an objection was raised, by the defendants, that the YouTube and the MP[4] links, filed as Document 4 along with the list of documents filed with the replication on 26th April 2021, were not accessible. Indeed, if this was actually the position, the Court is bemused as to why the defendants, in a case such as the present, would not have put that objection down in writing, in some form or the other, given the fact that the document was filed as far back as on 26th April 2021. I am, therefore, unable to accept the submission of Ms. Majumder that the plaintiff was ever been informed that the links provided as Document 5 with the list of documents on 26th April 2021, were not active or were not accessible.
13. On 18th May 2021, written submissions were filed by the plaintiff in the present proceedings. Mr. Bakhru has drawn my attention to para 36(b) of the said written submissions, which reads thus: “36.(b) Interview of Mr. J. K. Jain: In the interview (uploaded on YouTube on 04/10/2019), Mr. J.K. Jain statest hat the shape of his building has been inspired by the Burj Al Arab. Extracts from YouTube/transcript filed @ Pg 198-203 of Compilation-B”
14. Thus, even on 18th May 2021, the plaintiff had placed reliance on the subject video.
15. Ms. Majumder seeks to point out that, in the aforesaid note of arguments dated 18th May 2021, the plaintiff had admitted that the YouTube link, forming part of Document 5 as filed on 26th 2021, was not accessible and had alleged that the link had been taken down by the defendants. The submission, to my mind, really begs the question. The fact remains that, till date, there is no material to indicate that the defendants, at any point of time, informed the plaintiff that the MP[4] link placed on record as Document 5 with the list of documents on 26th April 2021, was inactive or not accessible.
16. The defendant filed its written submissions by way of response to the submissions dated 18th May 2021 filed by the plaintiff. Mr. Bakhru points out that, in the said written submissions, in para 6.5, it was specifically alleged that a perusal of the subject video revealed that the video was doctored. Mr. Bakhru submits that, therefore, it was clear that even as on 26th May 2021, when the written submissions were filed by the defendant, the video was accessible and had in fact been seen by the defendants. Ms. Majumder’s contention is, on the other hand, that the said submission was made because the video was actually played in Court during the course of hearings on various occasions. Be that as it may, the fact of the matter remains that, even in the reply dated 26th May 2021, filed by way of response to the written submissions dated 18th May 2021 of the plaintiff, the defendants never raised an objection that the MP[4] link, which had been filed by the plaintiff on 26th April 2021 as part of Document 5, was not accessible.
17. On 23rd November 2022, affidavit of admission and denial was filed by the defendants. Mr. Bakhru points out that, even in the said affidavit of admission and denial, while dealing with S. Nos. 4 and 5, particularly S. No. 5 of the documents filed by the plaintiff on 26th April 2021, there was no objection, from the defendant, to the effect that the MP[4] link was not accessible. Rather, qua the subject interview, the defendant’s stand was that the interview was “denied for want of knowledge, authenticity and relevance” as also because it was not supported by the requisite declaration under Sections 65A and 65B of the Indian Evidence Act, 1872. This, too, makes it difficult for the Court to accept the stand of Ms. Majumder that the inaccessibility of the MP[4] link which had been filed by the plaintiff as Document 5 on 26th April 2021 was ever raised as an issue by the defendants.
18. Mr. Bakhru submits that the MP[4] link became inactive on the expiry of one year from the time it was posted and submits that, if anything, the defendant could at the highest, be said to have been remiss in failing to note the fact that the link had been inactive precisely on the expiry of the said period of one year. Nonetheless, he submits that, when the plaintiff came to notice that the link had become inactive, IA 19885/2022 was filed by the plaintiff in November 2022 to place the pen drive relating to the said video on record.
19. To a query from the Court, Mr. Bakhru responds that there could be no question of disputing the authenticity of the said video, as the entire transcript of the video had been filed as Document 5 with the list of documents filed with the replication on 26th April 2021. In any event, he submits that the defendant would always be at liberty to raise any objection that it may choose to raise regarding the genuineness, authenticity or veracity of the video and that this cannot be a relevant consideration when deciding as to whether the video should be permitted to be taken on record.
20. IA 19885/2022 came up for hearing on 27th March 2023, on which date, as there were certain deficiencies in the application, the application was permitted to be withdrawn with liberty to refile the application. It is thus that the present application has come to be filed, for permission to take on record the pan drive containing the subject video.
21. I do not see why the Court should refuse the request of the plaintiff to take the aforesaid pen drive on record. My reasons, for so holding, may be enumerated thus:
(i) An MP[4] link to the subject video was admittedly filed with the list of documents filed with the replication as far back as on 26th April 2021. At that time, strict compliance with the mandate of Rule 24 in Chapter XI of the Original Side Rules was not possible. Ms. Majumder too, does not dispute that the manner in which the video was filed at that point of time, was in accordance with the protocol being followed by this Court in the wake of the second wave of the COVID-19 pandemic. As such, it cannot be said that there is, in fact, any delay in placing the aforesaid video on record in the present proceedings.
(ii) Even otherwise, the orders passed by the Supreme Court in Re: Cognizance for Extension of Limitation Suo Motu Writ Petition (C) 3/2020[1] extended the time available for filing pleadings or placing documents on record or for any other purpose, till 28th February 2022. The plaintiff had, therefore, with it, time until 28th February 2022, both for filing the replication as well as for placing the documents therewith on record.
(iii) There is nothing to substantiate Ms. Majumder’s contention that the MP[4] link provided as Document 5 with the list of documents on 26th April 2021 was non-functional, much less that any objection in that regard was raised by the defendant either during the course of hearings before this Court or in any other manner written or oral.
(iv) The video was relied upon, by the plaintiff, in its written submissions filed on 18th May 2021. In its reply dated 26th May 2021, too, the defendant never raised a contention that it was unable to access the video or that the MP[4] link filed as Document 5 on 26th April 2021 was not working. Rather, it chose to dispute the correctness and authenticity of the video on merits.
(v) Even in its affidavit of admission and denial of documents, filed on 23rd November 2022, there is no whisper of any objection, by the defendant, regarding accessibility of the subject video via the MP[4] link which was filed on 26th April
2021. In fact, till date, there is nothing to indicate that any such objection was ever raised by the defendant at any point of time.
22. Given these facts, Ms. Majumder had sought to place reliance on the decision of this Bench in Anita Chhabra v. Surender Kumar[2], in which this Court had held that negligence of Counsel could not constitute sufficient cause within the meaning of Order XI Rule 1(5) of the CPC. The said submission cannot apply in the present case at all, for the simple reason that it cannot be said that there was, in fact, any negligence on the part of the plaintiff in the present case. The 2022 SCC OnLine Del 3089 plaintiff had, in fact, placed the subject interview on record on 26th April 2021, with the list of documents filed with the replication. The manner in which the interview was placed on record was in accordance with the protocol which was being followed by this Court at that point of time. The MP[4] link has expired with passage of time. The plaintiff merely seeks to place, on record, the said link, by way of a pen drive. The issue before the Court is only, therefore, whether, now that physical filings are permitted, and the MP[4] link which was provided on 26th April 2021 is now inactive, the plaintiff should, or should not, be permitted to place the subject interview on record in the form of a pen drive.
23. While it is true that, in commercial matters, a stricter adherence to procedural mandates is expected, in the present case, the Court is not required to travel down that path. Given the aforesaid facts, and keeping in mind the fact that an MP[4] link to the subject video had been provided as far back as on 26th April 2021, the Court does not see any reason, now that the MP[4] link has expired by efflux of time, for the video interview not to be permitted to be taken on record in the form of a pen drive. Mr. Bakhru is correct in his submission that the question of veracity of the interview, and as to whether it was the same interview which was placed on record via the MP[4] link on 26th April 2021 may be easily verified form the transcript of the video which was separately filed on the same date as Document 5. In any event, taking the pen drive on record does not, in any manner, compromise the right of the defendants to object to the video, its veracity, its genuineness or its admissibility or relevance in evidence, at the appropriate stage.
24. In view of the aforesaid, the application is allowed.
25. The pen drive filed with the application is permitted to be taken on record.
26. The Court clarifies once again that it has not expressed any opinion on the evidentiary value, or relevance, of the video interview which is contained on the pen drive. All rights of the defendants shall, in that regard, remain reserved and open to be urged at the appropriate stage.
C.HARI SHANKAR, J MAY 11, 2023